[PROPOSED] STIPULATION AND ORDER REGARDING E-DISCOVERY

JEFFREY S. WHITE, District Judge.

STIPULATION REGARDING E-DISCOVERY

The above-captioned Parties stipulate 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. If the parties cannot resolve their disagreements regarding any modifications, the parties shall submit their competing proposals and a summary of their dispute to the Court.

3. A party's nonresponsive or dilatory discovery tactics will be considered in cost shifting determinations, if any. A party's meaningful compliance with this order and efforts to promote efficiency and reduce costs will be considered in cost-shifting determinations, if any. Both parties reserve the right to seek cost shifting under appropriate circumstances.

4. Absent a showing of good cause, general ESI production requests under Federal Rules of Civil Procedure 34 and 45, or compliance with a mandatory disclosure requirement of this Court, shall not include metadata except as indicated in Paragraph 5.I.

5. Absent agreement of the parties or further order of this Court, the following parameters shall apply to ESI production:

A. Definitions and Scope. The following protocol and definitions shall control the production of discoverable documents and electronically stored information when production commences. The following terms shall be defined:

(1) "Document(s)" means ESI existing in any medium from which information can be obtained or translated into reasonably usable form and shall have the same meaning as used in the Federal Rules of Civil Procedure and case law construing same.

(2) "Native File(s)" or "Native Format" means the file defined by the creating application for the ESI, e.g., the file in which the ESI is normally created, viewed and/or modified.

(3) "Metadata" means: (i) information embedded in a Native File that is not ordinarily viewable or printable from the application that generated, edited, or modified such Native File; and (ii) information generated automatically by the operation of a computer or other information technology system when a Native File is created, modified, transmitted, deleted or otherwise manipulated by a user of such system.

(4) "Static Image(s)" means a representation of ESI produced by converting a Native File into a standard image format capable of being viewed and printed on standard computer systems. A Tagged Image File Format (TIFF) image is an example of a Static Image.

(5) "Load/Unitization file" means an electronic file containing information identifying a set of paper-scanned images or processed ESI and indicating where individual pages or files belong together as Documents, including attachments, and where each document begins and ends. A Load/Unitization file will also contain data relevant to the individual Documents, including extracted and user created Metadata, coded data, as well as OCR or Extracted Text.

(6) "OCR" means the optical character recognition file that is created by software used in conjunction with a scanner that is capable of reading text-based documents and making such documents searchable using appropriate software.

(7) "Extracted Text" means the text extracted from a Native File and includes all header, footer and document body information.

(8) "Receiving Party" shall mean the party receiving production of Documents in response to any request for production of document(s) pursuant to Fed. R. Civ. P. 34(a) or pursuant to initial production of documents identified in the party's Rule 26(a) disclosures.

(9) "Producing Party" shall mean the party producing Documents in response to any request for production of documents pursuant to Fed. R. Civ. P. 34(a) or pursuant to initial production of documents identified in the party's Rule 26(a) disclosures.

B. General Format of Production. Subject to the provisions of paragraph 5.C., Documents that are produced in these proceedings, whether originally stored in paper or electronic form, shall be produced in electronic image form in the manner as described below. Notwithstanding the foregoing provisions of this paragraph, the Parties reserve the right to request that an alternative format or method of production be used for Documents that are not susceptible to production in the format or methods of production addressed herein. In that event, the Receiving Party and the Producing Party will meet and confer to discuss alternative production requirements, concerns, formats, or methods.

C. Production Format. Documents shall be produced according to the following formats:

(1) Electronic Production of Paper Documents. Documents that are maintained in paper format shall be scanned as black and white images at 300 x 300 d.p.i. or greater resolution, in a Group 4 compression single-page Tagged Image File Format ("TIFF" or ".tiff format") reflecting source attachment information and reflecting the full and complete information contained in the original Document. Documents shall also be produced with the associated OCR in accordance with Paragraph 5.C.(3). No Producing Party shall be required to ensure that the OCR is an exact duplicate of the contents of the TIFF image; and the Receiving Party shall accept the OCR in its "as is" condition.

(2) Electronically Stored Information. Except as provided in Paragraph 5.C.(5) below, Document images shall be generated from electronic Documents in a Group 4 compression single-page black and white "TIFF" image that reflects the full and complete information contained on the original document, together with a load file or functional equivalent specified in Paragraph 5.C.(3) that contains (or is produced with a corresponding text file that contains) the metadata as set forth in Paragraph 5.I. and extracted text. In the event a Document is redacted, the Producing Party shall withhold the redacted text for that Document. The failure to withhold such text for a redacted document by a Producing Party shall not be deemed a waiver of the privilege associated with that Document.

(3) Load/Unitization File Structure. The Producing Party shall produce a unitization file ("load file") for all produced Documents in accordance with the following formatting, including for native Documents (in the same or a separate load file):

(4) Resolution of Production Issues. Documents that cannot be read because of imaging or formatting problems shall be identified by the Receiving Party. The Producing Party and the Receiving Party shall meet and confer to attempt to resolve problem(s), to the extent the problem(s) are within the Parties' control.

(5) Native Format Documents. Notwithstanding the foregoing provisions of this paragraph, the parties recognize that it may be appropriate for certain Documents to be produced in Native Format. Therefore, the Producing Party shall produce all spreadsheets (e.g., .XLS or .XLSX files) and .PPT presentations in native format unless there is an agreement to the contrary. The Receiving Party may also request that the Producing Party produce additional file types of electronic Documents in Native Format where the converted image format distorts or causes the information to be improperly displayed. Such Documents shall be listed by the Receiving Party or a general agreement may be reached after meeting and conferring. Prior to producing any Protected Information as defined in any applicable Protective Order entered herein in Native Format, the Producing Party and the Receiving Party shall meet and confer to establish additional procedures, to the extent necessary, for the protection of the native information.

(6) Color. Documents may be produced in black and white in the first instance. If a produced Document contains color and that color is necessary to decipher the meaning, context, or content of the document, the Producing Party shall honor reasonable requests for either the production of the original Document for inspection and copying or production of a color image of the Document.

D. Production Media. A Producing Party shall produce Documents on a CD-ROM, DVD, external hard drive, ftp, or such other readily accessible computer or electronic media as the Producing Party and the Receiving Party may hereafter agree upon (the "Production Media"). Information that shall be identified on the face of the Production Media shall include: (1) the production date, and (2) the confidentiality notation required by the Protective Order entered in this case, if the media contains Confidential Information, as defined in the Protective Order. Where practicable, the face of the Production Media shall also contain the Bates Number range(s) of the Documents on the Production Media. Where not practicable, the range(s) may be provided in an accompanying letter. If the Producing Party encrypts or "locks" the production, the Producing Party shall include with the production an explanation of how to decrypt the files.

E. Document Unitization. When scanning paper documents into Document Images as described in paragraph 5.C.(1), they shall be unitized in a manner so as to maintain the document(s) and any attachments as they existed in their original state. For electronic documents, the relationship of documents in a document collection (e.g., cover letter and enclosures, e-mail and attachments, binder containing multiple documents, or other documents where a parent-child relationship exists between the documents) shall be maintained through the scanning or conversion process from native format to TIFF, provided however, that the Parties shall be required to present only one level of parent child relationship. Document Images generated from attachments to e-mails stored in Native Format shall be produced contemporaneously and sequentially immediately after the parent e-mail. All hard copy documents imaged and produced electronically shall include a unitization file ("load file") in accordance with paragraph 5.C.(3).

F. Paper Documents Containing Fixed Notes. Paper Documents that contain fixed notes shall be scanned with the notes affixed, if it can be done so in a manner so as not to obstruct other content on the document. If the content of the Document is obscured by the affixed notes, the Document and note shall be scanned separately.

G. Duplicates. If a Producing Party who has more than one identical copy of an electronic document (i.e., the documents are actual duplicates), the Producing Party need produce only a single copy of that document. A Producing Party need not produce the same electronically stored information in more than one form.

H. Bates Numbering. Each Producing Party shall Bates number its production(s) as follows:

(1) Document Images. Each page of a produced Document shall have a legible, unique page identifier ("Bates Number") electronically "burned" onto the image at a location that does not unreasonably obliterate, conceal, or interfere with any information from the source document. The Bates Number shall contain a two to four letter prefix associated with the Producing Party's name followed by 8 numbers (e.g., ABCD00000001). The Producing Party will use a consistent prefix throughout the matter. Thus, once a party chooses a four letter prefix, e.g. ABCD, it shall not later produce a Document using a different prefix, e.g. EFGH. No other legend or stamp will be placed on the Document Image other than a confidentiality legend (where applicable), redactions, the Bates Number identified above, and any other internal tracking number that the Producing Party may choose to use. The confidentiality legend shall be "burned" onto each document's image at a location that does not unreasonably obliterate or obscure any information from the source document.

(2) Native Format Documents. In the event Native Format Documents are produced, in order to preserve the integrity of those Native Format Documents, no Bates Number, confidentiality legend, or internal tracking number should be added to the internal content of the Native Document, but may be added to the file name and/or to a document placehold provided with the production. Additionally, Native Format Documents may be produced with password protection.

