Vineyard Investigations v. E. & J. Gallo Winery

Filing 87

Order GRANTING stipulation regarding electronically stored information ("ESI") protocol, signed by Magistrate Judge Sheila K. Oberto on 11/21/2022.(Rosales, O.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 FRESNO DIVISION 11 12 VINEYARD INVESTIGATIONS, 13 14 15 16 Plaintiff, v. Case No. 19-cv-1482-JLT-SKO ORDER GRANTING STIPULATION REGARDING ELECTRONICALLY STORED INFORMATION (“ESI”) PROTOCOL E. & J. GALLO WINERY, (Doc. 86) Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING STIPULATION REGARDING ESI PROTOCOL CASE NO. 19-CV-1482 ELECTRONICALLY STORED INFORMATION (“ESI”) PROTOCOL 1 2 3 Plaintiff Vineyard Investigations (“VI” or “Plaintiff”) and Defendant E. & J. Gallo 4 Winery (“Gallo” or “Defendant”) (collectively, “the Parties”) have, in good faith, met and 5 conferred regarding the preservation and production of electronically stored information 6 7 8 (“ESI”), and have agreed that the terms of this ESI Protocol shall apply for the duration of the above captioned case. 9 Electronic Discovery 10 11 1. 12 Each Party initially shall bear its own costs of preserving, searching for, and producing ESI. The Parties agree that they will meet and confer should a dispute arise regarding 13 ESI production, and if the Parties cannot reach an agreement, the Parties will request 14 that the Court resolve such disputes. 15 16 2. The producing Party shall retain the presumptive right and responsibility to manage and 17 control searches of its data files, including the right to use Predictive 18 Coding/Technology Assisted Review. 19 compliance with the Federal Rules. 20 3. 21 All searches shall be reasonable and in This ESI Protocol shall apply to all discoverable ESI in the possession, custody, or control of the Parties that can be identified and collected by virtue of being stored, in 22 the ordinary course of business, in a keyword-searchable electronic format, and that 23 can be located after a reasonably diligent search. This ESI Protocol is intended to 24 simplify and organize the parties’ search and production of information. 25 26 27 28 4. The Parties agree that it is not necessary to search for information contained on cellular phones, smartphones (e.g., iPhones), tablets (e.g., iPads), or other similar 2 1 portable devices, and sources not reasonably accessible due to undue burden or cost, 2 such as company-issued computers of former employees (not in the producing party’s 3 possession, custody, or control), and personal computers; cellular phones, 4 smartphones (e.g., iPhones), tablets (e.g., iPads), or other similar portable devices of 5 current and former employees, including associated text message apps; external hard 6 drives of current and former employees; and voicemail systems, inactive legacy 7 8 computer systems, backup tapes, backup systems, and disaster recovery systems. 9 This paragraph does not apply to legacy computer or backup systems that remain in 10 active use, unless the work-related data from those computers is stored or 11 synchronized to a datacenter or cloud system that can be reasonably searched in lieu 12 of searching backup systems. Each Party reserves the right to request that an 13 opposing party search such devices or systems provided that the requesting party is 14 15 able to show (1) a particularized and reasonable need for the information contained 16 on such devices or systems; and (2) the unavailability of said information from 17 alternative sources more easily accessible; and (3) the information sought will not 18 impose an undue burden and/or cost on the producing party. The Parties agree to meet 19 and confer in good faith should a dispute arise under this Paragraph, and will request 20 that the Court resolve any such disputes if agreement cannot be reached. 21 22 5. The Parties agree that when comprehensive summary documentation of underlying 23 or raw information is reasonably available and relied upon in the ordinary course of 24 business, the production of such summary documentation is presumptively sufficient 25 for purposes of this litigation only. This agreement does not waive any party’s right 26 to pursue the underlying or raw information subject to a case-by-case explanation of 27 28 3 1 need or demonstration by the requesting party that the summary documentation does 2 not contain relevant and material information that would exist in the raw information. 3 6. 4 Consistent with Paragraph 4, the Parties agree that in this litigation voicemail messages, random access memory, instant messages and chats, backup tapes, 5 information from mobile phones, smart phones or PDAs, including associated text 6 messaging apps, and dynamic fields of databases or log files will be considered not 7 8 reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B) and, accordingly, need not 9 be searched and will not be subject to production absent a showing of good cause by 10 the requesting Party based upon specific facts that demonstrate a particular need for 11 such evidence that justifies the burden of retrieval, and further subject to the 12 producing Party’s claim of undue burden or cost. Subject to Paragraphs 8-9 herein, 13 if duplicative responsive documents are located, the producing Party shall not be 14 15 required to search for additional copies of such responsive documents absent a 16 showing of good cause that the production of such additional copies is necessary. No 17 Party need deviate from the retention practices it normally exercises with regard to 18 such voicemail messages, random access memory, instant messages and chats, 19 backup tapes, information from mobile phones, smart phones or PDAs (including 20 associated text messaging apps), and dynamic fields of databases or log files that are 21 not stored or retained in the ordinary course of business when not in anticipation of 22 litigation. 23 24 25 26 27 28 7. The Parties shall each produce imaged copies of responsive and non-privileged electronic and paper documents electronically, Bates- stamped, at a resolution of at least 300 dots-per-inch (dpi) or at a resolution used in the routine course of electronic record retention. Those images shall be produced as single-page or multi-page 4 1 Tagged Image File Format (“TIFFs” or “.tiff format”) with accompanying text files 2 where the original document had native text, or the native file format for excel, access 3 database, and other similar files. To the extent it is technically feasible, those image 4 files shall include information corresponding to the following: 5 Field Name Field Description Sample Values BegBates Bates number for the first page of the document ABC0000001 EndBates Bates number for the last page of the document ABC0000002 BegAttach Bates number for the first page of parent document ABC0000001 11 EndAttach Bates number for the last page of last attachment ABC0000005 12 13 Confidentiality Designation The confidentiality designation of the document Highly Confidential – Attorneys’ Eyes Only 14 HASH The hash value of the document MD5 or SHA-1 Number of printed pages of the document Custodian name 6 7 8 9 10 15 16 17 18 Pages Custodian DuplicateCustodian 2 Smith, Jane 22 DateCreated All custodians who have possession of the document Descriptor for documents that Yes have been redacted. “Yes” for redacted documents; “No” for non-redacted documents Document date created mm/dd/yyyy 23 DateMod Document last known modified date mm/dd/yyyy TimeCreated Document time created (EST) TimeMod Filename Document last known modified time hh:mm:ss (EST) The name of a file Filename Author The Author property of a file 19 Redacted 20 21 24 25 26 27 28 5 hh:mm:ss John Doe 1 Field Name Field Description Sample Values 2 Extension The file extension Doc 3 PathToText 4 PathToNative DateSent The relative path to the \Vol001\txt\ABC000 accompanying text file 01.txt The relative path to any \Vol001\Natives\AB accompanying native file C00001.xls Subject line of Email or Subject value Text of the subject of documents line Email: Send Date & Time; mm/dd/yyyy Documents: Last Known Modified hh:mm:ss Date & Time Email sent date mm/dd/yyyy 5 Subject 6 7 DocDate 8 9 DateRec Email received date mm/dd/yyyy 10 TimeSent Email sent time (EST) hh:mm:ss 11 TimeRec Email received time (EST) hh:mm:ss 12 To 13 From All SMTP Address of email John.smith@email.c recipients, separated by a semi-colon om All SMTP address of email Author m All SMTP address of email “CC” recipients, separated by a semi-colon m; 14 CC 15 16 17 8. In addition, a producing Party shall not be required to produce in TIFF format when the 18 conversion to image TIFF format would impose unreasonable cost on the producing 19 Party and/or would result in unintelligible documents. Under such circumstances, the 20 producing Party shall notify the requesting Party within a reasonable time after 21 learning of the issue and the Parties shall meet and confer regarding an acceptable 22 production format. The Parties agree that applying global de-duplication to their 23 productions is reasonable. 24 25 9. For purposes of this protocol only, “Duplicate ESI” means files that are exact duplicates 26 based on the files’ MD5 or SHA-1 hash values at the family level. A Party is only 27 required to produce a single copy of a responsive document and may de-duplicate 28 6 1 entire document families horizontally (also referred to as globally) across custodians. 2 A metadata field listing all custodians who have possession of the document shall be 3 4 included in the list of metadata fields for produced documents, to the extent it can be reasonably determined. 