Department of Fair Employment and Housing v. Law School Admission Council Inc

Filing 115

STIPULATION AND ORDER re [111-1] Stipulations re order re discovery filed by Department of Fair Employment and Housing. Signed by Judge Edward M. Chen on 3/5/13. (bpf, COURT STAFF) (Filed on 3/5/2013)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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THE DEPARTMENT OF FAIR EMPLOYMENT )
AND HOUSING,
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Plaintiff,
)
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v.
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LAW SCHOOL ADMISSION COUNCIL, INC., )
Defendant.
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JOHN DOE et al., and all other similarly
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situated individuals,
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Real Parties in Interest.
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THE UNITED STATES OF AMERICA,
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Plaintiff-Intervenor,
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v.
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LAW SCHOOL ADMISSION COUNCIL, INC., )
Defendant.
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ANDREW QUAN, NICHOLAS JONES, and
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ELIZABETH HENNESSEY-SEVERSON,
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Plaintiff-Intervenors,
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v.
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LAW SCHOOL ADMISSION COUNCIL, INC., )
Defendant.
)

No. CV 12-1830-EMC

PARTIES’ STIPULATIONS
REGARDING
PROPOSED ORDER
REGARDING DISCOVERY 1

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This stipulation and order is submitted jointly by all the parties to this action. Pursuant to Civ.
LR 3-4(a), a complete list of the parties is contained on the signature page of this document.
CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

PARTIES’ STIPULATIONS REGARDING
PROPOSED ORDER REGARDING DISCOVERY

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Plaintiff California Department of Fair Employment and Housing (“DFEH”), PlaintiffIntervenor the United States, and individual Plaintiff-Intervenors Andrew Quan, Nicholas Jones,
and Elizabeth Hennessey-Severson, (collectively “Plaintiffs”), and the Law School Admission
Council, Inc. (“LSAC” or “Defendant”) mutually seek to reduce the time, expense, and other
burdens of discovery of documents, things, and electronically stored information (“ESI”) that are
within their possession, custody, or control. Therefore, the Plaintiffs and Defendant (collectively
“Parties”) are entering into this Stipulation to govern discovery obligations in this action 2 as a
supplement to the Federal Rules of Civil Procedure, this Court’s Guidelines for the Discovery of
Electronically Stored Information, U.S. District Judge Edward M. Chen’s Civil Standing Order
on Discovery, and any other applicable orders and rules. The Parties are aware of the importance
the Court places on cooperation and commit to cooperate in good faith throughout this action
consistent with this Court’s Guidelines for the Discovery of ESI.

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The Parties stipulate as follows:
1)

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a.

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Preservation of Documents, Things, and ESI. All potentially relevant documents,

things, and ESI, other than those exempted from discovery in paragraph 5, created before or after
the date of entry of this Stipulation and Order, must be preserved in accordance with the Federal
Rules of Civil Procedure (“FRCP”), the Federal Rules of Evidence, this Court’s Guidelines for
the Discovery of ESI, and the relevant controlling principles of law.

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Obligations to Preserve

b.

“Draft Document(s).” For the purposes of this litigation, the obligation to

preserve potentially relevant documents, things, and ESI extends to draft paper and electronic
documents, except as provided in paragraph 5. A “draft” document (hereinafter “Draft
Document”) for the purposes of this Stipulation and Order means a preliminary version of a
document that has been shared by the author with another person (by email, print, or otherwise).

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This stipulation and order is intended to govern the entirety of the action. However, for
purposes of ADR discovery, certain deadlines and timelines contained herein will be adjusted to
28 meet the condensed ADR timeframe, as specifically noted in the parties’ Joint Pre-ADR
Discovery Plan and Proposed Order, filed on March 1, 2013.
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-1CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

1 A Party need not preserve a document before and after every change, so long as Draft
2 Documents are preserved.
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c.

Red-lined and Marked-up Documents. For the purposes of this litigation, the

4 obligation to preserve potentially relevant documents, things, and ESI extends to red-lined or
5 marked-up electronic documents, except as provided in paragraph 5. This obligation extends to
6 both Draft Documents and finalized documents for which a red-lined or marked-up version
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Provisions for the Production of All Documents and ESI

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a.

Form of Production of Documents and ESI Produced Electronically. Documents

10 and ESI produced electronically that can be accurately represented in black and white shall be
11 scanned or converted to single page Tagged Image File Format (“TIFF” or “.tiff format”) files,
12 using CCITT Group IV compression. All images shall be scanned or converted at 300 d.p.i. and
13 reflect, without visual degradation, the full and complete information contained on the original
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Photographs, color brochures, or other like documents that cannot be accurately

15 represented in black and white or documents that are primarily in color shall be scanned or
16 converted to JPEG files using a high quality setting. For documents that exist as JPEG in their
17 native format, the native file with a Bates-numbered TIFF image placeholder sheet will be
18 provided. The Parties will honor reasonable requests for either the production of the original
19 document for inspection and copying or production of any color image of the document, thing, or
20 ESI. All images shall be saved in a directory named IMAGES or IMAGES_TEXT. Native files
21 shall be saved in a directory named NATIVE with the proper Windows associated extension.
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b.

Bates Numbering. The Parties agree to produce all imaged documents with a

23 legible, unique page identifier (“Bates Number”) electronically “burned” onto the image in the
24 lower right hand corner or at a location that does not obliterate, conceal, or interfere with any
25 information from the source document. The Bates numbering convention shall be in the format
26 “XX########” where “XX” represents the short character abbreviation for the producing Party
27 and “########” represents the eight-digit sequential number of the page being produced by that
28 Party. Documents produced by the Parties shall be abbreviated as follows: California
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PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

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Department of Fair Employment and Housing = DFEH; United States = US; Quan, Jones, and
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Hennessey-Severson = QJH; Law School Admission Council, Inc. = LSAC. For example, the
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first Bates labeled document produced by the United States should be labeled “US00000001.”
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Images shall be named as the Bates Number.tif or Bates Number.jpg. Native files shall be
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named as Bates Number.ext.
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c.

Production Media. The Parties agree that documents produced in electronic

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format will be produced on CD-ROM, DVD, or external hard drive (the “Production Media”),
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depending on the volume of the production, and agree to send all Production Media by courier,
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such as Federal Express or UPS. The following are points of contact for document production:
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i.

For DFEH:
R. Sybil Villanueva
Department of Fair Employment and Housing
2218 Kausen Drive, Suite 100
Elk Grove, CA 95758

ii.

For the United States:
Nabina Sinha
The U.S. Department of Justice
Civil Rights Division
Disability Rights Section
1425 New York Avenue, N.W., 4th Floor
Washington, DC 20005

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For Quan, Jones, and Hennessey-Severson:
Claudia Center
The Legal Aid Society – Employment Law Center
180 Montgomery Street, Suite 600
San Francisco, CA 94104

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For LSAC:
Caroline Mew
Fulbright & Jaworski L.L.P.
801 Pennsylvania Avenue, N.W., 5th Floor
Washington, D.C. 20004

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All Production Media must be free of viruses. Each piece of Production Media shall identify a
production number corresponding to the production “wave” and a number of the volume of
material in the wave. For example, if the first production wave by a Party comprises document
images on three hard drives, the Party shall label each hard drive in the following manner in
numeric sequence: “001.001”; “001.002”; “001.003.” If the second production comprises three
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PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

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DVDs, the Party shall label each DVD in the following manner in numeric sequence:
“002.001”; 002.002”; “002.003.” Additional information that shall be identified on the physical
Production Media shall include: (1) the case number, (2) the producing Party’s name, and (3) the
production date. The type of materials on the media (e.g., “Documents,” “OCR Text,” etc.) and
the Bates Number range(s) of the materials on the Production Media shall also be contained on
the Production Media, and where not practicable to do so may be provided in an accompanying
letter.
d.

Cross Reference File. The Parties shall produce a “cross reference file” in

Concordance Opticon .log format, to accompany the produced images of documents produced
electronically. The cross reference file shall list all images with the corresponding Bates
Numbers and path information for links between the images and, where appropriate, native files.
The cross reference file shall include information about where each document begins and ends,
to facilitate the use of the produced images through Concordance. The Parties shall meet and
confer to the extent reasonably necessary to facilitate the import and use of the produced
materials with Concordance.
e.

Load File. The Parties shall produce a “load file,” containing the delimiters

specified in Attachment A for documents produced electronically. The load file shall provide the
image cross reference file with Bates Numbers, relative path to images, and document break
indicators. The load files shall be provided in a directory named DATA, in a Concordance
Opticon .log file format. Do not include OCR/extracted text in the DAT file.
f.

OCR/Extracted Text. The Parties will produce corresponding Optical Character

Recognition (“OCR”) text files for all hard-copy documents produced electronically, and any
electronic documents that require redaction prior to production. For documents that exist
natively in electronic format that have not been redacted and that are produced as images, the
Parties shall produce extracted text files reflecting the full text that has been electronically
extracted from the original, native electronic files. The OCR and extracted text files shall be
produced in ASCII text format and shall be labeled and produced on Production Media in
accordance with the provisions of paragraph 2(c). These text files will be named with the unique
-4CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

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Bates Number of the first page of the corresponding document followed by the extension “.txt.”

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The OCR and extracted text files shall be produced in a manner suitable for importing the

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information into Concordance. OCR and extracted text files shall be saved in a directory named

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TEXT. All documents should have an accompanying text file even if zero size.

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The meta data fields specified in Attachment A shall be provided in Concordance

.dat format with standard delimiters.

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h.

Protection of Discovery Materials. Any confidential, individually identifiable

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information contained in electronic and paper court filings will be redacted in accordance with

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FRCP 5.2, Local Rule 79-5, and any protective order entered in this matter.

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The Parties will produce documents, things, and ESI on a rolling basis, when it is

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reasonable to do so, so as to provide each other with documents, things, and ESI as expediently

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as possible. When a Party propounds discovery requests pursuant to FRCP 34, the Parties agree

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to phase the production of ESI, when reasonable to do so. Following the initial production, the

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Parties will continue to prioritize the order of subsequent productions, as needed and to the

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extent practicable.

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3)

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Electronically Stored Information
a.

Format for Production of Electronic Documents:
i.

Email will be produced as image files and in their original native file with

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related searchable text and metadata (to the extent it exists) as described in

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Attachment A. Emails shall be saved or converted to Outlook .MSG or

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processed HTML format as the native file format.

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ii.

All spreadsheets, e.g., Excel or Quattropro, and PowerPoint presentations

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should be produced only in native format with related searchable text and

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metadata (to the extent it exists) as described in Attachment A.

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Spreadsheets should not be imaged, but a placeholder image must be

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included to represent the spreadsheet.

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iii.

All other electronic documents not specifically discussed elsewhere will
be produced as image files and in their original native files with related
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CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

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searchable text and metadata (to the extent it exists) as described in

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Attachment A. If said documents in their original form cannot be

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converted to TIFF (which will be the default image format unless the

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document cannot be rendered as a TIFF image) as described above (e.g.,

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video, audio, or other proprietary files), the Parties promptly will meet and

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confer concerning the form of such production.

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iv.

Documents with children (e.g., emails with attachments, archive files such

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as zip, and files with embedded documents) shall be treated as separate

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documents. Each document (parent and child) shall have the same

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attachment range as a way of identifying the group as specified in the

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Attachment Range field of Attachment A.

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v.

In the event that a Party needs to redact a portion of a document for which

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only a native file is otherwise produced, e.g., Excel and PowerPoint, the

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Parties will provide redacted TIFF images with a corresponding text file

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instead of the native file. The Parties agree to meet and confer if

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production in this format limits the utility of the produced information.

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vi.

Any encryption or password protection of any file is to be removed or, if

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that is not possible, the password(s) provided. If software is required to

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open encrypted files, the Party producing the encrypted files must provide

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the software. The Parties agree to meet and confer prior to production of

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any information for which the password protection or encryption cannot

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be removed or the password(s) provided.

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vii.

within a proprietary or specialized database.

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The Parties shall meet and confer regarding production of ESI contained

viii.

If particular documents warrant a different format than specified herein,

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the Parties will cooperate to arrange for the mutually acceptable

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production of such documents. The Parties agree not to degrade the

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PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

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searchability or utility of documents as part of the document production

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process.

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b.

Search Term Process and Criteria. If an ESI search based on search terms is

4 requested by the propounding Party at the time written requests for production of documents are
5 served, within two weeks from service of a request for production of documents based on ESI
6 search terms, the requesting and responding Parties agree to meet and confer regarding the
7 responding Party’s search of ESI, including the proposed search terms by the requesting Party,
8 the responding Party’s technological search capability, and the most effective means of defining
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9 search criteria (such as date ranges, custodians, key words, etc.). Within one week of when the

10 Parties meet and confer, the responding Party shall propose a search process and criteria to the
11 requesting Party. The requesting Party will have one week to respond with any suggested
12 changes to the search process and criteria. Thereafter, the Parties shall confer weekly until the
13 Parties agree to a search process and criteria. Within forty-five days of when the Parties agree on
14 the search process and criteria, the producing Party shall produce to the requesting Party non15 privileged ESI located using the agreed-on search process and criteria. Following the initial
16 production, the Parties will continue to prioritize the order of subsequent productions. Requests
17 to extend the time period for any given production will state with particularity the reasons for the
18 requested extension. The Parties agree to further meet and confer as needed throughout
19 discovery to determine whether modifications should be made to the agreed-on search process or
20 criteria.
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i.

During the meet and confer for each phase of discovery, each requesting

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and responding Party shall be provided with an opportunity to propose

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additions or amendments to the proposed process and criteria and search

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terms;

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The Plaintiffs will propound their first document requests jointly and, with respect to such
26 requests, Plaintiffs will designate one representative per Plaintiff’s counsel as the primary
negotiator to meet and confer regarding LSAC’s search process and criteria. With respect to any
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subsequent document requests, Plaintiffs will again propound their requests under the same
28 definitions. In the event that post-ADR discovery is necessary, the parties will meet and confer
regarding the procedure for subsequent requests for production of documents.
-7CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

ii.

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The Parties acknowledge that the agreement to the use of any search terms

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shall not be construed as a waiver of any Party’s right to request

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subsequent searches and productions; particularly where there is a

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showing that the agreed-to search process and criteria or search terms have

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resulted in inadequate productions or failed to identify relevant materials.

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The Parties reserve their right to object to additional requests or

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subsequent searches as provided in FRCP 26; and
iii.

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Documents may be reviewed for privilege, confidentiality, redactions, and
relevance or responsiveness prior to production.

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c.

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Use of Deduplication Software: Parties agree to use MD-5 hash values to

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deduplicate exact duplicate documents across custodians. As noted in Attachment A, MD-5 hash

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values will be calculated at the time of collection or processing for all categories of ESI.

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4)

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Production of Paper Documents:
a.

Format for Production of Certain Paper Documents. The Parties agree to produce

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hard-copy documents relating to the individuals specifically named in Plaintiffs’ complaints as

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TIFF files with related OCR text.

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b.

Document Unitization. To the extent possible and on a going-forward basis, the

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Parties will endeavor to apply unitization practices consistent with the following description:

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Each page of a hard copy document produced electronically shall be scanned into an image and

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if a document is more than one page, the unitization of the document and any attachments shall

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be maintained as it existed in the original when creating the image file. For documents that

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contain fixed notes, (e.g., post-it notes), the pages will be scanned both with and without the

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notes and those pages will be treated as part of the same document. The relationship of

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documents in a document collection (e.g., cover letter and enclosures, email and attachments,

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binder containing multiple documents, or other documents where a parent-child relationship

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exists between the documents) shall be maintained through the scanning or conversion process.

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If more than one level of parent-child relationship exists, documents will be kept in order, but all

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will be treated as children of the initial parent document. Such information shall be produced in
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PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

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conformity with the Attachment Range field in Attachment A in a manner which enables the

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parent-child relationship among documents in a document collection to be reconstituted by the

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receiving Party in Concordance.

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5)

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Preservation Not Required for Certain Documents, Things, and ESI
a.

ESI:
i.

The Parties have discussed their preservation obligations and needs and

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agree that preservation of potentially relevant ESI will be reasonable and

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proportionate. To reduce the costs and burdens of preservation and to

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ensure proper ESI is preserved, the Parties agree that data from these

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sources could contain relevant information but, under the proportionality

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factors, the Parties need not preserve, continue to preserve, or provide a

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privilege log for the following categories of ESI:

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a. Voicemail messages;

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b. SMS messages or other text messages sent to or from a phone or other

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mobile communication system;
c. Electronic mail or “pin to pin” messages sent to or from a Personal

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Digital Assistant (e.g., Blackberry Handheld), provided that a copy of

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electronic messages is saved in another reasonably accessible location;

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d. Other electronic data stored on a Personal Digital Assistant, such as
calendar or contact data or notes;

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e. Logs of calls made to or from cellular phones;

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f. Temporary or cache files, including internet history, web browser

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cache and cookie files, wherever located;

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g. Server, system, or network logs;

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h. Data from photocopiers or fax machines;

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i. Autosaved copies of electronic documents; and

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j. Delivery or read receipts of electronic mail.

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PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

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ii.

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defined in Rule 26 of the FRCP, need not be preserved or described on a

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privilege log if:

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a. It is stored in any electronic backup system for the purpose of system

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recovery or information restoration, including, but not limited to,

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system recovery backup tapes, continuity of operations systems, and

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data or system mirrors or shadows; and

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b. It is routinely purged, overwritten, or otherwise made not reasonably

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accessible in accordance with an established, documented, and routine

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system maintenance policy; and

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Electronic Back-up Systems. Potentially relevant ESI, as that term is

c. It has been preserved on other, accessible electronic media.
b.

Documents Excluded from Preservation, Production, and Privilege Log

Requirements. The Parties agree that, for purposes of this litigation, the Parties need not
preserve, produce, or create a privilege log for any documents, including Draft Documents as
defined in paragraph 1(b) and Red-lined and Marked-up Documents as defined in paragraph 1(c),
that were:
i.

created by, and if exchanged, exchanged solely among –
a. attorneys or legal staff within DFEH, regarding this litigation;
b. attorneys or legal staff within the United States Department of Justice,
regarding this litigation;
c. attorneys or legal staff within the Legal Aid Society of San Francisco –
Employment Law Center (“LAS”);
d. attorneys or legal staff of LAS and its clients in this case (the
individual Plaintiff-Intervenors Andrew Quan, Nicholas Jones, and
Elizabeth Hennessey-Severson) or other individuals seeking legal
advice regarding this case;
e. attorneys or legal staff of Fulbright & Jaworski LLP;

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PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

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f. attorneys or legal staff of Fulbright & Jaworski LLP and LSAC

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personnel other than LSAC attorneys or legal staff, regarding travel

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logistics, litigation scheduling, and other similar administrative matters

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as the Parties may agree upon in writing;

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g. attorneys or legal staff of Fulbright & Jaworski L.L.P. and attorneys or

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legal staff of LSAC, regarding this litigation; or

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h. attorneys or legal staff of LSAC and other LSAC personnel, regarding

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travel logistics, litigation scheduling, and other similar administrative

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matters as the Parties may agree upon in writing;

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ii.

created on or after June 14, 2012, by attorneys or legal staff of DFEH, the United

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States Department of Justice, or LAS, and exchanged solely among DFEH, the

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United States Department of Justice, and/or LAS.

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Nothing in this section imposes upon any Party an obligation to preserve documents that the

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Party is not otherwise obligated to preserve.

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c.

Trial-Preparation Protection for Communication Between a Party’s Attorney and

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Expert Witness. Communications, including, but not limited to, draft, red-lined, and marked-up

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reports, between a Party’s attorney and any witness required to provide a report under Rule

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26(a)(2)(B) of the FRCP shall be protected from disclosure and shall not be produced in

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discovery regardless of the form of the communication, nor shall a privilege log be produced for

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such communications, except to the extent that the communications:

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i.

Relate to compensation for the expert’s study or testimony;

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ii.

Identify facts or data that the Party’s attorney provided and that the expert

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considered in forming the opinions to be expressed; or
iii.

Identify assumptions that the Party’s attorney provided and that the expert
relied on in forming opinions to be expressed.

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Communications between a Party’s attorney(s) and any non-testifying, litigation expert(s) shall

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be protected from disclosure and need not be preserved, and shall not be produced in discovery

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regardless of the form of the communication, nor shall a privilege log be produced for such
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PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

1 communications. The Parties agree that this provision does not apply to LSAC consultants who
2 reviewed files of candidates in order to evaluate whether a candidate should receive testing
3 accommodations or consultants to Plaintiffs who reviewed complaint files prior to filing
4 Plaintiffs’ complaints.
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d.

