CLASS ACTION
STIPULATED ORDER REGARDING THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION
ALEXANDER F. MAcKINNON, Magistrate Judge.
IT IS HEREBY STIPULATED AND AGREED, by and among Lead Plaintiff United Association Local Union 393 Defined Benefit Pension Plan and Defined Contribution Plan ("Lead Plaintiff"), and Defendants Activision Blizzard, Inc., Robert A. Kotick, Collister Johnson, and Spencer Neumann (collectively, "Defendants," and together with Lead Plaintiff, the "Parties"), by and through their undersigned counsel, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and Rule 502 of the Federal Rules of Evidence, that:
I. PRESERVATION
Consistent with the Parties' obligations under Rule 26(f) of the Federal Rules of Civil Procedure, the Parties will meet and confer regarding the scope of preservation, including custodians, data sources, date ranges, and categories of information that have been or should be preserved in connection with this litigation. The Parties will disclose categories or sources of responsive information that they have reason to believe have not been preserved or should not be preserved and will explain with specificity the reasons to support such a belief.
II. IDENTIFICATION OF RESPONSIVE DOCUMENTS
The Parties shall meet and confer in an effort to conduct discovery in a comprehensive, efficient and cost-effective manner. Specifically, the Parties will attempt in good faith to come to an agreement on the methods for identifying proportional and responsive information. The Parties will meet and confer regarding any proposed limitations on the scope of discovery, including custodians, custodial and non-custodial sources, date ranges, file types, or any additional proposed method to identify proportional documents for review (e.g., search terms, technology-assisted-review, predictive coding). 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 and shall follow Local Civil Rule 37.2 prior to filing any motion with respect thereto.
A. Sources
The Parties will disclose and discuss the custodial and non-custodial data sources likely to contain proportional and responsive information. The Parties will identify and describe any relevant electronic systems and storage locations. The Parties will also disclose and describe any document retention policies or practices (e.g., retention schedules or policies, auto-delete functions, routine purging, mailbox size limits), or other practices likely to impact the existence or accessibility of responsive documents or electronically stored information. The Parties will identify and describe sources likely to contain responsive information that a Party asserts should not be searched because such sources are not proportional or are not reasonably accessible and will explain the reasons for such assertions.
B. Identification of Custodians
The Parties shall meet and confer to identify all persons who the Parties reasonably believe are likely to contain proportional and responsive documents and other electronically stored information ("ESI") relating to the allegations and claims in the litigation. The Parties retain the right during the discovery process to request that files from additional custodial or non-custodial sources be searched and meet and confer regarding such a request.
C. Easily Segregable Documents
Documents or categories of documents that are easily identifiable and segregable, and do not impose an undue burden on the Party tasked with collecting and reviewing the documents, shall be collected without the use of search terms or other agreed-upon advanced search methodology (e.g., analytics, predictive coding, technology-assisted-review). The Parties shall meet and confer regarding the categories of documents that will be produced with and without the use of search terms or other advanced search methodology.
D. Search Terms and/Technology-Assisted Review
The Parties agree that, in order to accomplish an expedited production schedule, the Parties may need to utilize search terms and/or predictive coding/technology-assisted review ("TAR").
To the extent search terms are used, the Parties shall meet and confer on a list of proposed search terms, and the responding Party shall provide a search terms hit report(s) which shall include the number of documents that hit on each term, the number of unique documents that hit on each term following global de-duplication (i.e., documents that hit on a particular term and no other term on the list), and the total number of documents that would be returned by using the proposed search term list, including families. If the propounding Party proposes additional search terms or modifications to the existing list of search terms, the Parties shall meet and confer regarding the proposed additional search terms or modifications within three business days of receipt of a search term hit report. If an agreement cannot be reached after meeting and conferring in good faith, the Parties will submit a joint letter-motion, not to exceed six pages, to the Court pursuant to Local Civil Rule 37.2 for a pre-motion discovery conference. If the dispute cannot be resolved as a consequence of such conference, the propounding Party may move to compel production of documents in response to the disputed search terms.
To the extent that TAR is used, the Parties shall meet and confer regarding a mutually agreeable protocol for the use of such technologies. If a dispute regarding a Party's use of TAR cannot be resolved after meeting and conferring in good faith, the Parties will submit a joint letter-motion, not to exceed six pages, to the Court pursuant to Local Civil Rule 37.2 for a pre-motion discovery conference. If the dispute cannot be resolved as a consequence of such conference, the Party opposing the use of TAR may file a motion seeking appropriate relief from the Court.
