Federal Trade Commission v. DIRECTV, Inc. et al
Filing
55
ORDER by Judge Haywood S. Gilliam, Jr. Granting 52 Stipulation Re: Discovery of Electronically Stored Information. (ndrS, COURT STAFF) (Filed on 10/15/2015)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Jonathan E. Nuechterlein
General Counsel
Eric D. Edmondson, D.C. Bar No. 450294
Erika Wodinsky, Cal. Bar No. 091700
Jacob A. Snow, Cal. Bar No. 270988
Boris Yankilovich, Cal Bar No. 257887
901 Market Street, Suite 570,
San Francisco, CA 94103
(415) 848-5100 / (415) 848-5184 (fax)
eedmondson@ftc.gov; ewodinsky@ftc.gov;
jsnow@ftc.gov; byankilovich@ftc.gov
Raymond E. McKown, Cal. Bar No. 150975
Kenneth Abbe, Cal. Bar No. 172416
Stacy Procter, Cal. Bar No. 221078
10877 Wilshire Blvd., Suite 700,
Los Angeles, CA 90024
(310) 824-4343 / (310) 824-4380 (fax)
rmckown@ftc.gov; sprocter@ftc.gov
Attorneys for Plaintiff
Federal Trade Commission
Chad S. Hummel (Bar No. CA 139055)
Clayton S. Friedman (Bar No. CA 245513)
Mark D. Campbell (Bar No. CA 180528)
Michael Yaghi (Bar No. CA 202720)
chummel@sidley.com, cfriedman@sidley.com;
mcampbell@sidley.com; myaghi@sidley.com
SIDLEY AUSTIN LLP
1999 Avenue of the Stars, 17th Floor
Los Angeles, CA 90067
Telephone: (310) 595-2600
Facsimile: (310) 595-2601
Ryan M. Sandrock (Bar No. CA 251781)
SIDLEY AUSTIN LLP
555 California Street
San Francisco, CA 94104
Telephone: (415) 772-1200
Facsimile: (415) 772-7400
rsandrock@sidley.com
Attorneys for Defendants
DIRECTV and DIRECTV, LLC
15
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
16
17
18
19
FEDERAL TRADE COMMISSION,
Plaintiff,
v.
20
21
22
DIRECTV,
a corporation,
and
Case No. 15-cv-01129-HSG
STIPULATED ORDER RE:
DISCOVERY OF ELECTRONICALLY
STORED INFORMATION
23
24
DIRECTV, LLC,
a limited liability company,
25
Defendants.
26
27
28
1.
PURPOSE
[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG
Page 1 of 7
This Order will govern discovery of electronically stored information (“ESI”) in this case
1
2
as a supplement to the Federal Rules of Civil Procedure, this Court’s Guidelines for the
3
Discovery of Electronically Stored Information, and any other applicable orders and rules.
4
2.
COOPERATION
The parties are aware of the importance the Court places on cooperation, and commit to
5
6
cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the
7
Discovery of ESI.
8
3.
LIAISON
The parties have identified liaisons to each other who are and will be knowledgeable
9
10
about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or
11
have access to those who are, knowledgeable about the technical aspects of e-discovery,
12
including the location, nature, accessibility, format, collection, search methodologies, and
13
production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer about
14
ESI and to help resolve disputes without court intervention.
15
4.
PRESERVATION
16
The parties have discussed their preservation obligations and needs, and agree that
17
preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs
18
and burdens of preservation and to ensure that proper ESI is preserved, the parties agree that:
19
a. Only ESI created or received after January 1, 2007 will be preserved.
20
b. The parties have committed to exchanging a list of the types of ESI they believe
21
should be preserved and the criteria for organizational departments, custodians or
22
descriptions of custodians, or general job titles, for which they believe ESI should
23
be preserved. In the context of responding to the Federal Trade Commission’s
24
(“FTC”) Civil Investigative Demands (“CIDs”) in connection with the FTC’s
25
investigation leading to this action, Defendants (collectively, “DIRECTV”) have
26
already preserved and produced to the FTC certain ESI that was in their
27
possession, custody, or control.
28
c. In addition to the agreements referenced in Paragraph 6 of the Initial Joint Case
[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG
Page 2 of 7
1
Management Statement (Dkt. 33), the parties agree generally not to require the
2
preservation or production of the following categories of materials, absent a
3
showing of good cause by the requesting party:
4
i. Random access memory (RAM), temporary files, or other ephemeral data
5
that are difficult to preserve without disabling the operating system; and
ii. Back-up data that are duplicative of data that are more accessible
6
elsewhere.
7
8
The parties agree that they may subsequently identify additional types of ESI that
9
need not be preserved, logged, or produced.
10
d. Recognizing that the obligation to preserve materials is not necessarily identical
11
to and coextensive with the obligation to produce materials in discovery, the
12
parties agree that any agreement or commitment to preserve materials by any
13
party does not constitute that party’s admission that such materials are properly
14
discoverable or will be produced in discovery.
15
5.
SEARCH
The parties agree that after responding in writing to requests to produce pursuant to Fed.
16
17
R. Civ. P. 34, they will meet and confer about methods to search ESI in order to identify ESI that
18
is subject to production in discovery and filter out ESI that is not subject to discovery. The
19
parties may agree to use search terms where appropriate.
20
6.
21
PRODUCTION FORMATS
Except as noted below, the parties agree to produce documents in native format whenever
22
possible, in near-native format when native is not possible, and, if neither format is
23
technologically feasible, TIFF files with metadata and extracted text.
