STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND HARD COPY DOCUMENTS

WILLIAM H. ALSUP, District Judge.

I. PURPOSE

This Order will govern discovery of electronically stored information ("ESI") and hard copy documents in this case as a supplement to the Federal Rules of Civil Procedure, this Court's Guidelines for the Discovery of Electronically Stored Information, and any other applicable orders and rules.

II. COOPERATION

The parties are aware of the importance the Court places on cooperation and commit to cooperate in good faith throughout the matter consistent with this Court's Guidelines for the Discovery of ESI.

III. LIAISON

The parties have identified liaisons to each other who are and will be knowledgeable about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or have access to those who are, knowledgeable about the technical aspects of e-discovery, including the location, nature, accessibility, format, collection, search methodologies, and production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer about ESI and to help resolve disputes without court intervention.

IV. PRESERVATION

The parties have discussed their preservation obligations and needs and agree that preservation of potentially relevant ESI will be reasonable and proportionate. Consistent with the parties' obligations under the Federal Rules of Civil Procedure, the parties will meet and confer regarding whether there are any issues involving preservation, such as categories of information that are not reasonably accessible or cannot reasonably be preserved because of undue burden or cost. Each party will disclose categories or sources of responsive information that it believes should not be preserved (and explain with specificity the reasons to support such a belief) because of undue burden or cost, or relevance considering the proportionality factors in the Federal Rules.

V. SEARCH, IDENTIFICATION OF RESPONSIVE DOCUMENTS, AND COLLECTION

The parties shall meet and confer in an effort to conduct discovery in the most efficient and effective manner. Specifically, the parties will attempt in good faith to come to an agreement on search and culling methods used to identify responsive information. Within 7 days of the Start Date,1 the parties will begin to meet and confer regarding the scope of discovery, including custodians, custodial and non-custodial sources, date ranges, file types, and whether the party plans to use search terms to cull documents for review. The parties agree that the grounds for objections should be supported by specific information. The parties will not seek court intervention without first attempting to resolve any disagreements in good faith, based upon all reasonably available information.

A. Sources

Within 7 days of the Start Date, the parties will meet and confer regarding the custodial and non-custodial sources from which the party is collecting and producing documents. The parties will continue to meet and confer regarding sources as appropriate. The parties will, where applicable, identify and describe sources likely to contain responsive information that a party asserts should not be searched or is not reasonably accessible and will explain the reasons for such assertions. The parties reserve the right, upon reviewing the initial production of documents, and conducting other investigation and discovery, to request that files from additional custodial or non-custodial sources be searched and meet and confer regarding such request, subject to the Federal Rules of Civil Procedure.

At the time of production, the producing party will provide the names of the custodians from whom the documents were collected and produced, and will in their production cover letter explain the relevant roles of these custodians and dates they were in those roles, if such information has not already been provided. The parties agree that this information will satisfy the requirements in paragraph 13 of the Supplemental Order to Order Setting Initial Case Management Conference in Civil Cases Before Judge William Alsup (DE 41).

B. Identification of Custodians

Within 7 days of the Start Date, each party shall provide a written list identifying persons whose files are likely to contain unique documents and ESI responsive to the opposing parties' discovery requests, subject to the Federal Rules of Civil Procedure. This will include a description of each proposed custodian's job title and a brief description of such person's relevant responsibilities (including relevant dates of employment by the applicable party). The parties reserve the right, upon reviewing the initial production of documents and conducting other investigation and discovery, to request that files from additional custodians be searched and meet and confer regarding such request.

C. Easily Segregable Documents

The parties will work in good faith to identify categories of documents that are easily identifiable and segregable that may be produced as responsive without the use of search terms or other agreed upon advanced search methodology (e.g., analytics, predictive coding, technology-assisted review). If the producing party decides that potentially responsive ESI shall be searched through the use of search terms, the parties agree to follow the process identified below and the parties shall meet and confer regarding any proposed deviation.

