Edward Asner et al v. The Sag-Aftra Health Fund et al

Filing 80

STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION by Magistrate Judge John E. McDermott re Stipulation for Discovery, #79 See Order for details. (es)

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 1 of 25 Page ID #:1794

1
2
3
4
5
6
7
8
9
10
11
12

Scott P. Cooper (SBN 96905)
scooper @proskauer.com
Jennifer L. Roche (SBN 254538)
[e-mail]
PROSKAUER ROSE LLP
2029 Century Park East, Suite 2400
Los Angeles, California 90067
Tel.: [phone]
Fax: [phone]

Neville L. Johnson (SBN 66329)
[e-mail]
Douglas L. Johnson (SBN 209216)
[e-mail]
JOHNSON & JOHNSON LLP
439 North Canon Drive, Suite 200
Beverly Hills, California 90210
Tel.: [phone]
Fax: [phone]

Myron D. Rumeld*
[e-mail]
Neil V. Shah*
[e-mail]
Anastasia S. Gellman*
[e-mail]
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
Tel.: [phone]
Fax: [phone]

Steven. A Schwartz*
[e-mail]
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
361 West Lancaster Avenue
Haverford, PA 19041
Tel.: [phone]
Fax: [phone]

16

Jani K. Rachelson*
[e-mail]
Evan R. Hudson-Plush*
[e-mail]
COHEN WEISS AND SIMON LLP
900 Third Avenue, Suite 2100
New York, NY 10022-4869
Tel.: [phone]
Fax: [phone]

17

* admitted pro hac vice

18

Attorneys for Defendants

13
14
15

19

24
25

Attorneys for Plaintiffs

CENTRAL DISTRICT OF CALIFORNIA

21
23

WESTERN DIVISION
EDWARD ASNER, et al.,
Plaintiffs,
vs.

26

THE SAG-AFTRA HEALTH FUND,
et al.,

27

Defendants.

28

* admitted pro hac vice

UNITED STATES DISTRICT COURT

20
22

Robert J. Kriner, Jr.*
[e-mail]
Emily L. Skaug*
[e-mail]
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
2711 Centerville Road, Suite 201
Wilmington, DE 19808
Tel.: [phone]
Fax: [phone]

Case No. 2:20-cv-10914-CAS (JEM)
[DISCOVERY MATTER: Referred to
Magistrate Judge John E. McDermott]
STIPULATED ORDER RE:
DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION
Action Filed: December 1, 2020

[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 2 of 25 Page ID #:1795

1

1.

PURPOSES AND LIMITATIONS
1.1.

2

This Order will govern discovery of electronically stored information

3

(“ESI”) in this case as a supplement to the Federal Rules of Civil Procedure,

4

this Court’s Local Rules, and any other applicable orders and rules. Nothing

5

in this order is intended to alter or affect any Party’s rights or obligations

6

under any order by the assigned District Judge, but shall be construed

7

instead, wherever possible, as consistent with any order by the assigned

8

District Judge. Accordingly, the Parties (as defined below), through their

9

undersigned counsel, hereby agree and stipulate to the following protocol

10

(the “Protocol”) for the production of discovery materials and request that

11

their stipulation be so ordered by the Court.

12

2.

COOPERATION
2.1

13

The Parties are aware of the importance the Court places on cooperation and

14

commit to cooperate in good faith throughout the matter consistent with the

15

Federal Rules of Civil Procedure and the Local Rules of this Court.

16

Consistent with their obligations under L.R. 37-1, the Parties will first

17

attempt to resolve, in person, by video conference, or by telephone, disputes

18

regarding discovery issues before filing a motion with the Court, or

19

otherwise seeking relief.

20
21

3.

DEFINITIONS
3.1

Action: The above-captioned action in the United States District Court for

22

the Central District of California: Asner, et al. v. The SAG-AFTRA Health

23

Fund, et al., Case No. 2:20-cv-10914-CAS (JEMx).

24
25

3.2

Document: Defined to be synonymous in meaning and equal in scope to the
usage of this term in Federal Rules of Civil Procedure 26 and 34(a)(1)(A).

26
27
28

-1[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 3 of 25 Page ID #:1796

1

3.3

Email: Electronic messages sent or received asynchronously via messaging

2

applications, including, but not limited to, Microsoft Outlook, Google

3

Gmail, or Lotus Notes.

4

3.4

ESI: An abbreviation of “electronically stored information” and defined to

5

be synonymous in meaning and equal in scope to the usage of this term in

6

Federal Rules of Civil Procedure 26 and 34(a)(1)(A).

7

3.5

Extracted Text: Text extracted from a Native Format file and includes at

8

least all header, footer, document body information, and any hidden text, if

9

available.

10

3.6

Family: Defined as all parts of a group of documents that are connected to

11

each other for purposes of communication, e.g., an email (parent) and its

12

attachments (children). For avoidance of doubt, the term Family does not

13

include separate entries in calendars, diaries, file folders, notebooks, or

14

binders, the responsiveness of which will be determined independently on an

15

entry-by-entry basis.