No Discovery of Material Not Required To Be Preserved. The Parties agree not

6 to seek discovery of documents, things, and ESI that need not be preserved pursuant to paragraph
7 5. If any discovery request is susceptible to a construction that calls for the production of ESI
8 that need not be preserved pursuant to paragraph 5, such items need not be provided or identified
9 on a privilege log pursuant to Rule 26(b)(5) of the FRCP.
10 6)

Other Preservation Obligations Not Affected. This Stipulation and Order in no way

11 modifies, amends, limits, or obviates any of the Parties’ obligations to maintain and preserve
12 documents, things, and ESI where required by law or as a result of litigation or anticipated
13 litigation in this case or in any other matter except for the exemptions delineated in paragraph 5.
14 Also, nothing in this Stipulation and Order shall affect any other obligations of the Parties to
15 preserve documents, things, and ESI for other purposes, such as pursuant to court order,
16 administrative order, statute, or in response to other anticipated litigation.
17 7)

Preservation Does Not Affect Discoverability or Claims of Privilege. The Parties

18 agree that by preserving documents, things, and ESI for the purpose of this litigation, they are
19 not conceding that such material is discoverable, nor are they waiving any claim of privilege.
20 Except as otherwise provided in paragraph 5, nothing in this Stipulation and Order shall alter the
21 responsibilities or obligations of the Parties to provide a privilege log for material withheld under
22 a claim of privilege.
23 8)

Privilege Logs. The Parties agree that for each document, thing, or ESI withheld based

24 on an asserted claim of privilege, the Party asserting the privilege must produce a privilege log
25 pursuant to Rule 26(b)(5)(A) of the FRCP, except as provided in paragraph 5. The privilege log
26 must contain sequential numbering for each document, thing, or ESI identified, the Bates
27 Number (if applicable), the type of document or ESI, whether the document or ESI contains any
28 attachments, the date, authors, recipients, copyees, privilege(s) claimed, the title of the document
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PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

1 or ESI, the subject of the document or ESI, and the basis for the claimed privileges or protections
2 with information sufficient to establish the elements of each asserted privilege. Attachments to
3 email (including emails that are attached to another email) should be identified as attachments
4 and separately logged. Privilege logs shall be produced within twenty-one days of the document
5 production to which they pertain.
6 9)

Existing Retention Policy. Notwithstanding subparagraph 5(a), if on the date of this

7 Stipulation and Order, any Party that has a policy established by that Party’s official decision8 making authority responsible for the retention of documents, things, and ESI that results in the
9 routine preservation of any of the categories of information identified in paragraph 5(a), such
10 Party may continue to preserve such information in accordance with its policy. However, the
11 Parties shall have no obligation, in response to discovery requests, to identify, collect, produce,
12 or create privilege logs for documents, things, or ESI covered by paragraph 5(a).
13 10)

Sanctions. No Party shall seek sanctions pursuant to the FRCP, the contempt powers of

14 the Court, or any other authority, against another Party for the failure to preserve documents,
15 things, or ESI that is not required to be maintained pursuant to paragraph 5.
16 11)

Inadvertent Production of Documents:

17

a.

Pursuant to Fed. R. Evid. 502(d), the Parties agree that a disclosure of

18 communications, documents, things, and ESI covered by the attorney-client privilege, work
19 product protection, or governmental privileges, whether inadvertent or otherwise, does not
20 operate as a waiver of privilege or protection from discovery in this proceeding or in any other
21 federal or state proceeding, if the holder of the privilege or protection took reasonably prompt
22 measures, once the holder knew or should have known of the disclosure, to rectify the error.
23

b.

If information produced in discovery is subject to a claim of privilege or

24 protection, the Party making the claim may notify any Party that received the information of the
25 claim and the basis for it. After being notified, a Party must make prompt and reasonable efforts
26 to return, sequester, or destroy the specified information and any accessible copies it has; must
27 not use or disclose the information until the claim is resolved; and must take prompt and
28 reasonable steps to retrieve the information if the Party disclosed it before being notified. The
- 13 CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

1 receiving Party may challenge any claim of privilege and/or inadvertence made by the producing
2 Party, and the Parties agree that any disputes with respect to this provision should be governed
3 and conducted in accordance with Judge Chen’s Standing Order on Discovery.
4 12)

Sample Production. On or before fourteen days following the Effective Date of this

5 Stipulation and Order (as defined in paragraph 18, below), the Parties shall exchange a sample
6 production of documents formatted to be consistent with this Stipulation and Order. The sample
7 production shall contain a combination of scanned paper files and ESI, and shall include at least
8 one spreadsheet and one email. The production need not be relevant to this case, as it is intended
9 only to test the adequacy of the specifications in this Stipulation and Order and the compatibility
10 of the Parties’ systems. If any Party reports problems with the sample productions, the Parties
11 shall confer regarding the terms of this Stipulation and Order.
12 13)

Duty to Supplement Discovery Responses. Parties must supplement their disclosures in

13 a timely manner, if the Party learns that the disclosure was materially incorrect or incomplete.
14 Supplementation must be made at appropriate intervals during discovery and with special
15 promptness as the trial date approaches.
16 14)

Costs of Document Production. Each Party shall bear the costs of producing its own

17 documents, things, and ESI; provided, however, that the parties do not waive their right to seek
18 limitations on the extent of discovery by motion to the Court per FRCP 26.
19 15)

Third-Party Discovery With Respect to Individuals Named in the Plaintiffs’

20 Complaints.
21

Plaintiffs and LSAC will coordinate to obtain appropriate releases in a timely manner

22 from the individuals named in Plaintiffs’ respective complaints to facilitate third-party discovery.
23 16)

Requirement to Confer. Before filing any motion regarding the terms of this

24 Stipulation and Order, compliance with this Stipulation and Order, or other discovery dispute,
25 the Parties will confer in a good faith attempt to resolve such disputes.
26 17)

Liaisons. The Parties will identify liaisons to each other who are and will be

27 knowledgeable about and responsible for discussing their respective ESI. Each e-discovery
28 liaison will be, or have access to those who are, knowledgeable about the technical aspects of e- 14 CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

1

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

2

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

3

about ESI and to help resolve disputes without court intervention.

4

18)

Miscellaneous:

5

a.

The Stipulation may be executed in counterparts.

6

b.

The Effective Date of this Stipulation shall be the date on which the Court enters

7

the Stipulation.

8

c.

9
10

This Stipulation may be modified by a Stipulated Order of the Parties or by the

Court for good cause shown.
d.

Except where expressly noted, none of the meet and confer provisions of this

11

Stipulation shall be construed to extend the time within which a Party must respond to a

12

discovery request; rather, such time frames shall be governed by the FRCP. The Parties agree

13

to meet and confer in good faith to discuss the timeline for production if the producing Party

14

cannot produce any requested documents or ESI within the thirty day response time provided

15

under FRCP 34.

16

i. If an ESI search based on search terms is requested by a Party at the time

17

written requests for production of documents are served, the meet and confer

18

provisions of section 3)b (“Search Term Process and Criteria”) of this

19

Stipulation and Order shall apply to the timeline for production of documents

20

in response to the request for ESI based on search terms.

21

ii. Requests to extend the time period for any given production will state with

22

particularity the reasons for the requested extension.

23

iii. The Parties agree to further meet and confer as needed throughout discovery

24

to determine whether modifications should be made to the agreed-on timeline

25

for production.

26

e.

The terms of this Stipulation and Order are not exhaustive. Each Party reserves

27

the right to subsequently request a meet and confer to address any matters concerning discovery

28

in this litigation which have not been addressed herein.
- 15 CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

1
IT IS SO STIPULATED, through Counsel of Record.

2
3

MELINDA HAAG
4 United States Attorney
Northern District of California
5
ALEX G. TSE
6 Assistant United States Attorney
Chief, Civil Division
7

THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division

8

GREGORY B. FRIEL
Acting Chief
ROBERTA KIRKENDALL
Special Legal Counsel
KATHLEEN P. WOLFE
Special Litigation Counsel
Disability Rights Section
Civil Rights Division

9
10
11
12

EVE L. HILL
Senior Counselor to the Assistant Attorney General
Civil Rights Division

13
/s/ Melanie L. Proctor
14 MELANIE L. PROCTOR
15 Assistant United States Attorney
450 Golden Gate Avenue, Box 36055
16 San Francisco, California 94102
Telephone: [phone]
17 Facsimile: [phone]
[e-mail]
18
19
20

/s/ Nabina Sinha
NABINA SINHA
Trial Attorney
MEGAN E. SCHULLER, CSBN 281468
Trial Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W. - NYA
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
[e-mail]

21
22

Attorneys for the United States

23
DEPARTMENT OF FAIR EMPLOYMENT
AND HOUSING
/s/ R. Sybil Villanueva
R. SYBIL VILLANUEVA 4
Attorney for Plaintiff Department of Fair
Employment and Housing

24
25
26
27
28

4

I, R. Sybil Villanueva, hereby attest that I gained the concurrence of all signatories whose signatures are
represented by /s/ in the filing of this document.
- 16 CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

1
2
3
4
5
6
7
8

The LEGAL AID SOCIETY - EMPLOYMENT
LAW CENTER
/s/ Claudia Center
CLAUDIA CENTER
Attorney for Plaintiff-Intervenors ANDREW
QUAN, NICHOLAS JONES,
FULBRIGHT & JAWORSKI L.L.P.
/s/ Robert Burgoyne
ROBERT A. BURGOYNE
Attorneys for Defendant Law School Admission
Council, Inc.

