GEORGE A. O'TOOLE, Jr., District Judge.
The Court ORDERS as follows:
1. This Order supplements all other discovery rules and orders. It streamlines Electronically Stored Information ("ESI") production to promote a "just, speedy, and inexpensive determination" of this action, as required by Federal Rule of Civil Procedure 1.
2. This Order may be modified in the Court's discretion or by agreement of the parties
3. A party's meaningful compliance with this Order and efforts to promote efficiency and reduce costs will be considered in any requested cost-shifting determinations.
4. The Parties recognize the importance the Court places on cooperation and therefore commit to cooperate in good faith throughout the matter, including with regard to discovery obligations and attempts to resolve discovery disputes.
5. ESI will be part of the discoverable material in this case and the parties agree to cooperatively exchange in reasonably usable form as described below non-privileged discoverable material and use reasonable and proportional efforts to identify, preserve, collect, and produce relevant information.
6. Each party will take reasonable and good faith steps to prevent the loss, destruction, alteration, overwriting, deletion, shredding, incineration, or theft of any document or data the party knows, or reasonably should know, falls within the scope of Fed. R. Civ. P. 26(b)(1). This includes all documents and data in the party's possession, custody, or control, except as noted in the following paragraph.
7. Having considered the claims and defenses in this action, the parties agree the following categories of ESI need not be preserved absent a showing of good cause or relevance to the claims and defenses in this litigation:
8. Absent a showing of good cause, no party need restore any form of media upon which backup data is maintained in a party's normal or allowed processes, including but not limited to backup tapes, disks, SAN, and other forms of media, to comply with its discovery obligations in the present case. A party's loss or deletion of reasonably accessible data subsequent to the existence of a duty to preserve shall constitute good cause.
9. Paper documents shall be produced as TIFF images (consistent with the specifications in paragraph 11(a) below). The production shall include the appropriate Load/Unitization files which will, at a minimum, contain the following fields (described in TABLE 1):
10. In scanning paper documents, distinct documents shall not be merged into a single record, and single documents shall not be split into multiple records (i.e., paper documents should be logically unitized).
11. Absent agreement of the parties or further order of this Court, the following parameters shall apply to ESI productions:
12.
13.
14. The parties shall cooperate to identify relevant document custodians, proper search terms, and proper time frames for ESI and Edoc requests.
15. A party may object to a request for production of ESI that is not reasonably accessible because of undue burden or cost.
16. If asserting an objection to an ESI or Edoc request, the responding party shall inform the requesting party of the electronic information it is willing to produce, the nature and location of the information claimed to not be reasonably accessible, the reason(s) why the requested production would impose an undue burden or is unreasonably costly, and afford the requesting party an opportunity to propose an alternative means of compliance with the request, including payment of all or part of the costs of retrieving the information.
17. The parties shall work with one another in good faith to resolve any issues, disputes or objections that arise in connection with electronic discovery issues before raising such matters with the court. Issues shall be raised promptly, in writing, and the parties shall have good faith discussions to attempt to resolve the matter. The parties shall use their best efforts to raise any objections or other requests related to a production within thirty (30) days of receipt of that production. In any event, the parties must raise any objections or other issues sufficiently in advance of the close of discovery to permit good faith negotiations to resolve the matter and briefing of any related motion such that the court has a reasonable time to rule thereon prior to the close of discovery.
18. Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a privileged or work product protected ESI or email is not a waiver in the pending case or in any other federal or state proceeding.
19. Except as expressly stated, nothing in this Order affects the parties' discovery obligations under the Federal or Local Rules.
SO ORDERED.
IT IS HEREBY STIPULATED AND AGREED by and among the parties to this action, through their undersigned counsel, as follows:
1. This Stipulated Protective Order ("Protective Order") shall apply to all information, documents and things produced or disclosed through discovery in this action, whether by a party or a non-party, including, without limitation, deposition testimony, answers to interrogatories, documents and things produced, information obtained from inspection of premises or things, and answers to requests for admission (collectively, "Discovery Material").
2. Any party producing or disclosing Discovery Material in this action that the party reasonably and in good faith believes to contain trade secrets or other confidential or proprietary information entitled to protection under Rule 26(c) of the Federal Rules of Civil Procedure may designate such Discovery Material as "Confidential" or "Highly Confidential" (all such material to be referred to as "Confidential Material") as specified below.
3. All Discovery Material exchanged during the course of these proceedings, whether or not designated as Confidential Material, shall be used solely for purposes of this action and for no other purpose.