16

3.7

Instant Messages: Real time communications sent via chat client or SMS,

17

including but not limited to Symphony, Bloomberg Chat, Google Talk,

18

WhatsApp, Yahoo! Messenger, AOL Instant Messenger (AIM), Blackberry

19

Messenger, ICQ, Pidgin, Audium, Trillian, Apple iMessage, Skype,

20

Microsoft Teams, Signal, Facebook Messenger, Telegram, Snapchat,

21

Mattermost, Dust, Viber, Threema, Silence, Wire, Wickr, Line, Voxer,

22

Smiley Private Texting, CoverMe, Slack, Zoom, or any proprietary text,

23

chat, or instant messaging system.

24

3.8

Load File: An electronic file that is used to import all required production

25

information into a document database, including, if available, document

26

images, Extracted Text or OCR text, Native Format files where required by

27

this Protocol, and Metadata, as well as information indicating document

28

-2[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 4 of 25 Page ID #:1797

1

breaks, and document relationships such as those between an Email or

2

Instant Message and its attachments and a document and information related

3

to embedded content.

4

3.9

Metadata:

Structured information about ESI that is: (i) information

5

embedded in or associated with a file that is not ordinarily viewable or

6

printable from the application that generated, edited, or modified such native

7

file which describes the characteristics, origins, custody, usage, and/or

8

validity of the electronic file; (ii) information generated automatically by the

9

operation of a computer or other information technology system when a

10

native file is created, modified, transmitted, deleted, or otherwise

11

manipulated by a user of such system; (iii) information, such as Bates

12

numbers, created during the course of processing Documents for production;

13

and/or (iv) information collected during the course of collecting Documents,

14

such as the name of the media device, or the custodian or non-custodial data

15

source from which it was collected.

16
17

3.10 Native Format: The format of ESI in the application in which such ESI was
originally created, viewed and/or modified.

18

3.11 OCR: The “optical character recognition” technology used to read paper

19

Documents or electronic images of Documents and output such Documents

20

to a searchable text format. The latter text is also referred to as the “OCR

21

text” or simply “OCR.”

22

3.12 Parties: Plaintiffs Edward Asner, Michael Bell, Raymond Harry Johnson,

23

Sondra James Weil, David Jolliffe, Robert Clotworthy, Thomas Cook,

24

Audrey Loggia, Deborah White, and Donna Lynn Leavy; and Defendants

25

the SAG-AFTRA Health Fund, the Board of Trustees of the Screen Actors

26

Guild-Producers Health Plan, the Board of Trustees of the SAG-AFTRA

27

Health Fund, Daryl Anderson, Helayne Antler, Amy Aquino, Timothy

28

-3[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 5 of 25 Page ID #:1798

1

Blake, Jim Bracchitta, John Carter Brown, Duncan Crabtree-Ireland, Barry

2

Gordon, J. Keith Gorham, James Harrington, David Hartley-Margolin, Harry

3

Isaacs, Robert W. Johnson, Sheldon Kasdan, Matthew Kimbrough, Lynne

4

Lambert, Allan Linderman, Carol A. Lombardini, Stacy K. Marcus, Richard

5

Masur, John T. McGuire, Diane P. Mirowski, Paul Muratore, Tracy Owen,

6

Michael Pniewski, Ray Rodriguez, Marc Sandman, Shelby Scott, Sally

7

Stevens, Gabriela Teissier, Lara Unger, Ned Vaughn, David Weissman,

8

Russell Wetanson, David P. White, and Samuel P. Wolfson. “Party” shall

9

refer to any party to the Action.

10

3.13 Producing Party: Any Party in the Action that produces Documents.

11

3.14 Protective Order: The Stipulated Protective Order filed in the Action and
entered by the Court on February 15, 2022 (ECF No. 76).

12
13

3.15 Receiving Party:

14

produced.

Any Party in the Action to whom Documents are

15

3.16 Responsive Document: Any Document that is responsive to any discovery

16

request served on the Producing Party in the litigation and which the

17

Producing Party has agreed or been ordered to produce, subject to the

18

limitations set forth in the Federal Rules of Civil Procedure or Court order.

19

3.17 Tagged Image File Format: Or “TIFF” refers to the CCITT Group IV

20

graphic file format for storing bit-mapped images of ESI or paper

21

Documents.

22
23

4.

TIMEFRAME AND IDENTIFICATION OF CUSTODIANS
4.1

Initial ESI Conference: The Parties agree to meet and confer within a

24

reasonable period of time, and shall cover the following topics: (i) the

25

identification (by category or type) of custodial and non-custodial data

26

sources containing potentially relevant ESI for potential collection, review,

27

and production; (ii) the identity and role of custodians from which the

28

-4[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 6 of 25 Page ID #:1799

1

Producing Party plans to collect Documents, including names, relevant titles,

2

and a good faith explanation describing how each custodian was determined;

3

(iii) additional parameters for scoping the review and production efforts

4

(e.g., application of date ranges that will be used for production); (iv) the

5

potential use and identification of search terms, tools, or techniques for the

6

collection of ESI; (v) the identification and production of Responsive

7

Documents from custodial and non-custodial sources that do not require the

8

use of search terms, tools, or techniques for collection; (vi) applicable

9

timeframe(s) for collection and review of Documents; and (vii) the method

10

the Producing Party proposes to use for de-duplication of ESI, including any

11

exceptions to such de-duplication.

