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
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Scott P. Cooper (SBN 96905)
scooper @proskauer.com
Jennifer L. Roche (SBN 254538)
jroche@proskauer.com
PROSKAUER ROSE LLP
2029 Century Park East, Suite 2400
Los Angeles, California 90067
Tel.: 310.557.2900
Fax: 310.557.2193
Neville L. Johnson (SBN 66329)
njohnson@jjllplaw.com
Douglas L. Johnson (SBN 209216)
djohnson@jjllplaw.com
JOHNSON & JOHNSON LLP
439 North Canon Drive, Suite 200
Beverly Hills, California 90210
Tel.: 310-975-1080
Fax: 310-975-1095
Myron D. Rumeld*
mrumeld@proskauer.com
Neil V. Shah*
nshah@proskauer.com
Anastasia S. Gellman*
agellman@proskauer.com
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
Tel.: 212.969.3000
Fax: 212.969.2900
Steven. A Schwartz*
steveschwartz@chimicles.com
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
361 West Lancaster Avenue
Haverford, PA 19041
Tel.: 610-642-8500
Fax: 610-649-3633
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Jani K. Rachelson*
jrachelson@cwsny.com
Evan R. Hudson-Plush*
ehudson-plush@cwsny.com
COHEN WEISS AND SIMON LLP
900 Third Avenue, Suite 2100
New York, NY 10022-4869
Tel.: 212.563.4100
Fax: 646.473.8254
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* admitted pro hac vice
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Attorneys for Defendants
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Attorneys for Plaintiffs
CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
EDWARD ASNER, et al.,
Plaintiffs,
vs.
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THE SAG-AFTRA HEALTH FUND,
et al.,
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Defendants.
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* admitted pro hac vice
UNITED STATES DISTRICT COURT
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Robert J. Kriner, Jr.*
rjk@chimicles.com
Emily L. Skaug*
els@chimicles.com
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
2711 Centerville Road, Suite 201
Wilmington, DE 19808
Tel.: 302-656-2500
Fax: 302-656-9053
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
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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.
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3.
DEFINITIONS
3.1
Action: The above-captioned action in the United States District Court for
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the Central District of California: Asner, et al. v. The SAG-AFTRA Health
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Fund, et al., Case No. 2:20-cv-10914-CAS (JEMx).
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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).
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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.
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3.6
Family: Defined as all parts of a group of documents that are connected to
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each other for purposes of communication, e.g., an email (parent) and its
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attachments (children). For avoidance of doubt, the term Family does not
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include separate entries in calendars, diaries, file folders, notebooks, or
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binders, the responsiveness of which will be determined independently on an
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entry-by-entry basis.
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3.7
Instant Messages: Real time communications sent via chat client or SMS,
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including but not limited to Symphony, Bloomberg Chat, Google Talk,
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WhatsApp, Yahoo! Messenger, AOL Instant Messenger (AIM), Blackberry
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Messenger, ICQ, Pidgin, Audium, Trillian, Apple iMessage, Skype,
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Microsoft Teams, Signal, Facebook Messenger, Telegram, Snapchat,
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Mattermost, Dust, Viber, Threema, Silence, Wire, Wickr, Line, Voxer,
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Smiley Private Texting, CoverMe, Slack, Zoom, or any proprietary text,
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chat, or instant messaging system.
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3.8
Load File: An electronic file that is used to import all required production
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information into a document database, including, if available, document
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images, Extracted Text or OCR text, Native Format files where required by
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this Protocol, and Metadata, as well as information indicating document
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breaks, and document relationships such as those between an Email or
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Instant Message and its attachments and a document and information related
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to embedded content.
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3.9
Metadata:
Structured information about ESI that is: (i) information
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embedded in or associated with a file that is not ordinarily viewable or
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printable from the application that generated, edited, or modified such native
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file which describes the characteristics, origins, custody, usage, and/or
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validity of the electronic file; (ii) information generated automatically by the
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operation of a computer or other information technology system when a
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native file is created, modified, transmitted, deleted, or otherwise
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manipulated by a user of such system; (iii) information, such as Bates
12
numbers, created during the course of processing Documents for production;
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and/or (iv) information collected during the course of collecting Documents,
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such as the name of the media device, or the custodian or non-custodial data
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source from which it was collected.
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3.10 Native Format: The format of ESI in the application in which such ESI was
originally created, viewed and/or modified.
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3.11 OCR: The “optical character recognition” technology used to read paper
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Documents or electronic images of Documents and output such Documents
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to a searchable text format. The latter text is also referred to as the “OCR
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text” or simply “OCR.”
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3.12 Parties: Plaintiffs Edward Asner, Michael Bell, Raymond Harry Johnson,
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Sondra James Weil, David Jolliffe, Robert Clotworthy, Thomas Cook,
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Audrey Loggia, Deborah White, and Donna Lynn Leavy; and Defendants
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the SAG-AFTRA Health Fund, the Board of Trustees of the Screen Actors
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Guild-Producers Health Plan, the Board of Trustees of the SAG-AFTRA
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Health Fund, Daryl Anderson, Helayne Antler, Amy Aquino, Timothy
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Blake, Jim Bracchitta, John Carter Brown, Duncan Crabtree-Ireland, Barry
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Gordon, J. Keith Gorham, James Harrington, David Hartley-Margolin, Harry
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Isaacs, Robert W. Johnson, Sheldon Kasdan, Matthew Kimbrough, Lynne
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Lambert, Allan Linderman, Carol A. Lombardini, Stacy K. Marcus, Richard
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Masur, John T. McGuire, Diane P. Mirowski, Paul Muratore, Tracy Owen,
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Michael Pniewski, Ray Rodriguez, Marc Sandman, Shelby Scott, Sally
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Stevens, Gabriela Teissier, Lara Unger, Ned Vaughn, David Weissman,
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Russell Wetanson, David P. White, and Samuel P. Wolfson. “Party” shall
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refer to any party to the Action.