D. Search Terms

The producing party shall use best efforts to provide a list of proposed search terms, which shall contain all search terms that it believes would lead to the identification of responsive documents from sources to be subject to search term application, within 21 days of the Start Date. To the extent reasonably possible, search terms will be crafted with input from the custodians in order to identify appropriate nomenclature, code words, etc. The identification of search terms will be subject to the Federal Rules of Civil Procedure.

Within 7 days of receipt of the proposed search terms, the receiving party shall provide any additional search terms that they believe are necessary to identify responsive documents. Within 14 days of receiving the additional search terms, the parties shall meet and confer regarding the proposed search terms. The parties will use best efforts to agree to a set of search terms within 45 days of receipt of the originally proposed search terms.

If disputed terms still exist at the end of the meet and confer process, the parties will submit those terms to the Court in the form of a joint discovery letter with a discussion of the relevance and/or burden associated with those search terms.

If discovery reveals additional terms that the receiving party believes will lead to the identification of other unique responsive material, the party requesting the additional terms will provide them to the producing party. Such a request will be subject to the Federal Rules of Civil Procedure. Within 14 days of receiving the additional search terms, the parties shall meet and confer regarding the additional proposed search terms. The parties will use best efforts to agree to the set of additional proposed search terms within 30 days of receipt. Duplicate documents captured by the additional terms need not be reproduced.

During the meet and confer process, the parties may provide reasonable information related to search term hits, quality control testing, and/or sampling results, if appropriate.

If disputed terms still exist at the end of the meet and confer process, the parties will submit those terms to the Court in the form of a joint discovery letter with a discussion of the relevance and/or burden associated with those search terms.

E. Technology-Assisted Review

To reduce the costs and burdens of document review and production, any party may use predictive coding or technology-assisted review for the purpose of culling the documents to be reviewed or produced. Any party using predictive coding or technology-assisted review ("TAR") to cull the documents to be reviewed agrees that as early as reasonably practicable (and in any event prior to using such tools) it will disclose to the opposing parties the type of technology it will be using and a general description of the TAR methodology that will be used.

VI. PRODUCTION OF HARD COPY DOCUMENTS

A. Format

Hardcopy documents should be scanned as single-page, Group IV, 300 DPI TIFF images with an .opt image cross reference file and a delimited database load file (i.e., .dat). The database load file should contain the following fields: "BEGNO", "ENDNO", "PAGES", and "CUSTODIAN." The documents should be logically unitized (i.e., distinct documents shall not be merged into a single record, and single documents shall not be split into multiple records) and be produced in the order in which they are kept in the usual course of business. Multi-page OCR text for each document should also be provided as a separate text file, to the extent reasonably practicable. The OCR software shall maximize text quality over process speed. Settings such as "auto-skewing" and "auto-rotation" should be turned on during the OCR process, to the extent reasonably practicable. If unitizing hard copy documents or providing OCR text presents an undue burden, or if the burden exceeds the benefit with respect to certain sets of hard copy documents, the producing party is not obligated to unitize and provide OCR text, but the producing party will disclose that fact to the receiving party.

These production specifications apply to documents which are to be produced in the first instance in this action. To the extent any party is required to re-produce documents in this action that were originally produced in other actions, the parties have not agreed to reformat those earlier productions in accordance with the production specifications in this Order.

