Joseph Neev v. Alcon Laboratories, Inc. et al

Filing 55

ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION by Magistrate Judge Jay C. Gandhi re Stipulation for Entry 54 . (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSEPH NEEV,

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Plaintiff,
v.

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ALCON LABORATORIES, INC., a
Delaware Corporation; and WAVELIGHT,
GmbH, a German Corporation,

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Lead Case No. SACV 8:15-cv00336-JVS-JCG
ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION
CONSOLIDATED WITH:
8:15-cv-00624-JVS (JCGx)

Defendants.

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AND RELATED COUNTERCLAIMS

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ORDER RE: DISCOVERY OF ESI
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1.

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SCOPE
1.1

This Order streamlines Electronically Stored Information (“ESI”)

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production to promote a “just, speedy, and inexpensive determination” of this action,

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as required by Federal Rule of Civil Procedure 1.

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1.2

This Order may be modified in the Court’s discretion or by stipulation.

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1.3

As in all cases, costs may be shifted for disproportionate ESI production

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requests pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s

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nonresponsive or dilatory discovery tactics will be cost-shifting considerations.

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1.4

A party’s meaningful compliance with this Order and efforts to promote

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efficiency and reduce costs will be considered in cost-shifting determinations.

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2.

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FILE FORMAT
2.1

Other than as set forth in Subsection 2.6 below, all Electronically Stored

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Information (“ESI”) will be produced in single page TIFF or JPG image with

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corresponding load files that identify the beginning and ending production number of

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each document, and any applicable confidentiality designation. TIFF or JPG images

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will be accompanied by load files. The load files will include beginning and ending

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production serial numbers and confidentiality designations for each document. Each

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party will also produce corresponding native file text extraction or optical character

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recognition (OCR) files for its document production.

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2.2

If a document is more than one page, the unitization of the document and

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any attachments or affixed notes will be maintained as they existed in the original

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document.

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2.3

In producing documents kept in paper format, multiple documents should

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not be merged into a single record, and single documents should not be split into

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multiple records (i.e., paper documents should be logically unitized). The parties will

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make their best efforts to have vendors unitize documents correctly and will commit to

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address situations where there are improperly unitized documents.

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2.4

Parent-child relationships (the association between an attachment and its

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parent document) that have been maintained in the ordinary course of business should

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be preserved. For example, if a party is producing an e-mail that has attachments, the

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attachments should be processed in order behind the e-mail. Parent/child relationships

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will be maintained using the BEGATTACH and ENDATTACH metadata fields.

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2.5
hereto.

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The Parties will produce the metadata fields listed in Schedule A, attached

2.6

ESI will be produced in its native file format if (a) the requesting party

can show a need for specific ESI in its native format and it would not be unreasonable,

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unduly burdensome, or expensive for the producing party to provide the ESI in this

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manner; (b) the ESI is in a multimedia form (e.g., sound, animation, or video); or (c)

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the file is of such a format that the producing party reasonably believes that production

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in native format would save time or expense, or that production in TIFF or JPG format

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would compromise the document’s utility (e.g., large spreadsheets).

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3.

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DOCUMENT MAINTENANCE AND PRODUCTION
3.1

The parties need not employ forensic data collection or tracking methods

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and technologies, unless the requesting party raises a specific, good faith concern over

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authenticity or spoliation.

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3.2

The parties need not preserve or produce metadata (as used herein to refer

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to electronically stored information about a document that does not appear on the face

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of the original document if emailed or printed) other than the fields listed in Schedule

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A hereto.

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3.3

Materials retained primarily for back-up or disaster recovery purposes

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need not be preserved, searched, or produced, and the Parties need not deviate from

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any back-up schedule or other practice they normally follow with regard to

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preservation of such materials (e.g., recycling of back-up tapes conducted in the

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ordinary course of the Parties’ business operations is permitted), except upon a

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showing that specific responsive information may have been lost, destroyed, or

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inadvertently deleted other than in accordance with a document retention policy,

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provided however that the party takes all other reasonable and necessary steps to

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ensure and comply with its obligations and duties to preserve evidence. Absent a

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showing of good cause, voicemails, text messages, instant messages, PDAs, and

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mobile devices are deemed not reasonably accessible and need not be collected and

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preserved.

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3.4

A producing party is not required to produce multiple copies of the same

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document, absent a showing of good cause that the production of such additional

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copies is necessary, except where the document is part of, or attached to, another

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document or has been modified.

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3.5

The parties are not required to include in their privilege logs documents

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that were created after the filing of the Complaint in the action, provided that in the

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event that a party waives attorney client privilege (or any other applicable privilege) as

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to a document or documents created after the filing of the Complaint, then such party

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shall expeditiously supplement its privilege log to include any documents created after

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the filing of the Complaint that are related to the subject matter contained or

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referenced in the documents as to which privilege has been waived and which that

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party continues to withhold based on an assertion of privilege.