5 6 7 10. When processing ESI, Pacific Standard Time (PST) shall be selected as the time zone. 11. When a Party produces a replacement document, the receiving Party must discard or 8 return to the producing Party all copies, including working copies, of the original if 9 the document at issue has been replaced based on a claim of privilege. If the 10 replacement documents are produced at a different Bates number, the producing party 11 will provide a cross-reference file, linking the replacement documents to the original 12 Bates. 13 14 12. The Parties shall negotiate separately regarding the production of structured database 15 files and shared drives, if any. To the extent the Parties cannot reach agreement as to 16 a particular database file or shared drive, the Parties will request that the Court 17 resolve any disputes in a manner that takes into account the specifics of the files or 18 drives in question, the narrowly-tailored needs of the requesting Party, and the 19 anticipated burden on the producing Party. 20 13. While paper documents may necessarily be implicated by certain requests, nothing in 21 22 this paragraph shall be interpreted as imposing any independent obligation upon the 23 Parties to produce hard copy documents that are duplicative of electronically stored 24 documents. Paper documents included in a Party’s production shall be scanned to 25 imaged copies and produced in the same manner specified for electronic documents. 26 The imaged copies of scanned paper documents will be logically unitized (i.e., to 27 28 7 1 preserve page breaks between documents and otherwise allow separate documents to 2 be identified). 3 4 14. To the extent the retrieval of paper documents creates an unreasonable burden or undue costs on the producing Party because of the ongoing COVID-19 pandemic, the 5 6 7 producing Party agrees to notify the other Party and explain the undue circumstances. The Parties agree that they will meet and confer should a dispute arise regarding paper 8 document production, and if the Parties cannot reach an agreement, the Parties will 9 request that the Court resolve such disputes. 10 11 15. The Parties shall produce a “load file” in some mutually agreeable industry-standard format to accompany the images, which load file shall include information about 12 where each document begins and ends and parent-child-relationships to facilitate the 13 14 use of the produced images through a document management or litigation support 15 system. The Parties shall meet and confer to the extent reasonably necessary to 16 facilitate the import and use of the produced materials with commercially available 17 document management or litigation support software. The Parties shall meet and 18 confer to discuss documents that present imaging or formatting problems. To the 19 extent exceptions to the foregoing are required, the Parties will meet and confer to 20 discuss alternative production requirements, concerns, or formats. 21 22 16. Each page of a produced document shall have a legible, unique numeric identifier Bates 23 number not less than eight digits electronically “burned” onto the page at a place on 24 the document that does not obscure, conceal or interfere with any information 25 originally appearing on the document. The Bates number for each document shall be 26 27 28 created so as to identify the producing party and the production number (e.g., “BETA00000001”). The Bates numbers will be consistent across a producing Party's 8 1 production, contain no special characters and be numerically sequential within a 2 given document. Whenever reasonably possible, attachments to documents will be 3 4 assigned Bates numbers that directly follow the Bates numbers on the documents to which they were attached. In addition, whenever possible, each .tiff image will have 5 6 7 its assigned production number electronically "burned" onto the image. Native format documents will be produced with TIFF placeholders. 8 17. If, by their nature, certain documents are best viewable in their native formats, such as 9 Microsoft Excel, Microsoft Access, and other spreadsheet/template configured files, 10 and the documents do not contain material protected by the attorney-client privilege, 11 work-product doctrine, or any other applicable privilege or immunity, the documents 12 shall be produced in native format. A document containing material protected by the 13 14 attorney-client privilege, work-product doctrine, or any other applicable privilege or 15 immunity need not be produced in native format; however, a Party will not 16 unreasonably withhold such native versions on this basis. The Parties agree that they 17 will meet and confer in good faith should a dispute arise regarding the production of 18 particular documents. Files produced in native format will be named according to 19 the production number it has been assigned (e.g., “BETA00000001.xlxs”), and 20 should be linked directly to its corresponding record in the load file using the 21 22 PathToNative field. For each native file produced, the production will include a TIFF 23 image slip-sheet indicating the production number of the native file and any 24 confidentiality designation, and stating “Produced in Native Format.” 