Machine Zone, Inc. v. Ember Entertainment, Inc.

Filing 42

Order by Hon. Vince Chhabria granting 40 Stipulation re ESI Production.(knm, COURT STAFF) (Filed on 8/28/2015)

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ARNOLD & PORTER LLP
MICHAEL A. BERTA (No. 194650)
[e-mail]
SEAN M. CALLAGY (No. 255230)
[e-mail]
JOSEPH R. FARRIS (No. 263450)
[e-mail]
RYAN M. KEATS (No. 296463)
[e-mail]
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111-4024
Telephone:
415.471.3100
Facsimile:
415.471.3400
Attorneys for Plaintiff
MACHINE ZONE, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MACHINE ZONE, INC., a Delaware
corporation,

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Case No.: 3:15-cv-01554
STIPULATED ESI PRODUCTION
ORDER

Plaintiff,
v.

Judge:
Hon. Vince Chhabria
Action Filed: April 3, 2015
Trial Date: October 3, 2016

EMBER ENTERTAINMENT, INC., a
Delaware corporation,
Defendant.

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-1STIPULATED ESI PRODUCTION ORDER

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1.

Pursuant to the Standing Order for all Judges of the Northern District of California

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and the Court’s Guidelines for the Discovery of Electronically Stored Information, the parties

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hereby stipulate and agree, and request that the Court enter, the following Order to streamline the

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production of Electronically Stored Information (“ESI”) to promote a “just, speedy, and inexpensive

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determination” of this action, as required by Federal Rule of Civil Procedure 1. This Stipulation

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and Order is intended to supplement all other discovery rules and orders.

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2.

This Order may be modified in the Court’s discretion or by agreement of the parties.

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If the parties cannot resolve their disagreements regarding these modifications, the parties shall

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submit their competing proposals and a summary of their dispute in accordance with the Court’s

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standing order governing discovery disputes.
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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.
4.

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

preservation of potentially relevant ESI will be reasonable and proportionate.
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Absent agreement of the parties or further order of this Court, the following

parameters shall apply to ESI production:

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A.

General Document Image Format. Each electronic document shall initially

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be produced in single-page Tagged Image File Format (“TIFF”) Group IV images

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with a standard delimited Concordance format (DAT file) with an accompanying

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Ipro (LFP file) or Opticon (OPT file) image load file, unless such format is not

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reasonably useable (such as for Microsoft Excel files) or the production format is

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governed by another order or agreement (such as for source code). TIFF files shall

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be named with a unique production number followed by the appropriate file

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extension. Load files shall be provided to indicate the location and unitization of the

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TIFF files. If a document is more than one page, the unitization of the document and

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any attachments and/or affixed notes shall be maintained as they existed in the

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original document.

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-2STIPULATED ESI PRODUCTION ORDER

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B.

Objective Coding and Metadata Fields. The parties shall provide the

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objective coding and metadata fields as set forth in Exhibit A. Nothing herein shall

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require the parties to (1) create or otherwise supply any metadata that is not

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maintained in the usual course of business, or (2) disclose any privileged

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information.

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C.

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production text-searchable; however, if a party’s documents already exist in text-

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searchable format independent of this litigation, or are converted to text-searchable

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format for use in this litigation, including for use by the producing party’s counsel,

Text-Searchable Documents. No party has an obligation to make its

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then such documents shall be produced in the same text-searchable format at no cost

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to the receiving party.

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D.

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ascending production number.

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E.

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specified above may make a reasonable request to receive the document in its native

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format. Upon receipt of such a request, the producing party shall either produce the

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document in its native format or promptly meet and confer to address whether the

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information sought may be provided by less burdensome means.

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F.

Color. Documents in color shall be produced in a color .PDF or .JPG format.

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G.

No Backup Restoration Required. Absent a showing of good cause, no

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party need restore any form of media upon which backup data is maintained in a

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party’s normal or allowed processes, including but not limited to backup tapes, disks,

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SAN, and other forms of media, to comply with its discovery obligations in the

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present case. In the event that restoration of backup materials is required, the Court

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may order that the costs of restoration be shifted to the party seeking discovery.

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H.

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similar hash values at the document level) reside within a party’s data set, each party

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is only required to produce a single copy of the responsive document.

