Gooden v. Suntrust Mortgage, Inc., et al.,

Filing 46

STIPULATION and ORDER re the production of electronically stored information signed by Judge John A. Mendez on 1/14/13. (Kaminski, H)

6

NIALL P. McCARTHY (SBN 160175)
[e-mail]
JUSTIN T. BERGER (SBN 250346)
[e-mail]
ERIC J. BUESCHER (SBN 271323)
[e-mail]
COTCHETT, PITRE & McCARTHY, LLP
840 Malcolm Road
Burlingame, CA 94010
Telephone: [phone]
Facsimile: [phone]

7

Attorneys for Plaintiff

8

13

MICHAEL J. STEINER (SBN 112907)
[e-mail]
PHILIP BARILOVITS (SBN 199944)
[e-mail]
CASEY J. McTIGUE (SBN 266361)
[e-mail]
SEVERSON & WERSON, P.C.
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

14

Attorneys for Defendants

1
2
3
4
5

9
10
11
12

15
16

UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA

18
19

SHEILA GOODEN, an individual,

20

Plaintiff,

21

vs.

22
23
24

SUNTRUST MORTGAGE, INC.,
a Virginia corporation; and
SUNTRUST BANKS, INC.,
a Georgia corporation,

Case No. 2:11-cv-02595-JAM-DAD

STIPULATED ORDER REGARDING
THE PRODUCTION OF
ELECTRONICALLY STORED
INFORMATION

Judge:

Hon. John A. Mendez

25
26

Defendants.

27
28
Law Offices

COTCHETT, PITRE
& MC CARTHY, LLP

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER REGARDING THE PRODUCTION OF ELECTRONICALLY
STORED INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

1

I.

USE OF SEARCH TERMS TO IDENTIFY POTENTIALLY RESPONSIVE

2

ELECTRONICALLY STORED INFORMATION

3

To reduce the likelihood of the parties litigating the adequacy of the search terms

4

used to identify potentially responsive documents during the course of this action, the

5

producing party will follow the search term protocol set forth herein:

6

1.

A producing party choosing to use search terms to identify potentially

7

responsive documents shall exercise reasonable due diligence in

8

investigating and analyzing its data in providing its proposed list of

9

search terms to the requesting party prior to applying the search

10

terms. Such due diligence shall include, but is not limited to:

11

identification of commonly misspelled words appearing on

12

responsive documents or electronically stored information;

13

identifying idiosyncratic language and terms of art utilized by a party

14

in order to identify responsive documents and by interviewing key

15

custodians about the same.

16

2.

In addition to disclosing its proposed search terms, the producing

17

party shall also provide information to the requesting party sufficient

18

to explain the measures taken to assess the adequacy and reliability of

19

the search terms it has proposed.

20

3.

The parties will then meet and confer to discuss the search terms and

21

the process used to evaluate their adequacy and reliability, at which

22

time the requesting party has the right to suggest additional terms,

23

due diligence or testing procedures, or request additional information

24

to enable such suggestions to be made.

25

4.

Within 180 days after the first material production of information by

26

a producing party, the requesting party may suggest additional or

27

edited search terms based on the contents of the documents initially

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
1

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

Law Offices

1

produced. Upon receiving additional or edited terms suggested by

2

the requesting party, the producing party shall within twenty-one

3

days either: (a) agree to apply the additional terms and produce

4

responsive documents identified as a result therefrom; or (b) refuse to

5

apply the additional terms and describe with particularity (including

6

testing procedures) why the additional terms will not yield additional

7

responsive information sufficient to warrant the application of the

8

additional terms.

9

The protocol described above does not preclude any party from asserting either the

10

adequacy or inadequacy of the search terms selected and applied. The parties, however,

11

will act in good faith and use these procedures to identify and reduce the potential for

12

disputes that may arise in connection with the use of search terms.

13

II.

14
15

PRODUCTION OF ELECTRONICALLY STORED INFORMATION
A.

Definitions
a)

“Document(s)” means electronically stored information (ESI)

16

existing in any medium from which information can be

17

obtained or translated into reasonably usable form, including

18

SMSs and text messages and similar information which may

19

be located on mobile phones or personal digital assistants.

