IconFind, Inc. v. Google, Inc.

Filing 48

BRIEF DOCUMENT PRODUCTION AGREEMENT by Google, Inc.. (Malecek, Michael)

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Michael J. Malecek (State Bar No. 171034)
Email address: [e-mail]
Kenneth M. Maikish (State Bar No. 267265)
Email address: [e-mail]
KAYE SCHOLER LLP
Two Palo Alto Square, Suite 400
3000 El Camino Real
Palo Alto, California 94306
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
GOOGLE INC.

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ICONFIND, INC.,

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Case No. 2:11-CV-00319 GEB JFM

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Plaintiff,

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DOCUMENT PRODUCTION
AGREEMENT

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v.

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GOOGLE INC.,

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Defendant.

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DOCUMENT PRODUCTION AGREEMENT
Case No. 2:11-CV-00319 GEB JFM

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This Stipulation Regarding the Format of Document Productions shall govern the parties

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in the above-captioned case (the “Litigation”).

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I.

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GENERAL PROVISIONS
A.

The parties will make reasonable efforts to prepare responsive and nonprivileged

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data for production in accordance with the agreed-upon specifications set forth below. These

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specifications apply to hard copy documents or electronically stored information (“ESI”) which are

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to be produced in this litigation.

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B.

SECURITY. Both parties will make reasonable efforts to ensure that any

productions made are free from viruses and may be provided on encrypted media for submission.

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C.

CONFIDENTIALITY DESIGNATION. Responsive documents in TIFF format

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will be stamped with the appropriate confidentiality designations in accordance with the Protective

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Order in this matter. Each responsive document produced in native format will have its

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confidentiality designation identified in the filename of the native file.

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D.

NON-STANDARD FILES. The format of production of non-standard electronic

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files, large oversized documents, etc. will be discussed before production to determine the optimal

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production format.

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A.

PRODUCTION MEDIA. Documents shall be produced on external hard drives,

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readily accessible computer(s) or electronic media (“Production Media”). Each piece of

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Production Media shall identify a production number corresponding to the production volume

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(e.g., “VOL001”, “VOL002”), as well as the volume of the material in that production (e.g. “-

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001”, “-002”). Each piece of production media shall also identify: (1) the producing party’s

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name; (2) the production date; and (3) the Bates Number range of the materials contained on the

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Production Media.

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II.

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DATA PROCESSING
A.

PASSWORD PROTECTED FILES. The parties agree to use commercially

accessible software to open password-protected or encrypted files.

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DOCUMENT PRODUCTION AGREEMENT
Case No. 2:11-CV-00319 GEB JFM

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B.

DEDUPLICATION. A party is only required to produce a single copy of a

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responsive document and a party may de-duplicate responsive ESI across Custodians. De-

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duplication may be done automatically via standard techniques such as those based on MD5 of

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SHA-1 hash values at the document family level. For emails with attachments, the hash value is

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generated based on the parent/child document grouping. A party may also de-duplicate email

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threads as follows: In an email thread, only the final-in-time document need be produced,

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assuming that all previous emails in the thread are contained within the final message. Where a

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prior email contains an attachment, that email and attachment shall not be removed.

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C.

CULLING/FILTERING. Common system files need not be collected and

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searched. Common files that may be culled/filtered include those located in the National Software

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Reference Library (“NSRL”) NIST hash set list. Additional culling of system file types based on

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file extension may also include, but are not limited to: WINNT, LOGS, DRVS, MP3, C++

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Program File (c), C++ Builder 6 (cpp), Channel Definition Format (cdf), Creatures Object Sources

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(cos), Dictionary file (dic), Executable (exe), Hypertext Cascading Style Sheet (css) JavaScript

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Source Code (js), Label Pro Data File (IPD), Office Data File (NICK), Office Profile Settings

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(ops), Outlook Rules Wizard file (rwz), Scrap Object System file (dll), Temporary File (tmp),

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Windows Error Dump (dmp), Windows Media Player Skin Package (wmz), Windows NT/2000

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Event View Log file (evt), Python Script files (.py, .pyc, .pud, .pyw), and Program Installers.

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III.

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PRODUCTION OF HARD COPY DOCUMENTS
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TIFFs. Documents that exist in hard copy format only shall be scanned and

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produced as single page Group IV TIFFs, with at least 300 dots per inch (dpi). Each TIFF image

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shall be named according to the corresponding bates number associated with the document. Each

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image shall be branded according to the bates number and agreed upon confidentiality designation.