Footer. Each document image shall contain a footer with a sequentially

Native Files. A party that receives a document produced in a format

Duplicates. To the extent duplicate documents (based on MD5, SHA-1, or

-3STIPULATED ESI PRODUCTION ORDER

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I.

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Mobile Devices. Absent a showing of good cause, audio communications and

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related records, including internal and external call records and voicemails, are

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deemed not reasonably accessible and need not be collected and preserved.

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Information stored on mobile phones, PDAs and similar mobile devices, whether a

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company-issued device or a personal device used incidentally for company-related

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purposes, likewise are deemed not reasonably accessible and information from such

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devices need not be collected and preserved. Calendar entries and meeting requests

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(and responses thereto), wherever stored, are deemed not reasonably accessible and

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need not be collected and preserved. The foregoing does not apply to other forms of

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electronic communications, including email and instant messaging records, which

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are generated and stored in the ordinary course of business.

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6.

Voicemail, Phone Records, Instant Messaging, Calendar Entries and

Before producing ESI, each party shall exchange, at an agreed time, a listing of the

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most significant ESI custodians and ESI repositories or share drives in view of the pleaded claims

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

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proper time frame for production. The total number of custodians whose ESI (including email and

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locally stored documents) is to be searched and produced shall initially be limited to ten custodians

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per producing party. The total number of search terms to be applied to ESI custodians and central

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ESI repositories shall initially be limited to eighteen terms per producing party. The search terms

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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

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“system”) broadens the search, and thus each word or phrase shall count as a separate search term

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unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,” “but not,”

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“w/x”) is encouraged to limit the production and shall be considered when determining whether to

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shift costs for disproportionate discovery.
-4STIPULATED ESI PRODUCTION ORDER

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7.

The parties may jointly agree to modify the limits stated in Paragraph 6 without the

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Court’s leave. The Court shall consider contested requests for additional or fewer custodians per

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producing party, or search terms, upon showing a distinct need based on the size, complexity, and

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issues of this specific case.

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8.

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

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need not be placed on a privilege log. Communications may be identified on a privilege log by

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category, rather than individually, if appropriate.

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9.

The mere production of ESI in this litigation as part of a mass production shall not

itself constitute a waiver for any purpose.
10.

Except as expressly stated, nothing in this order affects the parties’ discovery

obligations under the Federal or Local Rules.

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-5STIPULATED ESI PRODUCTION ORDER

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Dated: August 25, 2015

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Respectfully.
ARNOLD & PORTER LLP
MICHAEL A. BERTA
SEAN M. CALLAGY
JOSEPH R. FARRIS
RYAN M. KEATS

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By: /s/ Michael A. Berta
MICHAEL A. BERTA
Attorneys for Plaintiff MACHINE ZONE,
INC., a Delaware corporation

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Dated: August 25, 2015

SIDLEY AUSTIN, LLP
CHAD S. HUMMEL
MANATT, PHELPS & PHILLIPS, LLP
CHAD S. HUMMEL
MARK S. LEE
SETH REAGAN
By: /s/ Chad S. Hummel
CHAD S. HUMMEL
Attorneys for Defendant EMBER
ENTERTAINMENT, INC.

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STIPULATED ESI PRODUCTION ORDER

ER

R NIA
FO
LI

August 28, 2015
DATED:

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UNITED STATES DISTRICT JUDGE abr ia
h
ince Ch
J u d ge V

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DERED

O OR
IT IS S

NO

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IT IS SO ORDERED:

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UNIT
ED

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ORDER

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S DISTRICT
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F
D IS T IC T O
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EXHIBIT A

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In accordance with paragraph 5(B) of this General Order on ESI Discovery, the Parties will provide

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the following metadata field information to the extent available:

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Field Name

Description (E-Mail)

Description (Non E-mail)

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Beginning Document
Number (BEGPROD)

Bates Number on first page of
document.

Bates Number on first page of
document.

End Document Number
(ENDPROD)

Bates Number on last page of
document.

Bates Number on last page of
document.

Beginning Attachment
Number (BEGATTACH)

Bates Number on first page of
first document in a family (i.e.,
documents and all attachments
thereto).

Bates Number on first page of
first document in a family (i.e.,
documents and all attachments
thereto).

Ending Attachment
Number (ENDATTACH)

Bates Number on last page of
last document in a family (i.e.,
documents and all attachments
thereto).

Bates Number on last page of
last document in a family (i.e.,
documents and all attachments
thereto).