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3.13 Producing Party: Any Party in the Action that produces Documents.
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3.14 Protective Order: The Stipulated Protective Order filed in the Action and
entered by the Court on February 15, 2022 (ECF No. 76).
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3.15 Receiving Party:
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produced.
Any Party in the Action to whom Documents are
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3.16 Responsive Document: Any Document that is responsive to any discovery
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request served on the Producing Party in the litigation and which the
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Producing Party has agreed or been ordered to produce, subject to the
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limitations set forth in the Federal Rules of Civil Procedure or Court order.
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3.17 Tagged Image File Format: Or “TIFF” refers to the CCITT Group IV
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graphic file format for storing bit-mapped images of ESI or paper
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Documents.
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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
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identification (by category or type) of custodial and non-custodial data
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sources containing potentially relevant ESI for potential collection, review,
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and production; (ii) the identity and role of custodians from which the
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Producing Party plans to collect Documents, including names, relevant titles,
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and a good faith explanation describing how each custodian was determined;
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(iii) additional parameters for scoping the review and production efforts
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(e.g., application of date ranges that will be used for production); (iv) the
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potential use and identification of search terms, tools, or techniques for the
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collection of ESI; (v) the identification and production of Responsive
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Documents from custodial and non-custodial sources that do not require the
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use of search terms, tools, or techniques for collection; (vi) applicable
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timeframe(s) for collection and review of Documents; and (vii) the method
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the Producing Party proposes to use for de-duplication of ESI, including any
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exceptions to such de-duplication.
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4.2
Custodians: Following the above meet and confer described in Section 4.1,
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the custodian list will be finalized, subject to Section 4.4 below, by
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agreement of the Parties within a reasonable time, which will be subject to
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the Producing Party’s ongoing good faith efforts to identify the custodians
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most likely to have responsive or relevant information. Any outstanding
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disagreements between the Parties may be submitted to the Court for
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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
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Documents reside.
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Protocol, Documents may be collected from all data sources within the
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possession, custody, and control of the custodian, but only to the extent
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interviews with the custodian indicate that such data sources: (i) may contain
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relevant information relating to the former Screen Actors Guild-Producers
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Health Plan or the SAG-AFTRA Health Plan; and (ii) are reasonably
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accessible within the meaning of Federal Rule of Civil Procedure 26.
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For targeted collections conducted pursuant to this
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Subject to the Parties’ objections and responses to Requests for Production
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of Documents, and subject to the Parties’ Protective Order (ECF No. 76), the
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Parties shall begin producing non-privileged Responsive Documents on a
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rolling basis, from the files of the identified custodians. The Parties agree to
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work together in good faith to prioritize and sequence the custodial
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productions of deponents, such that these Responsive Documents are
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produced with sufficient time to review prior to their depositions. The
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Parties agree to take any unresolved disputes on same promptly to the Court
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or its designee.
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4.3
Non-Custodial Sources: Following the above meet and confer described in
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Section 4.1, and the exchange of any necessary additional information
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relating to any identified non-custodial source, the Parties will agree upon an
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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
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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
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non-custodial sources.
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4.4
Obligation and Supplementation: The Producing Party has a continuing
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obligation to identify (by category or type) any custodial and non-custodial
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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
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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
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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.
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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
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allow the Producing Party adequate time to conduct the review and
2
production.
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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.
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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.
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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.
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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.
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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
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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
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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
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[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
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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
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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))
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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
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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))
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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
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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*
mrumeld@proskauer.com
Neil V. Shah*
nshah@proskauer.com
Anastasia S. Gellman*
agellman@proskauer.com
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
Tel.: 212.969.3000
Fax: 212.969.2900
Steven A. Schwartz*
steveschwartz@chimicles.com
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
361 West Lancaster Avenue
Haverford, PA 19041
Tel.: 610.642.8500
Fax: 610.649.3633
21
22
23
24
25
26
27
28
- 18 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
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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)
jroche@proskauer.com
PROSKAUER ROSE LLP
2029 Century Park East, Suite 2400
Los Angeles, California 90067
Tel.: 310.557.2900
Fax: 310.557.2193
Neville L. Johnson (SBN 66329)
njohnson@jjllplaw.com
Douglas L. Johnson (SBN 209216)
djohnson@jjlplaw.com
JOHNSON & JOHNSON LLP
439 North Canon Drive, Suite 200
Beverly Hills, California 90210
Tel.: 310.975.1080
Fax: 310.975.1095
Jani K. Rachelson*
jrachelson@cwsny.com
Evan R. Hudson-Plush*
ehudson-plush@cwsny.com
COHEN WEISS AND SIMON LLP
900 Third Avenue, Suite 2100
New York, NY 10022-4869
Tel.: 212.563.4100
Fax: 646.473.8254
Robert J. Kriner, Jr.*
rjk@chimicles.com
Emily L. Skaug*
els@chimicles.com
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
2711 Centerville Road, Suite 201
Wilmington, DE 19808
Tel.: 302.656.2500
Fax: 302.656.9053
* admitted pro hac vice
Attorneys for Defendants
* admitted pro hac vice
Attorneys for Plaintiffs
13
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21
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23
24
25
26
27
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- 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
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- 20 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION (Case No. 2:20-cv-10914-CAS (JEM))
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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
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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))
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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
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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))
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