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TIFFs shall show all text and images that would be visible to a user of the hard copy documents.

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B.

OCR TEXT FILES. A commercially acceptable technology for optical character

recognition “OCR” shall be used for all scanned, hard copy documents. OCR text shall be

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DOCUMENT PRODUCTION AGREEMENT
Case No. 2:11-CV-00319 GEB JFM

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provided as a single text file for each document, and the filename itself should match its respective

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TIFF filename. The text files will not contain the redacted portions of the documents.

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C.

DATABASE LOAD FILES/CROSS-REFERENCE FILES. Documents should

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be provided with an image load file that can be loaded into commercially acceptable production

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software (e.g., Concordance, Summation). Each TIFF in a production must be referenced in the

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corresponding image load file. The total number of documents referenced in a production’s data

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load file should match the total number of designated document breaks in the Image Load file(s) in

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the production.

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D.

BATES NUMBERING. All images must be assigned a unique Bates number that

is sequential within a given document and across the production sets.

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E.

UNITIZING OF DOCUMENTS. In scanning paper documents, distinct

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documents should 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 use

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reasonable efforts to unitize documents correctly.

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IV.

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PRODUCTION OF ELECTRONICALLY STORED INFORMATION
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TIFFs. Unless excepted below, single page Group IV TIFFs should be provided, at

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least 300 dots per inch (dpi). Each TIFF image file should be one page and named according to the

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unique bates number, followed by the extension “.TIF”. Original document orientation should be

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maintained (i.e., portrait to portrait and landscape to landscape).

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B.

TEXT FILES. For each document, a text file should be provided along with the

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image files. The text of native files should be extracted directly from the native file. However, if a

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document has been redacted or does not contain extractable text, OCR of the redacted document

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will suffice in lieu of extracted text.

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C.

DATABASE LOAD FILES/CROSS-REFERENCE FILES. Documents should

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be provided with an image load file that can be loaded into commercially acceptable production

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software (e.g., Concordance, Summation). Each TIFF in a production must be referenced in the

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corresponding image load file. Each TIFF in a production must be referenced in the corresponding

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DOCUMENT PRODUCTION AGREEMENT
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image load file. The total number of pages referenced in a production’s image load file should

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match the total number of TIFF files in the production.

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D.

BATES NUMBERING. All images must be assigned a unique Bates number that

is sequential within a given document and across the production sets.

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E.

SPREADSHEETS. TIFF images of spreadsheets may be produced in native

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format unless redacted, in which instance, spreadsheets will be produced in TIFF with OCR. The

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parties will make reasonable efforts to ensure that any spreadsheets that are produced only as TIFF

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images are formatted so as to be readable.

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F.

PROPRIETARY FILES. To the extent a response to discovery requires

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production of ESI accessible only through proprietary software, the parties should continue to

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preserve each version of such information. The parties shall meet and confer to finalize the

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appropriate production format.

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G.

REQUEST(S) FOR ADDITIONAL NATIVE FILES. If good cause exists to

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request production of specified files, other than those specifically set forth above, in native format,

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the party may request such production and provide an explanation of the need for native file

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review, which request shall not unreasonably be denied.

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H.

REDACTION OF INFORMATION. If documents are produced containing

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redacted information, the producing party shall supply a list of the documents for any such claim(s)

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of privilege, indicating the grounds for the redaction and the nature of the redacted material (e.g.,

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privilege, trade secret, privacy). During the course of the litigation, an electronic copy of the

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originally, unredacted data shall be securely preserved in such a manner so as to preserve without

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modification, alteration or addition the content of such data including any metadata therewith.

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V.

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PROCESSING OF THIRD-PARTY DOCUMENTS
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A party that issues a non-party subpoena (“Issuing Party”) shall include a copy of

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this Stipulation with the subpoena and state that the parties to the litigation have requested that

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third-parties produce documents in accordance with the specifications set forth herein.

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DOCUMENT PRODUCTION AGREEMENT
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B.

The Issuing Party shall produce any documents obtained pursuant to a non-party

subpoena to the opposing party.

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C.

If the non-party production is not Bates-stamped, the Issuing Party will endorse the

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non-party production with unique prefixes and Bates numbers prior to producing them to the

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opposing party.