20

b)

“Native File(s)” means ESI in the file type for (or of) the

21

application in which such ESI is normally created, viewed

22

and/or modified.

23

c)

“Metadata” means: (i) information embedded in a Native File

24

that is not ordinarily viewable or printable from the application

25

that generated, edited, or modified such Native File; and (ii)

26

information generated automatically by the operation of a

27

computer or other information technology system when a

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
2

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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1

Native File is created, modified, transmitted, deleted or

2

otherwise manipulated by a user of such system.

3

d)

“Static Image(s)” means a representation of ESI produced by

4

converting a Native File into a standard image format capable

5

of being viewed and printed on standard computer systems. A

6

Tagged Image File Format (TIFF) image is an example of a

7

Static Image.

8

e)

9

“Load/Unitization file” means an electronic file containing
information identifying a set of paper-scanned images or

10

processed ESI and indicating where individual pages or files

11

belong together as documents, including attachments, and

12

where each document begins and ends. A Load/Unitization

13

file will also contain data relevant to the individual

14

Documents, including extracted and user created Metadata,

15

coded data, as well as OCR or Extracted Text.

16

f)

“OCR” means the optical character recognition file which is

17

created by software used in conjunction with a scanner that is

18

capable of reading text-based documents and making such

19

documents searchable using appropriate software.

20

g)

“Extracted Text” means the text extracted from a Native File

21

and includes all header, footer and document body

22

information.

23
24
25
26
27

///

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
3

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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1

B.

Form and Format for the Production of ESI and Paper Documents

2

Converted to Electronic Form

3

1.

4

Electronic Production of Paper Documents

The parties will produce any paper Documents, including spreadsheets maintained

5

in paper form that have been scanned or otherwise converted into electronic form as of the

6

time the documents are first produced in this litigation. The form of production shall be:

7

a)

8

TIFF images, consistent with the specifications in Section
II.B.2.b.;

9

b)

The appropriate Load/Unitization files in accordance with

10

Exhibit “A” and consistent with the specifications in Section

11

II.B.5.; and

12

c)

Searchable OCR text of scanned paper Documents created by

13

the producing party, if any, consistent with the specifications

14

in Section II.B.4.

15

d)

16

This Stipulation creates no obligation upon the producing
party to convert paper documents into electronic form.

17

e)

If, however, the producing party has converted paper

18

documents into electronic form as of the time the documents

19

are first produced in this litigation, the producing party shall

20

produce those documents in accordance with this Stipulation.

21
22

2.

Native Files to be Produced as Static Images
a)

Except as otherwise stated below, or by court order, Native

23

Files will be produced to the requesting party as Static Images

24

together with Load/Unitization files specified below.

25

b)

All Static Images will be produced as single page Black &

26

White, Group 4 TIFF (.TIF or .TIFF) files at 300 x 300 dpi

27

resolution and 8.5 x 11 inch page size, except for documents

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
4

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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1

that in the producing party’s reasonable judgment require a

2

different resolution or page size; provided, however, if a color

3

image is produced in black and white, the receiving party may

4

request the producing party to produce the original, color

5

image, as single page, color Joint Photographic Experts Group

6

(.JPEG or .JPG) files.

7

c)

8
9
10

All Static Image file names shall match the Bates number
assigned to the image.

3.

Production of Native Files
a)

In addition to other production requirements set forth in this

11

document, the parties agree to produce Native Files of

12

spreadsheet application files (e.g., MS Excel), presentation

13

application files (e.g. MS PowerPoint), and multimedia

14

audio/video files (e.g., .wav, .mpeg, .avi), subject to the right

15

of the producing party to object to the native production of

16

files where such production would result in the disclosure of

17

information that is protected from disclosure by the attorney-

18

client privilege or the work product doctrine and it is

19

impracticable or unduly burdensome to redact or otherwise

20

produce the native production while maintaining such

21

privilege or protection. Audio files in non-standard formats

22

should be produced in MP3 format. Video files in non-

23

standard formats should be produced in .mpeg or .avi format.

