Touchscreen Gestures LLC v. HTC Corporation et al

Filing 57

ORDER GRANTING ELECTRONIC DISCOVERY STIPULATION by Hon. William Alsup granting (54) Stipulation in case 3:13-cv-01772-WHA.Associated Cases: 3:13-cv-01772-WHA, 3:13-cv-02478-WHA, 3:13-cv-02715-WHA, 3:13-cv-02758-WHA, 3:13-cv-02759-WHA(whalc1, COURT STAFF) (Filed on 7/23/2013)

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COUNSEL LISTED ON SIGNATURE PAGE

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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TOUCHSCREEN GESTURES LLC,
6 Plaintiff,
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HTC CORPORATION ET AL.,
8 Defendant.

Case No. 3:13-cv-01772-WHA

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TOUCHSCREEN GESTURES LLC,
10 Plaintiff,
v.
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GOOGLE INC.
12 Defendant.

Case No. 3:13-cv-02478-WHA

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TOUCHSCREEN GESTURES LLC,
14 Plaintiff,
v.
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SAMSUNG ELECTRONICS CO, LTD; ET AL,
16 Defendant.

Case No. 3:13-cv-02715-WHA

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TOUCHSCREEN GESTURES LLC,
18 Plaintiff,
v.
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VIEWSONIC CORPORATION,
20 Defendant.
21 TOUCHSCREEN GESTURES LLC,
22 Plaintiff and Counterclaim Defendant,
v.
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APPLE INC.
24 Defendant and Counterclaim Plaintiff.

Case No. 3:13-cv-02758-WHA

Case No. 3:13-cv-02759-WHA

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STIPULATION AND [PROPOSED] ORDER REGARDING
ELECTRONIC DISCOVERY

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STIPULATION AND [PROPOSED] ORDER
REGARDING ELECTRONIC DISCOVERY

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WHEREAS, pursuant to the parties’ Joint Case Management Conference Statement and

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following the discussion at the July 11, 2013 Case Management Conference, the parties have

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met and conferred and agreed upon a proposed order regarding electronic discovery in the

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above-captioned cases;

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IT IS HEREBY STIPULATED by and between counsel for the parties that, subject to

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the Court’s approval, the attached [Proposed] Order Regarding Electronic Discovery shall

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govern electronic discovery in these actions.

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Dated: July 17, 2013

Respectfully submitted,
/s/ Winston O. Huff
Lewis E. Hudnell, III (CASBN 218736)
Email: [e-mail]
COLVIN HUDNELL LLP
555 California Street, Suite 4925
San Francisco CA 94104
Telephone: [phone]
Facsimile: 347.772.3034

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Winston O. Huff (admitted pro hac vice)
Email: [e-mail]
Deborah Jagai (admitted pro hac vice)
Email: [e-mail]
W. O. HUFF & ASSOCIATES, PLLC
302 Market Street, Suite 450
Dallas, Texas 75202
214.749.1220 (Firm)
469.206.2173 (Facsimile)

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Attorneys for Plaintiff
TOUCHSCREEN GESTURES, LLC

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-2STIPULATION AND [PROPOSED] ORDER
REGARDING ELECTRONIC DISCOVERY

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/s/ Jerry R. Selinger
John C. Carey
PATTERSON & SHERIDAN, LLP
250 Cambridge Ave., suite 300
Palo Alto,CA 94306-1556
Telephone: [phone]
Facsimile: 650.330.2314

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Jerry R. Selinger (Pro Hac Vice)
PATTERSON & SHERIDNA, LLP
1700 Pacific Ave., Suite 2650
Dallas, Texas 75201
Telephone: [phone]
Facsimile: 214.296.0246

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Attorneys for Defendant
HTC CORPORATION AND
HTC AMERICA, INC.

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/s/ Sonal N. Mehta
Garland T. Stephens (Admitted to ND Cal)
[e-mail]
WEIL, GOTSHAL & MANGES LLP
Houston Office
700 Louisiana Street
Houston, TX 77002
Telephone: [phone]
Facsimile: [phone]

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Sonal N. Mehta (CA Bar No. 222086)
[e-mail]
Nathan Greenblatt (CA Bar No. 262279)
[e-mail]
Arjun H. Mehra (CA Bar No. 267918)
[e-mail]
WEIL, GOTSHAL & MANGES LLP
Silicon Valley Office
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
APPLE INC.

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-3STIPULATION AND [PROPOSED] ORDER
REGARDING ELECTRONIC DISCOVERY

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/s/ Brian M. Berliner
Brian M. Berliner (Cal. Bar 165732)
Dawn Sestito (Cal. Bar 214011)
Brian M. Cook (Cal. Bar 266181)
Daniel Levy (Cal. Bar 273386)
O’MELVENY & MYERS LLP
400 South Hope Street, 18th Floor
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

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B. Jennifer Glad (Cal. Bar 239386)
O’MELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Defendants
SAMSUNG ELECTRONICS CO., LTD.;
SAMSUNG ELECTRONICS AMERICA, INC.;
and
SAMSUNG TELECOMMUNICATIONS
AMERICA, LLC

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/s/ Charanjit Brahma
Charanjit Brahma (Cal. Bar. No. 204771)
[e-mail]
GREENBERG TRAURIG
2101 L Street NW, Suite 1000
Washington, DC 20037
Telephone: [phone]
Fax: [phone]

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Attorney for Defendant
GOOGLE INC.

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-4STIPULATION AND [PROPOSED] ORDER
REGARDING ELECTRONIC DISCOVERY

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/s/ Colin H. Murray
D. James Pak (State Bar No. 194331)
Email: [e-mail]
Colin H. Murray (State Bar No. 159142)
Email: [e-mail]
BAKER & MCKENZIE LLP
Two Embarcadero Center, 11th Floor
San Francisco, CA 94111-3802
Telephone: [phone]
Facsimile: [phone]

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Jay F. Utley
Email: [e-mail]
BAKER & MCKENZIE LLP
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, TX 75201
Telephone: [phone]
Facsimile: [phone]

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Richard V. Wells
Email: [e-mail]
BAKER & MCKENZIE LLP
815 Connecticut Avenue, N.W.
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
VIEWSONIC CORPORATION

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ATTESTATION OF E-FILER

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In compliance with Local Rule 5-1(i), the undersigned ECF user whose

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identification and password are being used to file this document, hereby attests that all

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signatories have concurred in the filing of this document.

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/s/ Arjun H. Mehra
Arjun H. Mehra

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-5STIPULATION AND [PROPOSED] ORDER
REGARDING ELECTRONIC DISCOVERY

[PROPOSED] ORDER REGARDING ELECTRONIC DISCOVERY

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The Court ORDERS as follows:

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1.

This Order supplements all other discovery rules and orders. It streamlines

4 Electronically Stored Information (“ESI”) production to promote a “just, speedy, and
5 inexpensive determination” of this action, as required by Federal Rule of Civil Procedure 1.
6 This Order may be modified for good cause.1
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2.

Costs will be shifted for disproportionate ESI production requests pursuant to

8 Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory discovery
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3.

A party’s meaningful compliance with this Order and efforts to promote

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4.

General ESI production requests under Federal Rules of Civil Procedure 34 and

45 shall not include metadata absent a showing of good cause. However, if the parties produce
emails, fields showing the date and time that the document was sent and received, as well as the
complete distribution list, shall generally be included in the production.

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5.

General ESI production requests under Federal Rules of Civil Procedure 34 and

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45 shall not include email or other forms of electronic correspondence (collectively “email”) or
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custodial ESI, except with respect to documents described in Paragraph 7 below. As used
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herein, “custodial ESI” refers to ESI that is in the possession of an individual custodian, rather
than in central repositories. To obtain email or custodial ESI beyond the documents described
in Paragraph 8 below, the parties must propound specific email or custodial ESI production
requests.
6.

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Email or custodial ESI production requests, if any, shall only be propounded for

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All limitations in this Order apply to Defendant Groups rather than to individual corporate entities,

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-1STIPULATION AND [PROPOSED] ORDER
REGARDING ELECTRONIC DISCOVERY

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7.

Email or custodial ESI production requests, if any, shall be phased to occur after

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the parties have exchanged and reviewed (1) initial disclosures and disclosures as required by

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the Patent Local Rules Order and Discovery Order in this case; (2) basic documentation about

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the Patents-in-Suit, the prior art, the design, development, operation, and marketing of the

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accused functionalities, and the relevant finances; and (3) documents about prior knowledge,

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communications, discussion with or between the parties, and documents relating to the Patents-

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in-Suit. While this provision does not require the production of such information, the Court

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encourages prompt and early production of this information to promote efficient and
economical streamlining of the case.
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Following the production of documents in Paragraph 7 above, parties may serve

email or custodial ESI production requests. Such requests, if any, shall identify the custodian,

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search terms, and time frame. The parties shall cooperate to identify the proper custodians,
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proper search terms and proper timeframe.
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Each requesting party shall limit its email or custodial ESI production requests, if

any, to a total of seven custodians per producing party for all such requests. The parties may
jointly agree to modify this limit without the Court’s leave. The Court shall consider contested

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requests for up to five additional custodians per producing party, upon showing a distinct need

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based on the size, complexity, and issues of this specific case. Should a party serve email or

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custodial ESI production requests for additional custodians beyond the limits agreed to by the

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parties or granted by the Court pursuant to this paragraph, the requesting party shall bear all

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reasonable costs caused by such additional discovery.

