Staychock et al v. Klean Kanteen, Inc.

Filing 16

STIPULATION and ORDER ESTABLISHING PRODUCTION OF ELECTRONICALLY STORED INFORMATION signed by Magistrate Judge Craig M. Kellison on 10/12/2017. (Washington, S)

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Mieke K.Malmberg [SBN 209992]
[e-mail]
SKIERMONT DERBY LLP
800 Wilshire Boulevard, Suite 1450
Los Angeles, California 90017
[phone]
[phone] (fax)
Sarah E. Spires [SBN 252917]
[e-mail]
SKIERMONT DERBY LLP
2200 Ross Avenue, Suite 4800W
Dallas, Texas 75201
[phone]
[phone] (fax)
Attorneys for Richard Staychock and
Kathleen MacKay Staychock

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No.: 2:17-cv-01012-KJM-CMK
) [Hon. Kimberly J. Mueller]

RICHARD STAYCHOCK AND
KATHLEEN MACKAY STAYCHOCK,

) STIPULATED ORDER
ESTABLISHING PRODUCTION OF
) ELECTRONICALLY STORED
INFORMATION
)

Plaintiffs,
vs.
KLEAN KANTEEN, INC., a corporation,

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)

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)
Defendant.
________________________________________ )

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KLEAN KANTEEN, INC., a corporation,

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)
)

Counterclaim Plaintiff,

)

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vs.

)

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RICHARD STAYCHOCK AND
KATHLEEN MACKAY STAYCHOCK,

)
)

Counterclaim Defendants.

)
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I.

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SCOPE
Pursuant to Fed. R. Civ. P. 16 and 26 and the Court’s Minutes for Scheduling Conference

held on September 14, 2017 (Doc. No. 10), the Plaintiffs / Counterclaim Defendants, Richard

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Staychock and Kathleen Mackay Staychock (“Plaintiffs”) and Defendant / Counterclaim
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Plaintiff, Klean Kanteen, Inc., a corporation (“Defendant”) (Plaintiffs and Defendants

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collectively referred to as the “Parties”) have conferred regarding matters affecting the discovery

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of electronically stored information (“ESI” or “E-discovery”) and agreed on the following

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procedures regarding the production for ESI in this case, which the Court finds appropriate

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(“Stipulated Order”).

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II.

GENERAL PROVISIONS
1.

This Stipulated Order does not determine the relevance, discoverability,

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confidentiality, authenticity or admissibility of any ESI of the Parties, does not expand any

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record preservation requirements under the Federal Rules of Civil Procedure, and does not limit

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any protection provided by Fed. R. Civ. P. 26 or Fed. R. Civ. P. 37.

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2.

This Stipulated Order does not waive any objections as to discoverability,

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confidentiality, authenticity or admissibility of any ESI, or any objections raised by a Party in
their written responses to specific discovery requests served in this case.
3.

Nothing in this Stipulated Order shall be interpreted to require the disclosure of

any ESI that a Party contends are protected from disclosure by the attorney-client privilege, work
product doctrine or any other applicable privilege or protection.

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4.

This Stipulated Order shall not require the Parties to create or supply any

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information, metadata or otherwise, which is not maintained by the Parties in the usual course of
business.
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5.

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This Stipulated Order is subject to, and does not modify or supersede, the terms

and conditions of any protective order agreed to between the Parties or entered in this case.

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III. DEFINITIONS
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“Electronically stored information” or “ESI,” as used herein, has the

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same meaning as contemplated by the Federal Rules of Civil Procedure.
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7.

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“Native data format” means and refers to the format of ESI in which it

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was originally generated and/or normally kept by the producing party in the usual course of its

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business and in its regularly conducted activities.

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8.

“Metadata” means (a) information embedded in a native file that is not

ordinarily viewable or printable from the application that generated, edited, or modified such

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native file, and (b) information generated automatically by the operation of a computer or other
information technology system when a native file is created, modified, transmitted, deleted or
otherwise manipulated.

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9.

“Documents” has the same meaning contemplated in the Federal Rules of

Civil Procedure.

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10.

“Static Image” refers to a representation of ESI produced by converting a

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native file into standard image format capable of being viewed and printed on standard computer
systems.
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“Media” means an object or device, real or virtualized, including but not

limited to a disc, tape, computer or other device, on which data is or was stored.

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IV.

IDENTIFICATION OF E-DISCOVERY LIAISONS

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12.

The parties identify their E-discovery liaisons as follows:
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Plaintiffs identify: Mieke K. Malmberg and Sarah E. Spires, counsel for Plaintiffs.

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Defendant identifies: Phil Ducker, counsel for Defendant.

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V.

PRODUCTION OF ESI

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13.

