Rubbermaid Incorporated et al v. Ergotron Inc
ORDER granting 30 Motion for ESI order. Signed by Magistrate Judge David S. Cayer on 2/8/2013. (blf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
RUBBERMAID INCORPORATED d/b/a
RUBBERMAID MEDICAL SOLUTIONS,
) Civil Action No. 3:12-cv-00416-RJC) DSC
) JURY TRIAL DEMANDED
AGREED ESI ORDER
The Parties are likely to request the production of Electronically-Stored Information
(“ESI”) from each other. To streamline the production of ESI and to thereby promote the just,
speedy, and inexpensive determination of the litigation, as required by Rule 1 of the Federal
Rules of Civil Procedure, the Parties have agreed to the terms set forth in the numbered
paragraphs below regarding the discovery of ESI. Thus, good cause appearing, it is hereby
ORDERED as follows:
The parties have agreed to conduct discovery in a cooperative manner. In the event
that the parties are unable to agree on the parameters and/or timing of discovery, the following
default standards shall apply until further order of the Court or the parties reach agreement.
The parties have agreed to take reasonable and proportional steps to preserve
discoverable information in the party’s possession, custody or control, including a timely
implementation of a litigation hold.
The parties have agreed to use reasonable, good faith and proportional efforts to
preserve, identify and produce relevant information, which includes ESI and paper documents.
To further the application of the proportionality standard in discovery, requests for production of
ESI and related responses should be reasonably targeted, clear, and as specific as practicable.
Costs will be shifted for disproportionate ESI production requests pursuant to Rule
26 of the Federal Rules of Civil Procedure. Likewise, a party’s non-responsive 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.
General ESI production requests under Rules 34 and 45 of the Federal Rules of Civil
Procedure shall not include email or other forms of electronic correspondence (collectively,
“email”). To obtain email, parties must propound specific email production requests.
Email production requests shall only be propounded for specific issues, rather than
general discovery of a product or business.
Email 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
The parties have been unable to reach an agreement regarding (1) the maximum
number of custodians for which each party may request email production and (2) cost shifting
associated with email production. The parties agree to meet and confer regarding limits on email
custodians and on cost shifting after email production requests have been served and will seek
guidance from the Court if necessary.
Each requesting party shall limit its email production requests to a total of twenty
(20) search terms per party, with no more than ten (10) search terms per custodian. The parties
may jointly agree to modify these limits without the Court’s leave. 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 or the disjunctive combination is intended to refer to a unique
object such as a particular patent. 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. Should a party serve email production requests with search
terms beyond the limits agreed to by the parties or granted by the Court pursuant to this
paragraph, the requesting party shall bear all reasonable costs caused by such additional
The receiving party shall not use ESI that the producing party asserts is attorney-
client privileged or work product protected to challenge the privilege or protection.
Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a
privileged or work product protected ESI is not a waiver in the pending case or in any other
federal or state proceeding.
The mere production of ESI in a litigation as part of a mass production shall not
itself constitute a waiver for any purpose.
The parties have agreed to use their best efforts to follow the terms set forth
below regarding, inter alia, the format in which documents and ESI will be produced, and the
production of metadata.
Production of Data
Document Image Format: Paper documents and electronically stored information
that is conducive to being displayed in an image form shall be produced as 300 dpi CCITT
Group Four compression black & white single page tiff images. JPG and GIF image files shall
be produced as color images and shall be delivered in either packbit compression tiff or jpeg
images. Additionally, the requesting party may request that a reasonable number of documents
(identified by production number) be re-produced in color image format.
Production images shall be endorsed with a sequential padded alphanumeric bates
number (e.g. ABC000001) and appropriate protective declarations. No spaces or dashes shall
appear between the production prefix (ABC) and the padded production number (000001).
Production images shall be named to match the corresponding page bates number endorsement.
Additionally, the requesting party may request that specific documents be subsequently
re-produced in native format based on a showing that the native format of the specified
documents is relevant to claims or allegations at issue in these proceedings, provided such native
file does not contain any privileged information.
Searchable Text: The production shall include searchable text files (.txt) for all of
the textual production documents. For documents maintained by the producing party in image or
hard copy (paper) form, the producing party shall create searchable text files using Optical
Character Recognition (“OCR”) technology. For documents maintained by the party in
electronic form, the producing party may opt to either use the extracted text of the “native” file
or create searchable text files using OCR technology. The searchable text files should be created
on a document level and be named to correspond to the first page bates number of the
corresponding document being produced (e.g. ABC000001.txt). Searchable text files shall be in
the same file folder as the associated production images.
Load Files: Each production set shall be accompanied by a load file that unitizes
the production images into their logical document and document attachment boundaries.
Ergotron prefers a Ringtail load file format (.mdb).
A Ringtail load file format requires the following:
Level Structure in Export table must mirror the level structure of the image folders on
the production media. Each folder/level should not exceed 5000 files.
Attachment information stored in host reference field of Export table.
Pages table containing a record for each single page tiff image.
Rubbermaid prefers a Concordance load file format (.dat) using Concordance
standard delimiters and Concordance image load file format (.opt).
Metadata: During the process of converting ESI from the electronic format of the
application in which the ESI is normally created, viewed and/or modified to TIFF, metadata
values should be extracted and produced in a load file..
To the extent they are reasonably available, and except with respect to documents
redacted in whole or in part on grounds of privilege that have metadata, the metadata values that
are to be extracted and produced in the load files are:
Metadata from Email:
Email Received Date
Email Received Time
Email Sent Date
Email Sent Time
Metadata from Electronic Files:
File Created Date
File Modified Date
Metadata for both Email and Electronic Files:
To the extent reasonably available, the “Custodian” or “Original Path” field with respect
to ESI gathered from an individual’s hard drive will provide metadata sufficient to identify the
custodian from whose hard drive such ESI has been gathered.
Metadata shall not be provided for documents redacted in whole or in part on grounds of
By agreeing to produce specific categories of metadata that are reasonably available, no
party is representing that any particular category of metadata exists or is reasonably available.
For all documents (for example, email) that contain an attachment, to the extent
reasonably available, the following fields should be produced as part of the metadata load file to
provide the parent/child or parent/sibling relationship. Field names should not exceed nine
consecutive characters and there should not be spaces between those characters.
Production Number Begin
Production Number End
Production Doc Page Count
The field values to be produced in the load file for paper documents are as follows:
Production Number Begin
Production Number End
De-Duplication: To reduce the cost of review and production, parties may choose
to use custodian level de-duplication to remove exact duplicate files from review and production.
For non-email electronic files, the identification of duplicate files should be based on MD5 or
SHA-1 hash values. Email duplicates should be identified based on algorithms that utilize at
least the following email metadata fields: Date/Time Sent; Subject; From; To; CC; Email body.
Family groups – parent and child documents – should not be separately eliminated unless both
the parent and child documents are identical to another set of parent and child documents.
Production of Excel, Access, AutoCad, Audio, and Video ESI: Unless such
materials contain privileged information, MS-Excel spreadsheets, MS-Access databases,
AutoCad, audio, and video ESI shall be produced in native format. To the extent reasonably
available, the metadata load file shall contain a link to the produced native file via data values
called “Native Link.” To the extent reasonably available, the Native Link values should contain
the full directory path and file name of the native file as contained in the produced media.
Native File Production: Native files should be accompanied by a .TIFF
placeholder and a metadata file containing the name of the original file and MD5 hash value for
each produced file. Native files shall be named to match the endorsed bates number on the
corresponding tiff image placeholder page. To the extent such material contain information
subject to a claim of privilege, they shall be produced in the form of a redacted .TIFF image.
Processing/Production of Presentations (MS PowerPoint): Production images for
presentations (PowerPoint) shall contain both the presentation slides and presentation notes.
Processing/Production of Documents (MS Word): When converting documents
(Word) to image format, the document shall be “printed” (converted to image format) to include
track changes if the Track Changes feature has been enabled for the document.
Handling of System Files with No Evidentiary Value: The parties shall undertake
reasonable efforts to remove non-responsive system files from the ESI collection, including
filtering the ESI collection against the National Software Reference Library (NSRL) National
Institute of Technology (NIST) file listing prior to production.
Document Review and Privilege
All documents will be evaluated for responsiveness and/or relevance prior to
Redacted Documents: Where only a portion of a responsive document is deemed
to be privileged, that document shall be produced in image format with the responsive portion of
that document electronically redacted. The redaction label shall be clearly marked with label
text identifying it as such. The searchable text files for redacted documents should consist of an
OCR of the redacted production image.
Privilege Review: Each party will review all documents, including ESI, for
privileged information prior to production. The parties agree that activities undertaken in
compliance with the duty to preserve information are protected from disclosure and discovery
under Fed. R. Civ. P. 26(b)(3)(A) and (B). Documents withheld, or redactions of documents
produced on privilege grounds will be identified in a privilege log.
The parties are to confer on the nature and scope of privilege logs for the case, including
whether categories of information may be excluded from any logging requirements and whether
alternatives to document-by-document logs can be exchanged. With respect to information
generated after the filing of the complaint, parties are not required to include any such
information in privilege logs.
Each electronic production shall be delivered on a single media. Depending on
production size, productions may be produced and delivered on CD, DVD or portable hard drive
with appropriate security keys and/or encryption.
Modification of the ESI Order
The parties may agree to modify the ESI Order. Absent agreement by the parties, the ESI
Order may be modified for good cause by the Court. The parties agree to meet and confer and to
make a good faith effort to resolve any disputes regarding any proposed modification to the ESI
Order before seeking relief from the Court.
Signed: February 8, 2013
Dated: February 7, 2013
RUBBERMAID INCORPORATED d/b/a
RUBBERMAID MEDICAL SOLUTIONS
/s/ Derek H. Swanson
David E. Finkelson (admitted pro hac vice)
Derek H. Swanson (admitted pro hac vice)
One James Center
901 East Cary Street
Richmond, VA 23219
/s/ Kurt John Niederluecke
Kurt John Niederluecke (admitted pro hac vice)
Grant D. Fairbairn (admitted pro hac vice)
Laura L. Myers (admitted pro hac vice)
Fredrikson & Bryon, P.A.
200 South Sixth St.
Minneapolis, MN 55402
Robert A. Muckenfuss (N.C. Bar No. 28218)
R. Matthew Pearson (N.C. Bar No. 35494)
201 North Tryon St.
Charlotte, NC 28202
Counsel for Plaintiff Rubbermaid Incorporated
d/b/a Rubbermaid Medical Solutions
Lawrence C. Moore , III
Nathan C. Chase, Jr.
Robinson, Bradshaw & Hinson, P. A.
101 N. Tryon St.
Charlotte, NC 28246
Counsel for Defendant Ergotron, Inc.