Filed: Nov. 20, 2015
Latest Update: Nov. 20, 2015
Summary: [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION WILLIAM ALSUP , District Judge . Plaintiff Massively Parallel Instruments, Inc. ("Plaintiff" or "MPI") and Defendants Waters Corporation and Waters Technologies Corporation ("Defendants" or "Waters") (collectively, "the parties") hereby stipulate as follows: 1. PURPOSE This Order will govern discovery of electronically stored information ("ESI") in this case as a supplement to the Federal Rules of Civil Proc
Summary: [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION WILLIAM ALSUP , District Judge . Plaintiff Massively Parallel Instruments, Inc. ("Plaintiff" or "MPI") and Defendants Waters Corporation and Waters Technologies Corporation ("Defendants" or "Waters") (collectively, "the parties") hereby stipulate as follows: 1. PURPOSE This Order will govern discovery of electronically stored information ("ESI") in this case as a supplement to the Federal Rules of Civil Proce..
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[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
WILLIAM ALSUP, District Judge.
Plaintiff Massively Parallel Instruments, Inc. ("Plaintiff" or "MPI") and Defendants Waters Corporation and Waters Technologies Corporation ("Defendants" or "Waters") (collectively, "the parties") hereby stipulate as follows:
1. PURPOSE
This Order will govern discovery of electronically stored information ("ESI") 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. It is intended to streamline ESI production to promote a "just, speedy, and inexpensive determination" of this action, as required by Federal Rule of Civil Procedure 1.
2. 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.
3. LIAISON
Each Party agrees to designate an ESI Liaison who is and will be knowledgeable about and responsible for discussing their respective ESI. Each ESI 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 ESI liaisons, as needed, to confer about ESI and to help resolve disputes without court intervention. Any Party is free to change their designated ESI Liaison by providing written notice to the other Party.
4. PRESERVATION
The parties have discussed their preservation obligations and needs and agree that preservation of potentially relevant ESI will be reasonable and proportionate. The parties have discussed the subject matter of potentially relevant ESI that should be preserved and have taken appropriate steps to preserve such information.
To reduce the costs and burdens of preservation and to ensure proper ESI is preserved, the parties agree that:
a) Back-up tapes or other materials retained primarily for back-up or disaster recovery purposes, whether in tape, floppy disk, optical disk, or similar formats are deemed not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B) and, accordingly, are not subject to production unless specific facts demonstrate a particular need for such evidence that justifies the burden of retrieval.
b) Similarly, in view of the needs of the case and the amount in controversy, and in order to streamline the discovery process, the parties agree that the following sources of ESI need not be preserved, searched or produced:
• Deleted, slack, fragmented, or other data only accessible by forensics.
• Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system.
• On-line access data such as temporary internet files, history, cache, cookies, and the like.
• Data in metadata fields that are frequently updated automatically, such as last-opened dates.
• Voice messages.
• Instant messages.
• Text messages or similar mobile message formats (e.g. iMessages).
• Electronic mail sent to or from mobile devices (e.g., iPhone and Blackberry devices), provided that a copy of such mail is routinely saved elsewhere.
• 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.
• Logs of calls made from mobile devices.
• Server, system or network logs.
• Electronic data temporarily stored by laboratory equipment or attached electronic equipment, provided that such data is not ordinarily preserved as part of a laboratory report.
• Data remaining from systems no longer in use that is unintelligible on the systems in use.
c) Archives stored on computer servers, external hard drives, notebooks, or personal computer hard drives that are created primarily for back-up or disaster recovery purposes and not used as reference materials in the ordinary course of a party's business operations need not be searched or produced absent good cause, and further subject to the producing party's claim of undue burden or cost or other objections. No party need deviate from the practices it normally exercises with regard to preservation of such "back-up tapes or other materials retained primarily for back-up or disaster recovery purposes" that it does not otherwise exercise when not in anticipation of litigation (e.g., recycling of back-up tapes is permitted). If responsive documents are located on a centralized server or network, the producing party shall not be required to search for additional copies of such responsive documents that may be located on the personal computer, or otherwise in the possession, of individual employees absent a showing of good cause that the production of such additional copies is necessary. No party need deviate from the practices it normally exercises with regard to preservation of such "additional copies" that it does not otherwise exercise when not in anticipation of litigation (e.g., recycling of back-up tapes is permitted).
5. COST-SHIFTING
As in all cases, costs may be shifted for disproportionate ESI production requests pursuant to Federal Rule of Civil Procedure 26. Likewise, a party's nonresponsive or dilatory discovery tactics will be cost-shifting considerations. A party's meaningful compliance with this Order and efforts to promote efficiency and reduce costs will be considered in cost-shifting determinations.