12

4.2

Custodians: Following the above meet and confer described in Section 4.1,

13

the custodian list will be finalized, subject to Section 4.4 below, by

14

agreement of the Parties within a reasonable time, which will be subject to

15

the Producing Party’s ongoing good faith efforts to identify the custodians

16

most likely to have responsive or relevant information. Any outstanding

17

disagreements between the Parties may be submitted to the Court for

18

resolution after the Parties engage in good faith negotiations regarding any

19

disputes. For each custodian, the Producing Party shall make reasonable

20

efforts to identify the locations where non-duplicative, potentially relevant

21

Documents reside.

22

Protocol, Documents may be collected from all data sources within the

23

possession, custody, and control of the custodian, but only to the extent

24

interviews with the custodian indicate that such data sources: (i) may contain

25

relevant information relating to the former Screen Actors Guild-Producers

26

Health Plan or the SAG-AFTRA Health Plan; and (ii) are reasonably

27

accessible within the meaning of Federal Rule of Civil Procedure 26.

28

For targeted collections conducted pursuant to this

-5[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 7 of 25 Page ID #:1800

1

Subject to the Parties’ objections and responses to Requests for Production

2

of Documents, and subject to the Parties’ Protective Order (ECF No. 76), the

3

Parties shall begin producing non-privileged Responsive Documents on a

4

rolling basis, from the files of the identified custodians. The Parties agree to

5

work together in good faith to prioritize and sequence the custodial

6

productions of deponents, such that these Responsive Documents are

7

produced with sufficient time to review prior to their depositions. The

8

Parties agree to take any unresolved disputes on same promptly to the Court

9

or its designee.

10

4.3

Non-Custodial Sources: Following the above meet and confer described in

11

Section 4.1, and the exchange of any necessary additional information

12

relating to any identified non-custodial source, the Parties will agree upon an

13

initial list of non-custodial sources (by category or type) (or present any

14

disputes to the Court or its designee), that will be searched to identify

15

potentially responsive or relevant Documents. Subject to the Parties’

16

objections and responses to requests for production of Documents, and

17

subject to the Parties’ Protective Order, the Parties shall begin producing

18

non-privileged Responsive Documents on a rolling basis, from the identified

19

non-custodial sources.

20

4.4

Obligation and Supplementation: The Producing Party has a continuing

21

obligation to identify (by category or type) any custodial and non-custodial

22

data sources containing potentially responsive information that it is neither

23

searching nor producing, and preserve them. The Receiving Party reserves

24

the right to request, at any time prior to the close of discovery, the inclusion

25

of additional custodial or non-custodial data sources for good cause shown.

26

The Producing Party reserves the right to object to any such additions. Any

27
28

-6[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 8 of 25 Page ID #:1801

1

disputes remaining after good faith discussions will be resolved by the

2

Court.
4.5

3

manner that does not alter metadata or other file attributes.

4
5
6

The Parties shall use best efforts to collect ESI in a forensically sound

5.

SEARCH TERMS
5.1

In accordance with Section 4.1 above, the Parties agree to meet and confer to

7

reach an agreement on search terms. A Producing Party who intends to use

8

search terms will describe a search protocol that will include: (a) the

9

universe of documents to which search terms will be applied (e.g., custodial

10

sources, non-custodial sources, and proposed date ranges applicable to each

11

source), and (b) proposed search terms to be applied to that universe of

12

documents, subject to revision based on, for example, meet and confer of the

13

Parties and the number of hits returned by each term. A Requesting Party

14

may also suggest search terms to be applied. Before finalizing any search

15

protocol, the Producing Party shall provide reasonable metrics requested by

16

the Receiving Party regarding any proposed search term. The Parties agree

17

to meet and confer to the extent there is disagreement on the inclusion of a

18

search term or the effectiveness of the search term protocol.

19

5.2

The Parties will promptly meet and confer in good faith regarding any

20

disagreements over search terms. Where a Party objects to using certain

21

search terms, the objecting Party will provide information regarding why the

22

search terms are overbroad or should not be used sufficient to allow the

23

Receiving Party to assess the reasonableness of the terms, and where good

24

cause is shown, the Producing Party shall provide the number of hits for the

25

disputed search term(s). If the Parties are unable to reach an agreement on

26

search terms within a reasonable amount of time, they will engage in good

27

faith discussions to extend any production deadline as appropriate in order to

28

-7[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 9 of 25 Page ID #:1802

1

allow the Producing Party adequate time to conduct the review and

2

production.