24

In addition to the objections listed in the preceding sentence to

25

the production of Native Files, the Producing Party may also

26

object to the production of any of the file types described in

27

this paragraph in native format due to the impracticability or

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
5

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

Law Offices

1

burden of redaction issues, in which case, the Producing Party

2

shall initially produce the file as a Static Image in TIFF

3

format, and the parties shall meet and confer regarding

4

whether production in native format is practicable,

5

appropriate, or unnecessarily burdensome

6

b)

The parties agree to meet and confer informally regarding the

7

production of database application files (e.g., MS Access,

8

SQL, SAP) to determine the most reasonable form of

9

production based on the specific circumstances at hand.

10

Notwithstanding the foregoing, a party may elect to produce

11

Native Files of portable database application files (e.g., MS-

12

Access) without the need to meet and confer regarding the

13

form of production. However, responsive data contained in

14

such database application files should be produced in a report

15

or export of such data to MS-Excel spreadsheets. Prior to

16

generating such reports the producing party will explain the

17

categories of data maintained in each database the categories

18

that it intends and does not intend to produce, and the format

19

in which the reports will be generated. The producing party

20

will provide a sample page of each report to be produced in

21

advance of its actual production.

22

c)

A receiving party may request that the producing party

23

produce the Native File corresponding to a produced Static

24

Image, subject to reasonable objection by the producing party.

25

The request for production of any specific Native Files(s) shall

26

include the Bates numbers of the TIFF documents to identify

27

the corresponding Native File.

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
6

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

Law Offices

1

d)

Any produced Native File will include the Bates number of the

2

first page of the Bates range that corresponds to the TIFF

3

image, followed by a carat delimiter, which shall be appended

4

as a prefix to the file name.

5

e)

Through the pendency of the action, the producing party

6

should exercise reasonable, good faith, efforts to maintain all

7

preserved and collected Native Files in a manner that does not

8

materially alter or modify the file or the Metadata.

9

f)

No party may attach to any pleading or any correspondence

10

addressed to any court, or any adverse or third party, or submit

11

as an exhibit at a deposition or any other judicial proceeding, a

12

copy of any native format document produced by any party

13

without ensuring that the corresponding Bates number and

14

confidentiality legend, as designated by the producing party,

15

appears on the document.

16
17

4.

Production of Searchable Text
a)

ESI shall be produced with separate multi-page searchable

18

Extracted Text. For ESI from which text cannot be extracted,

19

OCR will be produced instead, but only to the extent the

20

producing party has created OCR as of the time the documents

21

are first produced in this litigation, consistent with Section B

22

(1) of this agreement.

23

b)

Any such Extracted Text or OCR will be produced on a

24

document level as .TXT files, with the Text filename matching

25

the Bates number applied to the first page of the corresponding

26

image file followed by .TXT. Text files will be located in a

27

directory named "TEXT" that is separate from the TIFF image.

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
7

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

Law Offices

1

Text files should indicate page breaks. Text files shall include

2

and be searchable for all text, including text in all foreign

3

languages present in the subject ESI. Foreign characters shall

4

be accurately represented and included. Text files containing

5

foreign, non-English, language text must be produced in

6

Unicode Transformation Format (UTF)-16 format.

7

Documents which in their original form include multiple

8

languages shall be produced in such form. Foreign language

9

documents shall be segregated by language and by custodian.

10
11

5.

Production of Load/Unitization Files
a)

There will be two Load/Unitization files accompanying all

12

productions of ESI. One will be a Metadata import file, in

13

.DAT format, that contains the agreed-upon Metadata fields in

14

an ASCII text file using either Concordance default delimiters

15

or ^ carat and | pipe delimiters to separate the fields and

16

records. The second data file will be a cross-reference file that

17

contains the corresponding image information [IDX]. The

18

acceptable formats for the cross-reference files are .LOG,

19

[.DII], .OPT, .LFP. Image load files should indicate page

20

breaks. A path to the corresponding .TXT file shall be

21

included as a field in the Metadata import file.

22

b)

The appropriate Metadata import file will contain the Metadata

23

fields detailed and described in Exhibit A to this stipulation

24

and incorporated herein by reference, associated with each

25

electronic document (or their equivalents), including the body

26

of the document, to the extent the fields exist as electronic

27

Metadata associated with the original electronic documents or

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
8

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

Law Offices

1

are created as part of the electronic data discovery process.