24
For email ESI, the parties agree to produce in MSG, EML, or PST formats, or if none of
25
these formats is technologically feasible, as TIFF files with metadata and extracted text. For
26
webpage ESI, the parties agree to produce in existing native format, or that is not technologically
27
feasible, in a near-native format that would sufficiently permit a full and fair examination of ESI.
28
For multimedia ESI, the parties agree to produce in .mp3 or .mp4 formats, or not technologically
[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG
Page 3 of 7
1
feasible, in existing native format. For materials available only in “hard” format—e.g., on
2
paper—the parties agree to produce in a PDF format, with searchable text embedded in the PDF,
3
or if not technologically feasible, as singe-page TIFF files with metadata and extracted,
4
searchable text. For ESI available only in a format accessible through proprietary software not
5
available to the general public, the parties agree to confer about production.
If particular documents warrant a different format, the parties will cooperate to arrange
6
7
for the mutually acceptable production of such documents.
The parties agree to permit de-duplication of identical files only in accordance with the
8
9
FTC’s Production Guide (exchanged between the parties). Specifically, the parties agree to de-
10
duplicate only if within a unique custodian search, and only by using hash value (MD5 or SHA-
11
1).
12
The parties agree not to use email threading software as part of production.
13
The parties agree to strip password protection from ESI materials produced whenever
14
possible. If not possible, the producing party shall provide a reference sheet with clearly
15
identified passwords for password-protected materials.
The parties agree not to degrade the searchability of documents as part of the document
16
17
production process.
Subject to and consistent with this Order, the parties agree to adhere to the Federal Trade
18
19
Commission, Bureau of Consumer Protection Production Requirements, attached hereto as
20
Exhibit A, including, but not limited to, for the procedures governing the production of Metadata
21
in ESI.
DIRECTV need not re-produce to the FTC in discovery documents that DIRECTV has
22
23
already produced to the FTC as part of its responses to the FTC’s CIDs. However, to the extent
24
that any such previously produced documents are responsive to the FTC’s requests in discovery,
25
in lieu of re-production DIRECTV shall specify which of its previously produced documents are
26
responsive.
27
7.
28
PHASING
When a party propounds discovery requests pursuant to Fed. R. Civ. P. 34, the parties
[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG
Page 4 of 7
1
agree, if appropriate, to discuss phasing the production of ESI (e.g., phasing by ESI source or
2
type).
3
8.
4
DOCUMENTS PROTECTED FROM DISCOVERY
a. Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product-
5
protected document, whether inadvertent or otherwise, is not a waiver of privilege
6
or protection from discovery in this case or in any other federal or state
7
proceeding. For example, the mere production of privileged or work-product-
8
protected documents in this case is not itself a waiver in this case or in any other
9
federal or state proceeding. Nothing in this Order shall be interpreted to limit the
10
applicability of Fed. R. Evid. 502(d).
11
b. The parties shall take reasonable steps to prevent the disclosure of privileged or
12
work product material (together, “protected” material). In the event of such
13
disclosure, the parties shall follow the procedures set forth in Fed. R. Civ. P.
14
26(b)(5)(B) and herein for materials produced in discovery in this action by both
15
parties and nonparties.
16
c. If a receiving party discovers material produced to it by a party or nonparty in this
17
action that the receiving party reasonably believes to be protected material, the
18
receiving party shall promptly notify the producing party in writing and segregate
19
that material (or the protected portion) until it receives a response from the
20
producing party or the passage of seven days, whichever is earlier. If, after such
21
notice, the party that produced the material fails within seven days to state its
22
position about the privileged or protected status of the material, the receiving
23
party may deem all claims of privilege of protection for that material waived.
24
d. If a producing party discovers that it has disclosed protected material to another
25
party, it shall (1) notify the receiving party in writing within seven days after such
26
discovery, and (2) take prompt reasonable steps to identify any other protected
27
material that it also may have disclosed. If the producing party fails to notify the
28
receiving party within seven days of its disclosure of the protected material and
[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG
Page 5 of 7
1
state its position about the privileged or protected status of the material, the
2
receiving party may deem all claims of privilege of protection for that material
3
waived.
e. If the parties disagree about the applicability of any asserted privilege or other
4
5
protection for material that the producing party contends is protected material and
6
should not have been disclosed, the parties shall promptly meet and confer to
7
resolve the issue. If the parties cannot resolve the issue, the party that produced
8
the material shall have the obligation to raise that dispute to the Court and shall
9
exercise reasonable diligence in doing so.
10
f. Any party’s return, sequester, or destruction of any material pursuant to this Order
11
or the procedures set forth in Fed. R. Civ. P. 26(b)(5)(B) does not waive any right
12
to challenge the assertion of privilege or other protection for that material in any
13
litigation.
14
15
16
9.
MODIFICATION
This Stipulated Order may be modified by a Stipulated Order of the parties or by the
Court for good cause shown.
17
18
19
20
21
22
23
24
25
26
27
28
IT IS SO STIPULATED, through Counsel of Record.
Dated: October 7, 2015
/s/ Eric D. Edmondson
_
Eric D. Edmondson
Counsel for Plaintiff
FEDERAL TRADE COMMISSION
Pursuant to Local Rule 5-1(i), the filer
attests that concurrence in the filing of this
document has been obtained from the other
signatory.
Dated: October 7, 2015
/s/ Chad S. Hummel
Chad S. Hummel
Counsel for Defendants
[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG
Page 6 of 7
_
1
2
IT IS ORDERED that the forgoing Agreement is approved.
3
4
5
6
7
Dated: October 15, 2015
_________________________________________
Haywood S. Gilliam, Jr.
United States District Judge
Northern District of California
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG
Page 7 of 7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?