3

5.3

After initial agreement is reached regarding search terms, the Parties reserve

4

the right to request, at any time prior to the close of discovery, inclusion of

5

additional search terms for good cause shown, or exclusion of terms initially

6

agreed to that prove to be overbroad and capturing predominantly irrelevant

7

data. The Parties reserve the right to object to such requests but will engage

8

in good faith negotiations. Any disputes shall be submitted to the Court

9

after good faith negotiations.

10

5.4

If a Party discovers a document that is responsive to the discovery requests

11

and the Party has asserted no objections that apply to prevent the production

12

of that document, the Party may not withhold the document on the basis that

13

it was not discovered or identified through the agreed-upon search

14

methodology.

15

5.5

Additional Requests for Documents: Nothing in this Protocol shall preclude

16

a Party from serving additional Requests for Production at any time prior to

17

the close of fact discovery. Nothing in this Protocol shall be deemed to be a

18

waiver of any Party’s right to reasonably seek agreement from the other

19

Parties, or a Court ruling, to modify proposed or previously agreed-to search

20

terms, techniques, or tools (including any proposed as supplements).

21

5.6

Technology Assisted Review: Nothing in this Protocol prohibits a Producing

22

Party from using Technology Assisted Review (“TAR”) during review to

23

identify documents for production. Prior to using TAR, the Parties agree to

24

meet and confer regarding the use of TAR, including a TAR protocol, and

25

submit any unresolved disputes to the Court or its designee for resolution.

26
27
28

-8[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 10 of 25 Page ID #:1803

1
2

6.

PRODUCTION FORMAT
6.1

Format Guidelines:

The Parties shall, to the extent reasonably and

3

technically possible, produce paper Documents and ESI according to the

4

specifications provided in Exhibit A.

5

6.2

De-Duplication and Culling: A Party is only required to produce a single

6

copy of a responsive Document. Each Party may remove exact duplicate

7

Documents (i.e., identical copies of the same Document), including but not

8

limited to Email, to reduce the unnecessary cost of reviewing and producing

9

exact duplicate Documents. If a Party chooses to remove exact duplicate

10

documents, the Party will only remove exact duplicate ESI using the

11

MD5/SHA-1 hashing method and shall identify the custodians of de-

12

duplicated Documents, except in the case of the removal of subordinate

13

duplicative email threads as provided for in 6.13 below. Moreover, (a) de-

14

duplication shall be performed only at the Document family level so that

15

attachments are not de-duplicated against identical stand-alone versions of

16

such Documents and vice versa, although each family member shall be

17

hashed separately for purposes of populating the “HashValue” field in

18

Exhibit A; (b) attachments to Emails, Instant Messages or other Documents

19

shall not be disassociated from the parent Email, Instant Message or

20

Document even if they are exact duplicates of another Document in the

21

production, and (c) paper Documents shall not be eliminated as duplicates of

22

responsive ESI. ESI that is not an exact duplicate according to the method

23

specified in Exhibit A may not be removed. The Producing Party may

24

employ reasonable culling methods to reduce large volumes of

25

presumptively non-responsive ESI, e.g., unresponsive mass emails/listservs,

26

without individually reviewing such ESI.

27
28

-9[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 11 of 25 Page ID #:1804

1

6.3

Encryption: The Parties will make reasonable efforts to ensure that all

2

encrypted or password-protected Documents are successfully processed for

3

review and production under the requirements of this Protocol, and if

4

produced in Native Format, the decrypted Document is produced. To the

5

extent encrypted or password-protected Documents are successfully

6

processed according to the requirements of this Protocol, the Parties have no

7

duty to identify the prior encrypted status of such Documents. To the extent

8

such Documents are not successfully processed despite use of reasonable

9

efforts, including reasonable efforts to obtain passwords, a placeholder TIFF

10

image may be produced in place of each such Document indicating that

11

security protection could not be removed to the extent the document would

12

be included in a production based on familial relationship. Upon request

13

from the Receiving Party, the Parties shall meet and confer in good faith

14

regarding reasonable efforts or mechanisms to remove such security

15

protection or the production of available Metadata.

16

6.4

Documents to Be Produced Natively: Microsoft Excel and other spreadsheet

17

files, including comma or tab delimited text files, Microsoft Access and

18

other database files, video, audio files, animation files, .CSV files, and

19

Power Point and other presentation files, and other file types that cannot be

20

accurately represented in TIFF format shall be produced in Native Format, if

21

available.

