Cardenas v. NBTY, Inc. et al

Filing 61

STIPULATION AND ORDER ON PROTOCOL FOR PRODUCTION OF ELECTRONICALLY STORED INFORMATION, signed by Magistrate Judge Carolyn K. Delaney on 9/5/12. (Kastilahn, A)

5

Elaine A. Ryan (admitted pro hac vice)
[e-mail]
Patricia N. Syverson, SBN 203111
[e-mail]
BONNETT, FAIRBOURN, FRIEDMAN
& BALINT, P.C.
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: [phone]

6

Attorneys for Plaintiff Liliana Cardenas

7

Alycia A. Degen, SBN 211350
[e-mail]
David R. Carpenter, SBN 230299
[e-mail]
SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
Los Angeles, California 90013
Telephone: [phone]
Facsimile: [phone]

1
2
3
4

8
9
10
11
12
13
14
15
16

Kara L. McCall (admitted pro hac vice)
[e-mail]
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
NBTY, Inc. and Rexall Sundown, Inc.

17
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

18
19
20

LILIANA CARDENAS, On Behalf of Herself
and All Other Similarly Situated California
Residents,

21
22
23
24
25

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
NBTY, INC., a Delaware corporation and
REXALL SUNDOWN, INC., a Florida
corporation,
Defendants.

26
27

Case No. 2:11-cv-01615-LKK-CKD
STIPULATION AND ORDER ON
PROTOCOL FOR PRODUCTION OF
ELECTRONICALLY STORED
INFORMATION

28
1
STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI

1
After conferring on these matters, Plaintiff and Defendants in the above-captioned action
2
3
4
5

(“the Litigation”) stipulate and agree to this Electronic Discovery Protocol (“EDP” or “Protocol”).
Application
1.

The procedures and provisions set forth in this Protocol govern the production of

6

“documents” and “electronically stored information” (as those terms are used in the Federal Rules of

7

Civil Procedure) that are stored in electronic format, including paper documents that have been

8

converted to an electronic format (collectively, “ESI”), in the Litigation. This agreement does not

9
address, limit, or determine the relevance, discoverability, agreement to produce, or admission into
10
11

evidence of electronically stored information (“ESI”). The Parties are not waiving the right to seek

12

any discovery and are not waiving any objections to any discovery requests, and will meet and

13

confer separately on the scope of production of ESI in response to any discovery requests. In the

14

event that a Party has agreed to produce a particular source of responsive documents or

15

electronically stored information but application of this Protocol would be unduly burdensome or

16

impractical, the Party identifying the source will promptly notify the other Parties, who will then

17
18
19
20

meet and confer concerning appropriate modifications of this Protocol with respect to that source.
Definitions
2.

“Discovery Materials” is defined as all products of discovery and all information

21

derived there from, including, but not limited to, documents, objects and things, deposition

22

testimony, interrogatory/request for admission responses, and any copies, excerpts or summaries

23

thereof, produced by any Party in the above-captioned matter.

24
3.

Plaintiff and Defendants, as well as their officers, directors, employees, agents, and

25
26
27
28

legal counsel, are referred to as the “Parties” solely for the purposes of this Protocol.
4.

“Plaintiff” as used herein shall mean Liliana Cardenas, as well as any other

individually named plaintiff in this case or in any case that is consolidated with this matter.
2
STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI

1

Discovery from Other Proceedings.

2
3
4

5.

Within thirty (30) days after the entry of this Protocol, relevant discovery already

produced by Defendants in other actions arising out of the promotion, marketing, distribution and
sale of the Osteo Bi-Flex Products1 and alleging unfair and deceptive health benefit claims,

5
6
7

including other actions in federal court, state court, or state or governmental proceedings, will be
produced in the same manner in which it was previously produced.
6.

8

With such production of documents previously produced, Defendants will also

9

identify by name and position all custodians that have been previously identified as having

10

responsive ESI in other litigation, as well as the sources of information that have been searched

11

during prior ESI collection in other litigation.

12
7.

Within thirty (30) days after the production of materials from prior proceedings, the

13
14
15

Requesting Party shall notify the Producing Party of any concerns they have with the form or content
of the production, and the parties will meet and confer on those issues.
8.

16

To the extent that Plaintiffs request, and Defendants agree to produce, additional

17

responsive information, paragraphs 9 through 24 below will govern the processing and production of

18

that information.

19

Production of Data, Generally

20
9.

ESI, except for MS-Excel Worksheets, is to be produced in 300 DPI Group IV

21
22

Monochrone Tagged Image File Format (.tiff or .tif) files. Tiff files shall be produced in single-page

23

format along with image load files (.DII file and .OPT file and .LFP file). Except as described below

24

for redacted documents, all documents are to be provided with extracted searchable text (.txt) files.