2

The parties agree that party-specific exceptions to the required

3

fields in Exhibit A will be memorialized in separate side letter

4

agreements. The attached list of fields does not create any

5

obligation to create or manually code fields that are not

6

automatically generated by the processing of the ESI, or that

7

do not exist as part of the original Metadata of the document;

8

provided however, the producing party must populate the

9

SOURCE and CUSTODIAN fields for all produced ESI, as

10

well as paper Documents converted to electronic form as of

11

the time the documents are first produced in this litigation,

12

regardless of whether these fields would be generated during

13

typical processing of such documents. A producing party shall

14

have no obligation to provide FILEPATH information for

15

documents that a receiving party specifically requested and the

16

producing party collected by document type.

17

c)

Any Native Files produced will be accompanied with a

18

Metadata import file that shall contain (i) the full directory

19

path and file names of the Native File(s) as contained in the

20

produced media and (ii) a uniform hash calculation field.

21
22

6.

Processing Specifications
a)

When processing ESI, GMT should be selected as the time

23

zone. To the extent that a party has already processed ESI

24

using a different time zone, the producing party will note the

25

time zone used in its processing. Parties shall consistently

26

produce all ESI processed using the same time zone.

27
28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
9

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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1

b)

When processing ESI for review and for production in TIFF

2

format, the producing party will instruct its vendor to force off

3

Auto Date and force on hidden columns or rows, hidden

4

worksheets, speaker notes, track changes, and comments.

5

7.

6

General
a)

7

The producing party shall use reasonable efforts to avoid
producing system and application files.

8

b)

If the producing party redacts all or any portion of a Static

9

Image, redactions not clearly indicated on the Static Image

10

shall be noted in a user-generated field specified in Exhibit

11

“A”, which the producing party shall provide in the

12

appropriate Load/Unitization file.

13

c)

The parties may de-duplicate identical ESI vertically, by

14

custodian, or horizontally (i.e., globally). All custodians who

15

were in possession of a de-duplicated Document must be

16

identified in the CUSTODIAN_OTHER Metadata field

17

specified in Exhibit “A”, and all BCC recipients whose names

18

would have been included in the BCC Metadata field but are

19

excluded as the result of horizontal/global de-duplication,

20

must be identified in the BCC_OTHER Metadata field

21

specified in Exhibit “A”.

22

d)

23
24
25
26
27

Bates number and any confidentiality designation should be
electronically branded on each produced TIFF image.

III.

TERM OF AGREEMENT
This Agreement shall continue in full force and effect until further order or until

this litigation is terminated by a final judgment.
SO STIPULATED AND AGREED TO:

28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
10

& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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1

DATED: November 6, 2012

COTCHETT, PITRE & McCARTHY, LLP

2
By:

3

/s/ Eric J. Buescher
ERIC J. BUESCHER
JUSTIN T. BERGER

4

_

Attorneys for Plaintiff

5
6
7

DATED: November 6, 2012

8

SEVERSON & WERSON
A Professional Corporation

9

By:

10

/s/ Philip Barilovits
PHILIP BARILOVITS

_

Attorneys for Defendant

11
12

IT IS SO ORDERED

13
14
15
16

Dated: 1/14/2013
/s/ John A. Mendez_______________________
HON. JOHN A. MENDEZ
UNITED STATES DISTRICT COURT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
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& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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1

Exhibit A

2

Metadata Fields for Production

3

Note: Metadata Field names may vary depending on the application that generates them.

4

For example, Microsoft Outlook creates different Metadata Field names than does Lotus Notes.

5

Accordingly, the chart below describes the Metadata Fields to be produced in generic, commonly

6

used terms which the Producing Party is to adapt to the specific types of ESI it is producing. Any

7

ambiguity about a Metadata Field is to be discussed with the Receiving Party prior to processing

8

the subject ESI for production.

9
Doc

10

Field

Definition
Type

11
12

1

SOURCE

Name of party producing the document

All

13

2

CUSTODIAN

Name of person from whose files the document

All

is produced

14
15

3

Name of person(s), in addition to the Custodian,

OTHER

16

CUSTODIAN_

All

from whose files the document would have been
produced if it had not been de-duplicated.