VII. PRODUCTION OF ESI

A. Format

The parties will produce ESI in single-page, black and white, TIFF Group IV, 300 DPI TIFF images with the exception of spreadsheet type files, presentation type files such as PowerPoint files, source code, audio, and video files, which shall be produced in native format, unless they contain privileged information or information subject to any other applicable protection. If documents that the parties have agreed to produce in native format need to be redacted and cannot be redacted in TIFF in a readable manner, the parties will meet and confer regarding how to implement redactions while ensuring that proper formatting and usability are maintained. If a party has reason to believe the redacted TIFF image is not reasonably usable, the parties agree to meet and confer regarding redactions for select native documents or categories of documents and to accommodate reasonable requests for producing documents in native format. TIFFs will show any and all text and images which would be visible to the reader using the native software that created the document, to the extent reasonably practicable. For example, TIFFs of email messages should include the BCC line. For each document, a text file containing the extracted text shall be provided along with the TIFF, when such text exists. The filename for the text file should be identical to the first image of the corresponding document, and the text file should be linked directly to its corresponding record in the metadata load file using the TEXTLINK field. For documents that contain redactions, the parties may use OCR text to create the text file. Parties are under no obligation to enhance an image beyond how it was kept in the usual course of business.

Each image should have a unique file name. For single-page TIFFs, the unique file name will be the Bates number of the page. For native files, the unique file name will be the Bates number of the document. Bates numbers shall be unique IDs with a prefix that can be readily attributed to the producing party. Bates numbers shall be sequential within a document.

Any document produced in native format shall be produced with a single page Bates-stamped TIFF image slip-sheet stating the document has been produced in native format and noting the document's confidentiality designation. Each native file should be named according to the Bates number it has been assigned, and should be linked directly to its corresponding record in the load file using the NATIVELINK field. To the extent that either party believes that specific documents or classes of documents, not already identified within this protocol, should be produced in native format, the parties agree to meet and confer in good faith.

B. Family Relationships

Family relationships (i.e., the association between attachment(s), or "child(ren)", and the "parent" document) should be preserved. Where feasible, responsive non-privileged family members shall be produced together and bear sequential Bates numbers. Non-responsive attachments to responsive parent documents may be withheld from the production or redacted in full, provided that the responsive families are Bates numbered prior to production and a load file is provided that contains the following metadata fields for the files withheld as nonresponsive: "BEGNO", "ENDNO", "BEGATTACH", "ENDATTACH", "FILENAME", "TITLE", "AUTHOR", "CREATEDATE", "LASTMODDATE", and "NONRESPONSIVE" (a field populated by the producing party that indicates that the document was removed as non-responsive). The parties agree that they will not object to a document's completeness under Fed. R. Evid. 106 on the ground that an attachment is missing where a non-responsive attachment has been withheld from production according to this provision.

C. De-Duplication

Each party may remove exact duplicate documents based on MD5 or SHA-1 hash values at the family level. Attachments should not be eliminated as duplicates for purposes of production, unless the parent email and all attachments are also duplicates. Parties agree that an email that includes content in the BCC or other blind copy field shall not be treated as a duplicate of an email that does not include content in those fields, even if all remaining content in the email is identical. De-duplication may be done across the entire collection (global de-duplication) and the All Custodians field will list each custodian, separated by a semi-colon, who was a source of that document. Should the All Custodians metadata field produced become outdated due to rolling productions, an overlay file providing all the custodians for the affected documents will be produced prior to substantial completion of the document production. The parties may review documents using email threading without restraint, but if a party seeks to use email thread suppression to remove responsive documents from production, the parties will meet and confer prior to use and with sufficient time to raise the issue with the Court, if necessary.

D. Metadata

All ESI will be produced with a delimited, database load file (i.e., .dat file) that contains the metadata fields listed in Table 1, attached hereto, where reasonably available. Each party shall use one normalized time zone for all metadata pertaining to time and date.

E. Embedded Objects

The parties agree to meet and confer over the inclusion or exclusion of embedded files from the production.

F. Compressed Files Types

Compressed file types (i.e., .ZIP, .RAR, .CAB, .Z) should be decompressed so that the lowest level document or file is extracted, where reasonably feasible.

G. Structured Databases

To the extent a response to discovery involves production of electronic information stored in a database, the producing party will provide a general description of what information is in the database. The parties shall meet and confer regarding the format for database productions, where necessary.