25 26 27 28 18. The Parties agree that when using any document produced in native format for evidentiary purposes (including without limitations at any hearing, deposition, or trial), the Party seeking to make such use will provide the production number to the 9 1 producing party. Any such use shall constitute a representation by the proffering 2 Party through its counsel that the file being used is an exact duplicate of the native 3 4 file produced. Should any document produced in native format be printed to .tiff format or hard copy, its unique production number and any applicable confidentiality 5 6 7 designation shall be placed on each page of such TIFF image or hard copy, and the use for evidentiary purposes of the TIFF image or hard copy shall constitute a 8 representation by the proffering Party through its counsel that the file from which the 9 TIFF image or hard copy was created is an accurate and complete representation of 10 11 such file. 19. The Parties agree that they will meet and confer in good faith should a dispute arise 12 regarding the production of documents in a particular format. 13 14 20. The Parties will accommodate reasonable requests to produce high resolution images if 15 a document produced in this litigation is illegible. A producing Party shall not 16 unreasonably deny such a request. The Parties agree that they will meet and confer in 17 good faith should a dispute arise regarding the production of documents in a particular 18 format. 19 21. If not otherwise addressed in the Protective Order entered in this case, to the extent that 20 a responsive document contains privileged content, the party may produce that 21 22 document in a redacted form. 23 22. Any redactions shall be clearly indicated on the face of the document and each page of 24 the document from which information is redacted shall bear a designation or clear 25 indication that it has been redacted. Where a document contains both privileged and 26 27 28 non-privileged responsive content the Party shall redact the privileged material and produce the remainder of the document as redacted. Only where privileged content 10 1 requires the majority of the document to be redacted, a Party be exempted from 2 producing the document in redacted form. The production of a privileged document 3 in a redacted form does not affect the producing Party's obligation to properly 4 document and substantiate the assertion of privilege over the content as may be 5 reasonably requested. 6 7 23. The Parties may use encryption software, such as VeraCrypt, to protect any documents 8 produced on electronic media such as DVDs or hard drives. The decryption password 9 will be provided at the same time the documents are produced. 10 11 Production of E-Mail 24. The Parties agree that e-mail will be searched and produced as follows. To the extent 12 the Parties cannot reach agreement, the Parties shall request that the Court resolve 13 any disputes. 14 15 a. A producing Party need identify no more than five e-mail custodians whose e- 16 mail the producing Party will search, and a date range for that search. Persons 17 identified in a party’s disclosures as having knowledge, whose work-related 18 email is in the party’s possession, custody, and control, may be identified by the 19 other party as among the five e-mail custodians. 20 b. The producing Party shall identify no more than a total of ten search strings per 21 e-mail custodian that will be run on the e-mail files. The parties will direct 22 23 search terms to relevant issues and used to locate potentially responsive emails 24 for responsiveness, privilege, and data privacy review. 25 26 c. The Parties agree to meet and confer in good faith regarding any edits to custodians, search strings and date ranges. 27 28 11 d. 1 2 After the Parties have agreed upon custodians, search strings and date ranges, the Parties will run the initially identified search strings against the e-mail files 3 for the relevant custodian(s) and first provide the number of hits for each search 4 string within twenty business days of identifying the custodian and search 5 strings. If the number of hits resulting from running the selected search strings 6 is unreasonably large, the Parties shall meet and confer to try to resolve the 7 8 dispute (e.g., by mutually agreeing to narrowed search terms or date ranges). 