Gutterglove, Inc. v. Valor Gutter Guard et al
STIPULATION and ORDER re: discovery of electronically stored information for patent cases signed by William H Orrick, III on 3/10/2017. (Zignago, K.)
Jacob Song (SBN 265371)
KUTAK ROCK LLP
5 Park Plaza, Suite 1500
Irvine, CA 92614
Telephone: (949) 417-0999
Sean P. Connolly, Pro Hac Vice
Jason S. Jackson, Pro Hac Vice
KUTAK ROCK LLP
1650 Farnam Street
Omaha, NE 98102-2186
Telephone: (402) 346-6000
Facsimile: (402) 346-1148
Attorneys for Plaintiff GUTTERGLOVE, INC.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
GUTTERGLOVE, INC. a California
AMERICAN DIE and
ROLLFORMING, INC., a California
corporation; and VALOR GUTTER
Case No. 2:16-cv-02408-WHO
Judge: Hon. William H. Orrick III
STIPULATED ORDER RE:
INFORMATION FOR PATENT
Upon the stipulation of the parties, the Court ORDERS as follows:
1. This Order supplements all other discovery rules and orders. It streamlines
Electronically Stored Information (“ESI”) production to promote a just, speedy, and
inexpensive determination of this action, as required by Federal Rule of Civil
2. This Order may be modified in the Court’s discretion. This Order may also
be modified for good cause.
The parties shall jointly submit any proposed
modifications within 30 days after the Federal Rule of Civil Procedure 16
If the parties cannot resolve their disagreements regarding these
modifications, the parties shall submit their competing proposals and a summary of
3. As in all cases, costs may be shifted for disproportionate ESI production
requests pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s
nonresponsive or dilatory discovery tactics are cost-shifting considerations.
4. A party’s meaningful compliance with this Order and efforts to promote
efficiency and reduce costs will be considered in cost-shifting determinations.
5. The parties are expected to comply with the Northern District’s EDiscovery Guidelines (“Guidelines”), and are encouraged to employ the Checklist
for Rule 26(f) Meet and Confer regarding Electronically Stored Information.
6. General ESI production requests under Federal Rules of Civil Procedure
34 and 45 shall not include email or other forms of electronic correspondence
(collectively “email”). To obtain email parties must propound specific email
7. Email production requests shall only be propounded for specific issues,
rather than general discovery of a product or business.
8. Email production requests shall be phased to occur after the parties have
exchanged initial disclosures and basic documentation about the patents, the prior
art, the accused instrumentalities, and the relevant finances. While this provision
does not require the production of such information, the Court encourages prompt
and early production of this information to promote efficient and economical
streamlining of the case.
9. Email production requests shall identify the custodian, search terms, and
time frame. The parties shall cooperate to identify the proper custodians, proper
search terms and proper timeframe.
10. Each requesting party shall limit its email production requests to a total of
ten custodians per producing party for all such requests. The parties may jointly
agree to modify this limit without the Court’s leave. The Court shall consider
contested requests for additional custodians, upon showing a distinct need based on
the size, complexity, and issues of this specific case. Cost-shifting may be
considered as part of any such request.
11. Each requesting party shall limit its email production requests to a total of
ten search terms per custodian per party. The parties may jointly agree to modify
this limit without the Court’s leave. The Court shall consider contested requests for
additional search terms per custodian, upon showing a distinct need based on the
size, complexity, and issues of this specific case. The Court encourages the parties
to confer on a process to test the efficacy of the search terms. The search terms shall
be narrowly tailored to particular issues. Indiscriminate terms, such as the
producing company’s name or its product name, are inappropriate unless combined
with narrowing search criteria that sufficiently reduce the risk of overproduction. A
conjunctive combination of multiple words or phrases (e.g., “computer” and
“system”) narrows the search and shall count as a single search term. A disjunctive
combination of multiple words or phrases (e.g., “computer” or “system”) broadens
the search, and thus each word or phrase shall count as a separate search term
unless they are variants of the same word. Use of narrowing search criteria (e.g.,
“and,” “but not,” “w/x”) is encouraged to limit the production and shall be
considered when determining whether to shift costs for disproportionate discovery.
Should a party serve email production requests with search terms beyond the limits
agreed to by the parties or granted by the Court pursuant to this paragraph, this shall
be considered in determining whether any party shall bear all reasonable costs
caused by such additional discovery.
12. The receiving party shall not use ESI that the producing party asserts is
attorney-client privileged or work product protected to challenge the privilege or
13. Pursuant to Federal Rule of Evidence 502(d), the inadvertent production
of a privileged or work product protected ESI is not a waiver in the pending case or
in any other federal or state proceeding.
14. The mere production of ESI in a litigation as part of a mass production
shall not itself constitute a waiver for any purpose.
15. Nothing in this Order prevents the parties from agreeing to use
technology assisted review and other techniques insofar as their use improves the
efficacy of discovery.
IT IS SO STIPULATED, through Counsel of Record.
Date: February 10, 2017
/s/ Jacob Song
Counsel for Plaintiff
Date: February 10, 2017
/s/ John P. Costello
Counsel for Defendant
IT IS ORDERED that the forgoing Agreement is approved.
Dated:March 10, 2017
HON. WILLIAM ORRICK
UNITED STATES DISTRICT JUDGE
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