4. Discovery Material shall not be designated as Confidential Material if:
5. Discovery Material designated as Confidential Material shall be marked as follows:
6. If possible, the designation of Confidential Material shall be made prior to, or contemporaneously with, production or disclosure. In the event that the producing party fails to designate any Discovery Material as CONFIDENTIAL or HIGHLY CONFIDENTIAL, the producing party may subsequently make such a designation by notifying counsel for all other parties in writing as soon as practicable. After receipt of such notification, the parties to whom disclosure has been made will treat the Discovery Material as CONFIDENTIAL or HIGHLY CONFIDENTIAL, depending on its designation.
7. Any Discovery Material marked CONFIDENTIAL may be disclosed only to:
8. Any Discovery Material marked HIGHLY CONFIDENTIAL may be disclosed only to:
9. Under no circumstance may Confidential Material be disclosed to any person or entity other than those identified above without the prior written consent of the producing party. In the event that Confidential Material is disclosed at a deposition, the disclosing party shall have the right to exclude from attendance at said deposition any person other than the deponent and those persons identified in paragraphs 7 and 8 above.
10. In the event that a party receiving Discovery Material designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL disagrees with the propriety of that designation, the parties will first try in good faith to resolve such dispute on an informal basis. If the parties are unable to resolve their dispute informally, either party may present the dispute to the Court for judicial resolution, and the Court may then determine whether the information should be designated CONFIDENTIAL or HIGHLY CONFIDENTIAL. All information whose designation as CONFIDENTIAL or HIGHLY CONFIDENTIAL is disputed shall be treated as CONFIDENTIAL or HIGHLY CONFIDENTIAL, depending on its designation, until such time as the Court determines or the parties agree otherwise.
11. Before any person identified in paragraph 7(b) or 8(b) above is given access to Confidential Material, the person shall be provided with a copy of this Protective Order, shall confirm that he or she has no financial interest in or a business or personal relationship with any of the parties, and shall sign the agreement to be bound by the terms of this Protective Order attached hereto as Exhibit 1. Counsel of record shall retain all such signed writings until the conclusion of this action. Such writings shall, upon request, be available for inspection by the other parties.
12. Nothing in this Protective Order shall be construed to prevent outside counsel to any party from providing advice to his or her client based on any Discovery Material produced by any other party, including Discovery Material designated as HIGHLY CONFIDENTIAL, provided that counsel shall not disclose HIGHLY CONFIDENTIAL documents or other materials, or the contents thereof, without the consent of the producing party.
13. If it is necessary to file any Confidential Material under seal in connection with proceedings in this action, the party wishing to file any such material, prior to or simultaneously with filing, shall on each occasion move, pursuant to Local Rule 7.2, for an order of impoundment. The Confidential Material shall, to the extent permitted by order of the Court, be filed with the Court in sealed envelopes, in accordance with Local Rule 5.4(G)(1)(a)-(f), marked with the caption of the case and the notation "SEALED DOCUMENT: CONTAINS CONFIDENTIAL INFORMATION — TO BE OPENED ONLY AS DIRECTED BY THE COURT," or as otherwise directed by the Court.
14. As an alternative to the procedure set forth in paragraph 14 above, a party may file with the Court a document that has been designated as Confidential Material with those pages containing Confidential Material omitted or with the Confidential Material redacted. Any redaction shall be indicated by placing the designation "REDACTED — CONFIDENTIAL INFORMATION" in the place(s) on the writing where the Confidential Material would have appeared. The document may then be filed with the Court without seeking impoundment. If the document was designated as Confidential Material by another party, the party seeking to file the document shall seek the permission of the designating party to file the document in partial or redacted form.
15. The use of any Confidential Material at any hearing or trial in this action shall be subject to further order of the Court.
16. Nothing contained in this Protective Order shall affect any right of any party or non-party to make any objection to any interrogatory, request for production of documents or other discovery request, or to any question at a deposition, or to withhold documents or information from discovery based on privilege or any ground other than the confidential or proprietary nature of the documents or information. This Protective Order shall not be construed as a waiver of any privilege or protection against discovery of any information.
17. Inadvertent production of documents subject to the attorney-client privilege or the work product doctrine shall not waive any claim of privilege or protection with respect to such documents, or other documents or communications, written or oral, including, without limitation, other communications referred to in the documents or information produced, provided that the producing party shall notify the receiving parties promptly after learning of the inadvertent production. Immediately upon receipt of such notification, the receiving parties shall return or destroy all copies of the inadvertently produced documents and shall not make any further use of them or disclose them to anyone to whom they were not disclosed prior to the request to return or destroy them. If the receiving parties disagree that the inadvertently produced documents are privileged or protected from discovery, then following receipt of the notice of inadvertent production and destruction of the inadvertently produced document(s), the parties shall confer in an effort to resolve the dispute. If the parties are unable to reach agreement within five (5) days after first notification of the inadvertent production, the receiving parties may file a motion with the Court challenging the designation of the inadvertently produced document(s) as privileged. Nothing in this paragraph shall prejudice the right of any party to seek discovery of communications, documents and things as to which a claim of privilege has been made.
