Fortinet, Inc. v. Sophos, Inc. et al

Filing 64

STIPULATION AND ORDER re 61 DISCOVERY OF ELECTRONICALLY STORED INFORMATION filed by Fortinet, Inc.. Signed by Judge Edward M. Chen on 5/16/14. (bpf, COURT STAFF) (Filed on 5/16/2014)

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JOHN M. NEUKOM (CA Bar No. 275887)
[e-mail]
ANDREW M. HOLMES (CA Bar No.
260475)
[e-mail]
ALICIA VEGLIA (CA Bar No. 291070)
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff FORTINET, INC.

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SEAN C. CUNNINGHAM, Bar No. 174931
[e-mail]
KATHRYN RILEY GRASSO, Bar No.
211187
[e-mail]
RYAN W. COBB, Bar No. 277608
[e-mail]
DAVID R. KNUDSON Bar No. 265461
[e-mail]
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, CA 92101-4297
Telephone: [phone]
Facsimile: 619.699.2701
TODD S. PATTERSON, pro hac vice
[e-mail]
DLA PIPER LLP (US)
401 Congress Avenue, Suite 2500
Austin, Texas 78701-3799
Telephone: [phone]
Facsimile: 512.457.7001

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Attorneys for Defendant and Counterclaim
Plaintiff SOPHOS INC., and Counterclaim
Plaintiff SOPHOS LTD.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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FORTINET, INC., a corporation

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Plaintiff,
vs.

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STIPULATED ORDER RE: DISCOVERY
OF ELECTRONICALLY STORED
INFORMATION

SOPHOS, INC., a corporation, MICHAEL
VALENTINE, an individual, and JASON
CLARK, an individual.

Judge: Honorable Edward M. Chen

Defendants.

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Case No. 3:13-cv-05831-EMC

SOPHOS INC. and SOPHOS LTD.,
corporations,
Counterclaim Plaintiffs,
vs.
FORTINET, INC., a corporation,
Counterclaim Defendant.

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Case No. 3:13-cv-05831-EMC
STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION

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Upon the stipulation of the parties, 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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2. This Order may be modified in the Court’s discretion or by stipulation. The parties

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shall jointly submit any proposed modifications within 30 days after the Federal Rule of Civil

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Procedure 16 Conference.

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3. As in all cases, costs may be shifted for disproportionate ESI production requests
pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory
discovery tactics are cost-shifting considerations.
4. A party’s meaningful compliance with this Order and efforts to promote efficiency and
reduce costs will be considered in cost-shifting determinations.
5. The parties are expected to comply with the District’s E-Discovery Guidelines

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(“Guidelines”) and are encouraged to employ the District’s Model Stipulated Order Re: the

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Discovery of Electronically Stored Information and Checklist for Rule 26(f) Meet and Confer

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regarding Electronically Stored Information.

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6. General ESI production requests under Federal Rules of Civil Procedure 34 and 45

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shall not include email or other forms of electronic correspondence (collectively “email”). To

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obtain email parties must propound specific email production requests.

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7. Email production requests shall only be propounded for specific issues, rather than
general discovery of a product or business.
8. Email production requests shall be phased to occur after the parties have exchanged

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initial disclosures and basic documentation about the patents, the prior art, the accused

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instrumentalities, and the relevant finances. While this provision does not require the production

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of such information, the Court encourages prompt and early production of this information to

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promote efficient and economical streamlining of the case.

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Case No. 3:13-cv-05831-EMC
STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION

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9. Email production requests shall identify the custodian, search terms, and time frame.

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The parties shall cooperate to identify the proper custodians, proper search terms and proper

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timeframe as set forth in the Guidelines.

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10. The parties can request email production from a total of fifteen custodians per

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producing party. The parties may jointly agree to modify this limit without the Court’s leave.

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The Court shall consider contested requests for additional custodians, upon showing a distinct

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need based on the size, complexity, and issues of this specific case. Cost-shifting may be

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considered as part of any such request.

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11. For each custodian, the parties may request eleven search terms comprising (i) the

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opposing party’s name (e.g., Fortinet, Sophos) plus, (ii) ten additional search terms. The parties

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may jointly agree to modify this limit without the Court’s leave. The Court shall consider

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contested requests for additional search terms per custodian, upon showing a distinct need based

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on the size, complexity, and issues of this specific case. The Court encourages the parties to

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confer on a process to test the efficacy of the search terms. The search terms shall be narrowly

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tailored to particular issues. Indiscriminate terms, such as the producing company’s name or its

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

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reduce 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 production requests with search

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terms beyond the limits agreed to by the parties or granted by the Court pursuant to this

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paragraph, this shall be considered in determining whether any party shall bear all reasonable

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costs caused by such additional discovery.

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Case No. 3:13-cv-05831-EMC
STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION

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12. Nothing in this Order prevents the parties from agreeing to use technology assisted

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review and other techniques insofar as their use improves the efficacy of discovery. Such topics

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should be discussed pursuant to the District’s E-Discovery Guidelines.

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DATED: May 15, 2014

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By /s/ John M. Neukom
John M. Neukom (Bar No. 275887)
[e-mail]
50 California Street, 22nd Floor
San Francisco, California 94111-4788
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiff FORTINET, INC.

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QUINN EMANUEL URQUHART &
SULLIVAN, LLP

DATED: May 15, 2014

DLA PIPER LLP (US)

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By /s/ Sean C. Cunningham
SEAN C. CUNNINGHAM, Bar No. 174931
[e-mail]
401 B Street, Suite 1700
San Diego, CA 92101-4297
Telephone: [phone]
Facsimile: 619.699.2701
Attorneys for Defendant and Counterclaim
Plaintiff SOPHOS INC. and Counterclaim
Plaintiff SOPHOS LTD.

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SIGNATURE ATTESTATION
Pursuant to Local Rule 5.1(i)(3), I attest under penalty of perjury that concurrence in the
filing of this document has been obtained from Sean C. Cunningham.
/s/ John M. Neukom

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John M. Neukom

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Case No. 3:13-cv-05831-EMC
STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Hon.RANTEM. Chen
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United States District Judge

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5/16/14
DATED: ________________________ _____________________________________

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Case No. 3:13-cv-05831-EMC
STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION