Carlin et al v. DairyAmerica, Inc. et al

Filing 134

STIPULATION and ORDER for Production of Electronically Stored Information signed by Magistrate Judge Gary S. Austin on 6/3/2013. (Martinez, A)

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Joseph J. Tabacco, Jr. (SBN 75484)
Christopher T. Heffelfinger (SBN 118058)
Anthony D. Phillips (SBN 259688)
BERMAN DEVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiffs

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[Additional Counsel Listed on Signature Page]

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

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GERALD CARLIN, JOHN RAHM, PAUL
ROZWADOWSKI and BRYAN WOLFE,
individually and on behalf of themselves and all
others similarly situated,

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Plaintiffs,
v.
DAIRYAMERICA, INC. and CALIFORNIA
DAIRIES, INC.,
Defendants.

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No. 1:09-cv-00430-AWI (GSA)
STIPULATION AND ORDER FOR
PRODUCTION OF
ELECTRONICALLY STORED
INFORMATION

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[1:09-cv-00430-AWI (GSA)] STIP AND ORDER FOR PRODUCTION OF ELECTRONICALLY STORED INFO

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The parties to this action agree to the following protocol for the production of documents and

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electronically stored information (“ESI”):

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I.

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SCOPE AND APPLICATION
This Stipulation and [Proposed] Order For Production of Electronically Stored Information (the

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“Protocol”) is intended to fulfill the parties’ obligations with respect to Federal Rules of Civil Procedure,

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rule 26(f)(3)(C) that requires the parties to meet and confer with respect to “any issues about disclosure

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or discovery of electronically stored information, including the form or forms in which it should be

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produced.” This Protocol shall supersede any instructions in existing or future discovery requests, save

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for written stipulations by the parties. To the extent that instructions in existing or future discovery

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requests conflict with this Protocol, the Protocol shall govern.

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II.

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SEARCH TERMS
The parties shall meet and confer to reach agreement on search terms to be used for electronic

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searches of the files from relevant custodians. The parties will work together to select appropriate

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custodians. Notwithstanding prior agreement on the search terms to be used for electronic searches,

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should a search produce an unreasonably large number of non-responsive or irrelevant results, the

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parties shall (at the producing party’s request) meet and confer to discuss application of further search

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restrictions (e.g., if a single search was for “card” and ninety percent of the resulting documents came

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from the irrelevant term “credit card,” a negative limitation to ignore documents only returned as a result

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of “credit card” may be applied to remove these documents). The party receiving production shall not

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unreasonably oppose such further restrictions designed to filter immaterial search results.

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III.

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PRODUCTION FORMAT
The parties agree to make all reasonable efforts to ensure that documents produced in this

litigation are formatted as follows:
A.

Documents gathered from electronic data should be provided in the following format:
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TIFF (Tagged Image File Format): Single-page, 300 DPI, CCITT Group 4, fax

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encoding, gray scale TIFFs should be provided for all documents (except Microsoft Excel files) and

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include JPGs for color images.

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2.

Unique IDs: Each image or file should have a unique file name, which is the

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Bates Number of the document. Bates Numbers shall be unique IDs with a prefix that can be readily

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attributed to the producing party. Bates Numbering should be sequential. If a Bates Number or set of

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Bates Numbers is skipped in a production, the producing party will so note.

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3.

Database Load Files/Cross-Reference Files: Documents produced shall be

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provided to Plaintiffs with: (a) Concordance delimited load file(s) and (b) Opticon delimited cross-

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reference file(s). For Defendants, documents shall be produced according to this ESI Protocol with

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three folders: (a) image folder for TIFFs; (b) Opticon load files for viewing; (c) text folder for extracted

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text and (d) if necessary, folder for natives. Agreed upon metadata fields shall be produced in a .DAT

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load file. Every TIFF in each production must be referenced in the production’s corresponding load file.

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The total number of images referenced in a production’s load file should match the total number of TIFF

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files in the production.

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4.

Parent-Child Relationships. Parent-child relationships (e.g., the association

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between an e-mail and the attachments) should be preserved. The parties shall produce email

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attachments sequentially after the parent email.

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5.

Requests for hi-resolution or color documents: The parties agree to respond to

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reasonable and specific requests for the production of higher resolution or color images. Nothing in this

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Protocol shall preclude a producing party from objecting to such requests as unreasonable in number,

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timing or scope, provided that a producing party shall not object if the document as originally produced

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is illegible or difficult to read. The producing party shall have the option of responding by producing a

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native-file version of the document. If a dispute arises with regard to requests for higher resolution or

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color images, the parties will meet and confer in good faith to try to resolve it.

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6.