Page Count (PGCOUNT)

Total number of pages in
document.

Total number of pages in
document.

Custodian/Source (CUST)

Name of person(s) from whose
files the document is collected
(for de-duplicated documents,
all custodians must be
identified).

Name of person(s) from whose
files the document is collected
(for de-duplicated documents,
all custodians must be
identified)..

Doc Type (DOCTYPE)

Describes the type of
document (e.g., Lotus Notes Email).

Describes the type of document
(e.g., Microsoft Word
Document). It will not be
manually coded if absent in the
metadata.

Doc Extension/File
Extension (DOCEXT)

The file type extension
The file type extension
representing the email or native representing the native file.
file (will vary depending on
email format).

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STIPULATED ESI PRODUCTION ORDER

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Field Name

Description (E-Mail)

Description (Non E-mail)

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Author (AUTHOR)

The person(s) who created,
wrote, reviewed, signed, or
approved the document. If no
author information is present, a
default value of “None” will be
coded or the field will be blank.
Where possible, the Author
should be extracted from the
metadata.

The person(s) who created,
wrote, reviewed, signed, or
approved the document. If no
author information is present, a
default value of “None” will be
coded or the field will be blank.
Where possible, the Author
should be extracted from the
metadata.

From (FROM)

All information contained in the N/A
“From” field of the e-mail.

To (TO)

All information contained in the N/A
“To” field of the e-mail as well
as all other discernible
recipients.

CC (CC)

All information contained in the N/A
“CC” field of the e-mail, as well
as all other discernible copies.

BCC (BCC)

All information contained in the N/A
“BCC” field of the e-mail, as
well as all other discernible
blind copies.

Subject/Title (TITLE)

Verbatim subject or re: line, as
stated in the e-mail.

If available, verbatim subject or
re: line, or discernible document
title appearing on the
document’s first page, as
extracted from the metadata of
the file if present. It will not be
manually coded if absent in the
metadata.

Filename (FILENAME)

Original file name, including
file extension (e.g.,
EXAMPLE.MSG).

Original file name, including
file extension (e.g.,
EXAMPLE.XLS,
EXAMPLE.DOC).

Date Sent (SENTDATE)

Date the E-mail was sent,
N/A
expressed in MM/DD/YYYY
format. All references to date
and time should reflect the time
zone in which the ESI
originated.

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STIPULATED ESI PRODUCTION ORDER

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Field Name

Description (E-Mail)

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Date Received (DATE
RCVD)

Date the E-mail was received,
N/A
expressed in MM/DD/YYYY
format. All references to date
and time should reflect the time
zone in which the ESI
originated.

Parent Date
(PARENTDATE)

The sent date of the parent
email, propagated to any of its
attachments and/or embedded
objects.

The date last modified (or if not
available, date created) of a file,
propagated to any of its
attachments and/or embedded
objects.

Date Last Modified
(MODDATE)

N/A

Date the document was last
modified in MM/DD/YYYY
format. All references to date
and time should reflect the time
zone in which the ESI
originated.

Date Created
(CREATEDATE)

N/A

Creation date of document. It
will not be manually coded if
absent in the metadata.

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MessageID
(MESSAGEID)

Unique message identifier
N/A
extracted during data processing

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HashCode (MD5HASH)

The MD5 (Message Digest
algorithm 5) or SHA (Secure
Hash Algorithm) hash value
assigned to the document
during processing.

The MD5 (Message Digest
algorithm 5) or SHA (Secure
Hash Algorithm) hash value
assigned to the document during
processing.

Text Path (TEXTPATH)

Full path location of each
produced record’s extracted (or
OCR) text file within the
production deliverable.

Full path location of each
produced record’s extracted (or
OCR) text file within the
production deliverable.

Native Link
(NATIVEFILE)

Full path location of each
Full path location of each
natively-produced record within natively-produced record within
the production deliverable.
the production deliverable.

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Description (Non E-mail)

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STIPULATED ESI PRODUCTION ORDER

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ATTESTATION PURSUANT TO CIV. L.R. 5-1(i)(3)
Pursuant to Civil Local Rule 5-1(i)(3), the undersigned attests that concurrence in the filing
of this Stipulated ESI Production Order has been obtained from the other signatories thereto.

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Dated: August 25, 2015
/s/ Michael A. Berta
MICHAEL A. BERTA

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STIPULATED ESI PRODUCTION ORDER