H. Encryption

To maximize the security of information in transit, any media on which documents are produced should be encrypted. The producing party shall transmit the encryption key or password to the receiving party, under separate cover, contemporaneously with sending the encrypted media.

I. Re-Productions

The production specifications in this order apply to documents which are to be produced in the first instance in this action. To the extent any party is required to re-produce documents in this action that were originally produced in other actions, the parties have not agreed to reformat those earlier productions in accordance with the production specifications in this Order.

VIII. PHASING

The parties may discuss phasing discovery to prioritize certain custodians or sources, where reasonably feasible and where such phasing may result in making the scope of discovery more reasonable and proportionate.

IX. DOCUMENTS PROTECTED FROM DISCOVERY

(a) Protection against waiver of privilege or other protection from discovery shall be governed by the Stipulated Protective Order. The parties do not waive the right to conduct a full and comprehensive review for privilege and other protections.

(b) Communications involving litigation counsel (both outside counsel and in-house counsel responsible for the litigation, including their staff or consultants) that post-date the filing of the complaint need not be placed on a privilege log.

(c) Documents produced with redactions that identify the basis of the redaction (e.g., attorney-client privilege, work-product protection) need not be placed on a privilege log. If a party redacts a document, the accompanying metadata should so indicate.

(d) The parties agree that where emails are combined in an email string, the metadata from the top email in the string will be provided on the log and the metadata for the other emails, lower down in the email string, need not be included in the log entry for that string. The parties also agree, however, that non-inclusive emails in a thread that are identified as privileged will be included on the log (along with the metadata from only the top email in the non-inclusive strings) and the log will contain an identifier for the email thread group. That is, if a party threads emails for purposes of privilege review, that party will provide the following for emails being withheld on the basis of privilege or protection: (i) a full log entry for the most inclusive email(s) in the thread, which will include the metadata for the most inclusive email (i.e., metadata for the top email in the string) and a description of the basis for the privilege or protection for all privileged or protected emails in that string; (ii) the "TO", "FROM", "CC", "BCC", "SUBJECT", AND "RECEIVEDDATE" metadata for any lesser-included emails being withheld on the basis of privilege or protection; and (iii) a thread identifier.

(e) The parties reserve the right to discuss other methods of logging data if the procedures described in this ESI protocol impose an undue burden.

(f) The parties will use best efforts to provide the substantial majority of their privilege logs no later than three months before the cut-off date for non-expert discovery. The parties are not required to provide privilege logs on a rolling basis.

(g) Paragraph 16 of the Supplemental Order to Order Setting Initial Case Management Conference in Civil Cases Before Judge William Alsup (DE 41), applies to the parties' preparation of privilege logs to the extent it is not inconsistent with this Order or an agreement reached between the parties.

X. OBJECTIONS AND RIGHTS PRESERVED

Nothing in this Order shall be interpreted to require the production of information that is non-discoverable under the Federal Rules of Civil Procedure, including irrelevant information, or relevant information protected by the attorney-client privilege, work-product doctrine, or any other applicable privilege or immunity. Nothing in this Order precludes any party from seeking cost shifting. The parties do not waive any objections as to the production, discoverability, admissibility, or confidentiality of ESI or hard copy documents through this Order. All objections to the discoverability or admissibility of any document or data are preserved and may be asserted at any time.

Nothing in this Order waives the right of any party to petition the Court for an order modifying its terms upon sufficient demonstration that compliance with such terms is unreasonably burdensome or that the production of particular documents in a different format or with different metadata fields is reasonably necessary, provided, however, that counsel for such party must first meet and confer with the counsel for the opposing parties and the parties shall use reasonable best efforts to negotiate an exception from or modification to this Order prior to seeking relief from the Court.

XI. MODIFICATION

This Stipulated Order may be modified by a Stipulated Order of the parties or by the Court for good cause shown.

IT IS SO STIPULATED, through Counsel of Record.

IT IS SO ORDERED.