Oracle America, Inc. et al v. Hewlett Packard Enterprise Company

Filing 77

STIPULATION AND ORDER re 74 STIPULATION WITH PROPOSED ORDER Regarding Documents and Electronically Stored Information filed by Oracle America, Inc., Oracle International Corporation. Signed by Judge Jon S. Tigar on August 16, 2016. (wsn, COURT STAFF) (Filed on 8/16/2016)

1
2
3
4
5
6
7
8
9
10
11
12
13

LATHAM & WATKINS LLP
Christopher S. Yates (SBN 161273)
Christopher B. Campbell (SBN 254776)
Meaghan P. Thomas-Kennedy (SBN 303578)
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: [phone]
Facsimile: 415.395.8095
Email: [e-mail]
[e-mail]
[e-mail]
ORACLE CORPORATION
Dorian Daley (SBN 129049)
Deborah K. Miller (SBN 95527)
500 Oracle Parkway
M/S 5op7
Redwood City, CA 94065
Telephone: [phone]
Facsimile: 650.506.7114
Email: [e-mail]
[e-mail]

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

15
16

18

ORACLE AMERICA, INC., a Delaware
corporation; ORACLE INTERNATIONAL
CORPORATION, a California corporation

19
20
21
22
23

Attorneys for Plaintiffs
Oracle America, Inc., and Oracle
International Corporation

[Additional counsel on signature page]

14

17

ORACLE CORPORATION
Jeffrey S. Ross (SBN 138172)
10 Van de Graaff Drive
Burlington, MA 01803
Telephone: [phone]
Facsimile: 781.238.6273
Email: [e-mail]

Plaintiffs,
v.

No. 16-cv-01393-JST
STIPULATION AND [PROPOSED]
ORDER REGARDING DOCUMENTS
AND ELECTRONICALLY STORED
INFORMATION

HEWLETT PACKARD ENTERPRISE
COMPANY, a Delaware corporation; and DOES
1–50,
Defendants.

24
25
26
27
28
STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1
2
3

The parties have agreed to the terms of this [Proposed] Order Regarding
Documents and Electronically Stored Information.
1.

Introduction. The parties have conferred regarding certain matters affecting the

4

discovery of Documents and electronically stored information (“ESI”) and agreed on the

5

following procedures and guidelines regarding the discovery of ESI in this Action (“e-

6

discovery”) as a supplement to the Federal Rules of Civil Procedure, this Court’s Guidelines for

7

the Discovery of Electronically Stored Information, and any other applicable orders and rules.

8
9
10
11
12

2.

Cooperation.

The parties are aware of the importance the Court places on

cooperation and commit to cooperate in good faith throughout the matter consistent with this
Court’s Guidelines for the Discovery of ESI.
3.

Definitions. Capitalized terms shall have the meanings ascribed to them in this

Definitions Section.

13

(a)

“Action” means the above-captioned litigation, Oracle America, Inc., et

14

al. v. Hewlett Packard Enterprise Company, Case No. 3:16-cv-01393-JST, which is currently

15

pending in the United States District Court for the Northern District of California.

16

(b)

“Document(s)” is defined to be synonymous in meaning and equal in

17

scope to the usage of the term in Rule 34(a) of the Federal Rules of Civil Procedure and includes

18

ESI existing in any medium from which information can be translated into reasonably usable

19

form, including but not limited to email and attachments, word processing documents,

20

spreadsheets, graphics, presentations, images, text files, databases, instant messages, transaction

21

logs, audio and video files, voicemail, internet data, computer logs, text messages, or backup

22

materials.

23
24
25

(c)

“Extracted Text” means the text extracted from a Native File and includes

all header, footer, comment, speaker notes, and document body information.
(d)

“Metadata” means: (i) information embedded in a Native File that is not

26

ordinarily viewable or printable from the application that generated, edited, or modified such

27

Native File; and (ii) information generated automatically by the operation of a computer or other

28

information technology system when a Native File is created, modified, transmitted, deleted or
1

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

otherwise manipulated by a user of such system.

2

(e)

“Metadata Load File” means: the extracted Metadata values gathered

3

during the process of converting to TIFF ESI from the electronic format of the application in

4

which the ESI is normally created, viewed or modified.

5
6

(f)

“Native File” means ESI in the file type for (or of) the application in

which such ESI is normally created, viewed or modified.

7

(g)

“OCR” means the optical character recognition file that is created by

8

software used in conjunction with a scanner that is capable of reading text-based Documents and

9

making such Documents searchable using appropriate software.

