Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc. 224 F.R.D. 614 (D. Colo. 2007) By: Sara Alsaleh Case starts on page 136 of the book!

Parties Cache La Poudre Feeds, LLC Sells and manufactures animal feed in Colorado Sells and manufactures animal feed in Colorado Since March of 1991 it used its PROFILE trademark to sell products in several different states Since March of 1991 it used its PROFILE trademark to sell products in several different states In 2001 the defendants started using Cache’s PROFILE trademark to represent their Land O’Lakes rebranded products. In 2001 the defendants started using Cache’s PROFILE trademark to represent their Land O’Lakes rebranded products. Land O’Lakes, Inc. International company that produces and manufactures a wide variety of products Land O’Lakes Farmland Feeds is at particular issue in this case Rebranded 400 of their products (36 different brands of animal feed products) into one brand, under one trademark, in 2001.

Facts Cache La Poudre Feeds Ms. Anderson-Siler is Cache’s outside counsel Ms. Anderson-Siler is Cache’s outside counsel Counsel contacted the defendants on April 4, Counsel contacted the defendants on April 4, Claims April 4, 2002 as trigger date for duty to preserve. Claims April 4, 2002 as trigger date for duty to preserve. Sent follow-up letter on June 5, 2002 asking defendants to try to resolve dispute without litigation and put Land O’Lakes on notice of Cache’s trademark. Sent follow-up letter on June 5, 2002 asking defendants to try to resolve dispute without litigation and put Land O’Lakes on notice of Cache’s trademark. Sent Response letter to June 3, 2003 phone call stating they “would be willing to listen to what Land O’Lakes might propose” Sent Response letter to June 3, 2003 phone call stating they “would be willing to listen to what Land O’Lakes might propose” Filed initial complaint on February 24, Filed initial complaint on February 24, Sent preservation letter on March 5, Sent preservation letter on March 5, Land O’Lakes Mr. Peter Janzen is Land O’Lakes’ General Counsel Began shipping its rebranded products in January of Adopted an automatic destruction program in May of s older than 90 days were automatically deleted. Call June 3, 2003 to discuss the possibility of register the PROFILE mark Has 400 back-up tapes for the years Continued destruction policy after filing of the initial claim Counsel was not familiar with document management procedures Procedural History: This case was brought before the Court on Cache La Poudre Feeds, LLC’s Motion for Relief from Discovery Violations that were committed by Land O’Lakes, Inc. and Land O’Lakes Farmland Feed, LLC.

Relevant Rules Rule 26(b)(1) – Expansive Discovery Rule 26(b)(1) – Expansive Discovery Rule 26(b)(2)(B) – Undue Burden Rule 26(b)(2)(B) – Undue Burden Rule 26(g)(2) – “Reasonable Inquiry” Requirement Rule 26(g)(2) – “Reasonable Inquiry” Requirement

Analysis 1. Are the missing documents or materials relevant to an issue at trial? Yes – relevance of ESI created after 2001 that address development and implementation of Land O’Lakes’ PROFILE brand is self-evident. Yes – relevance of ESI created after 2001 that address development and implementation of Land O’Lakes’ PROFILE brand is self-evident. 2. Was Land O’Lakes under a duty to preserve the records at issue? Yes – but on February 24, 2004 not April 4, Yes – but on February 24, 2004 not April 4, Any request for sanctions based on actions prior to February 24, 2004 is denied. Any request for sanctions based on actions prior to February 24, 2004 is denied. 3. Are sanctions appropriate? Yes - $5,000 + costs of court reporter and transcript fees association with Mark Janzen’s June 15, 2006 deposition. Yes - $5,000 + costs of court reporter and transcript fees association with Mark Janzen’s June 15, 2006 deposition.

Conclusion Counsel for Land O’Lakes was required to conduct a reasonable investigation to identify and preserve relevant materials to the case Counsel for Land O’Lakes was required to conduct a reasonable investigation to identify and preserve relevant materials to the case No requirement to conduct systematic keyword searches (from Zubulake V) No requirement to conduct systematic keyword searches (from Zubulake V) Does not automatically include information on inaccessible back- up tapes Does not automatically include information on inaccessible back- up tapes On-going obligation to ensure that the client has provided all responsive information. On-going obligation to ensure that the client has provided all responsive information. A litigation hold by itself is not enough to satisfy Rule 26(g)(2). A litigation hold by itself is not enough to satisfy Rule 26(g)(2). Sanctions Sanctions $5,000 to be paid to Cache La Poudre to reimburse some of the legal fees and expenses that were paid in taking Land O’Lakes’ counsel’s deposition and also in preparing this Motion for Relief $5,000 to be paid to Cache La Poudre to reimburse some of the legal fees and expenses that were paid in taking Land O’Lakes’ counsel’s deposition and also in preparing this Motion for Relief Must reimburse Cache La Poudre for court reporter fees and transcript costs associated with the June 15,2006 deposition of Mark Janzen Must reimburse Cache La Poudre for court reporter fees and transcript costs associated with the June 15,2006 deposition of Mark Janzen

eDiscovery Issues 1. When does the duty to preserve documents arise? 2. What must be preserved? 3. How can counsel ensure preservation of the relevant documents? 4. When is destruction considered spoliation?

Discussion Questions 1. If Cache La Poudre had been more explicit about their intent to commence litigation in their telephone call to Land O’Lakes on April 4, 2002 would the Court have considered this the trigger date? 2. What if the hard drives of the employees that left shortly after the commencement of litigation were put on backup tapes instead of being destroyed after they left? Would the court still have imposed sanctions on Land O’Lakes? If so, would the sanctions have been different?