STIPULATION AND ORDER CONCERNING ESI PRESERVATION AND THE PROTOCOL FOR PRODUCTION OF DOCUMENTS
RICHARD SEEBORG, District Judge.
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.
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
The parties have identified the following counsel as the e-discovery liaisons who are and will be knowledgeable about and responsible for discussing the parties' respective ESI:
For Plaintiffs: Gretchen Elsner
For Defendant: Jonathan Jones
Each 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. Counsel will confer, as needed, about ESI to help resolve disputes without court intervention.
4. PRESERVATION
The parties have discussed their preservation obligations, and confirm that each party has preserved potentially relevant and responsive ESI, including from the relevant time period and for relevant individuals and central data storage repositories. Among the sources of data the parties agree are not reasonably accessible, the parties agree not to preserve the following: mobile phone data, digital voicemail, and instant messaging. The parties also agree not to preserve backup media (including back-up tapes of Network Shares/Home Shares, back-up tapes of email, and disaster recovery tapes) that was created before June 22, 2017.
5. SEARCH
The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if appropriate, they will meet and confer about methods to search ESI in order to identify ESI that is subject to production in discovery and filter out ESI that is not subject to discovery. This shall include a discussion of the areas of discovery, numbers of custodians, types of drives and media to be searched, date ranges, use of search terms (if appropriate), and similar information, if pertinent.
6. DE-DUPLICATION
To the extent that exact duplicate documents (based on MD5 or SHA-1 hash values) reside within a party's ESI data set, each party may produce only a single copy of a responsive document or record ("Single Production Copy"). Exact duplicates will be identified through calculation of MD5 or SHA-1 hash value and all de-duplication will occur at a family level.
7. PRODUCTION FORMATS
The parties agree to produce documents in either [X][X] TIFF or [X] native [] file formats. If particular documents warrant a different format, the parties will cooperate to arrange for the mutually acceptable production of such documents. The parties agree not to degrade the searchability of documents as part of the document production process.
A. Form of Production
The parties will produce all documents as Group IV single page black and white TIFF format files imaged at 300 dpi, except that spreadsheets and media files will be produced as native files, and that emails may be produced as native files. Name each TIFF file with a unique name matching the Bates number labeled on the corresponding page.
When processing ESI for review and for production in TIFF format, the producing party will instruct its vendor to force off Auto Date and unhide all hidden objects. UTC should be selected as the time zone.
B. Image Load File
Provide an image load file (e.g., Opticon file or LFP) that contains document boundaries.
C. Excel, Other Spreadsheet Files, Media Files, and E-Mail Files
Microsoft Excel files, files created other spreadsheet programs, and media files (e.g., video or audio files) shall be produced in native format with corresponding TIFF images of Bates-stamped slip sheets and appropriate confidentiality labeling. Emails may be produced in a native email format, such as MSG or a similar file format. The parties will provide a relative file path or link to the native Excel in the .dat file. The produced file should be named with an appropriate document-level Bates number. Documents that are to be produced in a native format, but that require redactions will be produced as TIFF images with the relevant portions redacted, or if a TIFF image production is not practicable (e.g., the file is a video or very large spreadsheet), as a copy of the native file with the relevant portions replaced with "[REDACTED]" or a similar mark. The produced file should be named with the Bates number of the first page of the corresponding TIFF production of the document (e.g., ABC00001.ppt").
D. Production of Physical Documents
Documents or records which either were originally generated as or converted into ESI but now only exist in physical hard-copy format, or documents or records that were originally generated in hard-copy format, shall be converted to single-page image files (BLACK AND WHITE Group IV TIFF) and produced following the same protocols set forth herein or otherwise agreed to by the parties. All such documents will be produced with an OCR file as outlined in below.
E. OCR and Extracted Text Files (.TXT Files):
Non-native ESI shall be produced with multi-page searchable Extracted Text or OCR text. For documents that were originally stored as native electronic files and which do not have redactions, the extracted, full text from the body of each document will be produced. For documents that were originally stored as native electronic files and which have redactions, OCR text will be produced from the redacted image(s) associated with each document.