10

(h)

11

“Producing Party” means a party or non-party that produces Documents or

ESI in this Action.

12

(i)

13

Party or non-party in this Action.

14
15
16

4.

“Receiving Party” means a Party that receives Documents or ESI from a

Applicability. This stipulation does not constitute a waiver, by any party, of any

objection to the production of particular ESI as unduly burdensome or not reasonably accessible.
5.

Custodians and Search Terms. Mindful of the permissible scope of discovery

17

as described in Federal Rule of Civil Procedure 26(b), the parties agree to meet and confer in

18

good faith regarding document custodians and search terms.

19

6.

Format for Production. Unless the parties agree otherwise, the parties shall

20

work in good faith to produce documents pursuant to the provisions set forth in this paragraph,

21

which shall govern the format for production of ESI; the parties will produce paper and

22

electronic Documents in Tagged Image File Format (“TIFF” or “.TIF”) files, except as provided

23

in paragraphs 17, 18, and 20 below.

24

(a)

Each image should have a unique file name, which is the control number

25

of the page. TIFF files shall be produced in single-page Group IV format with a minimum

26

resolution of 300 dpi.

27
28

(b)

If after receiving a production in TIFF, a Receiving Party discovers that a

document is illegible or cannot be properly understood in TIFF format, then the Receiving Party
2

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

may request in writing that the Producing Party produce specific Documents in their native

2

format.

3

previously produced TIFF file, the expenses of reproduction in native format of documents

4

previously produced in TIFF format would be borne by the party making the request. Should the

5

parties not reach agreement after meeting and conferring in good faith, the requesting party may

6

move the Court for such production.

Aside from requests relating to a problem with the readability or usability of a

7

(c)

Each Document production will be accompanied by two load files: an

8

image load file and a Metadata Load File. Those load files shall be produced in Concordance

9

format (.DAT file using Concordance standard delimiters for the Metadata Load Files, and .OPT

10

file using Concordance standard fields for the image load files).

11

(d)

The image load file shall provide image and document break information

12

for the TIFF files produced that correspond to the beginning control number contained in the

13

Metadata Load File. Every TIFF file in each production must be referenced in the production’s

14

corresponding image load file. The total number of TIFF files referenced in a production’s

15

image load file should match the number of TIFF files in the production.

16

(e)

For Documents that do not contain redactions, the Producing Party will

17

produce an Extracted Text file for each electronic Document and an OCR text file for each

18

imaged paper Document. For Documents that contain redactions, the Producing Party will

19

provide an OCR text file for the unredacted portions of such Documents. All non-redacted

20

Documents are to be provided with multi-page searchable text (.TXT) files. The OCR text files

21

and image load files should indicate page breaks to the extent possible.

22

7.

Metadata. To the extent they are reasonably available, the Metadata values that

23

are to be extracted and produced in the Metadata Load Files, to the extent their production is

24

reasonably possible, are:

25

Metadata from Email:

26

Email Subject

27

Email Author

28

Email Recipient
3

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

Email CC

2

Email BCC

3

Email Received Date

4

Email Sent Date

5

Email Received Time

6

Email Sent Time

7

Email Thread ID (e.g., in MS Outlook, both the thread-index from

8

message header and “PR_conversation-index” from message properties)

9

Metadata from Electronic Files:

10

File Name

11

File Author

12

File Created Date

13

File Created Time

14

File Modified Date

15

File Modified Time

16

File Extension

17

Metadata for both Email and Electronic Files:

18

Custodian/Source

19

Attachment Count

20

Original Path or Parent Folder (of original item, not including structure of

21

capture device)

22

MD5 Hash (if generated when processed)

23

Native Link

24

Page Count

25

File Application Type (e.g., Microsoft Excel 2009; PowerPoint; Microsoft

26

Word 2007)

27

Production Number Begin (ProdBegDoc)

28

Production Number End (ProdEndDoc)
4

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

This list of fields does not create any obligation to create or manually code fields that are not

2

automatically generated for the processing of the ESI or that do not exist as part of the original

3

Metadata of the Document; provided however, the Producing Party must populate the

4

Custodian/Source field for all produced ESI as well as paper Documents converted to electronic

5

form.