22

privileged information, the Document will be produced by producing the

23

Document in TIFF format with redactions, to the extent reasonably and

24

technically possible. To the extent Documents that fall under this Section

25

contain privileged information and cannot be redacted or produced in TIFF

26

format, such Documents will be logged on a privilege log. The production

27

load files shall contain a link to the produced Native Format files as

28

If a Document to be produced in Native Format contains

- 10 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 12 of 25 Page ID #:1805

1

specified in the “Native Link” Metadata field described in Exhibit A. Each

2

electronic file produced in Native Format shall be assigned a unique

3

Document Number, as set forth in Exhibit A, and the database record for that

4

file shall include a single page TIFF image branded with this unique

5

Document Number in the lower right corner of the image as a Bates number,

6

with the phrase “PRODUCED IN NATIVE FORMAT” (or similar

7

language) branded in the center of the page. To protect the confidentiality of

8

files produced in Native Format, any confidentiality designations pursuant to

9

the Protective Order must appear on the associated TIFF placeholder in no

10

less than 10-point font. Files produced in Native Format shall be given file

11

names identical to the Document Number, followed by the file extension and

12

include the confidentiality designation after the file number. For each file

13

produced in Native Format, Producing Party shall also indicate its native

14

status in the Native File Metadata field described in Exhibit A.

15

6.5

Embedded Files:

Embedded files to responsive documents containing

16

substantive information shall be produced as separate documents.

17

Document Number of the source file from which the embedded file is

18

extracted shall be provided as metadata associated with the embedded file,

19

as described in Exhibit A. Upon request by the Producing Party, the Parties

20

shall meet and confer in good faith regarding whether certain non-

21

substantive embedded files may be excluded from production.

22

6.6

The

Production of Additional Documents in Native Format: Each Party reserves

23

the right to request production of ESI in Native Format for any ESI that it

24

believes is not adequately represented in the TIFF format specified in

25

Exhibit A, and, upon a showing of reasonable need, such requests will not be

26

unreasonably denied. If the Parties are unable to agree as to the production

27
28

- 11 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 13 of 25 Page ID #:1806

1

of the requested Documents in Native Format, the Parties may submit the

2

matter to the Court.

3

6.7

Attachments: The Parties agree that any Document or attachments that

4

contain information subject to privilege, immunity or privacy laws,

5

containing solely irrelevant and/or non-responsive information may be

6

withheld, and produced with a placeholder indicating the reason for the

7

withholding, provided that such Documents or attachments shall be

8

produced where possible with redactions sufficient to remove the portions of

9

the Document or attachments that contain information subject to privilege,
immunity or privacy laws.

10
11

or

6.8

Unitization: In scanning paper Documents, each page of paper should be

12

output to a single page TIFF file. Distinct, logical document breaks should

13

be defined as such in a standard load file as described in Exhibit A. In the

14

case of an organized compilation of separate Documents (e.g., a binder

15

containing several separate Documents behind numbered tabs) the

16

Document behind each tab should be scanned separately, but any document

17

or family relationship among the scanned Documents in the compilation

18

should be reflected in the data load file at the appropriate standard fields.

19

Pages containing post-it notes or other detachable notes that obscure the

20

underlying Document should be scanned once with the detachable note

21

intact, and then again without it, and made part of the same Document. The

22

Parties shall make reasonable efforts to unitize the Documents correctly.

23

6.9

Document Numbers and Confidentiality Designations for TIFF Images:

24

Each page of a Document produced in TIFF file format shall have a legible,

25

unique fixed-length numeric identifier (“Document Number”) containing at

26

least seven (7) digits electronically “burned” onto the image in no less than

27

10-point font.

28

Unless it would obscure, conceal or interfere with any
- 12 -

[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 14 of 25 Page ID #:1807

1

information originally appearing on the Document, the Document Number

2

shall be burned on the lower right-hand corner of the Document. Unless it

3

would obscure, conceal or interfere with any information originally

4

appearing on the Document, any confidentiality designation pursuant to the

5

Protective Order filed with the Court will appear on the lower left-hand side

6

of each page of a Document produced, in no less than 10-point font. The

7

Document Number for each Document shall be created so as to identify the

8

Producing Party and the Document Number.

9

underscore or dash between the prefix and the Document Number. Each

10

Party’s document numbering scheme shall use the unique identifying name

11

agreed upon by the Parties.

There should not be an

12

6.10 Metadata Fields and Processing: Each of the Metadata and coding fields set

13

forth in Exhibit A that can reasonably and technically be extracted from a

14

Document shall be produced for that Document.

15

obligated to populate manually any of the fields in Exhibit A if such fields

16

cannot be extracted from a Document and its context in the source data, with

17

the exception of the following, if available: (a) BegBates, (b) EndBates, (c)

18

BegAttach, (d) EndAttach, (e) Custodian, (f) Redacted (Y/N), (g)

19

Confidentiality, and (h) Hash Value.

20

Concordance-format delimited file with a .DAT file extension and ASCII

21

020 and 254 delimiters for column break and text qualifier. The first line

22

shall be the header with field names, and each subsequent line shall contain

23

the fielded data for each Document.

24

Producing Party to create or produce Metadata that does not exist or is not

25

reasonably or technically accessible.

The Parties are not

Metadata shall be provided in a

Nothing herein shall require a

26

6.11 Production Media: The Producing Party shall produce Document images,

27

Native Format files, load files and Metadata on hard drives, CDs, DVDs,

28

- 13 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 15 of 25 Page ID #:1808

1

flash drives, secure FTP, or other mutually agreeable media (“Production

2

Media”). Each piece of Production Media shall include a unique identifying

3

label corresponding to the identity of the Producing Party, the date of the

4

production of Documents on the Production Media and the Document

5

Number ranges of the Documents in that production.

