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In Re: Fresh and Process Potatoes Antitrust

February 2, 2011

IN RE: FRESH AND PROCESS POTATOES ANTITRUST PRESERVATION ORDER LITIGATION


The opinion of the court was delivered by: B. Lynn WINMILLChief U.S. District Court Judge

THIS DOCUMENT RELATES TO: ALL ACTIONS.

In accordance with Paragraph 3.3 of Case Management Order No. 1 and upon consideration of the Parties' submissions with respect to the same, and to further the efficient administration of this matter,

NOW THEREFORE IT IS HEREBY ORDERED that the following shall govern the preservation of documents and electronically stored information:

I. SCOPE OF ORDER

This Order does not address, limit, or determine the relevance, discoverabi1ity or admission into evidence of any Record (as defined below), regardless of whether the Record is required to be preserved pursuant to the terms of this Order.*fn1 This Order does not expand any record preservation requirements under the Federal Rules of Civil Procedure ("Rules"), and it does not limit any protection provided by Rule 37(f). The Parties do not waive any objections as to the production, discoverability, or confidentiality of documents and electronically stored information ("ESI") preserved under this Order. This Order does not address the Parties' respective responsibilities for the costs of retrieving or producing documents or ESI that may be subject to discovery.

This Order shall apply equally and identically to all parties in all actions in In Re: Fresh and Process Potatoes Antitrust Litigation (4:10-MD-2186-BLW).

II. DEFINITIONS

A. "Parties" shall mean all named Plaintiffs, both Direct and Indirect, in these actions and all named Defendants over which the Court has exercised personal jurisdiction. "Party" shall mean any individually named Plaintiff or named Defendant over which the Court has exercised personal jurisdiction.

B. "Records" shall have the same meaning as "documents" as defined in Federal Rule of Civil Procedure 34(a) that fall within the scope of Federal Rule of Civil Procedure 26(b). Records shall also include "electronically stored information," as contemplated by the Federal Rules of Civil Procedure.

C. "Backup Systems" refers to computer systems used to store electronic information on magnetic tapes or other media to permit recovery of the information in the event of a disaster such as equipment failure.

D. "Backup Media" refers to magnetic tapes or other media onto which Backup Systems store such electronic information.

E. "Preservation" shall mean taking reasonable steps to prevent the destruction, alteration, deletion, shredding, incineration, wiping, or theft of Records.

F. "Cache File" shall mean a copy of data created by a computer system to a temporary location or "cache," which allows frequently used data to be accessed more quickly by the computer.

G. "Cookie File" shall mean a file created by web browsers on the user's hard drive, which is used to identify the user and the user's references when accessing websites.

H. "Snapshot" shall mean a copy of active data files, on active storage media or on a backup media, as of a certain point in time, which preserves the data associated with the files copied as it existed on the original media.

I. "Network Accessible Storage Device" shall mean any hard drive or other data storage device accessible to multiple users remotely over a computer network.

J. "Local Hard Drive" shall mean any hard drive or other device that stores data from a personal computer (whether a desktop or laptop) but that is not part of a network.

III. RECORDS REQUIRED TO BE PRESERVED

A. Custodians

1. Within thirty (30) days of the entry of this Order, each Party shall provide to all other Parties a list of individual and departmental custodians that are most likely to possess the Party's relevant Records ("Custodians"), including, for the period from January 1, 2004 through the present, a brief description of each identified individual's title and responsibilities and a brief description of each identified department. With this list, each Party shall also provide additional information sufficiently detailed to enable an opposing Party to evaluate that Party's list of Custodians, including but not limited to a Party's organization chart(s) sufficient to show the company's structure for the above- defined period to the extent any such chart exists. Any other Party may dispute such designations within thirty (30) days of receipt of the above information or request additional information that may be needed to evaluate the sufficiency of a Party's list of custodians. If the Parties are unable to resolve their disputes after good faith negotiations, then any party seeking to add names to the list of Custodians must promptly file a motion with the Court to seek its ruling with respect to the scope of this Order. If no such motion is filed within seventy-five (75) days of the entry of this Order, then the list of Custodians shall be considered complete. Each Party's list of Custodians, as either agreed to by all other Parties or otherwise ordered by the Court, shall be appended to this Order as "[Insert Party Name]'s Attachment 1 to Preservation Order" within fifteen (15) days after the parties agree on the list of Custodians or the Court's order on any objections to the Custodian list.

2. At any time during the case, any Party, upon a showing of good cause, may petition the Court to add names to the list of Custodians, subject to the earlier agreements of Paragraph III.A. The Record(s) in possession of a Custodian added pursuant to this Paragraph will not be considered retroactively to have been Retained Records, as defined by Paragraph III.C., and will only be considered Retained Records going forward from the date an order is entered adding the Custodian's name to Attachment 1.

3. Only the Records in the possession, custody and/or control of the Custodians listed in Attachment 1 are required to be preserved, unless otherwise specifically exempted from preservation by this Order or other Orders of this Court. The Records in the possession, custody and/or control of the Custodians listed in Attachment 1 that are not otherwise exempted from preservation by this Order are referred to as "Retained Records" in this Order. The Parties must take reasonable steps to preserve Records during the process set forth in Paragraph III.A., which obligation may be satisfied by notifying Custodians that the Parties expect to list on Attachment 1 their duties and obligations with respect to preserving Retained Records under the terms of this Order. ...


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