Foreign language documents: All documents shall be produced in their original

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language. Where a requested document exists in a foreign language and the producing party also has an

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English-language version of that document that it prepared for non-litigation purposes prior to filing of

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the lawsuit, the producing party shall produce both the original document and all English-language

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versions. In addition, if the producing party has a certified translation of a foreign-language document

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that is being produced, (whether or not the translation is prepared for purposes of litigation) the
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[1:09-cv-00430-AWI (GSA)] STIP. AND ORDER FOR PRODUCTION OF ELECTRONICALLY STORED INFO

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producing party shall produce both the original document and the certified translation. Nothing in this

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agreement shall require a producing party to prepare a translation, certified or otherwise, for foreign

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language documents that are produced in discovery.

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7.

Text Files: Documents originating in electronic form shall include extracted text

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in a “Text” Folder. For each document, a text file should be provided along with the TIFF. The text

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files will not contain the redacted portions of the documents

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8.

Metadata Fields: For documents produced to Plaintiffs, the metadata listed in

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Exhibit A shall be produced, provided it exists, in a .DAT Load File accompanying each document

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production. For documents produced to Defendants, the metadata listed in Exhibit B shall be produced,

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provided it exists, in a .DAT Load File accompanying each document production. Metadata pertaining

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to time/date shall reflect the time zone in which the document was created, or reflect an offset to

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Greenwich Meantime to indicate the local time zone.

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9.

No party is required to create metadata for documents that do not contain

metadata in the original.

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10.

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a custodian’s ESI.

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11.

De-duplication: The producing party may de-duplicate documents or files within

Native Format: The producing party shall produce Microsoft Excel files in native

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format only. If these files are password protected, the password should be listed in a “Password” or

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similar field in the .DAT file. For documents in all other formats, the producing party is not required to

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produce ESI in native format without prejudice to the requesting party’s right to request the production

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of individual documents in native format upon a showing of good cause. The requesting party must

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make written request to the producing party for the production of individual documents in native format.

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The written request shall indentify the individual documents by Bates number with an explanation of

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good cause as to each individual document. A party receiving a written request for production of a

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document in native format shall have fourteen (14) days after the request to object. If the producing

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party makes such an objection, the requesting party must meet and confer with the producing party to try

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to resolve the matter by agreement. If no agreement is reached, the requesting party may file a motion

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seeking an order requiring the producing party to produce the requested documents in native format.
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The requesting party shall be solely responsible for obtaining any software or hardware required to

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review electronic documents produced in discovery, including in native format. The foregoing is

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without prejudice to the parties’ rights to produce audio and video files in the format in which the files

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are maintained in the ordinary course of business.

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Documents produced natively shall be represented in the set of imaged documents by a slipsheet

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indicating the production identification number and confidentiality designation for the native file that is

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being produced.

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12.

Databases: Certain types of databases are dynamic in nature and will often

contain information that is neither relevant nor reasonably calculated to lead to the discovery of

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admissible evidence. Thus, a party may opt to produce relevant and responsive information from

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databases in an alternate form, such as a report or data table. These reports or data tables will be

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produced in a static format.

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The parties agree to identify the specific databases, by name, that contain the relevant and
responsive information that parties produce.
B.

Documents gathered from hard-copy documents should be provided in the format

described in Sections III.A.1 – 6 and should also be formatted as follows:
1.

OCR Text Files: Documents originating in paper (or any document without

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extracted text), shall be converted to single page TIFFs and include multi-page OCR and placed in an

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“OCR” folder. Documents that contain redactions shall have OCR for the content that remains after the

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redactions are applied to the TIFF. The text files will not contain the redacted portions of the documents.

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2.

Unitizing of Documents. In scanning paper documents, distinct documents

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

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(i.e., paper documents should be logically unitized). The parties will make their best efforts to have

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their vendors logically unitize documents correctly and will commit to address situations where there are

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improperly unitized documents.

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3.

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Objective Coding Fields. The following objective coding fields should be

provided to the extent available or practicable: (a) beginning Bates number; (b) ending Bates number;

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(c) beginning attachment Bates number; (d) ending attachment Bates number; (e) number of pages;

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(f) custodian; and (g) confidentiality designation.

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IV.

PRODUCTION MEDIA AND ENCRYPTION OF PRODUCTIONS

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Unless otherwise agreed, the parties shall provide document productions in the following

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manner: The producing party shall provide the production data on CDs, DVDs, or external hard drives,

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as appropriate. Where encryption is used, the producing party shall identify the encryption software and

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shall forward the password to decrypt the production data separately from the CD, DVD, or external

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drive on which the production data is saved.

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V.

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NON-PARTY PRODUCTIONS
A.

Unless otherwise agreed among the parties, the party that issues a non-party subpoena

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(the “Subpoenaing Party”) will be responsible for: (1) taking reasonable steps to negotiate that the non-

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party’s productions are processed in accordance with the specifications in this Order; (2) if necessary,

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engaging a vendor to process the non-party production in accordance with the specifications in this

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Order; and (3) distributing non-party productions within twenty-one (21) days of receiving the

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production (or as soon as practicable) to all parties’ counsel. In any case, the Subpoenaing Party shall

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also notify all parties that it has received a non-compliant production as soon as received and provide the

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non-issuing parties an opportunity to receive the production as is.

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B.

If a non-party production is not Bates Numbered, the Subpoenaing Party will provide

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unique prefixes and Bates Numbers to the service provider and will notify all parties of the prefix, Bates

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range, and production.

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C.

After receipt of a non-party production, the Subpoenaing Party shall undertake reasonable

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efforts to comply with the provisions of subsections (A) and (B), above.

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VI.

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MISCELLANEOUS
A.

Additional Parties. Any party named, served, and appearing in this action after the date

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of this Protocol shall be bound by its terms, effective once the Protocol has been served upon such party,

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unless the Court orders otherwise on good cause shown. Any party who causes another party to be

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added to this action after the entry of this Protocol shall serve that new party with a copy of this Protocol

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and any subsequent amendments to it at the time it serves its pleading and summons.
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[1:09-cv-00430-AWI (GSA)] STIP. AND ORDER FOR PRODUCTION OF ELECTRONICALLY STORED INFO

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B.

Costs. Nothing in this Protocol shall affect applicable law regarding a producing party’s

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ability to shift costs of discovery in whole or in part to the requesting party, or otherwise affect any

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party’s right to petition the Court for an order apportioning some or all of the costs of discovery.

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C.

Further Amendment. Except as otherwise provided in this Protocol, its terms may be

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amended only by written stipulation of the parties or by order of the Court, on noticed motion, for good

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cause shown.

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D.

Objections Preserved: This Protocol does not address, limit, or determine the relevance,

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discoverability, or admission into evidence of any documents. Nor do the parties waive any objections

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as to the production, discoverability, or confidentiality of documents subject to this Protocol. The

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Court has entered a separate protective order governing such productions in this matter. See ECF No.

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129 (Stipulated Protective Order).

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DATED: May 31, 2013

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Respectfully submitted,
BERMAN DeVALERIO

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By:

/s/ Anthony D. Phillips
Anthony D. Phillips

Joseph J. Tabacco, Jr.
Christopher T. Heffelfinger
One California Street, Suite 900
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Benjamin D. Brown (SBN 202545)
Daniel A. Small
Victoria S. Nugent
COHEN MILSTEIN SELLERS
& TOLL, PLLC
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

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[1:09-cv-00430-AWI (GSA)] STIP. AND ORDER FOR PRODUCTION OF ELECTRONICALLY STORED INFO

George F. Farah
COHEN MILSTEIN SELLERS
& TOLL, PLLC
88 Pine Street
14th Floor
New York, NY 10005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Lynn L. Sarko
Mark A. Griffin
Juli E. Farris
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: [phone]
Facsimile: (206)-623-3384
Email: [e-mail]
[e-mail]
[e-mail]

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Ron Kilgard
KELLER ROHRBACK P.L.C.
3101 North Central Avenue, Suite 1400
Phoenix, AZ 85012
Telephone: [phone]
Facsimile: (602)-248-2822
Email: [e-mail]

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Counsel for Plaintiffs and the Proposed Class

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Dated: May 31, 2013

DAVIS WRIGHT TREMAINE LLP

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By:

/s/ Allison A. Davis (as authorized on 5/30/13)
Allison A. Davis

Sanjay M. Nangia
505 Montgomery Street,
Suite 800
San Francisco, CA 94111-6533
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Charles M. English, Jr.
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Avenue, N.S., Suite 800
Washington, D.C. 20006-3401
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
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Charles K. Manock
BAKER MANOCK & JENSEN, PC
5260 North Palm Avenue,
Fourth Floor
Fresno, CA 93704
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Counsel for Defendant DairyAmerica, Inc.

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Dated: May 31, 2013

HANSON BRIDGETT LLP

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By:

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/s/ Lawrence M. Cirelli (as authorized on 5/31/13)
Lawrence M. Cirelli

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John J. Vlahos
425 Market Street, Suite 2600
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

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Counsel for Defendant California Dairies, Inc.

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ORDER

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Upon a review of the parties’ agreements outlined above, the Court adopts the stipulation.

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IT IS SO ORDERED.
Dated:

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June 3, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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