Strub v. YouTube LLC

Filing 58

STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION. Signed by Judge Richard Seeborg on 4/8/14. (cl, COURT STAFF) (Filed on 4/8/2014)

1 Glenn F. Ostrager
(admitted pro hac vice) NY S.B.N. 1508456
[e-mail]
Joshua S. Broitman
(admitted pro hac vice) NY S.B.N. 2583227
[e-mail]
OSTRAGER CHONG FLAHERTY
& BROITMAN P.C.
570 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
Melissa J. Baily (Bar No. 237649)
Adam Botzenhart (Bar No. 282108)
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
Attorneys for Defendants, YouTube, LLC and
Google Inc.

Robert C. Schubert S.B.N. 62684
[e-mail]
Willem F. Jonckheer S.B.N. 178748
[e-mail]
SCHUBERT JONCKHEER & KOLBE LLP
Three Embarcadero Center, Suite 1650
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff Daniel Strub
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

DANIEL STRUB,
C.A. No. 3:13-cv-04704 (RS)
Plaintiff,
STIPULATED ORDER RE:
DISCOVERY OF ELECTRONICALLY
STORED INFORMATION

v.
YOUTUBE, LLC, and GOOGLE INC.,
Defendants.

Case No. 3:13-cv-04704 (RS)
STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION

1

1. PURPOSE
This Order will govern discovery of electronically stored information (“ESI”) in this case
as a supplement to the Federal Rules of Civil Procedure, this Court’s Guidelines for the Discovery
of Electronically Stored Information, and any other applicable orders and rules.
2. COOPERATION
The parties are aware of the importance the Court places on cooperation and commit to
cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the
Discovery of ESI.
3. LIAISON
a)

The parties have identified liaisons to each other who are and will be

knowledgeable about and responsible for discussing their respective ESI. Each e-discovery liaison
will be, or have access to those who are, knowledgeable about the technical aspects of e-discovery,
including the location, nature, accessibility, format, collection, search methodologies, and
production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer about
ESI and to help resolve disputes without court intervention.
b)

Defendants appoint Andrew Elgin and Adam Botzenhart as their e-discovery

liaisons.
c)

Plaintiff appoints Roberto L. Gomez

4. PRESERVATION
The parties have discussed their preservation obligations and needs and agree that
preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs
and burdens of preservation and to ensure proper ESI is preserved, the parties agree that:
a)

The parties have discussed the types of ESI they believe should be preserved and

the custodians, or general job titles or descriptions of custodians, for whom they believe ESI
should be preserved, e.g., “HR head,” “scientist,” and “marketing manager.” The parties shall add
or remove custodians as reasonably necessary;
b)

The parties have agreed that ESI will be preserved for three custodians per side;

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c)

These data sources are not reasonably accessible because of undue burden or cost

pursuant to Fed. R. Civ. P. 26(b)(2)(B) and ESI from these sources will be preserved pursuant to
normal business retention, but not searched, reviewed, or produced:
1.
2.
d)

backup systems and/or tapes used for disaster recovery; and
systems no longer in use that cannot be accessed.

Among the sources of data the parties agree are not reasonably accessible, the

parties agree not to preserve the following:
1.

voicemail messages

2.

information from handsets, mobile devices, personal digital assistants, and
tablets that is duplicative of information that resides in a reasonably
accessible data source;

3.

instant messaging;

4.

automatically saved versions of documents and emails;

5.

video and audio recordings;

6.

deleted, slack, fragmented, or other data accessible only by forensics;

7.

random access memory (RAM), temporary files, or other ephemeral data
that are difficult to preserve without disabling the operating system;

8.

On-line access data such as temporary internet files, history, cache,
cookies, and the like;

9.

dynamic fields of databases or log files that are not retained in the usual
course of business; and

10.

Data in metadata fields that are frequently updated automatically, such as
last opened dates.

5. SEARCH
a)

The parties agree that, in responding to an initial Fed. R. Civ. P. 34 request, they

will meet and confer about methods to search ESI in order to identify ESI that is subject to
production in discovery and filter out ESI that is not subject to discovery.
b)

Each party will use its best efforts to filter out common system files and application

executable files and may use a commercially reasonable hash identification process. Hash values
that may be filtered out during this process are located in the National Software Reference Library
(“NSRL”) NIST hash set list. Additional culling of system file types based on file extension may
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Case No. 3:13-cv-04704 (RS)

1 include, but are not limited to: WINNT, LOGS, DRVS, MP3, MP4, C++ Program File (c), C++
Builder 6 (cpp), Channel Definition Format (cdf), Creatures Object Sources (cos), Dictionary file
(dic), Executable (exe), Hypertext Cascading Style Sheet (css), JavaScript Source Code (js), Label
Pro Data File (IPD), Office Data File (NICK), Office Profile Settings (ops), Outlook Rules Wizard
File (rwz), Scrap Object, System File (dll), Temporary File (tmp), Windows Error Dump (dmp),
Windows Media Player Skin Package (wmz), Windows NT/2000 Event View Log file (evt),
Python Script files (.py, .pyc, .pud, .pyw), Program Installers.
c)