9
10

IT IS ORDERED that the forgoing Agreement is approved.

11
5th
March
Signed this _____ day of _______________, 2013.

RT

18

ER

H

19
20

R NIA

n

M. Che

FO

dward
Judge E

NO

17

LI

16

________________________________
EDWARD M. CHEN
DERED
UNITED STATES DISTRICT OR
S SO COURT JUDGE
IT I

UNIT
ED

15

S DISTRICT
TE
C
TA

RT
U
O

14

S

13

A

12

N

F
D IS T IC T O
R

21
22
23
24
25
26
27
28
- 17 CASE NO. CV 12-1830-EMC
PARTIES’ STIPULATIONS REGARDING PROPOSED ORDER REGARDING DISCOVERY

C

Attachment “A” to Rule 26(f) Stipulation and Order:
Metadata Fields
Name of Field

Type of
field

Begin_Bates

Text

End_Bates

Text

Attachment
Range

Text

Author
To
CC
BCC
Subject

Paragraph
Paragraph
Paragraph
Paragraph
Paragraph

Contents
Spreadsheets

E-mail

Word Processing
or PDFs
Bates number for Bates number for
the TIFF image
the TIFF image of
of the first page
the first page

Bates number for
the TIFF image
of the last page
Bates range
starting with the
first page of the
parent document
through the last
page of the last
attachment.
Blank if there are
no child
documents

“From” field
“To” field
“CC” field
“BCC” field
“Subject” field

Bates number of
the placeholder
page

Bates number for
the TIFF image of
the last page
Bates range
starting with the
first page of the
parent document
through the last
page of the last
attachment or
embedded file.
Included only if
part of a group of
documents like an
email or zip file.
<blank>
<blank>
<blank>
<blank>
<blank>

Bates number of
the placeholder
page
Bates range
starting with the
first page of the
parent document
through the last
page of the last
attachment or
embedded file.
Included only if
part of a group of
documents like an
email or zip file.
<blank>
<blank>
<blank>
<blank>
<blank>
1

Digital Photos

Paper

Bates number
branded onto a
TIFF file that has
the same
resolution as the
native image file.
Bates number
branded onto the
native image file
Bates range
starting with the
first page of the
parent document
through the last
page of the last
attachment or
embedded file.
Included only if
part of a group of
documents like an
email or zip file.
<blank>
<blank>
<blank>
<blank>
<blank>

Bates number for
the TIFF image of
the first page

Bates number for
the TIFF image of
the last page
Bates range of all
documents that
were grouped
together/
physically attached
by clips, staples, or
binding or folder.
Blank if a single
non grouped
document

<blank>
<blank>
<blank>
<blank>
<blank>

Name of Field

Type of
field

E-mail

DateSent

Date

TimeSent

Time

MD5Hash

Paragraph

Prod_FilePath

Paragraph

The date the
message was
sent (format:
9/28/2012)
The time the
message was
sent (format:
11:16:46 AM)
The MD5 hash
value calculated
when the file
was collected or
processed.
<blank>

Orig_File Name

Paragraph

<blank>

FileExtension

Text

<blank>

DocumentType

Text

“Electronic Mail
Message”

Contents
Spreadsheets

Word Processing
or PDFs
<blank>

<blank>

<blank>

<blank>

<blank>

<blank>

<blank>

<blank>

The MD5 hash
value calculated
when the file was
collected or
processed.
The path to the
native file on the
production media

The MD5 hash
value calculated
when the file was
collected or
processed.
The path to the
native file on the
production media

The MD5 hash
value calculated
when the file was
collected or
processed.
<blank>

<blank>

Original name of
the native file
when the file was
collected or
processed
The extension of
the file when the
file was collected.
“Application File”
or “Mail Message
Attachment”

Original name of
the native file
when the file was
collected or
processed
The extension of
the file when the
file was collected.
“Application File”
or “Mail Message
Attachment”

<blank>

<blank>

The extension of
the file when the
file was collected.
“Application File”
or “Mail Message
Attachment”

<blank>

2

Digital Photos

Paper

<blank>

“Hard Copy”