25
26
27
28

1

The Osteo Bi-Flex line includes: (1) Osteo Bi-Flex One Per Day; (2) Osteo Bi-Flex Triple Strength; (3) Osteo Bi-Flex
Double Strength; (4) Osteo Bi-Flex Triple Strength with Vitamin D; (5) Osteo Bi-Flex MSM; (6) Osteo Bi-Flex Energy
Formula; (7) Osteo Bi-Flex Regular Strength; and (8) Osteo Bi-Flex Advanced (collectively, “Osteo Bi-Flex” or “the
Products”).

3
STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI

1

10.

During the process of converting ESI from the electronic format of the application in

2

which the ESI is normally created, viewed, and/or modified to .tiff, metadata values should be

3

extracted and produced in a load file (“metadata load file”). All electronic format documents will be

4

produced with extracted searchable text files (.txt). The parties agree to meet and confer about (a)

5
6

scanning the documents with optical character recognition (“OCR”) and (b) sharing in the cost of

7

such OCR.

8

11.

9
10
11
12
13
14
15

To the extent they are available, the metadata values that are to be extracted and

produced in the metadata load files (.DAT file using concordance standard delimiters) are:
Metadata from Emails:
Email Subject
Email Author
Email Recipient
Email cc
Email bcc
Email Received Date
Email Received Time
Email Sent Date
Email Sent Time

Metadata from Electronic Files:
File Name
File Author
File Created Date
File Created Time
File Extension
Data for both Emails and Electronic Files:
Custodian
Source
Original Path
MD5 Hash

16
17
18
19

12.

To the extent reasonably available, the “Custodian,” “Source” or “Original Path” field

with respect to ESI gathered from an individual’s hard drive will produce metadata sufficient to

20
identify the individual custodian from whose hard drive such ESI has been gathered.
21
22

13.

For all documents (for example, email) that contain an attachment, to the extent

23

available, the following fields should be produced as part of the metadata load file to provide the

24

parent/child or parent/sibling relationship:

25
26
27
28
4
STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI

1

Production Number Begin

2

Production Number End

3

Production Attachment Range Number Begin

4

Production Attachment Range Number End

5
6
7

Attachment Name
Data to be Processed
14.

8
9
10
11

recovery.

Data will be collected from active application files that do not require forensic
The following file extensions will be processed.

There may be relevant material

containing file extensions that are not yet known. The parties agree to meet and confer in good faith
regarding the production of those materials along with any inaccessible data or relational databases.

12
13
14
15
16

Excel
XLS
XLSX
XLSB
XLTX
XLTM
CSV

PowerPoint
PPT
PPTX
PPTM
POTX

Word
DOC
DOCX
DOCM
DOTX
DOTM
DOT
RTF

17
18

Adobe Reader
PDF

19
20

Email
PST
OST
MSG
EML
OFT
EDB
NSF

15.

Text Editors
Archive
WPD
ZIP
TXT
RAR
The parties may de-duplicate identical ESI by custodian or across custodians. ESI

21

will be considered duplicative if it has the same content excluding metadata. De-duplication of

22

hard-copy documents may not be set at a threshold lower than 90%.

23
24
25

16.

Except as described below for redacted documents, MS-Excel spreadsheets shall be

produced in native format. The metadata load file shall contain a record for each native file
produced. Each record shall contain a link to the produced MS-Excel spreadsheets via data values

26
27
28

called “Native Link.” Natively produced MS-Excel files will be named after the Production Number
Begin (e.g., [Production Number Begin].xls). MS-Excel files will be produced with extracted
5
STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI

1
2
3
4

searchable text files (.txt).
17.

Natively produced MS-Excel files will be accompanied by a reference file containing

the name of the file and the bates number for each produced file.
Production of Hard Copy Documents

5
6

18.

Hard copy documents will be scanned and provided in electronic format.

The

7

documents should be logically unitized (i.e., contain correct document breaks: for example, a five-

8

page fax consisting of a cover page and a four-page memo should be unitized as a five-page

9

document). The parties agree to meet and confer about (1) scanning the documents with optical

10
11

character recognition (“OCR”) and (2) sharing the costs of such OCR.
Bates Numbering

12
19.

Bates numbers and any confidentiality designations should be electronically branded

13
14

one each produced .tiff image. Additionally, Bates numbers should:

15

a.

Be consistent across the entire production;

16

b.

Maintain a constant length (0-padded) across the entire production;

17

c.

Contain no special characters or embedded spaces; and,

18

d.

Be numerically sequential within a given document.

