Symantec Corporation v. Veeam Software Corporation

Filing 63

ORDER signed on 7/27/12 by Judge Susan Illston granting 61 Stipulation regarding ESI Discovery Plan (tfS, COURT STAFF) (Filed on 7/27/2012)

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Jennifer A. Kash (Bar No. 203679)
[e-mail]
2 50 California Street, 22nd Floor
San Francisco, California 94111
3 Telephone: [phone]
Facsimile: [phone]
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Dave Nelson (pro hac vice)
5 [e-mail]
Chris Lawnicki (pro hac vice)
6 [e-mail]
500 West Madison Street, Suite 2450
7 Chicago, IL 60661
Telephone: [phone]
8 Facsimile: [phone]
9 Attorneys for plaintiff Symantec Corporation
10 Mark Fox Evens (pro hac vice pending)
Byron L. Pickard (pro hac vice pending)
11 STERNE KESSLER GOLDSTEIN & FOX
12 1100 New York Avenue
Washington, DC 20005
13 Telephone: [phone]

Facsimile: [phone]

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Attorneys for defendant Veeam Software Corporation

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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18 SYMANTEC CORPORATION,
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Plaintiff and Counterclaim Defendant,

Case No. 3:12-cv-00700 SI (consolidated for all
purposed with Civil Action No. 12-01035-SI)

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vs.

Honorable: Edward M. Chen

21 VEEAM SOFTWARE CORPORATION
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Defendant.

STIPULATION AND PROPOSED ORDER
REGARDING ESI DISCOVERY PLAN

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AND RELATED COUNTERCLAIMS
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Plaintiff-Counterclaim Defendant Symantec Corporation (“Symantec”) and Defendant

26 Veeam Software Corporation ("Veeam") hereby stipulate, subject to approval of the Court, that:
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Case No. 3:12-cv-00700 SI
STIPULATION AND PROPOSED ORDER REGARDING ESI DISCOVERY PLAN

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1.

The purpose of this stipulation is to avoid unnecessarily burdensome, duplicative,

2 and expensive discovery in this litigation. The parties recognize that the procedures here do not
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set forth procedures for forensically defensible document production, because such a production in
this case would not be consistent with the purpose of the stipulation.

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2.

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

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

8 that are otherwise relevant to any claim or defense asserted in the above captioned case. The
9 parties need not exchange and negotiate search terms with the other side before collecting and
10 producing relevant and responsive information.
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3.

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

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in their native form will be produced as .tiff images or searchable .pdf images with appropriate
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Bates numbers and confidentiality designations and, in the case of .tiff images, with load files that

15 denote document breaks and document family relationships and extracted or OCR’d text that is
16 searchable (i.e., production in native format is permitted but not be required, although the parties
17 may later agree to produce certain information in Excel or other native format to facilitate use by
18 each side). No party will be obligated to render a document to searchable form for the purpose of
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producing the document if that document is not searchable in its native format or if the party does

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not possess the document in its native format. In producing documents written primarily or
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entirely in languages other than English, the parties agree that the producing party will produce (1)

23 all non-privileged English translations of such documents that were prepared by or on behalf of
24 the producing party before the filing of this litigation and (2) all certified English translations
25 created during this litigation of documents written primarily or entirely in languages other than
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English that a party intends to rely upon at trial or in motion practice.

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Case No. 3:12-cv-00700 SI

STIPULATION AND PROPOSED ORDER REGARDING ESI DISCOVERY PLAN

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4.

For documents that originally exist in paper form, such documents will be produced

2 as searchable .tiff images.
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5.

The parties further agree to delay the search and production of electronic mail

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

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document production and determines that electronic mail and electronic mail documentation is
required. To obtain email, parties must propound specific email production requests. Email

8 production requests shall only be propounded for specific issues, rather than general discovery of a
9 product or business. Email production requests shall be phased to occur after the parties have
10 exchanged initial disclosures and basic documentation about the patents, the prior art, the accused
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instrumentalities, and the relevant finances and damages-related discovery. Email production

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requests shall identify the custodian and time frame. The parties shall cooperate to identify the
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proper custodians and proper timeframes. Each requesting party shall limit its email production

15 requests to a total of five custodians per producing party for such requests. The parties may agree
16 to modify this limit without the Court’s leave. The Court may allow contested requests for up to
17 five additional custodians per producing party, upon a showing of good cause by the party seeking
18 to discover emails of additional custodians.
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6.

Each requesting party may select up to ten search terms to apply against the data

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collected from these five custodians. The parties may agree to modify this limit without the
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Court’s leave. The Court may allow contested requests for up to five additional search terms upon

23 a showing of good cause by the party requesting additional terms. The parties shall cooperate and
24 meet and confer in good faith to devise narrowly tailored requests. The parties shall exchange
25 search term hit results before the search terms are applied to the custodian data set.
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7.

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

party asserts is attorney-client privileged or work product protected to challenge the privilege or

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Case No. 3:12-cv-00700 SI

STIPULATION AND PROPOSED ORDER REGARDING ESI DISCOVERY PLAN

1 protection and will promptly return all such inadvertently produced ESI, and all copies, to the
2 producing party..
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8.

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

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federal or state proceeding.
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The mere production of ESI in a litigation as part of a mass production shall not

8 itself constitute a waiver for any purpose.
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10.

The parties agree to delay the search and production of metadata (as used herein to

10 refer to electronically stored information about the document that does not appear on the face of
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the original document if emailed or printed), audio, or video information until such time as the

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receiving party has reviewed the contents of the producing party’s document production and
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determines that metadata, audio, and/or video information is reasonably required. To the extent

15 that the discovery sought is considered unduly burdensome by the producing party (or otherwise
16 objectionable under the applicable rules), the producing party can object on that basis, and the
17 requesting party may seek relief from the Court. The parties further agree, however, that neither
18 party need deviate from the practices it normally exercises with regard to creation and/or
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maintenance of such “metadata, audio, or video information.”

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11.

Notwithstanding the foregoing, the parties agree to produce available date and

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author metadata for documents related to the conception and reduction to practice of any asserted

23 patent, to the extent such metadata exists without the need for forensic collection.
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12.

The parties have agreed to not search and produce materials retained in tape, floppy

25 disk, optical disk, or similar formats used primarily for back-up or disaster recovery purposes.
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The parties have further agreed to not search and produce archives that were created solely for
disaster recovery purposes, are not used in the ordinary course of a party’s business, and are stored

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Case No. 3:12-cv-00700 SI

STIPULATION AND PROPOSED ORDER REGARDING ESI DISCOVERY PLAN

1 on computer servers, external hard drives, notebooks, or personal computer hard drives. In
2 reaching this agreement, each party has represented that it has no reason to believe that any
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disaster recovery backup is the sole source of any relevant information. The parties need not
deviate from their normal business practices with regard to such “tape, floppy disk, optical disk, or

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similar formats primarily for back-up or disaster recovery purposes.” In particular, recycling of
back-up tapes conducted in the ordinary course of a party’s business operations is permitted.
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The parties also agree that if responsive documents are located on a centralized

9 server or network, the producing party shall not be required to search for additional, identical
10 copies of such responsive documents that may be located on the personal computer, or otherwise
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in the possession, of individual employees absent a showing of good cause that the production of

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such additional copies is necessary. The parties will meet and confer to discuss the parameters of
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the search and production of any such documents. The parties also agree that if responsive

15 documents are located on a centralized server, network, or an individual employee's computer, the
16 producing party shall not be required to search for additional, identical copies of such responsive
17 documents that may be located on any (other) individual employee's computer, or otherwise in the
18 possession, of individual employees absent a showing of good cause that the production of such
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additional copies is necessary. The parties further agree that neither party need deviate from the

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practices it normally exercises with regard to such additional, identical copies.
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14.

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

23 responsive and relevant documents that the producing party knows or has reason to believe to be
24 located only on the personal computer, in an email account, or otherwise in the possession, of
25 individual employees or that can be collected and produced without undue burden.
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DATED: July 25, 2012______________ QUINN EMANUEL URQUHART &
SULLIVAN
By: _/s/ Jennifer A. Kash_________________

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Case No. 3:12-cv-00700 SI

STIPULATION AND PROPOSED ORDER REGARDING ESI DISCOVERY PLAN

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

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David A. Nelson
[e-mail]
Chris Lawnicki
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, IL 60661
Telephone: [phone]
Facsimile: [phone]

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Kate Cassidy
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff Symantec Corporation

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DATED:_July 25, 2012__________________

STERNE, KESSLER, GOLDSTEIN & FOX
PLLC
By: __/s/ Byron L. Pickard__________
Mark Fox Evens (pro hac vice)
Byron L. Pickard (pro hac vice)
1100 New York Avenue N.W.
Washington, D.C. 20005
Telephone: [phone]
Facsimile: 202.371.2540
Email: [e-mail]
Gregory P. O’Hara (State Bar No. 131963)
Lisa A. Cole (State Bar No. 184267)
NIXON PEABODY LLP
2 Palo Alto Square
3000 El Camino Real, Suite 500
Palo Alto, California 94306
Telephone: [phone]
Facsimile: 650.320.7701
Email: [e-mail]
Email: [e-mail]
Attorneys for Defendant Veeam Software
Corporation
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Case No. 3:12-cv-00700 SI

STIPULATION AND PROPOSED ORDER REGARDING ESI DISCOVERY PLAN

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2 PURSUANT TO STIPULATION, IT IS SO ORDERED.
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DATED: July __, 2012
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By:
Hon. Susan Illston
United States District Judge

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Case No. 3:12-cv-00700 SI

STIPULATION AND PROPOSED ORDER REGARDING ESI DISCOVERY PLAN

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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.

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____/s/ Kate E. Cassidy___________
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Case No. 3:12-cv-00700 SI

STIPULATION AND PROPOSED ORDER REGARDING ESI DISCOVERY PLAN