H.W.J. Designs for Agribusiness, Inc. et al v. Rethceif Enterprises, LLC et al

Filing 64

STIPULATED ESI PROTOCOL ORDER signed by Magistrate Judge Sheila K. Oberto on 11/9/2017. (Thorp, J)

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VICTOR DE GYARFAS, CA Bar No. 171950
[e-mail]
2 FOLEY & LARDNER LLP
555 SOUTH FLOWER STREET, SUITE 3500
3 LOS ANGELES, CA 94104-1520
TEL: [phone] FACSIMILE: 213.486.0065
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MICHAEL R. HOUSTON, Pro Hac Vice
[e-mail]
FOLEY & LARDNER LLP
6 321 NORTH CLARK STREET, SUITE 2800
CHICAGO, IL 60654
7 TEL: [phone] FAX: [phone]
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Attorneys for Plaintiffs H.W.J. DESIGNS FOR
AGRIBUSINESS, INC. AND SAMUEL
9 STRAPPING SYSTEMS, INC.
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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H.W.J. DESIGNS FOR AGRIBUSINESS,
INC. and SAMUEL STRAPPING
15 SYSTEMS, INC.,
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) Case No. 1:17-cv-00272-AWI-SKO
)
) STIPULATED ESI PROTOCOL ORDER
)
Plaintiffs, )
)
vs.
)
)
RETHCEIF ENTERPRISES, LLC A/K/A )
RETHCEIF PACKAGING, and L.P.
)
BROWN COMPANY, INC. D/B/A
)
INTERNATIONAL FIBER PACKAGING, )
)
Defendants. )
)

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STIPULATED ESI PROTOCOL ORDER
Case No. 1:17-cv-00272-AWI-SKO
4824-1156-4628.1

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The parties to this Stipulated ESI Protocol Order have agreed to the terms of this Order.

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This protocol describes certain specifications for document production consistent with Fed. R.
Civ. P. 26 or 34. It is not intended to supersede or conflict with either of those Rules. Issues, if any,
arising on subject matter within the scope of this Order, but not directly addressed in it, shall be governed
by those Rules except as otherwise stipulated by the parties under Rule 29 or as addressed by motion as
described in Section 8 below.
1.

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Definitions will be construed according to the Federal Rules of Civil Procedure and The Sedona
Conference® Glossary: E-Discovery & Digital Information Management (Fourth Edition), which is
available at https://thesedonaconference.org/download-pub/3757 (last accessed June 6, 2017).
2.

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DEFINITIONS

CUSTODIANS
The parties will meet and confer to identify their respective custodians and the production priority

for them.
3.

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DOCUMENT PROCESSING
3.1

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Hidden Data. The parties will, during processing, force on the following:
i.

auto date (absent special circumstances, code information will be provided in place

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of date);

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ii.

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changes);

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iii.

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iv.

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hidden text or worksheets; and

v.

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hidden columns or rows (absent special circumstances, noting that hidden columns
and/or rows exist will be sufficient);

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track changes (absent special circumstances, the TIFF images will contain all track

comments (absent special circumstances, these should be visible on the TIFF images
of the documents).

4.

DATA CULLING
4.1

Duplicates. The parties will use industry standard MD5Hash or SHA-256 hash values to

de-duplicate documents. The parties will apply de-duplication on a family basis. The parties will

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de-duplicate within each custodian (“vertical de-duplication”) and across custodians (“horizontal
de-duplication”).

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i.

The parties will not de-duplicate loose electronic documents against email

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attachments;

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ii.

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or any other markings as a duplicate of a non-marked or annotated version of the

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same document.

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4.2

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included. The parties’ discussion of date range will include the issue of whether, if any of the fields Date
Sent, Date Received, Date Created, Date Last Modified, and/or Date Last Printed fall within the or a
specific date range, a document will be included.
4.3

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Search Terms. The parties will meet and confer regarding the search terms to be applied to

limit documents and the appropriate number of such search terms. If any family member hits on a search
term, the entire family will be included. The parties further agree that applying the agreed-upon search
terms to a given party’s collection of electronically stored information (“ESI”) does not by itself satisfy
that party’s obligations in responding to specific discovery requests; there may be categories of documents
requiring collection other than by application of search terms. To the extent possible, parties shall run
OCR conversion on non-searchable PDF files and other stand-alone files and email attachments that do
not have searchable text in order to make them searchable before running the searches.

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Date Range. The parties will meet and confer regarding the start date and end date to be

applied to limit documents. If any family member falls with the given date range, the entire family will be

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The parties will not count a document containing handwritten notes, highlighting,

4.4

The parties agree that search terms, custodians, and/or date ranges may need to be adjusted

or supplemented as discovery proceeds. The parties will meet and confer in a timely fashion regarding
such additional search terms, custodians, and/or date ranges.
5.

PRODUCTION
5.1

Cover Document. The parties will provide a cover document (or email for documents

produced via FTP site) with each production containing the following information:

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i.

the case name and number;

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ii.

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production volume number.
5.2

delivery. If a delivery is too large to fit on two CDs, DVDs, or USB flash drives, the production will be
delivered via an external hard drive using overnight delivery. The production media for media
productions containing material designated under the protective order as “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” will be encrypted, with the password provided under separate cover.
Encrypted data may be produced in encrypted ZIP files or as Veracrypt volumes. The production media
will be labeled with:
i.

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the production volume; and

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the case name and number;

iii.

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the producing party’s name;

ii.

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Media. Any production may be produced via FTP or other secure file transfer site.

Otherwise, the parties will deliver each production on a CD, DVD, or USB flash drive using overnight

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the piece of media, if appropriate, included in the production with its unique

the Bates number range.

5.3

Production Format. The parties will produce all documents as tagged image file format

(“TIFF”) images accompanied with an image load file, a data load file, and document-level searchable
text, unless this Order otherwise specifies that certain documents shall be produced in native form.

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i.

TIFF Image Requirements. The parties will produce all documents as
consecutively Bates-stamped (bottom right-hand corner), TIFF images in
black-and-white, Group IV, 300 dpi format. JPEGs, PPT, PPTX in color and any
hard copy documents in color should be produced in color, and color images shall
be produced in JPEG format rather than TIFF format. In addition, if the
requesting/receiving party asserts a need, it may obtain color copies of
black-and-white documents, unless there is a serious cost issue due to excessively
large volume.
1.

The parties will name each image file with the unique Bates number of the
page of the document in question, followed by the extension “TIF”;

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2.

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ii.

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Data Load File Requirements. The parties will produce a
Concordance-compatible, data load file with each production volume. The data

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load file will contain a header row listing all of the applicable metadata fields listed

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in Appendix A.

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1.

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except, the parties will produce custodian metadata for hard-copy

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documents to the extent that a custodian is reasonably known or can be

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assigned;

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iii.

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Extracted and OCR Text Requirements. The parties will provide electronically
extracted text for all types of ESI except for MS-Excel spreadsheets. The parties

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will provide optical character recognition (“OCR”) text for documents that do not

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contain electronically extractable text, for redacted documents, and for hard-copy

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documents.

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2.

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The parties will provide document text as separate, document-level text files
not embedded in the metadata load file;

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The parties are not obligated to produce metadata from a document if
metadata does not exist or if the metadata is not machine extractable;

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File names cannot contain embedded spaces or special characters;

The parties will name each text file with the unique Bates number of the first
page of the corresponding TIFF, followed by the extension “txt”;

5.4

Native Production. The parties will produce MS-Excel, CSV spreadsheets, and

MS-PowerPoint files in native form, to the extent such files are possessed by the producing party in native
form. The parties will replace the TIFF image with a document placeholder containing a unique Bates
number and language sufficient to convey that the document was produced in native form, along with any
applicable protective order designation. The text file will contain the extracted text of the native file.
Should any TIFF image not be legible, the parties will work together to provide native versions of such
documents on a case-by-case basis.

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i.

The parties will name each native file with the unique Bates number of the first

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page of the corresponding TIFF, followed by the appropriate extension (“xls,”

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“csv,” or “ppt”);

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ii.
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When redaction is necessary, a redacted full TIFF version may be produced instead

iv.

