Touchscreen Gestures LLC v. LG Electronics Inc

Filing 50

ESI DISCOVERY ORDER by Hon. William Alsup granting 45 Stipulation.(whalc1, COURT STAFF) (Filed on 10/15/2013)

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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
Winston O. Huff (admitted pro hac vice)
[e-mail]
Deborah Jagai (admitted pro hac vice)
[e-mail]
W. O. HUFF & ASSOCIATES, PLLC
302 Market Street, Suite 450
Dallas, TX 75202
Telephone: [phone]
Facsimile: 469.206.2173
ATTORNEYS FOR PLAINTIFF
TOUCHSCREEN GESTURES LLC

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Renzo N. Rocchegiani
[e-mail]
McKENNA LONG & ALDRIDGE LLP
4435 Eastgate Mall Suite 400
San Diego, CA 92121
Telephone: [phone]
Facsimile: 202.496.7756

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ATTORNEYS FOR DEFENDANTS
LG ELECTRONICS, INC. AND
LG ELECTRONICS MOBILECOMM
U.S.A., INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO

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TOUCHSCREEN GESTURES LLC,

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Plaintiff,

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v.

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LG ELECTRONICS INC., et al.,
Defendants.

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No. 3:13-cv-03442-WHA
STIPULATION AND PROPOSED
ORDER REGARDING
ELECTRONIC DISCOVERY

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WHEREAS, pursuant to the Court’s Notice Scheduling Initial Case Management
PROPOSED ORDER REGARDING ELECTRONIC DISCOVERY

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CASE NO. 3:13-cv-03442-WHA

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Conference (Dkt. No. 38) and the parties’ Joint Case Management Conference Statement, the

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parties have met and conferred and agreed upon a proposed order regarding electronic discovery

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in the above-captioned cases;

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

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

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electronic discovery in these actions.

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Dated: October 10, 2013

Respectfully submitted,
By: /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)
[e-mail]
Deborah Jagai (admitted pro hac vice)
[e-mail]
W. O. HUFF & ASSOCIATES, PLLC
302 Market Street, Suite 450
Dallas, Texas 75202
Telephone: [phone]
Facsimile: 469.206.2173

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ATTORNEYS FOR PLAINTIFF
TOUCHSCREEN GESTURES LLC

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By: /s/ Renzo N. Rocchegiani (by permission)
Renzo N. Rocchegiani
[e-mail]
McKENNA LONG & ALDRIDGE LLP
4435 Eastgate Mall Suite 400
San Diego, CA 92121
Telephone: [phone]
Facsimile: 202.496.7756

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ATTORNEYS FOR DEFENDANTS
LG ELECTRONICS, INC. AND
LG ELECTRONICS MOBILECOMM
U.S.A., INC.

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PROPOSED ORDER REGARDING ELECTRONIC DISCOVERY

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CASE NO. 3:13-cv-03442-WHA

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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 identification and
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password are being used to file this document, hereby attests that all signatories have concurred
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in the filing of this document.
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/s/ Winston O. Huff
Winston O. Huff

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CERTIFICATE OF SERVICE

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The undersigned certifies that on the 10th day of October, 2013, the foregoing document

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was filed with the Clerk of the U. S. District Court for the Northern District of California, in

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compliance with Civil L. R. 5-1 and using the court’s electronic case filing system (ECF), in

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compliance with Civil L. R. 5-5.

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/s/ Winston O. Huff
Winston O. Huff

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PROPOSED ORDER REGARDING ELECTRONIC DISCOVERY

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CASE NO. 3:13-cv-03442-WHA

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[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

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Electronically Stored Information (“ESI”) production to promote a “just, speedy, and

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inexpensive determination” of this action, as required by Federal Rule of Civil Procedure 1.

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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

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

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tactics will be cost-shifting considerations.

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3.

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

efficiency and reduce costs will be considered in cost-shifting determinations.

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4.

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

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45 shall not include metadata absent a showing of good cause. However, if the parties produce

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emails, fields showing the date and time that the document was sent and received, as well as the

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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

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than in central repositories. To obtain email or custodial ESI beyond the documents described in

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Paragraph 8 below, the parties must propound specific email or custodial ESI production

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requests.

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6.

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

specific issues, rather than general discovery of a product or business.

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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 the

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All limitations in this Order apply to Defendant Groups rather than to individual corporate
entities, regardless of whether that is expressly stated elsewhere.

PROPOSED ORDER REGARDING ELECTRONIC DISCOVERY

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CASE NO. 3:13-cv-03442-WHA

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

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

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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

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streamlining of the case.

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8.

Following the production of documents in Paragraph 7 above, parties may serve

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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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9.

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

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any, to a total of seven custodians per producing party for all such requests. The parties may

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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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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
PROPOSED ORDER REGARDING ELECTRONIC DISCOVERY

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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

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requests with search terms beyond the limits agreed to by the parties or granted by the Court

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pursuant to this paragraph, the requesting party shall bear all reasonable costs caused by such

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additional discovery.

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11.

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

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

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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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13.

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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15.

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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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
PROPOSED ORDER REGARDING ELECTRONIC DISCOVERY

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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

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deleted, and/or unallocated data; automated disaster recovery backup systems; and/or materials

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retained in tape, disks (including floppy disk and optical disk), SAN, or similar formats primarily

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for back-up or disaster recovery purposes, as well as archives stored on computer servers,

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external hard drives, thumb drives, notebooks, or personal computer hard drives that are created

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for disaster recovery purposes or not used as reference materials in the ordinary course of a

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party’s business operations. In addition, the parties agree that with respect to documents that

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automatically “autosave,” only the most recent version of such documents need be searched.

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16.

The producing party need not employ forensic data collection or tracking methods

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

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

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

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extent there is good cause to believe specific, material concerns about authenticity exist with

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respect to specific documents and materials. If receiving party believes that there is such good

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cause, then the producing party and the receiving party shall meet and confer in good faith to

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determine the extent to which forensic and other data associated with the specific documents and

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materials should be produced.

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IT IS SO ORDERED.

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October 15, 2013.
Dated: __________________
Honorable William H. Alsup

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PROPOSED ORDER REGARDING ELECTRONIC DISCOVERY

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CASE NO. 3:13-cv-03442-WHA