Each party is required to produce only a single copy of a responsive document

and each party may de-duplicate responsive ESI (based on MD5 or SHA-1 hash values at the
document level) across custodians. For emails with attachments, the hash value is generated
based on the parent/child document grouping. A party may also de-duplicate “near-duplicate”
email threads as follows: In an email thread, only the final-in-time document need be produced,
assuming that all previous emails in the thread are contained within the final message. Where a
prior email contains an attachment, that email and attachment shall not be removed as a “nearduplicate.” To the extent that de-duplication through MD5 or SHA-1 hash values is not possible,
the parties shall meet and confer to discuss any other proposed method of de-deduplication.
d)

No provision of this Order affects any inspection of source code that is

responsive to a discovery request and will be made available consistent with the protective order
governing this case.
6. PRODUCTION FORMATS
The parties agree to produce documents in the formats described in Appendix 1 to this
Order. If particular documents warrant a different format, the parties will cooperate to arrange
for the mutually acceptable production of such documents. The parties agree not to degrade the
searchability of documents as part of the document production process.
7. DOCUMENTS PROTECTED FROM DISCOVERY
a)

Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product-

protected document, whether inadvertent or otherwise, is not a waiver of privilege or protection
from discovery in this case or in any other federal or state proceeding. For example, the mere
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Case No. 3:13-cv-04704 (RS)

1 production of privileged or work-product-protected documents in this case as part of a mass
production is not itself a waiver in this case or in any other federal or state proceeding.
Information that contains privileged matter or attorney work product shall be immediately
returned if such information appears on its face to have been inadvertently produced or if notice
is provided.
b)

Communications involving trial counsel that post-date the filing of the complaint

need not be placed on a privilege log. Communications may be identified on a privilege log by
category, rather than individually, if appropriate.
c)

Activities undertaken in compliance with the duty to preserve information are

protected from discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
8. MODIFICATION
This Stipulated Order may be modified by a Stipulated Order of the parties or by the
Court for good cause shown. Any such modified Stipulated Order will be titled sequentially as
follows, “First Modified Stipulated Order re: Discovery of Electronically Stored Information for
Standard Litigation,” and each modified Stipulated Order will supersede the previous Stipulated
Order.

IT IS SO STIPULATED, through Counsel of Record.

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Case No. 3:13-cv-04704 (RS)

1 Dated: April 4, 2014

OSTRAGER CHONG FLAHERTY & BROITMAN P.C.
By: /s/ Glenn F. Ostrager
Glenn F. Ostrager (admitted pro hac vice)
Joshua S. Broitman (admitted pro hac vice)
570 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]
Robert C. Schubert S.B.N. 62684
[e-mail]
Willem F. Jonckheer S.B.N. 178748
[e-mail]
SCHUBERT JONCKHEER & KOLBE LLP
Three Embarcadero Center, Suite 1650
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff Daniel Strub

Dated: April 4, 2014

QUINN EMANUEL URQUHART & SULLIVAN, LLP
By: /s/ Adam Botzenhart
Adam Botzenhart, S.B.N. 282108
[e-mail]
Melissa J. Baily, S.B.N. 237649
[e-mail]
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendants YouTube, LLC and Google
Inc.

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IT IS ORDERED that the foregoing Agreement is approved.

Dated: ______________________
4/8/14

_________________________________________
Richard Seeborg, United States District Judge

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APPENDIX 1
PRODUCTION FORMAT AND METADATA
1. Production Components. Productions shall include, single page TIFFs, Text Files, an
ASCII delimited metadata file (.txt, .dat, or .csv) and an image load file that can be
loaded into commercially acceptable production software (e.g., Concordance).
2. Image Load File shall contain the following comma-delimited fields: BEGBATES,
VOLUME, IMAGE FILE PATH, DOCUMENT BREAK, FOLDER BREAK, BOX
BREAK, PAGE COUNT to the extent applicable.
3. Metadata Fields and Metadata File. Each of the metadata and coding fields set forth
below that can be extracted shall be produced for each document. The parties are not
obligated to populate manually any of the fields below if such fields cannot be extracted
from a document, with the exception of the following: BEGBATES, ENDBATES,
BEGATTACH, ENDATTACH, and CUSTODIAN. The metadata file shall be
delimited according to the following characters:
●

Delimiter = ¶ (ASCII:020)

●

Text-Qualifier = þ (ASCII:254)

●

New Line = ® (ASCII:174) or ÿ (ASCII:255)