III. PRODUCTION OF HARD COPY DOCUMENTS — FORMAT
To the extent necessary and feasible, hard copy 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," "VOLUME" 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. If an original document contains color, and the color is necessary to understand the meaning or content of the document, the — 5 — document will be produced as single-page, 300 DPI JPG images with JPG compression and a high quality setting as to not degrade the original image. Multi-page OCR text for each document should also be provided. The OCR software shall maximize text quality. Settings such as "auto-skewing" and "auto-rotation" should be turned on during the OCR process.
IV. 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 files, presentation files, and audio and video files, which shall be produced in native format. If the receiving Party believes that an original document produced in TIFF format contains color, and that the color is necessary to understand the meaning or content of the document, the receiving Party may request that the document be reproduced as single-page, 300 DPI JPG images with JPG compression and a high quality setting as to not degrade the original image. Notwithstanding the foregoing, the Parties are under no obligation to enhance an image beyond how it was kept in the usual course of business. TIFFs/JPGs will show any and all text and images that would be visible to the reader using the native software that created the document. For example, TIFFs/JPGs of e-mail messages should include the BCC line where populated. If the image does not accurately reflect the document as it was kept in the usual course of business, including all comments, edits, tracking, etc., the Parties agree to meet and confer in good faith on production format options.
If a document is produced in native format, a single-page Bates stamped image slip sheet stating the document has been produced in native format should be provided, with the exception of PowerPoint presentations. 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. De-Duplication
Each Party shall 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 e-mail and all attachments are also exact duplicates. The Parties agree that an e-mail that includes content in the BCC or other blind copy field shall not be treated as a duplicate of an e-mail that does not include content in those fields, even if all remaining content in the e-mail is identical. Removal of near-duplicate documents is not acceptable; however, the Parties agree that e-mail thread suppression may be used, as reviewing non-inclusive e-mail is needlessly burdensome for the producing Party, so long as each responsive non-privileged e-mail in the thread (both inclusive and non-inclusive) is produced. De-duplication will be done across the entire collection (global de-duplication) and the CUSTODIAN-ALL and FILEPATH-DUP field will list each custodian and file path, respectively, separated by a semicolon, who was a source of that document. Should the produced CUSTODIAN-ALL or FILEPATH-DUP metadata become outdated due to rolling productions, an overlay file providing all the custodians and file paths for the affected documents will be produced prior to substantial completion of the document production.
C. Metadata
All ESI will be produced with a delimited, database load file that contains the metadata fields listed in Table 1, attached hereto. The metadata produced should have the correct encoding to enable preservation of the documents' original language.
For ESI other than e-mail and e-docs that do not conform to the metadata listed in Table 1, such as text messages, Instant Bloomberg, iMessage, Google Chat, WhatsApp, Yammer, Slack, etc., the Parties will meet and confer as to the appropriate metadata fields to be produced.
D. Embedded Objects
Embedded files in e-mail and e-docs shall be produced as attachments to the document that contained the embedded file, with the parent/child relationship preserved. The embedded files will be marked with a "YES" in the load file under the "Is Embedded" metadata field. The Parties agree logos need not be extracted as separate documents as long as they are displayed in the parent document.
E. Attachments
The Parties agree that if any part of an e-mail or its attachments is responsive, the entire e-mail and attachments will be produced, except any attachments that are withheld or redacted on the basis of the attorney-client privilege, attorney work product doctrine, or other applicable privilege. If an attachment is withheld, a slip sheet will be produced in its place indicating that the document was withheld and specifying the applicable privilege. The attachments will be produced sequentially after the parent e-mail. The Parties shall produce privilege and redaction logs as required by the Scheduling Order.
F. Compressed Files Types
Compressed file types (e.g., .ZIP, .RAR, .CAB, .Z) should be decompressed so that the lowest level document or file is extracted.
G. Structured Data
To the extent a response to discovery requires production of electronic information stored in a database, the Parties will meet and confer regarding the format and methods of such a production. The Parties will consider whether relevant and proportional information may be provided by querying the database and generating a report in a reasonably usable and exportable electronic file.
H. Proprietary or Non-Standard Data
To the extent a response to discovery requires production of electronic information stored in a propriety or non-standard source that may not be reasonably usable if produced in the formats described herein, the Parties will meet and confer regarding the format and methods of such a production.
I. Exception Report
If any documents in a Party's production cannot be properly rendered or processed, the producing Party shall provide single page slip sheets for such files bearing the filename and error code generated by the Party's processing tool.
J. Encryption
To maximize the security of information in transit, any media on which documents are produced shall be encrypted. In such cases, the producing Party shall transmit the encryption key or password to the receiving Party, under separate cover, contemporaneously with sending the encrypted media.