6

shall include text referencing the case name and number.

7

replacement Production Media shall cross-reference the original Production

8

Media, clearly identify that it is a replacement, and cross reference the

9

Document Number range that is being replaced. All Production Media that

10

is capable of write protection should be write-protected before production.

11

All Production Media may be encrypted, with the Producing Party to

12

provide a decryption key at the time of production. Productions should be

13

accompanied by a cover letter identifying the custodians whose files are

14

present in the production, if applicable, or otherwise describing the source(s)

15

of the documents present in the production, or a load file with substantially

16

the same information.

Production Media
Further, any

17

6.12 Color Copies: With respect to Documents or groups of Documents that are

18

in color but not produced in native format, the Producing Party shall exercise

19

good faith in determining whether or not to produce such documents in color

20

or provide the Receiving Party which of which documents or groups of

21

documents are not being produced in color and the reasons why.

22

6.13 Threading: In order to reduce the volume of entirely duplicative content

23

within email threads, the Parties may utilize “email thread suppression.” As

24

used herein, email thread suppression means reducing duplicative production

25

of Email threads by producing the most recent Email containing the thread

26

of Emails, as well as all attachments within the thread, and excluding Emails

27

constituting exact duplicates of Emails within the produced string. For

28

- 14 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 16 of 25 Page ID #:1809

1

purposes of this paragraph, only Email messages in which the parent

2

document, senders and recipients, and all attachments are exactly the same

3

will be considered duplicates. In the event an Email thread is withheld on

4

privilege grounds, all members of the thread must be reviewed

5

independently for privilege as applicable.

6

7.

PROCESSING SPECIFICATIONS
7.1

7

Format Guidelines: The Producing Party will generate and preserve the

8

MD5 or SHA-1 hash values of all ESI based on the Native Format file. The

9

Producing Party shall use the following specifications when converting ESI

10

from its Native Format into TIFF image files prior to its production: Where

11

Documents are not otherwise produced natively, all TIFF images shall

12

display tracked changes, comments and other rich data as displayed in the

13

Document, regardless of the display setting for this information as last saved

14

by the custodian, to the extent reasonably and technically possible.

15

Producing Parties shall make reasonable efforts to process all ESI with a

16

single time zone and a date and time setting that is consistent across all of

17

the Parties’ productions and shall make reasonable efforts for that time zone

18

to be Pacific Standard Time (PST). The Parties agree to meet and confer in

19

good faith with regard to any issues arising from this aspect of production

20

that may arise.

21

8.

AMENDMENT TO PROTOCOL
8.1

22

Court, for good cause shown.

23
24
25

This Protocol may be modified by written stipulation of the Parties, or by the

9.

DOCUMENTS PROTECTED FROM DISCOVERY
9.1

Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-

26

product-protected document, whether inadvertent or otherwise, is not a

27

waiver of privilege or protection from discovery in this case or in any other

28

- 15 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 17 of 25 Page ID #:1810

1

federal or state proceeding. Nothing contained herein, however, is intended

2

to limit a party’s right to conduct a review of ESI for relevance,

3

responsiveness and/or privilege or other protection from discovery.

4

9.2

Communications involving trial counsel that post-date the filing of the

5

complaint need not be placed on a privilege log. Communications may be

6

identified on a privilege log by category, rather than individually, if

7

appropriate. As an alternative, a privilege log may be generated with the

8

following details:

9

a. Date;

10

b. File Type;

11

c. Author(s);

12

d. Recipient(s), cc(s) and bcc(s) (where known);

13

e. The type or nature of the privilege or immunity asserted; and

14

f. A file name, subject line or other brief description of the subject matter

15

of the document to enable the other party’s evaluation of the claim and

16

basis for the privilege or immunity.

17

Following receipt of the log, upon good cause, a Party may seek a

18

supplemental description on a case-by-case basis for any document for which

19

it believes the log does not provide sufficient context to enable it to evaluate

20

the privilege claim. The Party that produced the log will evaluate such

21

requests on a good faith basis and produce a supplemental log for the select

22

entries, where applicable, within fifteen (15) business days.

23

9.3 A document containing privileged content or work product need not be

24

redacted and produced if the content of the document that would otherwise be

25

produced following the privilege redaction is non-responsive. Documents

26

redacted for privilege need not be logged on a privilege log as long as (a) for

27

Emails, the bibliographic information (i.e., to, from, cc recipients, date and

28

- 16 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 18 of 25 Page ID #:1811

1

time) is not redacted, and the reason for the redaction is noted on the face of

2

the document; and (b) for non-Email documents, the reason for the redaction

3

is clearly noted on the face of the document. After receipt of the production,

4

on a case-by-case basis, a Party may request in good faith that a privilege log

5

entry be created for a redacted document only if the basis for privilege cannot

6

reasonably be ascertained on the face of the produced document. Upon

7

receipt of such a request, the Parties agree to meet and confer, if necessary,

8

on the need for such a log entry. If the Parties cannot agree on the need for a

9

privilege log entry, any Party may seek the assistance of the Court.