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3.6

The parties to this action may use any discovery, testimony and other

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materials produced or generated in connection with the arbitration captioned Alcon

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LenSx, Inc. v. Joseph Neev, JAMS Case No. 1200046131, and related proceedings

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(collectively, “the Arbitration”) as if it was provided or generated in this matter. The

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parties will treat any material designated as Confidential or Highly Confidential in the

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Arbitration as if it was designated at the same level of confidentiality under the

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parties’ Stipulated Protective Order in this action. The use of the Arbitration materials

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is not a concession, admission, or waiver of any objection, including any objection on

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privilege, relevance or admissibility grounds, to the use of the identified materials in

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pretrial proceedings or at trial, and is contingent upon production of the Arbitration

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materials – including all ESI, email and other forms of electronic correspondence

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produced during the Arbitration – to Lawrence Livermore National Security, LLC

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(“LLNS”) within fourteen (14) calendar days of this Order.

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4.

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ELECTRONIC CORRESPONDENCE
4.1

General ESI production requests under Federal Rules of Civil Procedure

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34 and 45 shall be deemed not to include email or other forms of electronic

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correspondence (collectively “email”). To obtain email parties must propound specific

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email production requests.
4.2

Email production requests shall only be propounded for specific issues,

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rather than general discovery of a product or business. Email already produced as part

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of the Arbitration materials shall be produced to LLNS and may be used by the other

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parties to as set forth in Paragraph 3.6, i.e. no Arbitration email shall be withheld

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pursuant to this Order.

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4.3

Email production requests shall be phased to occur after the parties have

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exchanged initial disclosures and basic documentation about the patents, the prior art,

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the accused instrumentalities, and the relevant finances.

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4.4

Email production requests shall identify the custodian, search terms, and

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time frame. The parties shall cooperate to identify the proper custodians, proper search

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terms and proper timeframe.

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4.5

Each requesting party shall limit its email production requests to a total of

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five custodians per producing party. The parties may jointly agree to modify this limit

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without the Court’s leave. The Court shall consider contested requests for additional

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custodians, upon showing a distinct need based on the size, complexity, and issues of

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this specific case. Cost-shifting may be considered as part of any such request.

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4.6

Each requesting party shall limit its email production requests to a total of

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five search terms per custodian per party. The parties may jointly agree to modify this

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limit without the Court’s leave. The Court shall consider contested requests for

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additional search terms per custodian, upon showing a distinct need based on the size,

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complexity, and issues of this specific case. The Court encourages the parties to confer

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on a process to test the efficacy of the search terms. The search terms shall be

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narrowly tailored to particular issues. Indiscriminate terms, such as the producing

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company’s name or its product name, are inappropriate unless combined with

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narrowing search criteria that sufficiently reduce the risk of overproduction. A

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conjunctive combination of multiple words or phrases (e.g., “computer” and “system”)

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narrows the search and shall count as a single search term. A disjunctive combination

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of multiple words or phrases (e.g., “computer” or “system”) broadens the search, and

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thus each word or phrase shall count as a separate search term unless they are variants

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of the same word. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is

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encouraged to limit the production and shall be considered when determining whether

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to shift costs for disproportionate discovery. Should a party serve email production

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requests with search terms beyond the limits agreed to by the parties or granted by the

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Court pursuant to this paragraph, this shall be considered in determining whether any

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party shall bear all reasonable costs caused by such additional discovery.

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5.

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PRIVILEGED MATERIAL
5.1

Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of

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a privileged or work product protected ESI is not a waiver in the pending case or in any

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other federal or state proceeding. Subject to Federal Rule of Civil Procedure 26(b)(5), if

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any privileged material is inadvertently produced in this matter, the party may claim it

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back by requesting return in writing. Upon receipt of such request, the receiving party

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shall return the items identified and retrieve and destroy any copies which were made.

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Nothing in this order shall preclude the receiving party from challenging the assertion of

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privilege.

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DATED: November 19, 2015 _________________________________
Hon. Jay C. Gandhi
United States Magistrate Judge

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SCHEDULE A

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Field Name

Description of Fields

BEGDOC

Beginning Bates number assigned to the document

ENDDOC

Ending Bates number assigned to the document

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PROD_VOLUME

Production volume

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BEGATTACH

Beginning attachment bates number

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ENDATTACH

Ending attachment bates number for all

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attachments

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FILEEXT

File extension of original document

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CONFDESG

Confidentiality designation

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NATIVEFILE

Native file link for files produced in native format.

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DATESENT*

Date that the e-mail was sent (MM/DD/YYYY)

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TIMESENT*

Time the e-mail was sent (HH:MM:SS)

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DATERECEIVED*

Date that the e-mail was received

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(MM/DD/YYYY)

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TIMERECEIVED*

Time the e-mail was received (HH:MM:SS)

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EMAIL SUBJECT*

Subject of the e-mail

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TO*

Persons who received the e-mail

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FROM*

Persons who sent the e-mail

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CC*

All cc: members

BCC*

All bcc: members

REDACTED

‘Yes’ if document has portions redacted

MD5HASH

MD5 hash value of document**

SHA1HASH

SHA1 hash value of document**

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*apply only to email

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