Lora Smith et al v. Bank of America, N.A.

Filing 99

STIPULATED PROTECTIVE ORDER REGARDING THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION by Magistrate Judge Paul L. Abrams. 97 (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

12 LORA SMITH and CYNTHIA
)
HIMPLE, individually, and on behalf of )
13 the class of all others similarly situated, )
)
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)
Plaintiffs,
)
15 v.
)
16 BANK OF AMERICA, N.A., a National )
)
Banking Association,
)
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)
Defendant.
)
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)
)
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)
)
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)
)
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)

CASE NO: 2:14-cv-06668-DSF-PLAx
STIPULATED PROTECTIVE
ORDER REGARDING THE
PRODUCTION OF
ELECTRONICALLY STORED
INFORMATION
Judge:

Hon. Dale S. Fischer

Magistrate Judge: Hon. Paul L. Abrams
Complaint Filed:

August 25, 2014

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STIPULATED PROTECTIVE ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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This Order governs how the Parties and the Court will manage electronic discovery
in the above-captioned case (the “Action”).
1.

SCOPE AND DEFINITIONS
1.1

Scope

This Stipulated Protective Order Regarding the Production of Electronically Stored
Information (hereinafter referred to as the “Protocol”) governs the collection and production
of Electronically Stored Information and Hard Copy Documents (collectively, “Data”), that
are to be produced electronically in this Action.
Nothing herein shall alter the Parties’ respective responsibility to comply with the
Federal Rules of Civil Procedure and Local Rules regarding the collection or production of
Data. To the extent additional obligations or rights not addressed in this Protocol arise
under the Federal Rules of Civil Procedure or other applicable law or rules, that law or rule
shall govern.
If there is a conflict between the provisions of this Protocol and any order
governing discovery in this action, including but not limited to the Stipulated Protective
Order in this Action, the provisions of those other orders shall control. Nothing in this
Protocol is meant to supersede, replace, or substitute any of the provisions set forth in the
Protective Order. If there is a conflict between the provisions of this Protocol and the
Protective Order, the Protective Order shall control.
Nothing in this Protocol establishes any agreement regarding the subject matter or
scope of discovery in this Action, or the relevance or admissibility of any Data.
Nothing in this Protocol shall be interpreted to require disclosure of irrelevant
information or relevant Data protected by the attorney-client privilege, work-product
doctrine, or any other applicable privilege or immunity. The Parties reserve all rights and
do not waive any objections as to the production, discoverability, admissibility, or
confidentiality of Documents. Nothing in this Protocol shall affect, in anyway, a
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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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Producing Party’s right to seek or oppose reimbursement for costs associated with
collection, review, and/or production of Data.
1.2

Definitions

“Documents” shall have the same definition as set forth in Federal Rule of Civil
Procedure 34.
“Electronically Stored Information” or “ESI” are synonymous with the usage of
the term in Federal Rule of Civil Procedure 34 and means information that is stored
electronically, regardless of the Media or whether it is in the original format in which it
was created.
“Extracted Text” means the text extracted from a document, and includes all
header, footer, and document body information when reasonably available.
“Hard Copy Documents” means computer printouts or handwritten material
originating from the paper files of a Party.
“Load File” means an electronic file containing information identifying a set of paperscanned 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 is provided with a production set of document images that facilitates the
loading of such information into a Receiving Party’s document review platform, and the
correlation of such data in the platform such as data relevant to the individual Documents,
including extracted and user-created Metadata.
“Media” means an object or device on which data is or was stored, including but
not limited to a disc, tape, computer or other device, regardless whether in the Producing
Party’s physical possession.
“Metadata” means: (i) information embedded in or associated with a native file that
is not ordinarily viewable or printable from the application that generated, edited, or
modified such native file which describes the characteristics, origin, usage, and/or validity
of the electronic file; and/or (ii) information generated automatically by the operation of a
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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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computer or other information technology system when a native file is created, modified,
transmitted, deleted, or otherwise manipulated by a user of such system.
“Native Format” means and refers to the format of ESI in which it was generated
and/or as used by the Producing Party in the usual course of its business and in its
regularly conducted activities.
“OCR” means optical character recognition.

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“OCR Text” means text generated through an OCR process.

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“Parties” means or refers collectively to the named plaintiffs and defendants in the
above-captioned action, as well as any later added plaintiff and defendants. “Party” shall
refer to a plaintiff or defendant, individually.
“Producing Party” means or refers to a Party in the above-captioned action from
which production of ESI or Hard Copy Documents are sought.
“Requesting Party” means or refers to a Party in the above-captioned action
seeking production of ESI or Hard Copy Documents.
2.

PRODUCTION OF HARD COPY DOCUMENTS – FORMAT
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).
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. The database Load
File should contain the following fields: “BatesStart,” “BatesEnd,” “BatesNumPages,”
“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 a Party determines that unitizing Documents or categories of
Documents stored as a unit in the ordinary course is not feasible, or is unduly burdensome
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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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or expensive, the Parties shall meet and confer in good faith to resolve the issue. If an
original document contains color, and the color is necessary to understand the meaning or
content of the document, the document shall 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.
3.

PRODUCTION OF ESI
3.1

Field Name
BegDoc
EndDoc
BegAttach
EndAttach

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18 Count
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Metadata

PageCount
Custodian

Field Description
Bates number of the first page of
the document.
Bates number of the last page of
the document.
Bates number of the first page of
the first document of the
document family.
Bates number of the last page of
the last document of the
document family.
Number of attachments

Populated For
All

Example Values
Prefix-0000000001

All

Prefix-0000000002

All

Prefix-0000000001

All

Prefix-0000000004

All

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Number of printed pages in the
document.
Names of custodians, including
each individual custodian of DeDuplicated Copies, produced in
format: Lastname, Firstname.
Where multiple individuals share
first and last name, individuals
should be distinguished by an
initial which is kept constant
between productions. For
instance: Smith, John A. and
Smith, John B. For Documents
from centralized repositories
where custodian name(s) are
unavailable, identifying source
information should be provided.

All

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All

Smith, Jane; Smith,
John A.; Smith, John B.;
Taylor, Michael

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Bloomberg Messages
central repository;
Structured Finance
Group Departmental
Files

STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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Field Name
Subject
3 To

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6 From
7 CC
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10 BCC
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13 DateSent
DateRcvd
TimeSent
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16 ParentDate

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Populated For
E-mails
E-mails

Example Values
Text of the subject line
[e-mail]

E-mails

[e-mail]

E-mails

[e-mail]
m

E-mails

[e-mail]

E-mails
E-mails
E-mails
E-mails
E-mail; eattachments;
Electronic
Documents

mm/dd/yyyy
mm/dd/yyyy
hh:mm:ss
hh:mm:ss
mm/dd/yyyy

All

Hash Value

The file name of the document,
including the file extension.

E-attachments;
Electronic
Documents

Final_Agreement.doc

File extension.

E-mail; eattachments;
Electronic
Documents

.doc

For e-attachments, this field will
be populated with the DateSent
of their parent email.

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Field Description
Subject line of an e-mail.
All recipients that were included
on the “To” line of the e-mail.
(This field includes separate
recipient names when a
distribution group was utilized.)
The name and e-mail address of
the sender of the e-mail.
All recipients that were included
on the “CC” line of the e-mail.
(This field includes separate
recipient names when a
distribution group was utilized.)
All recipients that were included
on the “BCC” line of the e-mail.
(This field includes separate
recipient names when a
distribution group was utilized.)
Date an e-mail was sent.
Date an e-mail was received.
Time an email was sent
Time an email was received
For parent emails, this field will
be populated with the DateSent.

Hash

FileName

For other electronic Documents,
this field will be populated with
the DateLastModified.
MD5 hash value of document or
“de-duplication key.”

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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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Field Description
Author of document or email.

Populated For
E-attachments;
Electronic
Documents;
Email

Example Values
Last name, First name

5 File Type
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Information from the file type
field

All

Text of the file type
field

7 File Size

File size in bytes (MB, KB, GB)

All

100MB

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The path to the corresponding
native file included with a
production volume.

E-mail, Eattachments, and
Electronic
Documents
produced in Native
Format
E-mail, Eattachments, and
Electronic
Documents
All Documents

Document_12345.doc

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Field Name
Author

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TEXTPATH

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Designation

The path to the corresponding
OCR or Extracted Text file
included with a production
volume.
The designated level of
confidentiality pursuant to the
Protective Order.

Document_12345.txt

CONFIDENTIAL

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3.2

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The Parties will produce ESI in single-page, black and white, TIFF Group IV, 300

Format

19 DPI TIFF images with the exception of Microsoft Access databases, Microsoft Excel
20 files, .CSV files and other similar databases, spreadsheet files, source code, audio, and
21 video files, which shall be produced in Native Format. Data containing color need not
22 initially be produced in color unless the Producing Party has referred to the color version
23 or if color is of assistance in understanding the meaning or content of the Data. The
24 Producing Party will also honor reasonable requests for color images needed to
25 understand the meaning or content of Data. Documents produced in color should be
26 produced as single-page, 300 DPI JPG images with JPG compression and a high quality
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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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image beyond how it was kept in the usual course of business. TIFFs/JPGs will show any
and all text and images which 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 if a name(s) or email address(es) are present in the email or the Metadata.
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 will also be provided. A
Party shall produce a single TIFF placeholder image, numbered using the bates number of
the produced file, for any file produced in Native Format. 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.
Text files shall be produced as one file per document, named after the starting
production number assigned to the document and ending with extension “.txt”, with a text
directory for each production volume, and with a relative file path to the text file
provided in the related database Load File. With the exception of TIFF, PDF and other
image file types for which the text cannot be extracted, the text of Documents should be
extracted directly from the Native File without using OCR, except in the case of redacted
Documents, as specified in Section 3.9, below. If a document does not contain extractable
text, but is identified as containing text, the Producing Party shall make reasonable efforts
to provide OCR Text for that document. If a Party determines that providing OCR Text
for specific Documents or categories of Documents not containing extractable text is not
feasible, or is unduly burdensome or expensive, the Parties shall meet and confer in good
faith to resolve the issue.
Electronic Documents attached to an email, or electronic Documents embedded
within other electronic Documents, are to be produced contemporaneously and sequentially
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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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immediately after the parent document. Parent-child relationships within a document family
(the association between an attachment and its parent document) shall be preserved. Each
document shall be produced with the production number for the first and last page of that
document in the “BatesStart” and “BatesEnd” fields of the data Load File and with the
“AttachBatesStart” and “AttachBatesEnd” fields listing the production number for the first
and last page in the document family. Nothing in the Protocol requires the production of a
non-responsive child document attached to an otherwise responsive parent or child
document. In these instances, a placeholder image will be produced for the non- responsive
document, which will contain language indicating it has been withheld as non-responsive.
Metadata for a withheld and purportedly non-responsive child document reflecting its file
name and family information will be produced with the placeholder image. Nothing in this
Protocol prejudices a Party from challenging another Party’s withholding of a purportedly
non-responsive child document.
3.3

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 duplicates. 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 and email thread suppression is not acceptable. De-duplication will be done across the entire
collection (global de-duplication) and the ALL CUSTODIAN field will list each custodian,
separated by a semi-colon, who was a source of that document and the FILEPATH field,
where such Metadata is retained and reasonably available, will list each file path, separated
by a semi-colon, that was a source of that document. Should the ALL CUSTODIAN or
FILEPATH Metadata fields produced become outdated due to rolling productions, an
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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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overlay file providing all the custodians and file paths for the affected Documents will be
produced at the time of the substantial completion of the document production.
3.4

Metadata

All ESI will be produced with a delimited, database Load File that contains the
Metadata fields listed in the table of Section 3.1. The Metadata produced should have the
correct encoding to enable preservation of the Documents’ original language. Each of the
Metadata fields set forth in the table of Section 3.1 that reasonably can be extracted from
an electronic document without undue burden shall be produced for that document,
subject to privilege or immunity from disclosure. Fields that are not populated shall be
left with null values and not populated with fillers or spaces.
3.5

Embedded Objects

Non-substantive objects, such as corporate logos and contact blocks may be
removed from production. Embedded objects containing substantive information, such as
graphs or charts, will be produced as an attachment. The Parties agree to further meet and
confer over the inclusion or exclusion of embedded files from the production as needed.
3.6

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.
3.7

Structured Data

To the extent a response to discovery requires production of electronic information
stored in a database, including the production of text messages or similar
communications, the Parties will meet and confer regarding methods of production. The
Parties will consider whether all relevant information may be provided by querying the
database for discoverable information and generating a report in a reasonably usable and
exportable electronic file.
3.8

Exception Report
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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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If any Documents are unprocessed or unprocessable, the Producing Party shall
produce a slip sheet with the file name and file type.
3.9

Encryption

To maximize the security of information in transit, any Media on which
Documents are produced may 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.
3.10 Redactions
To the extent that any image file contains information subject to a claim of privilege
or other recognized legal protection that requires redactions, the portion of the redacted text
shall be clearly identified on the face of the TIFF image, either by masking the redacted
content with electronic highlighting in black or through the use of redaction boxes. The label
“Redacted” and the basis for the redaction shall appear on the page of the document
containing redactions. To the extent a document is redacted, OCR text files for such a
document shall not contain text for redacted portions. The original unredacted native file
shall be preserved pending conclusion of the Action.
If Documents that the Parties have agreed to produce in Native Format need to be
redacted, the Parties will meet and confer regarding how to implement redactions while
ensuring that proper formatting and usability are maintained.
3.11 Technology-Assisted Review
No Party shall use predictive coding/technology-assisted-review for the purpose of
culling the Documents to be reviewed or produced without notifying the opposing Party
or Parties prior to use and with ample time to meet and confer in good faith regarding a
mutually agreeable protocol or other agreement for the use of such technologies.
3.12 Resolution of Disputes
The Parties agree to meet and confer in good faith regarding matters related to the
production of Data not specifically set forth in this Protocol, related to the interpretation
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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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of this Protocol, or related to the Parties’ obligations hereunder. The Parties shall make
their best efforts to comply with and resolve any differences concerning compliance with
this Protocol. If a Producing Party cannot comply with any material aspect of this
Protocol, such Party shall inform the Requesting Party in writing at or before the time of
production as to why compliance with the Protocol is unduly burdensome or costly, or
not reasonably possible.

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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: April 2, 2019

LAW OFFICES OF MICHAEL R. BROWN, APC

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By: __/s/

Michael R. Brown_____
Michael R. Brown
Attorney for Plaintiffs Smith and Himple

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LAW OFFICES OF DAVID J. VENDLER

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By:

/s/

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David J. Vendler
David J. Vendler
Attorney for Plaintiffs Smith and Himple

SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP
By:

/s/

Douglas A. Smith
Douglas A. Smith
Attorneys for Defendant Bank of America, N.A.

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ATTESTATION

I, Douglas A. Smith, attest that the signatories listed above, and on whose behalf

18 the filing is submitted, concur in the filing’s content and have authorized the filing.
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/s/ Douglas A. Smith
Douglas A. Smith

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STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

11

WESTERN DIVISION

12 LORA SMITH and CYNTHIA
) CASE NO: 2:14-cv-06668-DSF-PLAx
HIMPLE, individually, and on behalf of )
13 the class of all others similarly situated, )
)
14
) ORDER GRANTING STIPULATED
Plaintiffs,
) ORDER RE: ESI PRODUCTION
15 v.
)
16 BANK OF AMERICA, N.A., a National )
)
Banking Association,
) Judge:
Hon. Dale S. Fischer
17
)
Defendant.
) Magistrate Judge: Hon. Paul L. Abrams
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)
) Complaint Filed: August 25, 2014
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)
)
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)
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Having considered the papers, and finding that good cause exists, the Parties’
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Stipulated Order Regarding the Production of ESI is granted.
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IT IS SO ORDERED.
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DATED: April 4, 2019

PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE

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ORDER GRANTING STIPULATED ORDER REGARDING
THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION11