OpenTV, Inc. et al v. Netflix, Inc.

Filing 38

STIPULATION AND E-DISCOVERY ORDER. Signed by Judge Richard Seeborg on 11/13/14. (cl, COURT STAFF) (Filed on 11/13/2014)

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Russell E. Levine, P.C. (pro hac vice)
[e-mail]
Paul D. Collier (pro hac vice)
[e-mail]
James B. Medek (pro hac vice)
[e-mail]
Greg Polins (pro hac vice)
[e-mail]
George William Foster (pro hac vice)
[e-mail]
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]

DURIE TANGRI LLP
DARALYN J. DURIE (SBN 169825)
[e-mail]
CLEMENT S. ROBERTS (SBN 209203)
[e-mail]
LAURA E. MILLER (SBN 271713)
[e-mail]
ZAC A. COX (SBN 283535)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
NETFLIX, INC.

John R. Edwards (S.B.N. 244310)
[e-mail]
Brian W. Lee (S.B.N. 255363)
[e-mail]
Mark D. Fahey (S.B.N. 294551)
[e-mail]
KIRKLAND & ELLIS LLP
3330 Hillview Avenue
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiffs OpenTV, Inc. and
Nagra France

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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OPENTV, INC., and NAGRA FRANCE
SAS,
Plaintiffs,

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v.

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NETFLIX, INC.,

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Defendant.

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Case Nos.:

3:14-cv-01525-RS
3:14-cv-01723-RS

STIPULATION & [PROPOSED]
E-DISCOVERY ORDER

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STIPULATION & [PROPOSED]
E-DISCOVERY ORDER

3:14-cv-01525-RS
3:14-cv-01723-RS

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Upon the stipulation of the parties, the Court ORDERS as follows:
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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 inexpensive

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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.
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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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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 obtain

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email parties must propound specific email production requests in accordance with Paragraph 9.

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Email production requests shall only be propounded for specific issues, rather than

general discovery of a product or business.
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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 of

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

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efficient and economical streamlining of the case.

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STIPULATION & [PROPOSED]
E-DISCOVERY ORDER

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3:14-cv-01525-RS
3:14-cv-01723-RS

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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.

Each requesting party shall limit its email production requests to a total of five

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custodians per producing party for all such requests. The parties may jointly agree to modify this

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limit without the Court’s leave. The Court shall consider contested requests for additional

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custodians, upon showing a distinct need based on the size, complexity, and issues of this specific

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case. Cost-shifting may be considered as part of any such request.

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11.

Each requesting party shall limit its email production requests to a total of five search

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terms per custodian per party. The parties may jointly agree to modify this limit without the Court’s

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leave. The Court shall consider contested requests for additional search terms per custodian, upon

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showing a distinct need based on the size, complexity, and issues of this specific case. The Court

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encourages the parties to confer on a process to test the efficacy of the search terms. The search

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terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing

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company’s name or its product name, are inappropriate unless combined with narrowing search

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criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple

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words or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single

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

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

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are 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 costs

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for disproportionate discovery. Should a party serve email production requests with search terms

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

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shall be considered in determining whether any party shall bear all reasonable costs caused by such

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additional discovery.

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STIPULATION & [PROPOSED]
E-DISCOVERY ORDER

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3:14-cv-01525-RS
3:14-cv-01723-RS

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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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STIPULATION & [PROPOSED]
E-DISCOVERY ORDER

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3:14-cv-01525-RS
3:14-cv-01723-RS

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IT IS SO STIPULATED, through Counsel of Record.

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Dated: November 6, 2014

/s/ John R. Edwards
Counsel for Plaintiffs

Dated: November 6, 2014

/s/ Laura E. Miller
Counsel for Defendant

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IT IS ORDERED that the forgoing Agreement is approved.

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Dated: 11/13/14

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Richard Seeborg
United States District Judge

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STIPULATION & [PROPOSED]
E-DISCOVERY ORDER

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3:14-cv-01525-RS
3:14-cv-01723-RS

SIGNATURE ATTESTATION

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Pursuant to Local Rule 5-1(i)(3), I hereby attest that I have obtained concurrence in the filing

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of this document from all the signatories for whom a signature is indicated by a "conformed"

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signature (/s/) within this e-filed document and I have on file records to support this concurrence for

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subsequent production to the Court if so ordered for inspection upon request.

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Dated: November 6, 2014

/s/ John R. Edwards

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STIPULATION & [PROPOSED]
E-DISCOVERY ORDER

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3:14-cv-01525-RS
3:14-cv-01723-RS