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)
nmccarthy@cpmlegal.com
JUSTIN T. BERGER (SBN 250346)
jberger@cpmlegal.com
ERIC J. BUESCHER (SBN 271323)
ebuescher@cpmlegal.com
COTCHETT, PITRE & McCARTHY, LLP
840 Malcolm Road
Burlingame, CA 94010
Telephone: (650) 697-6000
Facsimile: (650) 692-3606
7
Attorneys for Plaintiff
8
13
MICHAEL J. STEINER (SBN 112907)
mjs@severson.com
PHILIP BARILOVITS (SBN 199944)
pb@severson.com
CASEY J. McTIGUE (SBN 266361)
cjm@severson.com
SEVERSON & WERSON, P.C.
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
Telephone: (415) 398-3344
Facsimile: (415) 956-0439
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
Law Offices
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
Law Offices
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
Law Offices
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
Law Offices
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
Law Offices
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
11
& MC CARTHY, LLP
INFORMATION; Case No. 2:11-cv-02595-JAM-DAD
Law Offices
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
12
& 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
13
& MC CARTHY, LLP
INFORMATION; Case No. 2:11-cv-02595-JAM-DAD
Law Offices
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
14
& MC CARTHY, LLP
INFORMATION; Case No. 2:11-cv-02595-JAM-DAD
Law Offices
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
NDEX
22
23
24
25
26
27
28
COTCHETT, PITRE
______________________________________________________________________________
STIPULATED [PROPOSED] ORDER RE THE PRODUCTION OF ELECTRONICALLY STORED
15
& MC CARTHY, LLP
INFORMATION; Case No. 2:11-cv-02595-JAM-DAD
Law Offices
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