6. DOCUMENTS PROTECTED FROM DISCOVERY
a) Pursuant to Fed. R. Evid. 502(d), the inadvertent (i.e. absent intentional waiver) production of a privileged or work-product-protected document is not a waiver of privilege or protection from discovery in this case or in any other federal or state proceeding. For example, the mere production of privileged or work-product-protected documents in this case as part of a mass production is not itself a waiver in this case or in any other federal or state proceeding.
b) Communications involving trial counsel that post-date the filing of the complaint need not be placed on a privilege log. Communications may be identified on a privilege log by category, rather than individually, if appropriate. For each document withheld or redacted, the Privilege Log shall contain the following information: (i) the date of the document; (ii) the identity of all persons who authored, signed or otherwise prepared the document; (iii) the identity of all persons designated as addressees or copyees, including blind 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 of privilege or immunity; (vi) the type or nature of the privilege asserted (e.g., attorney-client privilege, work product doctrine, common interest, etc.); (vii) the unique document number assigned to the withheld document; and (viii) the Bates numbers corresponding to the first and last page of any redacted document, if the document has been assigned any such Bates numbers. Any email message (whether produced individually or as part of a series or chain of emails linked together by email responses and forwarding) that is withheld or redacted on the grounds of privilege, immunity or any similar claim shall be logged as one document and shall be identified by the top-most email in the thread that is withheld or redacted (e.g., if a party withholds on the basis of privilege an email thread consisting of a sent email, a first reply email and a second reply email, the thread shall be identified by the second reply email; if a party produces the same email thread but redacts the sent email and the first reply email, the thread shall be identified by the first reply email) . The parties shall not be required to log identical copies of an email that is included in a thread that has been logged in accordance with this Paragraph. The parties hereby agree to exchange privilege logs by no later than four weeks after the document production to which each log relates.
c) Testifying experts shall not be subject to discovery on any draft of their reports in this action and such draft reports, notes, or outlines for draft reports are also exempt from production and discovery. No discovery can be taken from any non-testifying expert except to the extent that the non-testifying expert has provided information, opinions, or other materials to a testifying expert, who relies upon such information, opinions, or other materials in forming his or her final report, or any opinion in this action. No conversations or communications between counsel and any testifying or non-testifying expert, including emails or correspondence, will be subject to discovery unless the conversations or communications are relied upon by a testifying expert in formulating his or her final report, or any opinion in this action. Materials, communications, and other information exempt from discovery under this paragraph shall be treated as attorney work product for the purposes of this action.
d) If a party believes that it cannot process or produce documents or information because doing so would require it to violate any foreign laws, including data privacy or blocking laws, the parties agree to meet-and-confer about those issues and seek guidance from the court if necessary.
7. MANNER OF SERVICE
The following memorializes the parties' agreement regarding electronic service applicable to service occurring on or after the date this stipulation is filed. The parties will serve all documents related to this Litigation by 11:59 PM Pacific Time on the day of service, and such service shall constitute timely service on that day. Where service of is not made through the ECF, service may be made by electronic mail to counsel of record (identified below), with the filed, submitted, or produced documents attached in .pdf format. When the size of the file containing any such document(s) are too large for service by electronic mail, service may be made by hand delivery or by Federal Express (or similar means) for next day delivery, and a CD, diskette, FTP site or other means of electronically providing the documents being served shall be provided. Where service is made by via FTP or any other electronic means where the documents are immediately available to the receiving party, service shall be effective on the day access is provided to the receiving party. Where service is made by next day delivery, service shall be effective on the day received. The Parties may electronically serve large documents via an FTP site in accordance with the same rules applicable to e-mail.
All discovery requests shall be served by electronic means in .pdf format accompanied by a Word version for use by the receiving party. All responses and objections thereto (but not necessarily documents produced pursuant to any such request) shall be served by electronic mail in a searchable .pdf format.
All such electronic service under this agreement will be effective as if service had been accomplished by hand delivery, i.e., 3 days will not be added under the Federal Rules or any local rule. The parties designate the following counsel to receive documents pursuant to this stipulation:
Party Service by E-mail Service by Hand
MPI tbrown@kilpatricktownsend.com Theodore G. Brown, III
mmeyer@kilpatricktownsend.com tbrown@kilpatricktownsend.com
Matthew J. Meyer
mmeyer@kilpatricktownsend.com
Kilpatrick Townsend & Stockton,
LLP
1080 Marsh Road
Menlo Park, CA 94025
Waters lawrence.gotts@lw.com Lawrence J. Gotts
waterspatentlitigation.lwteam@lw.com lawrence.gotts@lw.com
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004-1304
Telephone: (202) 637 2384
Facsimile: (202) 637 2201
aslan.baghdadi@plumsea.com Aslan Baghdadi
waterslitigation@plumsea.com aslan.baghdadi@plumsea.com
PLUMSEA LAW GROUP LLC
6710A Rockledge Dr., Ste. 400
Bethesda, MD 20817
8. MODIFICATION
This Stipulated Order may be modified by a Stipulated Order of the parties or by the Court for good cause shown.
IT IS ORDERED that the forgoing Agreement is approved.
