Symantec Corporation v. Acronis, Inc

Filing 140

STIPULATION AND ORDER REGARDING ESI DISCOVERY PLAN re 137 STIPULATION WITH PROPOSED ORDER filed by Symantec Corporation. Signed by Judge Jacqueline Scott Corley on October 29, 2012. (wsn, COURT STAFF) (Filed on 10/29/2012)

1 Jennifer A. Kash (Bar No. 203679)
[e-mail]
2 Eric E. Wall (Bar No. 248692)
[e-mail]
3 QUINN EMANUEL URQUHART & SULLIVAN, LLP
50 California Street, 22nd Floor
4 San Francisco, California 94111
Telephone: [phone]
5 Facsimile: [phone]
6 Attorneys for Plaintiff-Counterclaim Defendant Symantec Corporation
7 Jason W. Wolff (SBN 215819/[e-mail])
Olga I. May (SBN 232012/[e-mail])
8 Alex Eaton-Salners (SBN 239750/[e-mail])
9 Aleksandr Gelberg (SBN 279989/[e-mail])
Fish & Richardson P.C.
10 12390 El Camino Real
San Diego, California 92130
11 Telephone: [phone]
Facsimile: [phone]
12
13 Attorneys for Defendants-Counterclaimants Acronis, Inc. and Acronis International GmbH
14

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

15
16

17 SYMANTEC CORPORATION,
18

Plaintiff and Counterclaim Defendant,

Case No. 3:11-cv-05310 EMC (consolidated for
all purposes with Case No. CV12-01062 PSG)

19

vs.

Honorable: Edward M. Chen

20 ACRONIS, INC. and ACRONIS
INTERNATIONAL GMBH,
21
Defendants and Counterclaimants.
22

STIPULATION REGARDING ESI
DISCOVERY PLAN

23 AND RELATED COUNTERCLAIMS.
24

Plaintiff-Counterclaim Defendant Symantec Corporation (“Symantec”) and Defendants-

25 Counterclaimants Acronis, Inc. and Acronis International GmbH (collectively “Acronis”) hereby
26

stipulate, subject to approval of the Court, that:

27
28
Case No. 3:11-cv-05310 EMC
STIPULATION REGARDING ESI DISCOVERY PLAN

1

1.

The parties agree to conduct a reasonable and thorough search for paper documents

2 and electronically stored information (ESI) responsive to the other side’s discovery requests
3
4

subject to the producing party’s objections or that are otherwise relevant to any claim or defense
asserted in the above captioned case. Subject to the provisions of this agreement, each party will

5
6
7

conduct a good faith search for relevant and responsive information regardless of how that
information is kept in the ordinary course. The parties need not exchange and negotiate search

8 terms with the other side before collecting and producing relevant and responsive information.
9

2.

When possible, electronically-stored documents in English that are text-searchable

10 in their native form will be produced as .tiff images or searchable .pdf images with appropriate
11

Bates numbers and confidentiality designations and, in the case of .tiff images, with load files that

12
denote document breaks and document family relationships and extracted or OCR’d text that is
13
14

searchable (i.e., production in native format is permitted but not required). Additionally, the

15 parties agree to reasonably accommodate one another’s requests for production of certain
16 documents in native format, such as financial information in native Excel format, to facilitate use
17 by each party and their experts.
18
19

3.

No party will be obligated to render a document that is not searchable in its native

format, or that the party does not possess in its native format, to searchable form for the purposes

20
of producing the document.
21
22

4.

Documents that originally exist in paper form will be produced as searchable .tiff

23 images or .pdf images.
24

5.

In producing documents written primarily or entirely in languages other than

25 English, the parties agree that the producing party will produce (1) all non-privileged English
26
27

translations of such documents that were prepared by or on behalf of the producing party before
the filing of this litigation and (2) all certified English translations created during this litigation of

28
-1-

Case No. 3:11-cv-05310 EMC

STIPULATION REGARDING ESI DISCOVERY PLAN

1 documents written primarily or entirely in languages other than English that a party intends to rely
2 upon at trial or in motion practice.
3
4

6.

The parties have further agreed to delay the search and production of electronic

mail (“email”) until such time as the receiving party has reviewed the contents of the producing

5
6
7

party’s document production and determines that electronic mail and electronic mail
documentation is required. However, if, in the course of conducting a reasonable search for

8 documents responsive to the other party’s requests, a party learns that relevant and responsive
9 information exists only in an email account, that party is obligated to produce that relevant
10 information to the other side in this case irrespective of the fact that it resides in email. Each party
11

agrees to conduct a reasonable search of email from the relevant time period for the inventors

12
employed by the party or represented by the party’s outside counsel, to the extent this email is
13
14

reasonably available and it is within the possession, ownership, and control of the producing party

15 or the respective inventors. Email searched during this good-faith collection will not be searched
16 again absent the parties’ agreement or a court order.
17

7.

To obtain email discovery from custodians that were not subject to the good-faith

18 collection, parties must propound specific email production requests. Email production requests
19

shall only be propounded for specific issues, rather than general discovery of a product or

20
business. Email production requests shall be phased to occur after the parties have exchanged
21
22

initial disclosures and basic documentation about the patents, the prior art, the accused

23 instrumentalities, and the relevant finances and damages-related discovery. Email production
24 requests shall identify the custodian and time frame. The parties shall cooperate to identify the
25 proper custodians and proper timeframe.
26
27

8.

The number of custodians subject to email production requests will be limited to 5

and may be increased to 10 total by the parties’ agreement. If the email for any of the inventors of

28
-2-

Case No. 3:11-cv-05310 EMC

STIPULATION REGARDING ESI DISCOVERY PLAN

1 the patents-in-suit was not searched as part of the collection described in paragraph 6, a party may
2 seek discovery of relevant email of such inventors in addition to the 5-custodian limit.
3
4

The

number of search term strings shall be limited to 10 and may be increased to 15 total by the
parties’ agreement. The parties shall cooperate and meet and confer in good faith to devise

5
6
7
8

narrowly tailored requests and determine the proper time frame. The parties shall exchange search
term string hit results before the search term strings are applied to the custodian data set.
9.

The receiving party shall not use inadvertently produced ESI that the producing

9 party asserts is attorney-client privileged or work product protected to challenge the privilege or
10 protection.
11

10.

Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a

12
privileged or work product protected ESI is not a waiver in the pending case or in any other
13
14
15

federal or state proceeding.
11.

The mere production of ESI in a litigation as part of a mass production shall not

16 itself constitute a waiver for any purpose.
17

12.

Except for good cause and upon special request, the parties are only obligated to

18 provide the following metadata for ESI produced regarding conception and reduction to practice
19

and to the extent such metadata exists without the need for forensic collection: From, To, CC,

20
BCC, Date Sent, Time Sent, Date Received, Time Received, Attachment Range, Attachment
21
22
23

Begin, and Attachment End (or the equivalent thereof).
13.

The parties have agreed, absent good cause and upon special request, and unless the

24 materials listed below are the sole source of relevant information, to:
25
26

a. not search and produce materials retained in tape, floppy disk, optical disk, or similar
formats used primarily for back-up or disaster recovery purposes;

27
28
-3-

Case No. 3:11-cv-05310 EMC

STIPULATION REGARDING ESI DISCOVERY PLAN

1

b. not search and produce archives that were created solely for disaster recovery purposes,

2

are not used in the ordinary course of a party’s business, and are stored on computer

3

servers, external hard drives, notebooks, or personal computer hard drives. Even

4

though the parties have not reviewed the material stored on disaster recovery back up

5
archives, both parties acknowledge that this agreement is made on a good faith

6
7

representation that they have no reason to believe that any disaster recovery backup is

8

the sole source of any relevant information. The parties need not deviate from their

9

normal business practices with regard to such tape, floppy disk, optical disk, or similar

10

formats primarily for back-up or disaster recovery purposes. In particular, recycling of

11

back-up tapes conducted in the ordinary course of a party’s business operations is

12
permitted.
13
14

14.

The parties have also agreed that if responsive documents are located on a

15 centralized server or network, the producing party shall not be required to search for additional,
16 identical copies of such responsive documents that may be located on the personal computer, or
17 otherwise in the possession, of individual employees absent a showing of good cause that the
18 production of such additional copies is necessary. The parties will meet and confer to discuss the
19

parameters of the search and production of any such documents. The parties have also agreed that

20
if responsive documents are located on a centralized server, network, or an individual employee's
21
22

computer, the producing party shall not be required to search for additional, identical copies of

23 such responsive documents that may be located on any (other) individual employee's computer, or
24 otherwise in the possession, of individual employees absent a showing of good cause that the
25 production of such additional copies is necessary. The parties further agree that neither party need
26

deviate from the practices it normally exercises with regard to such additional, identical copies.

27
28
-4-

Case No. 3:11-cv-05310 EMC

STIPULATION REGARDING ESI DISCOVERY PLAN

1

15.

Notwithstanding the foregoing, the parties have agreed to collect and produce

2 responsive, relevant, and non-duplicative documents that the producing party knows to be located
3
4

on the personal computer, in an email account, or otherwise in the possession, of individual
employees that can be collected and produced without undue burden.

5
6

DATED: October 26, 2012

QUINN EMANUEL URQUHART &
SULLIVAN

7
8

By: _/s/ Jennifer A. Kash_________________

9

Jennifer A. Kash (Bar No. 203679)
[e-mail]
Eric E. Wall (Bar No. 248692)
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

David A. Nelson
[e-mail]
Robert R. Cleary, Jr.
[e-mail]
Aaron Perez-Daple
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, IL 60661
Telephone: [phone]
Facsimile: [phone]
Kate Cassidy
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: [phone]
Facsimile: [phone]

25
Attorneys for Plaintiff-Counterclaim Defendant
26
Symantec Corporation
27
28
-5-

Case No. 3:11-cv-05310 EMC

STIPULATION REGARDING ESI DISCOVERY PLAN

1 DATED: October 26, 2012

FISH & RICHARDSON P.C.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

By: _/s/ Olga I. May_________________
Jason W. Wolff
Olga I. May
Alex Eaton-Salners
Aleksandr Gelberg
FISH & RICHARDSON P.C.
12390 E. Camino Real
San Diego, California 92130
Frank Everett Scherkenbach
Steven R. Katz
FISH & RICHARDSON P.C.
225 Franklin Street
Boston, MA 02110-2804
617-542-5070
Fax: [phone]
Thomas L. Halkowski
Warren Keith Mabey , Jr.
FISH AND RICHARDSON P.C.
222 Delaware Avenue
17th floor
P.O. Box 1114
Wilmington, DE 19899-1114
302-778-8407
Fax: [phone]

18
19

Attorneys for Defendants and Counterclaimants
Acronis, Inc. and Acronis International GmbH

20
21

SO ORDERED:
22 DATED: October ___, 2012
29
23
24

By: _________________________________
Magistrate Judge Jacqueline Scott Corley

25
26
27
28
-6-

Case No. 3:11-cv-05310 EMC

STIPULATION REGARDING ESI DISCOVERY PLAN

1
2
3

SIGNATURE ATTESTATION
Pursuant to General Order No. 45(X)(B), I hereby certify that concurrence in the filing of
this document has been obtained from each of the other signatories shown above.

4
_/s/_Kate E. Cassidy
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-

Case No. 3:11-cv-05310 EMC

STIPULATION REGARDING ESI DISCOVERY PLAN