Dairy, LLC v. Milk Moovement, Inc.

Filing 154

STIPULATION and ORDER signed by Magistrate Judge Allison Claire on 11/2/2022 re: DISCOVERY of ELECTRONICALLY STORED INFORMATION. (Coll, A)

1
2
3
4
5
6
7
8
9
10
11

WILLKIE FARR & GALLAGHER LLP
SIMONA AGNOLUCCI (SBN 246943)
[e-mail]
JONATHAN A. PATCHEN (SBN 237346)
[e-mail]
DANIEL P. MARTIN (SBN 306794)
[e-mail]
ANN NIEHAUS (SBN 325474)
[e-mail]
ERICA S. MIRANDA (SBN 325188)
[e-mail]
One Front Street, 34th Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
Dairy, LLC

12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14
15
16

DAIRY, LLC, a Delaware Limited Liability
Company,

17
18
19
20
21
22
23

Plaintiff/Counterdefendant,
vs.
MILK MOOVEMENT, INC., a foreign
Corporation, and MILK MOOVEMENT,
LLC, a Delaware Limited Liability
Company,
Defendants/Counterclaimants.

Case No. 2:21-cv-02233-WBS-AC
Magistrate Judge Allison Claire
STIPULATED [PROPOSED] ORDER
RE: DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION
Complaint Filed: December 2, 2021
FAC Filed: February 8, 2022
Cross-Complaint Filed: April 27, 2022
FACC Filed: July 21, 2022

24
25
26
27
28

STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

1.

PURPOSE

2

This Order will govern discovery of electronically stored information (“ESI”) in this case

3

as a supplement to the Federal Rules of Civil Procedure, and any other applicable orders and

4

rules.

5

2.

6

The parties are aware of the importance the Court places on cooperation and commit to

7

COOPERATION

cooperate in good faith regarding discovery of ESI.

8

3.

PROPORTIONALITY

9

Parties are expected to use reasonable, good faith and proportional efforts to preserve,

10

identify and produce relevant information consistent with Fed. R. Civ. P. 261. This includes

11

identifying appropriate limits to discovery, including limits on custodians, identification of

12

relevant subject matter, time periods for discovery and other parameters to limit and guide

13

preservation and discovery issues.

14

4.

LIAISON

15

The parties have identified liaisons to each other who are and will be knowledgeable

16

about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or

17

have access to those who are, knowledgeable about the technical aspects of e-discovery,

18

including the location, nature, accessibility, format, collection, search methodologies, and

19

production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer about

20

ESI and to help resolve disputes without court intervention.

21

5.

PRESERVATION

22

The parties agree that preservation of potentially relevant ESI will be reasonable and

23

proportionate. To reduce the costs and burdens of preservation and to ensure proper ESI is

24

preserved, the parties agree that:

25

a)

The parties have discussed the custodians whose ESI they believe should

26
1

27
28

Information can originate in any form, including ESI and paper, and is not limited to information created
or stored electronically.
-2STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

be preserved. The parties shall add or remove custodians consistent with

2

their obligations under the applicable rules and the principles of

3

cooperation and proportionality discussed herein;

4

b)

The parties agree that the following sources of data are not reasonably

5

accessible and need not be searched, reviewed, or produced, absent a

6

showing of good cause or court order:

7

1.

voice messages

8

2.

duplicative information from another preserved source;

9

3.

automatically saved versions of documents and emails;

10

4.

deleted, slack, fragmented, or other data accessible only by

11

forensics;

12

5.

systems, server and network logs;

13

6.

random access memory (RAM), temporary files, or other

14
15

ephemeral data;
7.

16
17

cache, cookies, and the like;
8.

18
19

9.

data in metadata fields that are frequently updated automatically,
such as last opened dates;

10.

22
23

dynamic fields of databases or log files that are not retained in
the usual course of business;

20
21

on-line access data such as temporary internet files, history,

data stored on mobile devices and tablets that are neither issued
by a Party nor primarily used for conducting business;

11.

data stored on mobile devices and tablets issued by a Party (e.g.,

24

email, calendars, contact data, and notes) to the extent that such

25

data is routinely saved elsewhere in another location that the

26

issuing Party will be searching (e.g., on a server, laptop, desktop

27

computer, or “cloud” storage); and

28

-3STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

12.

data maintained or duplicated for the purpose of system recovery

2

or information restoration, including but not limited to, system

3

recovery backup tapes or other backup media, continuity of

4

operations systems, and data or system mirrors or shadows.