19

Attachments to documents will be assigned Bates numbers that directly follow the Bates numbers on

20
the documents to which they were attached. If a Bates number or set of Bates numbers is skipped,
21
22

the skipped number or set of numbers will be noted. In addition, wherever possible, each .tiff image

23

will have its assigned Bates number electronically “burned” onto the image.

24

Treatment of Family Members

25
26
27

20.

Email families will be produced unless a member of the family is being entirely

withheld on the basis of the attorney-client privilege, work product doctrine, or other applicable
privilege or doctrine, or for purposes of relevance.

28
21.

Embedded documents will be extracted as separate documents when possible and
6
STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI

1

treated as attachments to the original document. Compressed file types must be decompressed as

2

separate documents and treated as attachments to the original document.

3

Production of Redacted Documents

4

22.

To the extent that any document contains information that is redacted, those

5
6
7
8

documents shall be produced in the form of a redacted .tiff image.
Color
21.

Documents shall be produced in black and white in the first instance. If a produced

9

document contains color and that color is necessary to decipher the meaning, context, or content of

10

the document, the Producing Party shall honor reasonable requests for either the production of the

11

original document for inspection and copying or production of a color image of a document but only

12
after the Parties have met and conferred and agreed on cost sharing.
13
14
15

Production Media
22.

The Producing Party may provide ESI on either (a) readily accessible computer or

16

electronic media, including without limitation CD_ROM, DVD, external hard drive with standard

17

PC-compatible interface, or such other media as the parties may agree (“Production Media”), or

18

(b) through a secure, password-protected FTP link. If Production Media is provided, the Producing

19

Party must affix a unique identifying label to each piece of Production Media, which must identify

20
the date of the production and the corresponding production Bates range. The Producing Party may
21
22

password-protect the Production Media so long as the corresponding password is provided to the

23

Requesting Party at the time the Production Media is shipped. The Producing Party will only supply

24

one copy of the Production Media to the Requesting Party. If additional copies of the Production

25

Media are sought from the Producing Party, the Requesting Party must pay for the cost incurred by

26

the Producing Party to prepare the additional copies of the media, along with the actual cost of the

27

media used.

28
7
STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI

1

Dispute Procedures

2

23.

3

under this Protocol.

4

The Parties agree to meet and confer to resolve any procedures or disputes that arise

Privilege Logs

5
24.

6

The Producing Party will produce privilege logs in Excel, Word or a similar

7

electronic format that allows text searching and organization of data. A Producing Party will

8

produce privilege logs within 60 days after production is complete. When there is a chain of

9

privileged emails, the Producing Party need only include one entry based on the top email in the

10

chain, and need not log each email contained in the chain separately provided that any additional

11

recipients appearing earlier in the email chain are clearly identified on the face of the privilege log.

12
Email attachments must be listed in log entries, separate from their cover emails, but in a manner
13
14

that makes clear which attachments accompany each respective email. Redacted documents need

15

not be logged as long as (a) for emails, the bibliographic information (i.e., to, from, cc: and bcc:

16

recipients, date, and time) is not redacted, and (b) for non-email documents, the redaction reason is

17

noted on the face of the document in the redaction box. Documents protected from disclosure by the

18

attorney-client privilege, the work product doctrine, or any other applicable privilege that are dated

19

on or after June 14, 2011 (the date of the filing of the initial Complaint in this matter) need not be

20
logged.
21
22
23
24
25
26
27
28
8
STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI

1

STIPULATED AND AGREED:

2
3

LILIANA CARDENAS, on behalf of herself
and all others similarly situated,
Plaintiff,

NBTY, INC. and REXALL SUNDOWN,
INC.,
Defendants,

4

By her attorneys:

By their attorneys:

5

/s/ Patricia N. Syverson
Elaine A. Ryan, pro hac vice
Patricia N. Syverson, SBN 203111
BONNETT, FAIRBOURN, FRIEDMAN
& BALINT, P.C.
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
[e-mail]
[e-mail]
[e-mail]
Telephone: [phone]

/s/ Kara L. McCall
Kara L. McCall, pro hac vice
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
[phone]
[e-mail]

6
7
8
9
10
11

Alicia A. Degen, SBN 211350
David R. Carpenter, SBN 230299
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013
[phone]
[e-mail]

12
13
14

IT IS SO ORDERED:

15

/s/ Carolyn K. Delaney

16

Hon. Carolyn K. Delaney
United States Magistrate Judge

17
18

9/5/2012
______________________________
Dated

19
20
21
22
23
24
25
26
27
28
9

STIPULATION AND [PROPOSED] ORDER ON PROTOCOL FOR PRODUCTION OF ESI