K. Redactions
If documents that the Parties have agreed to produce in native format or portions of metadata fields need to be redacted, the Parties will meet and confer regarding how to implement redactions while ensuring that proper formatting and usability are maintained.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
IT IS SO ORDERED.
TABLE 1: METADATA FIELDS1
Field Name Example/Format Description
BEGNO ABC0000001 (Unique ID) The Document ID
number associated
with the first page of a
document.
ENDNO ABC0000003 (Unique ID) The Document ID
number associated
with the last page of a
document.
BEGATTACH ABC0000001(Unique ID Parent-Child The Document ID
Child Relationships) number associated
with the first page of
the parent document.
ENDATTACH ABC0000008 (Unique ID Parent-Child The Document
Relationships) associated with the last
page of the last
attachment.
VOLUME VOL001 The name of CD, DVD
or Hard Drive.
SENTDATE MM/DD/YYYY The date the e-mail or
calendar entry was
sent.
SENTTIME HH:MM The time the e-mail or
calendar entry was
sent.
RECEIVED DATE MM/DD/YYYY The date the document
was received.
RECEIVED TIME HH:MM The time the document
was received.
CREATEDATE MM/DD/YYYY The date the document
was created.
CREATETIME HH:MM The time the document
was created.
LASTMODDATE MM/DD/YYYY The date the document
was last modified.
LASTMODTIME HH:MM The time the document
was last modified.
MEETING MM/DD/YYYY Start date of calendar
START DATE entry
MEETING HH:MM Start time of calendar
START TIME entry
MEETING END MM/DD/YYYY End date of calendar
DATE entry
MEETING END HH:MM End time of calendar
TIME entry
FILEPATH i.e. The file paths from the
/JsmithPC/Users/Jsmith/Desktop locations in which the
duplicate documents
were stored in
the usual course of
business. This field
should be populated
for both e-mail and
efiles
and separated by
semicolons.
FILEPATH-DUP i.e. /JSmith.pst/Inbox The file paths from the
/Network Share/Accounting/... locations in which the
/TJohnsonPC/Users/TJohnson/My duplicate documents
Documents/... were stored in the
usual course of
business. This field
should be populated
for both e-mail and
efiles and separated by
semicolons.
AUTHOR jsmith The author of a
document from
extracted metadata.
LASTSAVEDBY jsmith The name of the last
person to save the
document from
extracted metadata.
FROM Joe Smith <jsmith@email.com> The display name and
e-mail address of the
author of an e-mail/calendar
item. An
e-mail address should
always be provided.
TO Joe Smith <jsmith@email.com>; The display name and
tjones@email.com e-mail address of the
recipient(s) of an e-mail/calendar
item. An
e-mail address should
always be provided for
every e-mail if a
recipient existed.
CC Joe Smith <jsmith@email.com>; The display name and
tjones@email.com e-mail of the copyee(s)
of an e-mail/calendar
item. An e-mail
address should always
be provided for every
e-mail if a copyee
existed.
BCC Joe Smith <jsmith@email.com>; The display name and
tjones@email.com e-mail of the blind
copyee(s) of an e-mail
or calendar item. An e-mail
address should
always be provided for
every e-mail if a blind
copyee existed.
SUBJECT The subject line of the
e-mail/calendar item.
TITLE The extracted
document title of a
document.
CUSTODIAN-ALL Smith, Joe; Doe, Jane All of the custodians of
a document from
which the document
originated, separated
by semicolons.
ATTACH Numeric The number of
COUNT attachments to a
document.
FILEEXT XLS The file extension of a
document.
FILENAME Document Name.xls The file name of a
document.
FILESIZE Numeric The file size of a
document (including
embedded
attachments).
HASH The MD5 or SHA-1
Hash value or "de-duplication
key"
assigned to a
document. The same
hash method (MD5 or
SHA-1) should be used
throughout production.
REDACTED Yes or Blank If a document contains
a redaction, this field
will display `Yes'.
TIMEZONE
PROCESSED PST, CST, EST, etc The time zone the
document was
processed in. NOTE:
This should be the time
zone where the
documents were
located at time of
collection.
NATIVELINK D:\NATIVES\ABC000001.xls The full path to a
native copy of a
document.
FULLTEXT D:\TEXT\ABC000001.txt The path to the full
extracted text of the
document. There
should be a folder on
the deliverable,
containing a separate
text file per document.
These text files should
be named with their
corresponding bates
numbers. Note: E-mails
should include
header information:
author, recipient, cc,
bcc, date, subject, etc.
If the attachment or e-file
does not extract
any text, then OCR for
the document should
be provided