5

c)

In addition to the agreements above, the parties agree to meet and confer

6

regarding data sources that may contain relevant information but, under

7

the limits to discovery considered by Fed. R. Civ. P. 26, should not be

8

preserved.

9

6.

10

SEARCH
The parties have discussed methods to search ESI in order to identify ESI that is

11

subject to production in discovery and filter out ESI that is not subject to discovery. Namely, the

12

parties have exchanged proposed search terms to use for identifying potentially responsive ESI.

13

The parties shall meet and confer regarding the addition or expansion of search terms consistent

14

with their obligations under the applicable rules and the principles of cooperation and

15

proportionality discussed herein, to the extent that the scope of discovery may change after the

16

parties’ prior meet-and-confer efforts on this topic.

17

7.

THREADING

18

In order to reduce the volume of entirely duplicative content within email threads being

19

produced, the Parties may use email threading analytics technology which shall permit a party to

20

produce only the most inclusive email message(s) within an email thread. For purposes of this

21

paragraph, an inclusive email message (“Inclusive”) is one that contains all text and attachments

22

in the segments of the email thread being produced (i.e., all unique content will be produced).

23

Documents which are otherwise part of the review set, and which cannot be threaded, must be

24

reviewed in their entirety.

25

8.

26

For all productions of documents to be made after the entry of this Order, the following

27

production formats and requirements shall control. The parties agree to produce documents in

28

PRODUCTION FORMATS

-4STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

single page TIFF file format. The parties agree to produce natives of Microsoft Excel, audio,

2

and video files. No party is required to create or generate a written transcript of any audio or

3

video file for purposes of document productions in this action. If particular documents warrant a

4

different format, the parties will cooperate to arrange for the mutually acceptable production of

5

such documents. The parties agree not to degrade the searchability of documents as part of the

6

document production process. A party is required to produce only a single copy of a responsive

7

document, and a party may de-duplicate responsive ESI across Custodians so long as an ALL

8

CUSTODIAN metadata field is populated for such de-duplicated documents as provided for

9

below. The parties agree to produce the metadata fields identified in Table 1, where such field

10

information exists for the type of document being produced (e.g., email, non-email electronic

11

files, scanned hard copy).

12
13

a)

BATES NUMBERING

Each Bates number will: (i) be unique across the entire document production;

14

(ii) maintain a consistent length across the entire production (i.e., ABC00000001—with no space

15

between the prefix and the number, padded to the same number of characters); (iii) contain no

16

special characters; and (iv) be sequential within a given document. If a Bates number or set of

17

Bates numbers is skipped in a production, the producing Party will so note in a cover letter,

18

production slipsheets, or production log accompanying the production. Each production will be

19

assigned a unique volume production number.

20
21

b)

PRODUCTION OF HARD COPY DOCUMENTS – FORMAT

Hard copy documents should be scanned as single-page, Group IV, 300 DPI TIFF images

22

with an .opt image cross-reference file and a delimited database load file (i.e., .dat). The

23

database load file should contain the following fields: “BEGNO,” “ENDNO,” “PAGES,”

24

“VOLUME” and “CUSTODIAN.” Multi-page OCR text for each document should also be

25

provided. The OCR software shall maximize text quality. Settings such as “auto-skewing” and

26

“auto-rotation” should be turned on during the OCR process.

27
28

-5STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

The documents should be logically unitized (i.e., distinct documents shall not be merged

2

into a single record, and single documents shall not be split into multiple records) and be

3

produced in the order in which they are kept in the usual course of business. If a folder with hard

4

copy documents is produced, the label of that folder, if any, shall be scanned and produced along

5

with the documents in the folder. The foldering relationship among the documents in the folder

6

should be produced, either by use of a parent-child relationship or otherwise. If any original hard

7

copy document has attachments, the Parties will scan and produce copies of the attachments in

8

the same manner as other documents. If any original hard copy document has notes affixed

9

thereto, the Parties will scan the page(s) of the original hard copy document containing the notes

10

both with the notes attached and with the notes removed, and produce copies of both versions

11

unitized together but otherwise in the same manner as other documents.

12

Hard copy documents containing color need not be produced in color in the first instance.

13

The receiving Party may make a reasonable request for the production of specific documents in

14

color, by providing (i) a list of the Bates numbers of documents it requests to be produced in

15

color format; and (ii) an explanation of the need for production in color format. The producing

16

Party shall not unreasonably deny such requests.

17
18

c)

PRODUCTION OF ESI

Unless otherwise specifically stated and agreed to the contrary, the Parties agree that only

19

reasonably accessible ESI will be reviewed and produced. Nothing in this protocol establishes

20

any agreement as to either the temporal or subject matter scope of discovery in this action.

21

Should a dispute arise among the Parties in determining and agreeing upon whether a particular

22

population of ESI or entire ESI data source is inaccessible or needs to be produced, the Parties

23

will make a good-faith effort to resolve such a dispute amongst themselves before any motion is

24

filed with the Court.

25
26
27
28

1.

Format

The Parties will produce ESI in single-page, black-and-white, TIFF Group IV, 300 DPI
TIFF images with the exception of spreadsheet and presentation type files, source code, audio
-6STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

and video files, which shall be produced in native format. If an original document contains color

2

and a reasonable request is made by the receiving Party for the production of specific documents

3

in color, the receiving Party may request production of such documents in color by providing

4

(i) a list of the Bates numbers of documents it requests to be produced in color format; and (ii) an

5

explanation of the need for production in color format. The producing Party shall not

6

unreasonably deny such requests. The Parties are under no obligation to enhance an image

7

beyond how it was kept in the usual course of business. TIFFs/JPGs will show any and all text

8

and images that would be visible to the reader using the native software that created the

9

document. For example, TIFFs/JPGs of email messages should include the BCC line. If the

10

image does not accurately reflect the document as it was kept in the usual course of business,

11

including all comments, edits, tracking, etc., the Parties agree to meet and confer in good faith on

12

production format options.

13

If a document is produced in native format, a single-page Bates stamped image slip sheet

14

stating the document has been produced in native format should be provided. Each document

15

should be named according to the Bates number it has been assigned (and, optionally, also with

16

the document’s confidentiality designation, if any) and should be linked directly to its

17

corresponding record in the load file using the NATIVELINK field. To the extent that either

18

Party believes that specific documents or classes of documents, not already identified within this

19

protocol, should be produced in native format, the Parties agree to meet and confer in good faith.

20
21

2.

De-Duplication

Each Party shall remove exact duplicate documents based on MD5 or SHA-1 hash

22

values, at the family level. Attachments should not be eliminated as duplicates for purposes of

23

production, unless the parent email and all attachments are also duplicates. The Parties agree

24

that an email that includes content in the BCC or other blind copy field shall not be treated as a

25

duplicate of an email that does not include content in those fields, even if all remaining content

26

in the email is identical. Removal of near-duplicate documents is not acceptable. De-duplication

27

will be done across the entire collection (global de-duplication) and the ALL CUSTODIAN field

28

-7STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

will list each custodian, separated by a semicolon, who was a source of that document. Should

2

the ALL CUSTODIAN metadata field produced become outdated due to collecting data from

3

additional custodians, an overlay file providing all the custodians for the affected documents will

4

be produced prior to substantial completion of the document production.

5
6

3.

Metadata

All ESI will be produced with a delimited, database load file that contains the Metadata

7

fields listed in Table 1, attached hereto, to the extent such data exists, as kept in the ordinary

8

course, for a particular document. The Metadata produced should have the correct encoding to

9

enable preservation of the documents’ original language.

10
11

4.

Embedded Objects

Embedded files shall be produced as attachments to the document that contained the

12

embedded file, with the parent/child relationship preserved. The embedded files will be marked

13

with a “YES” in the load file under the “Is Embedded” Metadata field. The Parties agree that

14

logos need not be extracted as separate documents as long as they are displayed in the parent

15

document.

16
17

5.

Attachments

The Parties agree that if any part of an email or its attachments is responsive, the entire

18

email and attachments will be produced, except any attachments that must be withheld or

19

redacted on the basis of privilege. If a document in a family is fully privileged, but is part of a

20

family that includes at least one other document that is not fully privileged, then the fully

21

privileged document(s) shall be produced fully redacted so that the family is not broken. The

22

Parties will meet and confer about whether there is an appropriate basis for withholding a family

23

document for any reason other than attorney-client or work product privilege. The attachments

24

will be produced sequentially after the parent email.

25
26
27
28

6.

Compressed File Types

Compressed file types (e.g., .ZIP, .RAR, .CAB, .Z) should be decompressed so that the
lowest-level document or file is extracted. To the extent that either Party believes that the
-8STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

container files should be produced in native format, the Parties agree to meet and confer in good

2

faith.

3

7.

Structured Data

4

To the extent a response to discovery requires production of electronic information stored

5

in a database, the Parties will meet and confer regarding methods of production. The Parties will

6

consider whether all relevant information may be provided by querying the database for

7

discoverable information and generating a report in a reasonably usable and exportable electronic

8

file.

9
10

8.

Encryption

To maximize the security of information in transit, any media on which documents are

11

produced may be encrypted. In such cases, the producing Party shall transmit the encryption key

12

or password to the receiving Party under separate cover.

13
14

9.

Redactions

For redacted documents, the producing Party may withhold only the following metadata

15

(Subject, FileName, and MD5 Hash). OCR text of the redacted image shall be produced. For

16

spreadsheets that the Parties have agreed to produce in native form, all redactions shall be made

17

to the native form of the document, to the extent reasonably possible. If the native document

18

(including its metadata) cannot be adequately redacted, a redacted image of the document may

19

be produced as provided for herein.

20
21

10.

Interpretation

If there is a conflict between the provisions of this protocol and any protective order

22

entered in this action, the protective order shall control. Moreover, nothing in this protocol shall

23

waive or limit any protections afforded the Parties under Federal Rule of Evidence 502.

24

Nothing in this protocol shall be interpreted to require the disclosure of any document

25

that a Party contends is protected from disclosure by the attorney-client privilege, work-product

26

doctrine, or any other applicable privilege or protection, nor shall this protocol require the

27

production of ESI or other documents that are not discoverable under applicable law.

28

-9STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

9.

2

TIMING
The parties agree that ESI document productions will be made on a rolling basis

3

starting on October 21, 2022. The parties agree that ESI document productions will be

4

completed in accordance with any applicable case schedule set by the Court in this action.

5

10.

6

DOCUMENTS PROTECTED FROM DISCOVERY
Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product-

7

protected document is not a waiver of privilege or protection from discovery in this case or in

8

any other federal or state proceeding.

9

A producing party may assert privilege or protection over produced documents at any

10

time by notifying the receiving party in writing of the assertion of privilege or protection. After

11

being notified, a party must promptly return or destroy the specified information and any copies

12

it has and may not sequester, use or disclose the information until the claim is resolved. This

13

includes a restriction against presenting the information to the court for a determination of the

14

claim. Information that contains privileged matter or attorney work product shall be returned

15

immediately if such information appears on its face or if requested.

16

Nothing in this Agreement shall be interpreted to require disclosure of irrelevant

17

information or relevant information protected by the attorney-client privilege, work-product

18

doctrine, or any other applicable privilege or immunity. The parties do not waive any objections

19

to the production, discoverability, admissibility, or confidentiality of documents and ESI.

20
21

11.

PRIVILEGE LOG
a)

If a party reasonably determines that one or more responsive documents

22

are not discoverable because it is subject to the attorney-client

23

communication privilege or work product doctrine, or otherwise not

24

discoverable on the basis of a recognized protection or privilege

25

(collectively, the “Privileges” and each a “Privilege”), the party shall use

26

reasonable efforts to produce a log for each document or each category of

27

documents withheld for privilege from that production.

28

- 10 STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

b)

Communications involving counsel, as well as experts retained for the

2

purpose of this litigation, that post-date November 1, 2021 need not be

3

placed on a privilege log.

4

c)

Work product prepared by or at the direction of counsel for purposes of

5

this litigation that post-dates November 1, 2021 need not be placed on a

6

privilege log.

7

d)

Activities undertaken in compliance with the duty to preserve information

8

are protected from disclosure and discovery under Fed. R. Civ. P.

9

26(b)(3)(A) and (B).

10

e)

for email communications, only the Inclusive emails must be logged.

11

f)

The Parties shall exchange their respective privilege logs within thirty (30)

12

days of completing document productions.

13

g)

So long as the redaction language on the image indicates Redacted –

14

Privileged and the document’s metadata is produced without redaction

15

(except for any redactions permitted by Paragraph 9), redaction logs shall

16

not be required. Redactions for personally-identifiable information shall

17

be made with a black box and need not be logged. On a document-by-

18

document basis, a Party may request additional information about the

19

redaction. To avoid confusion, any privilege redactions shall not be made

20

with a black box.

21

12.

MODIFICATION

22

This Stipulated Order may be modified by a Stipulated Order of the parties or by the

23

Court for good cause shown.

24

//

25

//

26

//

27

//

28

- 11 STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1

IT IS SO STIPULATED, through Counsel of Record.

2

WILLKIE FARR & GALLAGHER LLP
Simona A. Agnolucci
Jonathan A. Patchen
Daniel P. Martin
Ann S. Niehaus
Erica S. Miranda

3
4
5
6

By: /s/ Simona A. Agnolucci
Simona A. Agnolucci

7

Attorneys for Plaintiff
DAIRY, LLC

8
9

MORGAN, LEWIS & BOCKIUS, LLP
Carla B. Oakley
Lindsey M. Shinn
Geoffrey T. Holtz
Kevin M. Papay
Ehsun Forghany
Benjamin Hand

10
11
12
13
14
15

By: /s/ Kevin M. Papay
Kevin M. Papay

16

Attorneys for Defendant
MILK MOOVEMENT, INC. and
Defendant MILK MOOVEMENT LLC

17
18
19
20

IT IS ORDERED that the forgoing Agreement is approved.

21
22

Dated: November 2, 2022

23
24
25
26
27
28

- 12 STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

1
2

Table 1: Metadata Fields
BEGBATES

Beginning Bates Number

ENDBATES

Ending Bates Number

BEGATTACH

Beginning Bates number of the first document in an attachment
range

ENDATTACH

Ending Bates number of the last document in attachment range

VOLUME

The production volume associated with the produced
file

PAGES

The number of pages of the produced document

ALL CUSTODIAN

Names of all custodians, separated by semicolons, for whom the
document was processed whether or not the file was removed
upon de-duplication

RECORD TYPE

Populated with Email, Attachment, Paper, or Loose File

FILENAME

Filename of the original native file

12

FILEEXT

File extension of the original native file

13

FILESIZE

KB size of the original native file

APPLICATION

Indicates software application that generated the ESI item (e.g.,
Outlook, Word).

SORTDATE

Date populated at family level using parent set date propagated
down through children. Stand-alone documents populated with last
mod date

17

CREATEDATE

Date that a non-email document was created (yyyymmdd format)

18

CREATETIME

Time that a non-email document was created (hh:mm:ss format)

LASTMODDATE

Last date that a non-email document was modified (yyyymmdd
format)

LASTMODTIME

Last time that a non-email document was modified (hh:mm:ss
format)

SENTDATE

Sent date of an email message (yyyymmdd format)

22

SENTTIME

Sent time of an email message (hh:mm:ss format)

23

RECEIVEDDATE

Received date of an email message (yyyymmdd format)

25

RECEIVEDTIME
SUBJECT
AUTHOR

Received time of an email message (hh:mm:ss format)
Subject line extracted from an email message
Author field extracted from the metadata of a non-email document

26

FROM

From field extracted from an email message

TO

To or Recipient field extracted from an email message

3
4
5
6
7
8
9
10
11

14
15
16

19
20
21

24

27
28

- 13 STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC

CC

CC or Carbon Copy field extracted from an email message

BCC

BCC or Blind Carbon Copy field extracted from an email message

MD5HASH

MD5 (or SHA-1) hash value generated by creating a binary stream
of the file

4

THREADID

Keeping Inclusives together as populated by the vendor’s
threading analytics.

5

Is Embedded

Populate “Yes” for embedded documents

6

DESIGNATION

All Confidentiality designations

7

REDACTED

Populate “Yes” for redacted documents

FULLTEXT

Relative path to document text/OCR file if provided in production

NATIVELINK

Relative path and filename to produced native file.

1
2
3

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 14 STIPULATED [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 2:21-CV-02233-WBS-AC