I. Metadata. To the extent it is reasonably accessible, the Producing Party shall produce the metadata information described below with each production and in the format described in this Paragraph 5, above. For images generated from native electronic documents, a Producing Party shall produce with each production the following fields, where available. The field naming conventions shall be the following, unless otherwise agreed. Substantially similar field names may be used if consistent with the defined fields. Field names must be consistently applied for each production by a Producing Party. Upon request from the Receiving Party, the Producing Party shall produce additional metadata for select documents. In the event the parties cannot reach agreement regarding a request to produce metadata, it shall be the Receiving Party's burden to show good case for such production.

J. Privilege Logs. The Producing Parties will produce privilege logs in an electronic format that allows text searching and organization of data. When there is a chain of privileged emails, the Producing Party need only include one entry on the privilege log for the entire e-mail chain, and need not log each e-mail contained in the chain separately. The parties shall meet and confer regarding the appropriate timing for the production of privilege logs. However, the production of a privilege log for a custodian shall be not less than 7 days prior to that custodian's deposition. The Producing Party and the Receiving Party may modify the deadlines for production of privilege logs by agreement. Parties are not required to include in the privilege logs any information or Documents generated or created after the filing of the complaint in this matter.

K. No Backup Restoration Required. 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.

L. Categories that Need Not Be Preserved. Absent a showing of good cause by the Requesting Party, the categories of ESI identified in Schedule A need not be preserved.

M. General ESI production requests under Federal Rules of Civil Procedure 34 and 45, or compliance with a mandatory disclosure order of this court, shall not include e-mail or other forms of electronic correspondence (collectively "e-mail"). To obtain e-mail, parties must propound specific e-mail production requests.

N. E-mail production requests shall be phased to occur timely after the parties have exchanged initial disclosures, a specific listing of all e-mail custodians likely to have discoverable information, a specific identification of the ten most significant listed e-mail custodians in view of the pleaded claims and defenses,2 infringement contentions and accompanying documents pursuant to Patent L.R. 3-1 and 3-2, invalidity contentions and accompanying documents pursuant to Patent L.R. 3-3 and 3-4, and preliminary information relevant to damages. The exchange of this information shall occur at the time required under the Federal Rules of Civil Procedure, Local Rules, or by order of the Court. The parties may jointly agree to modify this limit or, failing agreement, by seeking leave of Court.

O. E-mail production requests shall identify the custodian, search terms, and time frame. The parties shall cooperate to identify the proper custodians, proper search terms, and proper time frame. Each requesting party shall limit its e-mail production requests to a total of eight custodians per producing party for all such requests. The parties may jointly agree to modify this limit without the Court's leave. The Court shall consider contested requests for additional or fewer custodians per producing party upon showing a distinct need based on the size, complexity, and issues of this specific case.

P. Each requesting party shall limit its e-mail production requests to a total of ten search terms per custodian per party. The parties may jointly agree to modify this limit without the Court's leave. The Court shall consider contested requests for additional or fewer search terms per custodian, upon showing a distinct need based on the size, complexity, and issues of this specific case. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company's name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g., "computer" and "system") narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., "computer" or "system") broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g., "and," "but not," "w/x") is encouraged to limit the production and shall be considered when determining whether to shift costs for disproportionate discovery.

Q. Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a privileged or work product protected ESI document is not a waiver in the pending case or in any other federal or state proceeding. See also Section 13 of the Stipulated Protective Order in this matter, specifying that "When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B)".

12. The mere production of ESI in a litigation as part of a mass production shall not itself constitute a waiver for any purpose.

13. Except as expressly stated, nothing in this order affects the parties' discovery obligations under the Federal or Local Rules.

SCHEDULE A

1. Deleted, slack, fragmented, or other data only accessible by forensics.

2. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system.

3. On-line access data such as temporary internet files, history, cache, cookies, and the like.

4. Data in metadata fields that are frequently updated automatically, such as last-opened dates.

5. Back-up data that are substantially duplicative of data that are more accessible elsewhere.

6. Voice messages.

7. Instant messages that are not ordinarily printed or maintained in a server dedicated to instant messaging.

8. Device-to-device (pin-to-pin) messages sent to or from mobile devices (e.g., Android, iPhone, and Blackberry devices), provided that a copy of such mail is routinely saved elsewhere.

9. Other electronic data stored on a mobile device, such as calendar or contact data or notes, provided that a copy of such information is routinely saved elsewhere.

10. Logs of calls made from mobile devices.

11. Server, system, or network logs.

12. Electronic data temporarily stored by laboratory equipment or attached electronic equipment, provided that such data is not ordinarily preserved as a part of a laboratory report.

13. Data remaining from systems no longer in use that is unintelligible on the systems in use.

14. Company wikis and social network data from services such as Facebook, LinkedIn and Twitter.

IT IS SO STIPULATED.

ORDER

PURSUANT TO STIPULATION, IT IS SO ORDERED.