6

With respect to ESI gathered from an individual’s hard drive or network share, Metadata

7

will be provided in the Custodian/Source field sufficient to identify the individual custodian from

8

whose hard drive or network share such ESI has been gathered. The Producing Party will

9

identify the source for any data that is not collected from an individual’s hard drive or network

10

share and is not reasonably identifiable as to source as “company documents” (or some other

11

such identifier of the documents as belonging to the company’s central files) in the

12

Custodian/Source field.

13

8.

14

Processing Specifications.
(a)

The preferred time zone of processing ESI is GMT. Care should be taken,

15

however, that any alteration of time zone during processing does not interfere with or alter

16

original Metadata of that ESI. To the extent that a party has already processed ESI using a

17

different time zone, the Producing Party will identify the time zone used in its processing.

18

Parties shall consistently produce all ESI processed using the same time zone and shall identify

19

differences in the time zones used for processing ESI from different custodians if any.

20

(b)

When processing ESI for review and for production in TIFF format, the

21

Producing Party will instruct its vendor to force off Auto Date and force on track changes, and

22

comments.

23

9.

Encrypted or Password-Protected ESI. For any ESI that exists in encrypted

24

format or is password-protected, the Producing Party shall undertake reasonable efforts to

25

provide the Receiving Party a means to gain access to the files. The parties shall meet and

26

confer in an effort to supply reasonably available passwords and other information that will

27

enable the Receiving Party to obtain access as well as provide the Receiving Party with

28

exception report(s).
5

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

10.

Production of E-Discovery with Attachments.

For all e-discovery, the

2

following fields should be produced and populated as part of the Metadata Load File to provide

3

the parent/child or parent/sibling relationship:

4

Production Number Begin (ProdBegDoc)

5

Production Number End (ProdEndDoc)

6

Production Attachment Range Number Begin (ProdBegAttach)

7

Production Attachment Range Number End (ProdEndAttach)

8

Parent-child relationships (the association between an attachment and its parent Document)

9

should be preserved. Control numbering of a parent Document and any attachments shall be

10

sequential such that a parent Document has the lowest number control number when compared to

11

its attachment or attachments, and should, to the extent reasonably possible, be shown in the

12

document field.

13
14
15

11.

Hard-Copy or Paper Documents. With respect to the production of hard-copy

Documents, the parties agree:
(a)

Hard Copy Documents Will Be Produced in Electronic Format. Hard-

16

copy Documents shall be produced as image files with related OCR text to the extent such

17

Documents are converted into electronic format.

18

converting all hard-copy Documents into electronic images for production purposes and agrees

19

to address any exceptions with the other parties. The parties shall meet and confer to discuss

20

Documents that present imaging or formatting problems.

21

foregoing are required, the parties will meet and confer to discuss alternative production

22

requirements, concerns, or formats. A Metadata field entitled “Paper” will be populated by a

23

“Y” for all Documents scanned from hard copy to the extent reasonably possible.

24

(b)

At this time, each party contemplates

To the extent exceptions to the

Document Unitization. To the extent possible and on a going-forward

25

basis, the parties will endeavor to apply unitization practices consistent with the following

26

description. Each page of a hard-copy Document shall be scanned into an image and, if a

27

Document is more than one page, the unitization of the Document and any attachments shall be

28

maintained as it existed in the original when creating the image file. For Documents that contain
6

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

affixed notes, the pages will be scanned both with and without the notes and those pages will be

2

treated as part of the same Document. The relationship of Documents in a Document collection

3

(e.g., cover letter and enclosures, e-mail and attachments, binder containing multiple Documents,

4

or other Documents where a parent-child relationship exists between the Documents) shall be

5

maintained through the scanning or conversion process. If more than one level of parent-child

6

relationship exists, Documents will be kept in order, but all will be treated as children of the

7

initial parent Document. Such information shall be produced in the load file in a manner to

8

enable the parent-child relationship among Documents in a Document collection to be

9

reconstituted by the Receiving Party in Concordance.

10

12.

De-duplication.

A party is required to produce only a single copy of any

11

responsive Document. A party may de-duplicate ESI across each party’s custodians or sources,

12

but, if that option is exercised, the Producing Party must identify each custodian or source where

13

the Document was located in the Custodian/Source field or a custodian append file.

14

duplication will be based on MD5 or SHA-1 hash values, and each party will disclose the

15

methodology it uses to de-duplicate. However, (i) de-duplication shall be performed only at the

16

Document family level so that attachments are not de-duplicated against identical stand-alone

17

versions of such Documents and vice versa; (ii) attachments to emails or other Documents shall

18

not be disassociated from the parent email or Document, even if they are exact duplicates of

19

another Document in the production; and (iii) hard copy Documents may not be eliminated as

20

duplicates of responsive ESI if there is anything written on the hard copy Document that makes it

21

different from the electronic copy. A party may only de-duplicate “exact duplicate” Documents

22

and may not de-duplicate “near duplicate” Documents, both of the quoted terms in this sentence

23

being given their ordinary meaning in the e-discovery field.