10

10. MISCELLANEOUS

11

10.1 Liaison: Each Party will designate one or more individuals who are and will

12

be knowledgeable about and responsible for discussing their respective ESI.

13

Each e-discovery liaison will be, or have access to those who are,

14

knowledgeable about the technical aspects of e-discovery, including the

15

location, nature, accessibility, format, collection, search methodologies, and

16

production of ESI in this matter. The Parties will rely on the liaisons, as

17

needed, to confer about ESI and to help resolve disputes. The liaison is not

18

necessarily the person who would be designated to testify related to the

19

Party’s preservation efforts, Document retention policies, collection efforts

20

or other related matters.

21

10.2 Right to Assert Other Objections/Authenticity: This Protocol does not

22

address, limit, or determine the relevance, discoverability, agreement to

23

produce, or admissibility of ESI. Nothing in this Protocol shall be construed

24

to affect the admissibility of any Document. All objections to the

25

admissibility of any Document, except as to the authenticity of the

26

Documents produced by a Party as to which that Party stipulates, are

27

preserved and may be asserted at any time.

28

- 17 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 19 of 25 Page ID #:1812

1

10.3 Preservation: Nothing in this Protocol alters a Party’s legal obligation to

2

retain Documents. The Parties have discussed and understand their

3

preservation obligations and needs and agree that preservation of potentially

4

relevant ESI will be reasonable and proportionate, and state as follows: (i)

5

the Parties have discussed the types of ESI they believe should be preserved

6

and the custodians, or general job titles or descriptions of custodians, for

7

whom they believe ESI should be preserved. The Parties shall add or remove

8

custodians as reasonably necessary; and (ii) the Parties represent that they

9

have exercised reasonable diligence to take steps to preserve reasonably

10

accessible ESI relating to the issues relevant to this Action and distribute

11

document retention notices to custodians who are likely to have relevant

12

documents.

13
14

10.4 Protected Documents: All Documents produced by the Parties will be
subject to the terms of the Protective Order entered in this Action.

15
16
17
18

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: May 12, 2022

19

By: /s/ Myron D. Rumeld

By: /s/ Steven A. Schwartz

20

Myron D. Rumeld*
[e-mail]
Neil V. Shah*
[e-mail]
Anastasia S. Gellman*
[e-mail]
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
Tel.: [phone]
Fax: [phone]

Steven A. Schwartz*
[e-mail]
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
361 West Lancaster Avenue
Haverford, PA 19041
Tel.: [phone]
Fax: [phone]

21
22
23
24
25
26
27
28

- 18 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 20 of 25 Page ID #:1813

1
2
3
4
5
6
7
8
9
10
11
12

Scott P. Cooper (SBN 96905)
[e-mail]
Jennifer L. Roche (SBN 254538)
[e-mail]
PROSKAUER ROSE LLP
2029 Century Park East, Suite 2400
Los Angeles, California 90067
Tel.: [phone]
Fax: [phone]

Neville L. Johnson (SBN 66329)
[e-mail]
Douglas L. Johnson (SBN 209216)
[e-mail]
JOHNSON & JOHNSON LLP
439 North Canon Drive, Suite 200
Beverly Hills, California 90210
Tel.: [phone]
Fax: [phone]

Jani K. Rachelson*
[e-mail]
Evan R. Hudson-Plush*
[e-mail]
COHEN WEISS AND SIMON LLP
900 Third Avenue, Suite 2100
New York, NY 10022-4869
Tel.: [phone]
Fax: [phone]

Robert J. Kriner, Jr.*
[e-mail]
Emily L. Skaug*
[e-mail]
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
2711 Centerville Road, Suite 201
Wilmington, DE 19808
Tel.: [phone]
Fax: [phone]

* admitted pro hac vice
Attorneys for Defendants

* admitted pro hac vice
Attorneys for Plaintiffs

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 19 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 21 of 25 Page ID #:1814

1

E-FILING ATTESTATION

2

I, Myron D. Rumeld, attest pursuant to Local Rule 5-4.3.4(a)(2)(i) that all other

3

signatories listed, and on whose behalf the filing is submitted, concur in the filing’s

4

content and have authorized the filing.

5
6

/s/ Myron D. Rumeld
Myron D. Rumeld

7
8
9
10
11
12

PURSUANT TO THE PARTIES’ STIPULATIONS, IT IS SO ORDERED.
5/16/22
DATED: _________________
_________________________
Honorable John E. McDermott
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 20 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 22 of 25 Page ID #:1815

EXHIBIT A

1
2
3
4

1. PRODUCTION LOAD FILES
There will be two Load/Unitization files accompanying all productions of ESI.
 The first will be a Metadata import file, in Concordance-format delimited file

5

with a .DAT file extension, that contains the agreed upon Metadata fields in

6

UTF 8 encoding.