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10.

Each requesting party shall limit its email or custodial ESI production requests, if

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any, to a total of seven search terms per custodian per party. The parties may jointly agree to

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modify this limit without the Court’s leave. The Court shall consider contested requests for up

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to five additional search terms per custodian, upon showing a distinct need based on the size,

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complexity, and issues of this specific case. The search terms shall be narrowly tailored to

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particular issues. Indiscriminate terms, such as the producing company’s name or its product
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REGARDING ELECTRONIC DISCOVERY

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name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce

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the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g.,

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“computer” and “system”) narrows the search and shall count as a single search term. A

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disjunctive combination of multiple words or phrases (e.g., “computer” or “system”) broadens

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the search, and thus each word or phrase shall count as a separate search term unless they are

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variants of the same word. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is

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encouraged to limit the production and shall be considered when determining whether to shift

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costs for disproportionate discovery. Should a party serve email or custodial ESI production
requests with search terms beyond the limits agreed to by the parties or granted by the Court
pursuant to this paragraph, the requesting party shall bear all reasonable costs caused by such
additional discovery.

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The receiving party shall not use ESI that the producing party asserts is attorney-

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client privileged or work product protected to challenge the privilege or protection.
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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
federal or state proceeding.
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The mere production of ESI in a litigation as part of a mass production shall not

itself constitute a waiver for any purpose.
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Production of ESI in accordance with this Order excludes data that is not

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reasonably accessible because of undue burden or cost (e.g., backup tapes intended for disaster-

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recovery purposes; legacy data leftover from obsolete systems that cannot be retrieved on the

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successor systems; deleted data remaining in fragmented form that requires some type of

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forensic inspection to restore and retrieve it).

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Notwithstanding any other provisions herein, metadata (as used herein to refer to

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electronically stored information about a document that does not appear on the face of the

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original document if emailed or printed), or any back-up materials (i.e., materials retained

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primarily for back-up or disaster recovery purposes) need not be searched or produced absent a
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REGARDING ELECTRONIC DISCOVERY

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Court order upon showing of good cause and neither the producing party nor the receiving party

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need deviate from any practice it normally follows with regard to preservation of such materials

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(e.g., regularly schedule deletion of voicemail, archiving electronic data without associated

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metadata, recycling of back-up tapes conducted in the ordinary course of a party’s business

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operation is permitted), except upon a showing of good cause. The following locations will not

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be searched under any circumstances, and as such need not be preserved, absent a Court order

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upon showing of good cause: personal digital assistants; mobile phones; voicemail and other

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audio systems; instant messaging logs; video; residual, fragmented, damaged, permanently
deleted, and/or unallocated data; automated disaster recovery backup systems; and/or materials
retained in tape, disks (including floppy disk and optical disk), SAN, or similar formats
primarily for back-up or disaster recovery purposes, as well as archives stored on computer

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servers, external hard drives, thumb drives, notebooks, or personal computer hard drives that are
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created for disaster recovery purposes or not used as reference materials in the ordinary course
of a party’s business operations. In addition, the parties agree that with respect to documents
that automatically “autosave,” only the most recent version of such documents need be
searched.
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The producing party need not employ forensic data collection or tracking

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methods and technologies, but instead may make electronic copies for collection and processing

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purposes using widely-accepted methods or methods described in manufacturers’ and/or

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programmers’ instructions, help menus, websites, and the like (e.g., .pst’s, .zip’s, etc.), except

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when and to the extent there is good cause to believe specific, material concerns about

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authenticity exist with respect to specific documents and materials. If receiving party believes

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that there is such good cause, then the producing party and the receiving party shall meet and

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confer in good faith to determine the extent to which forensic and other data associated with the

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specific documents and materials should be produced.

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IT IS SO ORDERED.
Dated: July 22, 2013.

-4STIPULATION AND [PROPOSED] ORDER
REGARDING ELECTRONIC DISCOVERY

__________________________
William Alsup
United States District Judge