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D.

Nothing in this stipulation is intended to or should be interpreted as narrowing,

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expanding, or otherwise affecting the rights of the parties or third-parties to object to a subpoena.

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VI.

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SEARCHING
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Electronic Keyword Searching. The parties shall meet and confer to try to

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develop a mutually agreeable list of search terms and protocols prior to the production of

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documents. With respect to custodial documents, the parties will conduct electronic searches using

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such agreed search term lists. The parties agree that instant messages and voicemails will not be

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searched or produced. The parties agree that they will utilize commercially reasonable efforts to

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open any encrypted files.

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B.

Locations That Will Be Searched for Responsive Documents. The parties shall

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meet and confer to try to develop a mutually agreeable list of custodians to be searched. The

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parties will search any electronic files or folders, or other parts of media, including any internal and

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external hard drives and other ESI venues (including, but not limited to, recordable optical media,

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media cards, thumb drives, non-volatile memory, floppy disks, work desktop and laptop

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computers, email servers, intranet servers, network shares, public data shares and/or database

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servers) for each identified Custodian that the Custodian reasonably anticipates may contain non-

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duplicative Responsive Documents.

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The parties agree to search central repositories, including central databases, or relevant

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portions thereof to the extent that the party reasonably anticipates they contain non-duplicative

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Responsive Documents. The parties agree to meet and confer to limit the scope of production

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from central repositories if the search of central repositories (or relevant portions thereof) that the

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producing party anticipates contain Responsive Documents is unduly burdensome or is likely to

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DOCUMENT PRODUCTION AGREEMENT
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be unreasonably inefficient in identifying relevant documents. Specifically, the parties recognize

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that certain repositories, by their nature, may not effectively or reasonably be searched using

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electronic search strings, and the parties agree to notify each other of any such repositories that

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contain Responsive Documents. The parties will then meet and confer to discuss the collection of

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Responsive Documents from such repositories, including potentially using other effective

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collection methodologies.

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C.

Locations That Will Not Be Searched for Responsive Documents. The

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following locations will not be searched absent a showing of good cause and need not be preserved

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other than as in the normal course of business: personal digital assistants, mobile phones, voicemail

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systems, instant messaging logs and automated disaster recovery backup systems and/or disaster

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recovery backup tapes (unless such backup systems/tapes are accessible (i.e. actively used for

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information retrieval)). Notwithstanding the foregoing, the parties agree that Responsive

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Documents that a Custodian indicates are stored on an archival storage medium that the Custodian

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can readily identify and locate, that cannot be located in any other repository of information, and

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that can reasonably be searched, will be searched. In addition, nothing in this paragraph shall limit

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a receiving party’s right to request from a producing party more information about the nature of

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and burden associated with obtaining documents from a particular location. The parties further

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recognize their obligations to preserve any potentially relevant sources of data, whether live or in

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archival form, for purposes of this litigation.

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D.

Source Code. To the extent relevant to the Litigation, source code will be made

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available for inspection pursuant to the terms of the Protective Order.

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VII.

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MISCELLANEOUS PROVISIONS
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Objections Preserved. Nothing in this protocol shall be interpreted to require

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disclosure of irrelevant information or relevant information protected by the attorney-client

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privilege, work-product doctrine, or any other applicable privilege or immunity. The parties do not

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waive any objections as to the production, discoverability, admissibility, or confidentiality of

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documents and ESI.

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DOCUMENT PRODUCTION AGREEMENT
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B.

No Effect on Cost Shifting. Nothing in this Agreement shall affect, in any way, a

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producing party’s right to seek reimbursement for costs associated with collection, review, and/or

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production of documents or ESI.

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C.

Privilege Logs. No Party shall be required to record on a privilege log any

communications that occurred after the filing date of the original complaint, i.e., February 3, 2011.

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Dated: May 9, 2011
By:

/s/ Brian E. Hahn
As Authorized on May 9, 2011
Brian E. Hahn
NIRO, HALLER & NIRO
Attorneys for IconFind, Inc.

By:

/s/ Michael Malecek
Michael Malecek
KAYE SCHOLER LLP
Attorneys for Google Inc.

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DOCUMENT PRODUCTION AGREEMENT
Case No. 2:11-CV-00319 GEB JFM