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The parties will provide a path to each native file in the data load file;

When documents of file types such as audio files, DWG files, AutoCAD files,

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Access databases, Microsoft Project files, Log files, and the like cannot be

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converted to image files or cannot be converted without undue burden and/or

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expense, such documents may be produced in native format.

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5.5

any document types not addressed herein.
6.

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Other Files. The parties will meet and confer to discuss a suitable production format for

CONFIDENTIALITY
Confidentiality of documents produced will be designated in accordance with the Stipulated

Protective Order entered in the case.
7.

PRIVILEGE
7.1

Privilege Log. The parties will provide a privilege log for any document withheld in whole

or in part (i.e., redacted) based upon a claim of privilege no later than sixty (60) days prior to the close of
fact discovery. The parties further agree to meet and confer regarding the production of a privilege log
prior to any deposition(s) as necessary. The log will detail the following for each document:

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i.

an identification number for documents withheld in whole;

ii.

a Bates number for documents withheld in part (i.e., redacted);

iii.

the document date, to the extent reasonably discernible;

iv.

the author(s) (i.e., from) with an asterisk identifying any legal personnel;

v.

the recipient(s) (i.e., to, cc, and bcc) with an asterisk identifying any legal

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personnel;
vi.

an identification of any attachments to a document being withheld, accompanied by
an indication of where such attachments appear on the privilege log or that such
attachments have been produced;

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vii.
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the basis of the privilege claimed;
a description sufficient to allow the receiving party to assess the privilege claim;

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and

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ix.

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of the business entity with which such legal personnel were affiliated as of the time

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of the withheld communication.

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a listing of the names of any legal personnel listed on the privilege log and the name

7.2

The parties agree that privileged or work product documents that were prepared, generated,

and/or created subsequent to or directly related to the preparation and filing of the complaint,
counter-claims, or answers need not be included on a privilege log.

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8.

MISCELLAENOUS
The parties will meet and confer to resolve any document production disputes arising from or not

addressed in this protocol. Agreement to this protocol, and any stipulations on its subject matter pursuant
to Fed.R.Civ.P. 29, shall not be construed as a waiver of any rights of any party under applicable law or the
right to seek modification or supplementation of this Order by normal motion practice under Civil Local
Rules 141.1 and 251. Without limiting the foregoing, agreement to this protocol shall not be construed as
a waiver of any party’s right to pursue forensic copies of memory storage media or other devices. The
provisions of this Order are a stipulation, made by the parties based on their ability to foresee various
aspects of ESI discovery at this stage of the case. While it has been entered by the Court to provide the
protections intended by such stipulation, it is not the result of an actual adjudication by the Court of any
contested issue. Accordingly, the Court’s consideration of any motion with respect to this Order shall be
de novo. Action taken or omitted to be taken based on a good faith, reasonable belief in its propriety under
this Order, or due to circumstances outside the control of an alleged violator, shall not be deemed a
Contempt of Court.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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/s/ Victor de Gyarfas

Date: November 7, 2017

FOLEY & LARDNER LLP
Attorneys for Plaintiff H.W.J. DESIGNS FOR AGRIBUSINESS, INC. and SAMUEL STRAPPING
SYSTEMS, INC.

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/s/

R. Eric Gaum

Date: November 7, 2017

HAHN LOESER & PARKS LLP
Attorneys for Defendant RETHCEIF ENTERPRISES, LLC a/k/a RETHCEIF PACKAGING

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/s/

Steven D. Moore

Date: November 7, 2017

KILPATRICK TOWNSEND & STOCKTON LLP
Attorneys for Defendant L.P. BROWN CO., INC.

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ORDER

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IT IS SO ORDERED.

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Dated:

November 9, 2017

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/s/

Sheila K. Oberto

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UNITED STATES MAGISTRATE JUDGE

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APPENDIX A
PROD_BED
PROD_END
PRODATTACH_BEG
PRODATTACH_END
Confidentiality
Page Count
Document_Type
Email To
Email From
Email CC
Email BCC
Email Subject
Date_Sent
Time_Sent
Date_Received
Time_Received
Custodian
Date_Created
Time_Created
Date_Last_Modified
Time_Last_Modified
Filename
Filesize
MD5 Hash
Title
Doc_Extension
Text Precedence
File Path

4824-1156-4628.1