F. Production Media
Documents shall be produced on CD-ROM, DVD, external hard drive (with standard PC compatible interface), .ftp site, or such other readily accessible computer or electronic media as the parties may hereafter agree upon (the "Production Media"). Each item of Production Media shall include: (1) the production date, and (2) the Bates number range of the materials contained on such Production Media item.
G. Document Metadata
The parties agree to produce extracted metadata for each document in the form of a .dat file, and include the following fields, as shown in the table below. If specific fields cannot be provided for a particular document because, e.g., the field is unavailable or contains privileged information, the field should be left blank. When a metadata field includes a date, the date shall be provided in the following format in separate fields as specified below: mm/dd/yyyy or HH:mm:ssZ.
Field Description
Bates_Begin The Bates label of the first page of the
document.
Bates_End The Bates label of the last page of the document.
Attach_Begin The Bates label of the first page of a family of
documents (e.g., email and attachment).
Attach_End The Bates label of the last page of a family of
documents (e.g., email and attachment).
File Name The filename of an attachment or stand-alone e-file.
Subject The document or email subject line.
Custodian The custodian(s) of the document.
Filename Extension The original filename extension suffix (e.g.,
.doc, .pps., .jpeg, .txt, .xls).
Sent_Date For email, the sent date of the message.
Sent_Time For email, the sent time of the message.
Create_Date For efiles or attachments, the document's
creation date or operating system creation date.
Create_Time For efiles or attachments, the document's
creation time or operating system creation time.
Modified_Date For efiles or attachments, document's last
modified date or operating system last modified
date.
Modified_Time For efiles or attachments, the document's last
modified time or operating system last modified
time.
Author The author of a stand-alone efile or attachment.
From The sender of an email message
To The recipients of an email message, in a semi-colon
delimited multi-value list.
CC The copyee(s) of an email message, in a semi-colon
delimited multi-value list.
BCC The blind copyee(s) of an email message, in a
semi-colon delimited, multi-value list.
MD5 The calculated MD5 hash value of the document
Native_File The file path to the location of the native file if
produced natively.
AEO Conf_Desig The confidentiality designation, if any, for the
document pursuant to any protective order in the
case.
TextPath The location of the extracted text or OCR text
being produced
Notwithstanding the foregoing, the parties will meet and confer in good faith as necessary prior to the production of documents, with technical experts as needed, to clarify or resolve any issues (e.g., definitions of metadata fields, inconsistencies, and burden) concerning the production of metadata.
H. Attachments
Email attachments must be mapped to their parent by the Document or Production number. BeginAttach and EndAttach fields must be populated for parent documents.
8. DOCUMENTS PROTECTED FROM DISCOVERY
a) Pursuant to Fed. R. Evid. 502(d), the production of a privileged or workproduct-protected document, whether inadvertent or otherwise, 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) The parties have agreed upon a "quick peek" process pursuant to Fed. R. Civ. P. 26(b)(5) and reserve rights to assert privilege as follows:
• The Producing Party shall notify the Receiving Party in writing within ten business days after discovery of an inadvertent production or disclosure.
• Such inadvertently produced or disclosed documents or information, including all copies thereof, shall be returned to the Producing Party immediately upon request, and the Receiving Party shall immediately destroy any notes or other writing or recordings that summarize, reflect, or discuss the content of such privileged or Protected Information.
• No use shall be made of such documents or information during deposition or at trial, nor shall such documents or information be provided to anyone who did not already have access to them prior to the request by the Producing Party that they be returned.
• In the case of an inadvertently produced or disclosed document, the Producing Party shall include the Discovery material in a privilege log identifying such inadvertently produced or disclosed document.
• The Receiving Party may move the Court for an Order compelling production of any inadvertently produced or disclosed document or information, but the motion shall not assert as a ground for production the fact of the inadvertent production or disclosure, nor shall the motion disclose or otherwise use the content of the inadvertently produced document or information (beyond any information appearing on the above-referenced privilege log) in any way in connection with any such motion.
c) Communications involving trial counsel that post-date the filing of the original complaint (June 22, 2017) need not be placed on a privilege log. Communications may be identified on a privilege log by category, rather than individually, if appropriate.
9. 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, on this 19th day of March, 2018.
IT IS ORDERED.