7

 The second will be a cross-reference file that contains the corresponding

8

image information [IDX] identifying document breaks. The acceptable

9

formats for the cross-reference files are .log and .opt.

10

2. IMAGES

11

 Produce documents in Single Page Group IV TIFF.

12

 Image Resolution of at least 300 DPI.

13

 In addition to the provisions of Section 6.12 of the Protocol, if either Party

14

deems the quality of the document produced in TIFF format to be insufficient,

15

the Parties will meet and confer in good faith to determine whether the

16

Producing Party must produce the document as a JPEG file or as a color

17

image in TIFF or PDF format.

18

 File Naming Convention: Match Bates Number of the page.

19

 Insert placeholder image for files produced in Native Format (see Section

20
21
22
23
24
25
26

6.4.).
 Original document orientation or corrected orientation shall be retained.
3. SPECIAL FILE TYPE INSTRUCTIONS
 Certain file types shall be produced in Native Format, as specified in Section
6.4.
 If redactions are required, see production requirements specified in Section
6.4.

27
28

- 21 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 23 of 25 Page ID #:1816

1

4. FULL TEXT EXTRACTION/OCR

2

 Where available, produce full extracted text for all file types (Redacted text

3

will not be produced). Redacted documents should be re-OCRed and the

4

re-OCRed text should be produced.

5

 Produce OCR text output for any paper document.

6

 Produce OCR text output for any ESI where the source format was an image

7

file (such as JPG, JPEG, GIF, BMP, PCX, PNG, TIF, TIFF etc.) where

8

extracted text cannot be provided, using industry standard OCR technology

9

(Redacted text will not be produced).

10
11
12
13
14

 Production format: Single text file for each document, not one text file per
page.
 File Naming Convention: Match Beg Bates Number.
5. ESI (AND PAPER TO THE EXTENT APPLICABLE) PRODUCTION
METADATA FIELDS

15

 BegBates: Beginning Bates Number.

16

 EndBates: Ending Bates Number.

17

 BegAttach: Beginning Bates number of the first document in a document

18

family range. Documents that are part of document families, i.e., containing

19

parents and attachments should receive a value.

20

 EndAttach: Ending Bates number of the last document in attachment range in

21

a document family range. Documents that are part of document families, i.e.,

22

containing parents or attachments, should receive a value.

23
24
25

 Custodian: Name of the Custodian of the Document Produced.
LastName_FirstName format.
 Duplicate Custodians: Names of all custodians who had a copy of a document

26

that was removed through the de-duplication process (if applicable).

27

LastName_FirstName format.

28

- 22 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 24 of 25 Page ID #:1817

1

 File Name: Filename of the original source ESI as stored by the custodian.

2

 Native Link: Path and filename to produced Native Format file (see Section

3

6.4.)

4

 Email Subject: Subject line extracted from an Email message.

5

 Title: Title field extracted from the metadata of a non-Email document.

6

 Author: Author field extracted from the metadata of a non-Email document.

7

 From: From field extracted from an Email message.

8

 To: To or Recipient field extracted from an Email message.

9

 CC: CC or Carbon Copy field extracted from an Email message.

10

 BCC: BCC or Blind Carbon Copy field extracted from an Email message.

11

 Date Sent: Sent date and time of an Email message (mm/dd/yyyy hh:mm:ss

12
13
14
15
16

format).
 Date Received: Date and time that the Email message was originally received
(according to original time zones) (mm/dd/yyyy hh:mm:ss format).
 Date Last Modified: Last modification date and time (mm/dd/yyyy hh:mm:ss
format).

17

 DATECREATED: mm/dd/yyyy hh:mm:ss format

18

 ATTACHCOUNT

19

 ATTACHIDS

20

 File Extension: File extension of document (.msg, .doc, .pdf, .xls, etc.).

21

 FILEPATH

22

 FILESIZE

23

 Extracted Text: File path to Extracted Text/OCR File.

24

 Confidentiality: “Confidential,” if a document has been so designated under

25
26
27
28

the Protective Order; otherwise, blank.
 Message-ID: The Outlook Message ID assigned by the Outlook mail server
(if applicable).
- 23 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))

Case 2:20-cv-10914-CAS-JEM Document 80 Filed 05/16/22 Page 25 of 25 Page ID #:1818

1

 Conversation Index ID: Email thread created by the Email system in the form

2

of a 44-character string of numbers and letters created in the initial Email that

3

receives an additional 10 characters for each reply or forward of an Email.

4

 Reference Chain or Discussion Thread: The Outlook message “Reference

5
6
7

Chain” or “Discussion Thread” (if applicable).
 Embedded Source: The Document Number of the source file from which the
embedded file was extracted (if applicable).

8

 Redacted (Y/N)

9

 MD5 Hash

10

 PGCOUNT

11

 PARENTID

12

 PARENTDATE: mm/dd/yyyy hh:mm:ss format.

13

 LASTMODIFIEDBY

14

 TIMEZONE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 24 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))