Booth et al v. Strategic Realty Trust, Inc. et al

Filing 68

STIPULATION AND ORDER re 65 STIPULATION WITH PROPOSED ORDER regarding Discovery of Electronically Stored Information filed by Lewis Booth, Stephen Drews. Signed by Judge Jon S. Tigar on August 28, 2014. (wsn, COURT STAFF) (Filed on 8/28/2014)

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Daniel C. Girard (State Bar No. 114826)
Dena C. Sharp (State Bar No. 245869)
Adam E. Polk (State Bar No. 273000)
GIRARD GIBBS LLP
601 California Street, 14th Floor
San Francisco, California 94108
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

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(Additional Counsel on Signature Page)

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Attorneys for Plaintiffs Lewis Booth
and Stephen Drews

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LEWIS BOOTH, as Trustee for the Booth Trust
dated 11-20-96, and STEPHEN DREWS, on
behalf of themselves and all others similarly
situated,

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Plaintiffs,

CASE NO: 13-CV-04921-JST

STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION

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v.
STRATEGIC REALTY TRUST, INC. (f/k/a
TNP STRATEGIC RETAIL TRUST, INC.),
THOMPSON NATIONAL PROPERTIES, LLC,
TNP STRATEGIC ADVISOR, LLC, TNP
SECURITIES, LLC, ANTHONY W.
THOMPSON, CHRISTOPHER S. CAMERON,
JAMES R. WOLFORD, JACK R. MAURER,
PHILLIP I. LEVIN, ARTHUR M. FRIEDMAN,
JEFFREY S. ROGERS, ROBERT N. RUTH,
and PETER K. KOMPANIEZ
Defendants.

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

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PURPOSE
This Order will govern discovery of electronically stored information (“ESI”) in this case as a

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supplement to the Federal Rules of Civil Procedure, this Court’s Guidelines for the Discovery of

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Electronically Stored Information, and any other applicable orders and rules.

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2.

COOPERATION

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The parties are aware of the importance the Court places on cooperation and commit to

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cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the Discovery

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of ESI.

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3.

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

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responsible for discussing their respective ESI. Each e-discovery liaison will be, or have access to

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those who are, knowledgeable about the technical aspects of e-discovery, including the location, nature,

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accessibility, format, collection, search methodologies, and production of ESI in this matter. The parties

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will rely on the liaisons, as needed, to confer about ESI and to help resolve disputes without court

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intervention.

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4.

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PRESERVATION
The parties have discussed their preservation obligations and needs and agree that preservation

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of potentially relevant ESI will be reasonable and proportionate. To reduce the costs and burdens of

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preservation and to ensure proper ESI is preserved, the parties agree that:

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a)

Only ESI created or received between December 2007 and the present will be preserved;

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b)

The parties intend to exchange a list of 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;

c)

The parties will agree on the number of custodians per party for whom ESI will be
preserved;

d)

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 but
not searched, reviewed, or produced:

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

1. Plaintiffs are not yet aware of any data sources that are not reasonably accessible
under Fed. R. Civ. P. 26(b)(2)(B), but will immediately update counsel for
defendants should they learn otherwise.

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2. Counsel for all defendants are not yet aware of any data sources not reasonably
accessible under Fed. R. Civ. P. 26(b)(2)(B), but will immediately update the parties
should they learn otherwise.

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e)

Among the sources of data the parties agree are not reasonably accessible, the parties
agree not to preserve the following: Not applicable.

f)

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In addition to the agreements above, the parties agree data from these sources (a) could
contain relevant information but (b) under the proportionality factors, should not be
preserved: Not applicable.

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5.

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SEARCH
The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if

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appropriate, they will meet and confer about methods to search ESI in order to identify ESI that is

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subject to production in discovery and filter out ESI that is not subject to discovery.

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6.