Subject to the limitations in this Stipulated Order, on a rolling basis the

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Parties will produce responsive, non-privileged ESI (regardless of its original format) as imge

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files or text searchable files (i.e. TIFF), unless otherwise agreed. For TIFF file documents that

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do not contain redactions, the Parties will produce an extracted text file for each electronic

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document where text can be extracted, and an Optical Character Recognition (“OCR”) text file

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for (a) each imaged paper document and (b) each electronic document for which text cannot be

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extracted. For TIFF file documents that contain redactions, the Parties will provide an OCR text

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file for the unredacted portions of such documents. Said extracted text and OCR files shall be

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produced as document level text files and be named consistently with their corresponding TIFF

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files (Example000000001.tif and Example000000001.txt). The Parties shall also provide

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mutually acceptable load files linking the TIFFs with their associated text file in order for the

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documents to be loadable into document management software.
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14.

Image Formatted Documents. With respect to image formatted documents, the

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parties agree to produce certain document level information including starting production

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number and ending production number, beginning attach, end attach, native file link (if

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applicable), and confidentiality designations. While there is no general obligation to produce

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metadata, to the extent such metadata is readily accessible in the document as kept in the

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ordinary course of business, the parties will use reasonable efforts to provide the following
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metadata: author, original filename, document extensions, modification date and creation date.
Parties may also provide custodian information to the extent it is readily accessible and/or
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available. If redacted electronic documents are produced, some of the metadata may be removed

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from the data load files and from the “Full Text” field.

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15.

Emails. With respect to emails, the parties agree to produce certain document

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level information including starting production number, ending production number, beginning
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attach, end attach, native file link (if applicable), OCR/extracted text path and confidentiality

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designations. While there is no general obligation to produce metadata, to the extent metadata is

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accessible in the email as kept in the ordinary course of business, parties will use reasonable

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efforts to provide the following metadata: to, from, cc, bcc, date sent, and subject. If redacted

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emails are produced, some of the metadata may be removed from the data load files and from the

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“Full Text” field.
16.

Attachments, enclosures, and exhibits to any parent document should be produced

and proximately linked to the respective parent document (and vice-versa).
17.

Electronic documents will be produced in native file format if necessary for the

accurate portrayal of the document’s ordinarily viewable or printable content, including, for

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example, Microsoft Excel spreadsheets (.xsl, .xlsx, .xlsm, and .xlsb files). Documents produced
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in native file format shall be produced together with a placeholder TIFF image marked with the

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words “File Produced Natively” along with the appropriate confidentiality designation (if any),

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production number, and a file path to the native file.

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18.

In the event that a Receiving Party requests production of Native Format

ESI, the Producing Party and the Receiving Party shall negotiate in good faith about the timing,

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cost and method of such production. No document produced in Native Format shall be
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intentionally manipulated to change the appearance or substance of the document prior to its
collection. When producing a file in native format, it shall be accompanied by a TIFF image
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marked with the words “File Produced Natively” along with the appropriate confidentiality

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designation (if any) and production number. In addition, because native documents may lack

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production numbers or confidentiality designations branded on the face of the document when

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printed, any such numbers or designations shall be contained in a load file and in the name of the
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native document, which associates this type of information with each native file produced.
19.

Certain types of files, such as system, program, and sound files, may not be

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amenable to conversion into TIFF format. Those files will not be converted into TIFF format

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but, if required to be produced, will be represented in the form of a placeholder TIFF image and

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produced in a reasonably usable form by agreement of the Parties. Examples of such file types

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that are not conducive to conversion into TIFF image include: *.mov *.mp3 *.exe *.wav *.dwg.
VII. PROCESSING AND LOGGING OF PRIVILEGED DOCUMENTS
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If either of the Parties determines that a parent document will be withheld as

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privileged, the Party shall make a separate determination regarding whether to produce, redact,

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or withhold each of its attachments, enclosures, and exhibits as privileged. If a Party determines

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that only an attachment, enclosure, or exhibit to a parent document is privileged, the attachment,

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enclosure, or exhibit shall be redacted and then produced in redacted form with the parent
document.
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The Parties shall create logs of the responsive documents that they withhold from

production or redact on grounds of attorney-client privilege, the attorney work product doctrine
or any other claim of privilege (the “privilege logs”). The Parties are not required to log
privileged documents dated after the filing date of the complaint.

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VIII. DE-DUPLICATION OF DOCUMENTS

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Prior to production, the Parties may de-duplicate e-mails and other ESI designated

for production

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IX.

PRODUCTION OF DOCUMENTS CONTAINING COLOR

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23.

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Documents containing color need not be produced in color; however, if color is

necessary to understand the meaning or content of the document, the producing Party shall

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produce either the original document for inspection and copying or a color image of the

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document.

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X.

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THIRD-PARTY SOFTWARE AND DECRYPTION OF FILES
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To the extent that ESI produced pursuant to this Stipulated Order cannot be

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rendered or viewed without the use of proprietary third-party software, the Parties shall
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cooperate and seek to attempt to minimize any expense or burden associated with production of

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such data. The Parties shall meet and confer to address such issues as may arise with respect to

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obtaining access to any such software and operating manuals which are the property of a third-

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party.