18. Consistent with Federal Rules of Civil Procedure, a party withholding or redacting any Discovery Material on the grounds of privilege, immunity or any similar claim shall provide to the receiving party a privilege or redaction log. The Parties, however, shall have no obligation to log Discovery Material created after June 4, 2015. In addition, activities undertaken in compliance with the duty to preserve information (including, but not limited to, litigation hold letters) are protected from disclosure under Federal Rules of Civil Procedure 26(b)(3)(A) and (B).
19. For each Discovery Material withheld or redacted, the log shall contain the following information: (i) the date of the Discovery Material; (ii) the identity of all persons who sent, authored, signed or otherwise prepared the Discovery Material; (iii) the identity of all persons designated as addressees or copyees; (iv) a description of the contents of the document that, without revealing information itself privileged or protected, is sufficient to understand the subject matter of the document and the basis of the claim or privilege or immunity; (v) the type or nature of the privilege asserted (e.g., attorney-client privilege, work product doctrine, etc.); and (vi) for redacted documents only, the Bates numbers corresponding to the first and last page of any document redacted. To the extent email is included and described on the privilege log, any email chain (i.e., a series of emails linked together by email responses and forwarding) that is withheld or redacted on the grounds of privilege, immunity or any similar claim may be logged as a single entry and identified by the most recent (i.e., top-most) email. The parties shall not be required to break up an email chain and log each individual email separately. If, however, email contained within a given chain exists as a separate Discovery Material, then the parties shall log that Discovery Material in accordance with this Paragraph. If an email chain contains one or more privileged emails requiring redaction, the email chain may be logged as a single entry and identified by the most recent redacted email.
20. Within thirty (30) days after the conclusion of this action, including, without limitation, any appeal or retrial (or in the event that another action is then pending involving the same parties, thirty (30) days after the conclusion of that action), all Confidential Material shall be either returned to counsel who produced it or destroyed, as directed by the producing party. Counsel for each party shall certify that all other Confidential Material in the possession of that party, its counsel and/or any experts or consultants retained by its counsel has been returned or destroyed. As to those materials which contain or reflect Confidential Material, but which constitute or reflect counsel's work product, all such work product may be maintained by counsel, but such work product shall not, without written permission of the party that disclosed the information or an order of the Court, be disclosed to anyone other than those to whom such information was actually disclosed in accordance with this Protective Order during the course of this action. Counsel retaining court reporters shall have the responsibility for ensuring their compliance with this paragraph and shall notify opposing counsel when compliance is complete. Nothing herein shall require the return or destruction of pleadings or other papers filed with the Court or served by the parties, even if those pleadings or papers contain or reflect Confidential Material; any such pleadings or papers not returned or destroyed remain subject to the provisions of this Protective Order.
21. Non-parties who provide information in response to a subpoena or discovery request may invoke the protection of this Protective Order by (a) designating that information CONFIDENTIAL and (b) signing a copy of this Protective Order. Any non-party who invokes the protection of this Protective Order shall also be bound by its obligations.
22. This Protective Order is without prejudice to the right of any party to seek relief from or modification of any provision contained herein after notice to the other parties.
23. The parties shall submit this Protective Order to the Court, and this Protective Order shall remain in effect unless modified by an order of the Court or by written stipulation of the parties filed with
24. The parties consent to the continuing jurisdiction of the Court with respect to this Protective Order and any breach thereof, even after the termination of this action. A breach of the provisions of this Protective Order shall subject the party responsible for the breach to sanctions, in the discretion of the Court.
I, ____________, hereby acknowledge my receipt and understanding of the Stipulated Protective Order entered in the above-captioned litigation (the "Order"). I acknowledge that I am a person identified in Paragraphs 7(b) or 8(b) of the Order, and agree that all confidential information or documents received pursuant to the Order will remain in my personal custody until my duties have been completed, at which point I will return or destroy all such information or documents, and any notes based thereon, in accordance with the Order. I further confirm that I have no financial interest in or a business or personal relationship with any of the parties to this matter. By my signature below, I agree to be bound by the terms of the Order and fully abide by them. I also submit to the jurisdiction and venue of the Court and understand that the Court may impose sanctions for any violation of the Order.
I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct.