PRODUCTION FORMATS

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The parties agree to produce documents in accordance with the Protocol Governing the

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Production of Electronically Stored Information attached as Exhibit A. If particular documents warrant

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a different format or if any party contends that production in accordance with Exhibit A will cause

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undue burden or expense, the parties will cooperate in good faith to arrange for the mutually acceptable

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form of production of such documents. The parties agree in any event not to degrade the searchability

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of documents as part of the document production process.

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7.

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PHASING
When a party propounds discovery requests pursuant to Fed. R. Civ. P. 34, the parties agree to

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prioritize production of documents and records from sources most likely to contain relevant and

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discoverable information. Following the initial production, the parties will continue to prioritize the

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order of subsequent productions.

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8.

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DOCUMENTS PROTECTED FROM DISCOVERY
a)

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

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

case as part of a mass production is not itself a waiver in this case or in any other federal
or state proceeding.

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b)

The parties have agreed upon a process pursuant to Fed. R. Civ. P. 26(b)(5) and reserve
rights to assert privilege as follows:

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i)

If a producing party has a good faith belief that a privileged document has been
inadvertently produced, it shall promptly notify the receiving parties of the claim
of privilege;

ii)

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Upon receipt of any notice claiming privilege with respect to a produced
document, all other parties (regardless of whether they agree with the producing
party’s claim of privilege) shall promptly:

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a. Use reasonable efforts to destroy or sequester all copies of the inadvertently
produced documents or material in such party’s possession, custody or
control, and notify the disclosing party that they have done so; and

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b. Notify the producing party that they have taken reasonable steps to retrieve
and destroy or sequester the inadvertently produced documents or material
from other persons, if any, to whom such documents or material have been
provided, consistent with Rule 26(b)(5)(B).

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iii)

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c)

To the extent a receiving party disputes the producing party’s claim of privilege,
the receiving party shall notify the producing party of its position within 14 days
of receiving the producing party’s notice the dispute. Within 14 days of
receiving notification of the dispute, the parties shall meet and confer in an effort
to resolve their disagreement. If the parties are unable to resolve their
disagreement, the parties may submit the issue to the Court for a determination,
and may submit any document(s) in dispute under seal in compliance with Rule
26(b)(5)(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.

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

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9.

MODIFICATION
This Stipulated Order may be modified by a Stipulated Order of the parties or by the Court for

good cause shown.

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IT IS SO STIPULATED, through Counsel of Record.

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Dated: August 27, 2014

Respectfully submitted,
GIRARD GIBBS LLP
/s/ Dena C. Sharp
Dena C. Sharp
Daniel C. Girard
Adam E. Polk
601 California Street, 14th Floor
San Francisco, California 94108
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
-andJohn A. Kehoe
711 Third Avenue, 20th Floor
New York, New York 10017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Lead Counsel for Lead Plaintiffs and the Class

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Peiffer Rosca Abdullah & Carr
Joseph C. Peiffer (pro hac vice)
201 St. Charles Avenue, Suite 4100
New Orleans, Louisiana 70170
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

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Alan L. Rosca (pro hac vice)
526 Superior Avenue, Suite 401
Cleveland, Ohio 44114
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Additional Plaintiffs’ Counsel

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Dated: August 27, 2014

DLA PIPER LLP (US)
/s/ David Priebe
David Priebe

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2000 University Avenue
East Palo Alto, CA 94303-2214
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Counsel for Strategic Realty Trust, Inc. (f/k/a TNP
Strategic Retail Trust, Inc.), Phillip I. Levin, Arthur M.
Friedman, Jeffrey S. Rogers, Robert N. Ruth, and Peter
K. Kompaniez

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Dated: August 27, 2014

FIELDS, FEHN & SHERWIN
/s/ Gregory J. Sherwin
Gregory J. Sherwin
11755 Wilshire Boulevard, 15th Floor
Los Angeles, CA 90025-1521
Telephone: [phone]
Facsimile: [phone]
Counsel for Thompson National Properties, LLC, TNP
Strategic Advisor, LLC, TNP Securities, LLC, and
Anthony W. Thompson