24

13.

De-

System and Program Files. System and program files defined by the National

25

Institute on Standards & Technology, available at http://www.nist.gov/, need not be processed,

26

reviewed, or produced. Additional files may be added to the list of excluded files by mutual

27

agreement of the parties.

28
7

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

14.

Embedded Objects.

Non-image files embedded within documents, such as

2

spreadsheets within a PowerPoint, will be extracted as separate documents and treated like

3

attachments to the document in which they were embedded. Graphic objects embedded within

4

documents or emails, such as logos, signature blocks, and backgrounds need not be extracted as

5

separate documents.

6

15.

Compressed Files. Compression file types (e.g., .CAB, .GZ, .TAR, .Z, .ZIP)

7

shall be decompressed in a manner that ensures a container within a container is decompressed

8

into the lowest uncompressed elements resulting in individual files. The container file itself shall

9

not be produced.

10

16.

Searches – Key Words and Other Search Methodologies. To the extent that

11

key words or other methodologies are to be used in limiting the universe of potentially

12

responsive Documents to be reviewed in advance of production, the parties shall meet and confer

13

to develop a mutually agreeable list of search terms and protocols.

14

17.

Production of Excel and Database E-Discovery. Unless such materials contain

15

privileged information, MS-Excel spreadsheets shall be produced as Native Files and need not be

16

produced as full TIFFs. If such spreadsheets include redacted information, they need not be

17

produced in native format, but shall be produced as TIFFs with the redacted OCR-ed text and

18

applicable Metadata fields set forth in Paragraphs 7 and 10 of this Order.

19

When producing spreadsheets in other than their native formats, the Producing

20

Party shall include all hidden rows, columns, cells, worksheets, data, comments, or formulas, as

21

well as any associated headers or footers.

22
23

Parties will meet and confer regarding production in a mutually agreeable format
of responsive data contained in databases.

24

18.

Production of Media Files. Unless otherwise mutually agreed by the parties,

25

media files are to be produced in the native media file format in which they were maintained in

26

the ordinary course of business unless redactions are needed. If redactions are needed, the

27

redacted media file may be produced either in the original native format or in a standard media

28

format.
8

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

19.

Control Numbering for Productions in TIFF Format.

Each page of an

2

e-discovery Document produced in TIFF format will contain a legible control number that is

3

unique across the Document production; has a constant length (0- padded) across the production;

4

and is sequential within a given Document. Each page of a produced e-discovery Document will

5

also contain a confidentiality designation, if applicable. If a control number or set of control

6

numbers is skipped in a production, the Producing Party will notify the Receiving Party in its

7

cover letter to the production that the production contains skipped control numbers. Both the

8

control number and confidentiality designation shall be placed on the page image in a manner

9

that does not conceal or interfere with any information contained on the page. No other stamp or

10

information will be placed on a Document other than a control number, confidentiality

11

designation, and any redactions. This paragraph does not apply to Excel spreadsheets or other

12

files produced in native electronic format.

13

20.

Native File Production. Any file produced in its native format is to be named

14

with its corresponding control number and extension and produced with a corresponding

15

placeholder image TIFF file that bears a confidentiality endorsement (if applicable), BATES

16

number, and language referencing the Native File production (e.g., “Produced in Native

17

Format”). If any produced Native File is Confidential or Attorneys’ Eyes Only under the terms

18

of the Stipulated Protective Order, the file name should include the corresponding confidentiality

19

designation following the control number to the extent reasonably possible. For example, Native

20

Files

21

“ControlNumber_Confidential.extension,” Native Files that are designated “Attorneys’ Eyes

22

Only” must be named following the pattern “ControlNumber_AEO.extension.” If a control

23

number or set of control numbers is skipped in a production, the Producing Party will notify the

24

Receiving Party in its cover letter to the production that the production contains skipped control

25

numbers. Any file produced in native format should be produced with its corresponding load

26

file, including a coding field containing its original file name. The load file shall contain a link

27

to any Native File produced.

that

are

designated

“Confidential”

must

be

named

following

the

pattern,

28
9

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

21.

Redacted E-Discovery. To the extent a Producing Party redacts any Document,

2

such redaction shall be clearly marked on the TIFF image of the Document. The party shall also

3

either provide (a) a list identifying by control number those pages that have been redacted and all

4

reasons for such redactions or (b) a database field populated with an indicator of redaction. Any

5

failure to redact information does not automatically waive any right to claims of privilege or

6

privacy or any objection, including relevancy, as to the specific Document or any other

7

Document that is or will be produced.

8

22.

Inadvertently Produced Documents. Inadvertently produced Documents,

9

testimony, information, or things that are protected from disclosure under the attorney-client

10

privilege, work-product doctrine, or any other applicable privilege, protection, or immunity from

11

disclosure shall be handled using the procedures set forth in the Stipulated Protective Order (ECF

12

No. 73).

13

23.

Confidential Material. ESI that contains Confidential or Attorneys’ Eyes Only

14

information shall be handled using the procedures set forth in the Stipulated Protective Order

15

(ECF No. 73).

16

24.

Production Media.

The parties agree to produce Documents on CD-ROM,

17

DVD, external hard drive, or such other readily accessible computer or electronic media on

18

which the parties may hereafter agree (the “Production Media”). Each item of Production Media

19

shall identify on the Production Media: (1) who the Producing Party is (e.g., Oracle America,

20

Inc.; or Hewlett Packard Enterprise Company); (2) the control number range on that Production

21

Media (e.g., “ORCL-001 through ORCL-002”); (3) the case number of the case in which it is

22

produced; and (4) the production date. Notwithstanding the foregoing, the parties may produce

23

Documents via SFTP or similarly secure facility, in which case, the required production related

24

information set forth in the preceding sentence must be provided in a cover letter accompanying

25

a party’s instructions on how another party can access its document production.

26

25.

Original Documents. The Producing Parties will retain the original Documents.

27

Subject to preservation of appropriate privileges and other protections, the parties will consider

28

reasonable requests, after any necessary meet-and-confer, to make originals of any produced
10

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

hard-copy Document available for inspection by the requesting party in the form in which such

2

Documents are kept in the ordinary course of business.

3

26.

Costs. Each party shall bear its own e-discovery costs unless otherwise ordered

4

by the Court. This document does not purport to alter any cost shifting determinations governed

5

by the Federal Rules of Civil Procedure.

6

27.

Modifications. In the event of individual issues that arise with regard to the

7

identification and production of ESI and ESI-related information, any practice or procedure

8

provided in this Order as to such identification or production may be varied by written agreement

9

of the parties, where such variance is deemed appropriate to facilitate the timely and economical

10

exchange of Documents, ESI, or ESI-related information. The parties shall meet and confer in

11

the event of any dispute over the need for or nature of such variance in practice or procedure in

12

an effort to reach agreement prior to informing the Court of any unresolved issues.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST

1

IT IS SO STIPULATED.

2

Dated: August 11, 2016

3

By: /s/ Christopher S. Yates
Christopher S. Yates
Attorneys for Plaintiffs
Oracle America, Inc. and
Oracle International Corporation

4
5
6
7

LATHAM & WATKINS LLP

Dated: August 11, 2016

8

GIBSON, DUNN & CRUTCHER LLP
By: /s/ Blaine H. Evanson
Blaine H. Evanson
Attorneys for Hewlett Packard Enterprise
Company

9
10
11
12

PURSUANT TO STIPULATION, IT IS SO ORDERED:

S

UNIT
ED

By:

16

20

23
24
25
26

ER

obtained from each of the above signatories to file this document with the Court.
N

Dated: August 11, 2016

FO

Pursuant to Civil Local Rule 5-1(i)(3), I declare that concurrence has been

21
22

Ju

H

19

i ga r
ATTESTATION OF CONCURRENCE IN THE FILING S. T
d ge J o n

RT

18

O
IT IS S

NO

17

The Honorable Jon RDERED
O S. Tigar

R NIA

DATED: August 16, 2016

LI

15

RT
U
O

14

S DISTRICT
TE
C
TA

A

13

F
D IS T IC T O
R

C

LATHAM & WATKINS LLP
By: /s/ Christopher S. Yates
Christopher S. Yates
Attorneys for Plaintiffs
Oracle America, Inc. and
Oracle International Corporation

27
28
12

STIP AND [PROPOSED] ORDER RE: DOCUMENTS
AND ELECTRONICALLY STORED INFORMATIONI
CASE NO. 3:16-CV-01393-JST