Field Name

Field Description

BEGBATES

Beginning Bates number as stamped on the production image

ENDBATES

Ending Bates number as stamped on the production image

BEGATTACH

First production Bates number of the first document in a
family

ENDATTACH

Last production Bates number of the last document in a
family

CUSTODIAN

Includes the Individual (Custodian) from whom the
documents originated and all Individual(s) whose documents
de-duplicated out (De-Duped Custodian).
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SUBJECT

Subject line of email

TITLE

Title from properties of document

DATESENT

Date email was sent (format: MM/DD/YYYY)

TO

All recipients that were included on the “To” line of the email

FROM

The name and email address of the sender of the email

CC

All recipients that were included on the “CC” line of the
email

BCC

All recipients that were included on the “BCC” line of the
email

AUTHOR

Any value populated in the Author field of the document
properties

FILENAME

Filename of an electronic document (Edoc or attachment)

DATEMOD

Date an electronic document was last modified (format:
MM/DD/YYYY) (Edoc or attachment)

DATECREATED

Date the document was created (format: MM/DD/YYYY)
(Edoc or attachment)

NATIVELINK

Native File Link (Native Files only)

4. TIFFs. Documents that exist only in hard copy format shall be scanned and produced
as TIFFs. Unless excepted below, documents that exist as ESI shall be converted and
produced as TIFFs. Unless excepted below, single page Group IV TIFFs should be
provided, at least 300 dots per inch (dpi) for all documents. Each TIFF image shall be
named according to a unique corresponding Bates number associated with the document.
Each image shall be branded according to the Bates number and the agreed upon
confidentiality designation. Original document orientation should be maintained (i.e.,
portrait to portrait and landscape to landscape). TIFFs shall show all text and images that
would be visible to a user of the hard copy documents.

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5. Text Files. A single multi-page text file shall be provided for each document, and the
filename should match its respective TIFF filename. A commercially acceptable
technology for optical character recognition “OCR” shall be used for all scanned, hard
copy documents. When possible, the text of native files should be extracted directly
from the native file. Text files will not contain the redacted portions of the documents
and OCR text files will be substituted instead of extracted text files for redacted
documents.
6. Image Load Files / Data Load Files. Each TIFF in a production must be referenced in
the corresponding image load file. The total number of documents referenced in a
production’s data load file should match the total number of designated document breaks
in the Image Load file(s) in the production. The total number of pages referenced in a
production’s image load file should match the total number of TIFF files in the
production. The total number of documents in a production should match the total
number of records in the data load file.
7. Bates Numbering. All images must be assigned a unique Bates number that is
sequential within a given document and across the production sets.
8. Confidentiality Designation. Responsive documents in TIFF format will be stamped
with the appropriate confidentiality designations in accordance with the Protective Order
in this matter. Each responsive document produced in native format will have its
confidentiality designation identified in the filename of the native file.
9. Redaction Of Information. If documents are produced containing redacted information,
an electronic copy of the original, unredacted data shall be securely preserved in such a
manner so as to preserve without modification, alteration or addition the content of such
data including any metadata therein.
10. Spreadsheets. TIFF images of spreadsheets (MS Excel, Google Sheets) need not be
produced unless redacted, in which instance, spreadsheets shall be produced in TIFF
with OCR Text Files. Native copies of spreadsheets shall be produced with a link in the
NativeLink field, along with extracted text and applicable metadata fields set forth in
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Paragraph 3. A TIFF placeholder indicating that the document was provided in native
format should accompany the database record. If a spreadsheet has been redacted, TIFF
images and OCR text of the redacted document will suffice in lieu of a native file and
extracted text. The parties will make reasonable efforts to ensure that any spreadsheets
that are produced only as TIFF images are formatted so as to be readable.
11. Proprietary Files. To the extent a response to discovery requires production of ESI
accessible only through proprietary software, the parties should continue to preserve each
version of such information. The parties shall meet and confer to finalize the
appropriate production format.
12. Request(s) for Additional Native Files. If good cause exists to request production of
certain files, other than those specifically set forth above, in native format, the party may
request such production and provide an explanation of the need for native file review,
which request shall not unreasonably be denied. Any native files that are produced shall
be produced with a link in the NativeLink field, along with extracted text and applicable
metadata fields set forth in Paragraph 3. A TIFF placeholder indicating that the
document was provided in native format should accompany the database record. If a file
has been redacted, TIFF images and OCR text of the redacted document will suffice in
lieu of a native file and extracted text.
13. Production Media. Documents shall be produced on external hard drives, readily
accessible computer(s) or other electronic media (“Production Media”), as appropriate.
Each piece of Production Media shall identify a production number corresponding to the
production volume (e.g., “VOL001,” “VOL002”), as well as the volume of the material
in that production (e.g. “-001,” “-002”). Each piece of Production Media shall also
identify: (1) the producing party’s name; (2) the production date; (3) the Bates Number
range of the materials contained on the Production Media; and (4) the set(s) of requests
for production for which the documents are being produced.

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