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

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Dated: August 27, 2014

ORRICK, HERRINGTON & SUTCLIFFE LLP
/s/ James N. Kramer
James N. Kramer

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M. Todd Scott
The Orrick Building
405 Howard Street
San Francisco, CA 94105-2669
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

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Counsel for Christopher S. Cameron, James R. Wolford,
and Jack R. Maurer

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IT IS ORDERED that the forgoing Agreement is approved.
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Dated: August 28, 2014
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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

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EXHIBIT A

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PROTOCOL GOVERNING THE PRODUCTION OF
ELECTRONICALLY STORED INFORMATION (ESI)

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Production of Data:

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ESI is to be produced in 300 DPI Group IV Monochrome Tagged Image File Format (.TIFF or .TIF)
files. TIFF files shall be produced in single-page format along with image load files (.DII filed and
.OPT file and .LFP file). All documents are to be provided with multi-page searchable text (.TXT) files.
These text files and image load files should indicate page breaks, to the extent possible. To the extent
produced material contains information subject to a claim of privilege, it shall be produced in the form
of a redacted .TIFF image and with OCR of the unredacted portion of the image.

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During the process of converting ESI from the electronic format of the application in which the ESI is
normally created, viewed and/or modified to TIFF, metadata values should be extracted and produced in
a load file (“metadata load file”).

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To the extent they are available, the metadata values that are to be extracted and produced in the
metadata load files (.DAT file using Concordance standard delimiters and .IDX file) are:

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Metadata from Email:

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Email Subject

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Email Author

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Email Recipient

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Email CC

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Email BCC

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Email Received Date

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Email Received Time

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Email Sent Date

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Email Sent Time

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Metadata from Electronic Files:

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File Name

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File Author

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File Created Date

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File Created Time

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File Modified Time
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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

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File Extension
Data for both Email and Electronic Files

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Custodian or Source

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Original Path

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MD5 Hash

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To the extent reasonably available, the “Custodian” “Source” or “Original Path” field with
respect to ESI gathered from an individual’s hard drive will provide metadata sufficient to
identify the custodian from whose hard drive such ESI has been gathered.
For all documents (for example, email) that contained an attachment, to the extent available, the
following fields should be produced as part of the metadata load file to provide the parent/child or
parent/sibling relationship.

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Production Number Begin

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Production Number End

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Production Attachment Range Number Begin

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Production Attachment Range Number End

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Attachment Name

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Production Doc Page Count

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The parties may de-duplicate identical ESI on a global scale, subject to the parties’ good faith agreement
to provide any requesting party information about other custodians who possessed or had access to any
given ESI record that would be available but for the deduplication.

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Production of Excel and Access ESI

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Unless such materials contain privileged information, MS-Excel spreadsheets and MS-Access databases
shall be produced in native format. The metadata load file shall contain a link to the produced MSExcel spreadsheets and MS-Access database via data values called “Native Link.” The Native Link
values should contain the full directory path and file name of the MS-Excel spreadsheet and MS-Access
database as contained in the produced media.

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Production of responsive data contained in relational databases other than MS-Access should be
achieved via a report or export of such data to MS-Excel spreadsheets that will be produced.
Producing native MS-Excel files and MS-Access databases should be accompanied by a reference file
containing the name of the file and MD5 hash value for each produced file. To the extent such material
contains information subject to a claim of privilege, it shall be produced in the form of a redacted .TIFF
image and with OCR of the unredacted portion of the image.

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST

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Production of Audio Files

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Audio files are to be produced in the native audio file format in which they were maintained in the
ordinary course of business. Produced native audio files should be accompanied by a reference file
containing the name of the MD5 hash value for each produced file. If the audio files are maintained in a
non-standard format, they should be produced in MP3 format.

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Bates Numbering

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Bates number and any confidentiality and designation should be electronically branded on each
produced TIFF image ESI. Bates numbers should consist of consecutive characters or connectors
without spaces.

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO: 13-CV-04921-JST