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The Parties shall make reasonable efforts to ensure that all ESI that they produce

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is decrypted.
XI.

PRODUCTION FORMAT
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Each page of a produced document in TIFF format shall have a legible, unique

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Bates Number electronically “burned” onto the image at a location that does not obliterate,

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conceal or interfere with any information from the source document (preferably in the lower

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right-hand corner of the image).

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27.

The Bates Number for each page of each document shall be created so as to

identify the producing Party or Parties by using a unique prefix.
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28.

The producing Party will produce documents that are to be produced in TIFF

format (along with the corresponding load files) on readily-accessible, computer or electronic
media, including CD-ROM, DVD, or external hard drive (with standard PC compatible

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interface), based upon the amount of data to be produced and the receiving Party’s preference.
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The producing Party may also make such documents available via secure FTP site.
XII. LIMITATIONS ON DISCOVERY – PRODUCTION
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No Party shall be required to re-produce any documents produced or exchanged

prior to the date of this Stipulated Order, including materials submitted prior to commencement
of the instant lawsuit, or to backfill any information associated with such documents.

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30.

A Party producing data in electronic format need not produce the same document

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in paper format.
XIII. OBJECTIONS TO ESI PRODUCTION
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Documents that present imaging or format production problems shall be promptly

identified and disclosed to the requesting party; the parties shall then meet and confer to attempt
to resolve the problems.

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32.

If either party objects to producing the requested information on the grounds that

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such information or productions in the requested format is not reasonably accessible because of

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undue burden or cost, upon request, the responding party will inform the requesting party of the

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the format, if at all, in which it is willing to produce it, the estimated volume, file types and

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location of the information claimed to not be reasonably accessible, the reason(s) the requested

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form of production would impose an undue burden or cost, and a quote from a third party vendor

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concerning estimated costs to render the material accessible. Although the Parties agree to use
best efforts to resolve such issues amongst themselves, the requesting party may bring the issue
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before the Court under the appropriate local rules. Notwithstanding anything contained herein to

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the contrary, a producing party shall not produce ESI in a format not requested or designated by

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the requesting party (i) unless the parties have met and conferred, and, having been unable to

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resolve such format production conflict at such meet and confer session, (ii) prior to referral to
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and resolution of such issue by the court.
XIV. CLAWBACK PROVISIONS

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The producing Party shall have the right to “claw back” (i.e., have

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returned from the receiving party) any information disclosed in connection with this case which

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contains confidential commercial information, information protected by the attorney-client

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privilege, information protected by the attorney work product doctrine, and any other applicable

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privilege or immunity (“Disclosed Protected Information”). The disclosure of any Disclosed
Protected Information shall not be deemed a waiver or forfeiture of any claim of privilege that

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the producing Party would be entitled to assert with respect to the Disclosed Protected

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Information and its subject matter. The producing Party must exercise its rights under this

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Paragraph by providing a written notice to the receiving Party that the producing party is

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invoking it right to claw back such documents and identifying the documents to be returned.

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Upon receipt of such written notice, the receiving Party shall immediately cease any use,

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whatsoever, of such documents. Within 10 days of receiving such written notice, the receiving
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Party shall provide the producing Party a written confirmation that all Disclosed Protected

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Information has been returned or destroyed, or state its intention to move to compel the

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production of Disclosed Protected Information.

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XV. MODIFICATION OF STIPULATED ORDER

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34.

This Stipulated Order may be modified for good cause. The Parties shall

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jointly submit any proposed modifications. If the Parties cannot resolve their disagreements

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regarding those modifications, the Parties shall submit their competing proposals and a summary

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of their dispute to the Court for resolution.

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IT IS SO STIPULATED, through Counsel of Record.

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Dated: September 28, 2017

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Respectfully submitted,

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SKIERMONT DERBY LLP

MINTZ LEVIN COHN FERRIS
GLOVSKY AND POPEO P.C.

/s/ Mieke K. Malmberg
________
Mieke K. Malmberg [SBN 209992]
[e-mail]
SKIERMONT DERBY LLP
800 Wilshire Boulevard, Suite 1450
Los Angeles, California 90017
[phone]
[phone] (fax)

/s/ Evan S. Nadel (as authorized 9/28/17)
Evan S. Nadel [SBN 213230]
[e-mail]
Philip C. Ducker [SBN 262644]
[e-mail]
MINTZ LEVIN COHN FERRIS
GLOVSKY AND POPEO P.C.
44 Montgomery Street, 36th Floor
San Francisco, California 94104
[phone]
[phone] (fax)

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Sarah E. Spires [SBN 252917]
[e-mail]
SKIERMONT DERBY LLP
2200 Ross Avenue, Suite 4800W
Dallas, Texas 75201
[phone]
[phone] (fax)

Attorneys for Kleen Kanteen, Inc.

Attorneys for Richard Staychock and
Kathleen MacKay Staychock

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ORDER

IT IS SO ORDERED.

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Dated: October 12, 2017

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