17
18

4

BEGBATES

Beginning Bates Number (production number)

All

19

5

ENDBATES

End Bates Number (production number)

All

20

6

PGCOUNT

Number of pages in the document

All

21

7

FILESIZE

File Size

All

22

8

APPLICAT

Application used to create document

All

23

9

FILEPATH

File source path for all electronically collected

All

24

documents, which includes location, folder

25

name, file name, and file source extension

26

10

NATIVEFILELINK

For documents provided in native format only

All

27
28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
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& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

Law Offices

1

Doc
Field

2
3

Type
11

TEXTPATH

4
5

Definition
File path for OCR or Extracted Text files per

All

paragraph (d) above
12

REDACTED

User-generated field that will indicated

6

redactions made to Static Images, if such

7

redactions are not clearly indicated on the Static

8

All

Image

9

13

FOREIGNLANG

10

processing or review by the producing party
14

HANDWRITING

13

16
17
18
19
20

The existence of any handwritten text in a

All

document, as identified during processing or

14
15

All

language text in a document, as identified during

11
12

The existence of any foreign (non-English)

review by the producing party
15

MSGID

Hash or SHA Value for Emails

Email

16

FROM

Sender

Email

17

TO

Recipient

Email

18

CC

Additional Recipients

Email

19

BCC

Blind Additional Recipients

Email

20

BCC_OTHER

Blind Additional Recipients who would have

Email

21
shown in the “BCC” field had the originally sent
22
Native email not been de-duplicated.
23
21

SUBJECT

Subject line of email

Email

22

PARENTBATES

Begin bates number for the parent email of a

Email

24
25
family (will not be populated for documents that
26
are not part of a family)
27
28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
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& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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1

Doc
Field

2
3

Type
23

ATTACHBATES

4
5

24

BEGATTACH

10
11

25

First Bates number of family range (i.e. Bates

Email

ENDATTACH

Last Bates number of family range(i.e. Bates

Email

number of the last page of the last attachment)
26

ATTACHCOUNT

Number of attachments to an email

Email

27

ATTACHNAME

Name of each individual attachment

Email

28

DATESENT

Date Sent

Email

12
13

Email

number of the first page of the parent email)

8
9

Bates number from the first page of each
attachment

6
7

Definition

(mm/dd/yyyy)

15

TIMESENT

Time Sent

Email

30

DATERCVD

Date Received

Email

31

TIMERCVD

Time Received

Email

32

14

29

CAL_START

Calendar/ Appointment start date and time

Email,

16
17
Various
18
33

MSGCLASS

Type of item, e.g. email, calendar item, contact,

Email,

note, task

Various

Attendees/

Calendar/Appointment

Email,

Participants

Attendees/Participants/Recipients

Various

35

HASHVALUE

MD5 Hash or SHA Value for Edocs

36

RECORDTYPE

Descriptive field created by the vendor

19
20
34
21
22
Edocs

23
24
All

25
processing software (e.g. email, edoc, image,
26
attachment)
27
28
COTCHETT, PITRE

______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
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& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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1

Doc
Field

2
3

Type
37

TITLE

4
5
6

9

AUTHOR

Creator of a document

Edocs

39

DATECRTD

Creation Date

Edocs

(mm/dd/yyyy)
40

TIMCRTD

Creation Time

Edocs

41

LASTAUTHOR

Last Saved field contained in the metadata of the

Edocs

native file
42

12
13
14

LASTMODD

Last Modified Date

Edocs

Edocs

(mm/dd/yyyy)
43

LASTMODT

Last Modified Time

44

FILEEXT

File extension of the native file (e.g., XLS, DOC,

15
16

Edocs

38

10
11

Title field value extracted from the metadata of
the native file.

7
8

Definition

All

PDF)
45

MAILSTORE

Original path of mail store

17

Email,
various

18
46

SENSITIVITY

Sensitivity field extracted from native email

Email,

message or other Outlook item.

various

Email thread identifier.

Email

19
20
47

CONVERSATION_I

21
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COTCHETT, PITRE

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STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
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& MC CARTHY, LLP

INFORMATION; Case No. 2:11-cv-02595-JAM-DAD

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