9 To determine the appropriate search strings, the Parties will exchange the 10 number of hits on modified search strings. The parties will begin producing 11 responsive documents based on the final agreed upon search terms within thirty 12 calendar days. 13 e. 14 After the search is conducted, the producing Party may review the responsive1 15 documents for privilege, confidentiality, and privacy concerns. The producing 16 Party may thereafter designate such documents as protected material under the 17 Protective Order, or redact or withhold privileged information where 18 appropriate, in a manner otherwise consistent with the instant ESI Protocol 19 regarding the production of documents. 20 f. The Parties agree that indiscriminate terms, such as the producing company’s 21 name, are inappropriate unless combined with narrowing search criteria that 22 23 sufficiently reduce the risk of overproduction. A conjunctive combination of 24 multiple words or phrases (e.g., “computer” and “system”) narrows the search 25 26 27 28 1 The fact that an electronic file is returned by application of the search queries and the protocols used herein does not mean that such document is responsive to any propounded discovery request or is otherwise discoverable in this litigation. 12 1 and shall count as a single search term. A disjunctive combination of multiple 2 words or phrases (e.g., “computer” or “system”) broadens the search, and thus 3 each word or phrase shall count as a separate search term unless they are variants 4 of the same word. Use of narrowing search criteria (e.g., “and,” “but not,” 5 “w/x”) is encouraged to limit the production. 6 7 g. The Parties may jointly agree to modify the limits on the number of custodians 8 and/or search terms without leave of the Court. To the extent the Parties are 9 unable to reach agreement regarding modifications, the Court may consider 10 contested requests for additional or fewer custodians and/or search terms per 11 producing Party for good cause shown. 12 h. If a Party produces e-mails, e-mail attachments will be produced as independent 13 documents immediately following the parent e-mail record. No Party shall be 14 required to produce embedded logos and junk files that are embedded in ESI. 15 16 i. 17 For any e-mail produced, fields showing the date and time that the e-mail was sent and/or received, as well as the subject of the message and the complete 18 distribution list, shall be included with the production of such e-mail to the 19 extent such information is available. In addition, parent-child relationships (i.e., 20 the associations between e-mails and attachments) will be preserved. E-mail 21 22 attachments will be produced as independent documents immediately following 23 the parent e-mail record. 24 25 j. Attachments to emails will not be eliminated from their parent emails. k. Where multiple email messages are part of a single “thread,” a Party is only 26 required to produce the most inclusive message for which no claim of privilege 27 28 13 1 is made, and need not produce earlier, less inclusive email messages that are 2 fully contained, including attachments, within the most inclusive email message 3 for which no claim of privilege is made. For the avoidance of doubt, only email 4 messages for which the parent document and all attachments are contained in 5 the more inclusive email message will be considered less inclusive email 6 messages that need not be produced; if the later message contains different text 7 8 (such as where the later message adds in-line comments to the body of the earlier 9 message), or does not include an attachment that was part of the earlier message, 10 the earlier message must be produced. 11 12 13 14 15 16 17 18 19 Dated: 2022 November 16, Respectfully submitted, By:/s/ Darryl M. Woo Darryl M. Woo Sanjeet K. Dutta Jenny J. Zhang Elizabeth J. Low GOODWIN PROCTER LLP Timothy J. Buchanan Shane G. Smith MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 20 21 Attorneys for Defendant E. & J. Gallo Winery 22 23 24 25 26 27 28 14 1 Dated: November 16, 2022 Respectfully submitted, 2 By:/s/ Corey Johanningmeier (as authorized 11/15/2022) Corey Johanningmeier (SBN 251297) Brenda Entzminger (SBN 226760) Denise De Mory (SBN 168076) BUNSOW DE MORY LLP 701 El Camino Real Redwood City, CA 94063 Tel.: (650) 351-7248 Fax: (415) 426-4744 3 4 5 6 7 8 9 Attorneys for Plaintiff Vineyard Investigations 10 11 12 13 ORDER 14 15 16 For good cause shown, the Court hereby approves and orders the ESI collection and production protocol pursuant to the parties’ stipulation (Doc. 86) set forth above. 17 18 IT IS 19 SO ORDERED. /s/ Sheila K. Oberto 20 November 21, 2022 Dated: 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 . 15

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