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Small v. University Medical Center of Southern Nevada

United States District Court, D. Nevada

March 14, 2014

DANIEL SMALL, et al., Plaintiffs,


PEGGY A. LEEN, Magistrate Judge.

This Order memorializes the oral rulings made at the informal E-Discovery Special Master hearing held on March 10, 2014.

The court has been conducting at least monthly status, case management and dispute resolution conferences in this case since June 25, 2013. Counsel entered into a stipulated Electronically Stored Information Protocol on March 18, 2013 (Stipulation Dkt # 77), which the court approved in an Order (Dkt #79) entered March 20, 2013. Although the stipulation was drafted and proposed by former counsel for Defendant UMC, UMC has repeatedly claimed that it has not been able to comply with its terms, and that the terms of the protocol and order are too onerous. As a result, the parties have had multiple, prolonged ESI disputes. UMC has yet to produce responsive ESI discovery in accordance with the stipulated ESI protocol its counsel proposed. After multiple hearings and orders to correct the problems the court finally indicated at a hearing on January 21, 2014 that if UMC had not resolved its ESI collection and production problems by the following hearing the court would appoint a Special Master. See Minutes, (Dkt # 143).

At the February 11, 2014 status and dispute resolution conference the court found that UMC had yet to comply its ESI discovery obligations and indicated that a Special Master would be appointed. The court gave counsel two weeks to meet and confer in an effort to agree on a mutually acceptable candidate to serve as Special Master. The parties submitted two names and the court selected Daniel Garrie. See Order (Dkt # 149). The parties having had notice and an opportunity to be heard, the Court now APPOINTS as Special Master Daniel Garrie 6506 3rd Ave, Suite C, Seattle WA 98117.

This appointment is made pursuant to Fed.R.Civ.P. 53 and the inherent authority of the Court. As Rule 53 requires, the Court sets out below the duties and terms of the Special Master and reasons for appointment, and ORDERS the Special Master to "proceed with all reasonable diligence." Fed.R.Civ.P. 53(b)(2).

The Special Master is hereby directed to proceed with all reasonable diligence to perform the duties set forth herein, as well as any additional duties which the Court in its discretion may provide by further order.


1. The Special Master is directed to resolve the parties' multiple ESI discovery disputes discussed in the Joint Status Report (Dkt. #148).
2. The Special Master shall undertake an investigation that is limited to the custodians identified by the parties in prior proceedings. In performing this investigation, the Special Master will be allowed to engage and direct additional resources as he may reasonably deem necessary.
The investigation will generate a report that the Special Master will file with the Court. The report will address the scope of the collection and the processes used to perform the collection. It will also include a detailed chain-of-custody for all evidence items collected to date by Defendants. It will also provide the following information: (i) a detailed description of the computer hardware (e.g., laptop, tablets, desktops), systems, networks, applications, and software used, owned, or controlled by University Medical Center of Southern Nevada ("UMC") from July 1, 2010 to the January 1, 2013; (ii) an accounting of all electronic mail applications, personal and office applications, and messaging applications, and how they were used by the identified custodians; (iii) a list of computers or devices, computer networks, or other hardware that may have been used to generate, receive, or store any data relevant to the subject matter of this litigation; (iv) a detailed description of all backups performed on computer systems and the identity of any backups currently in existence, including their physical locations, their custodians, their dates of creation, contents, and media types. The report will also identify any backup media and data that has been erased, copied over, destroyed, or otherwise altered since the commencement of this litigation.
3. The Special Master shall issue specific findings of fact concerning whether UMC withheld, deleted, destroyed or permitted to be destroyed, information, documents and electronically store information ("ESI") that it was legally obligated to maintain in connection with this lawsuit, and whether any such information, documents or ESI that formerly existed either in usable or reasonably retrievable form was withheld, deleted or overwritten by UMC. Should the Special Master determine that UMC did not retain and safeguard responsive documents, information or ESI in usable or reasonably retrievable form, then the Special Master shall undertake a further investigation to determine whether such documents, information or ESI are responsive and can be recovered or reconstituted, and recover such responsive ESI.
4. The Special Master shall examine the adequacy of UMC's efforts to preserve and retain information, documents and ESI related to the claims at issue in this lawsuit, including but not limited to the adequacy of UMC's document retention policies and procedures, the existence of any directives to UMC employees to keep and maintain documents, including ESI, and/or not to destroy documents including ESI (i.e., litigation hold notices or orders), and any other affirmative preservation efforts made by UMC (collectively "UMC's retention practices"). The Special Master shall make specific findings concerning, among other things: a timeline detailing UMC's retention practices; a determination as to the adequacy of UMC's retention practices and the litigation hold notice or order; a finding as to whether the scope of UMC preservation efforts were reasonable and in good faith; and the extent to which UMC or its counsel audited document and data retention compliance, or otherwise took affirmative steps to ensure all relevant evidence was preserved.
5. The Special Master shall examine whether UMC's actions in defending this case contributed in any way to the alleged failure to maintain relevant evidence, including but not limited to an examination of Defendant's pre-litigation communications about the scope of their claims, and the date that Defendant first became aware of potential document preservation issues.
6. The Special Master shall examine whether UMC's current preservation efforts are reasonable and comply with UMC ...

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