Rabin v. PricewaterhouseCoopers LLP

Filing 49

STIPULATION AND ORDER re 48 STIPULATION WITH PROPOSED ORDER Concerning Production of Electronically Stored Information filed by PricewaterhouseCoopers LLP. Signed by Judge Jon S. Tigar on October 11, 2016. (wsn, COURT STAFF) (Filed on 10/11/2016)

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Jahan C. Sagafi (Cal. Bar No. 224887)
Katrina L. Eiland (Cal. Bar No. 275701)
Julia Rabinovich (Cal. Bar No. 290730)
OUTTEN & GOLDEN LLP
One Embarcadero Center, 38th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

Daniel Kohrman (admitted pro hac vice)
Laurie McCann (admitted pro hac vice)
Dara Smith (admitted pro hac vice)
AARP FOUNDATION LITIGATION
601 E. Street, N.W.
Washington, D.C. 20049
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

Adam T. Klein (pro hac vice forthcoming)
OUTTEN & GOLDEN LLP
3 Park Avenue, 29th Floor
New York, New York 10016
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

Jennifer L. Liu (Cal. Bar No. 279370)
THE LIU LAW FIRM, P.C.
1170 Market Street, Suite 700
San Francisco, CA 94102
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

Attorneys for Plaintiffs and Proposed Class and Collective Members
Michael P. Esser (Cal. Bar No. 268634)
KIRKLAND & ELLIS LLP
555 California Street
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Emily Nicklin (admitted pro hac vice)
Gabor Balassa (admitted pro hac vice)
Christina Briesacher (admitted pro hac vice)
KIRKLAND & ELLIS LLP
300 N. LaSalle
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

Attorneys for Defendant

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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STEVE RABIN and JOHN CHAPMAN,
on behalf of themselves, and all others
similarly situated,
Plaintiffs,

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v.

Case No. 16-cv-02276
STIPULATION AND [PROPOSED]
ORDER CONCERNING PRODUCTION
OF ELECTRONICALLY STORED
INFORMATION

PRICEWATERHOUSECOOPERS LLP,
Defendant.

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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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WHEREAS, counsel for Plaintiffs and Defendant (collectively, the “Parties,”
and each, a “Party”) have met and conferred regarding discovery of electronically stored
information (“ESI”) of the Parties;

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WHEREAS, the Parties have reached agreement on certain of the issues
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discussed regarding such discovery;
WHEREAS, the Parties have entered into this Stipulation and [Proposed] Order

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Concerning Production of Electronically Stored Information (“Order”) to facilitate the just,

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speedy, and inexpensive conduct of discovery involving ESI and to promote, to the fullest

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extent possible, the resolution of disputes regarding the discovery of ESI without Court
intervention;

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IT IS HEREBY ORDERED that:
1.

All Parties are bound by and subject to the terms of this Order. This Order may

be modified by a Stipulated Order of the Parties or by the Court for good cause shown.
2.

Definitions.
a.

“Discovery Material” is defined as all products of discovery and all

information derived there from, including, but not limited to, documents, objects and things,

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deposition testimony, interrogatory/request for admission responses, and any copies, excerpts
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or summaries thereof, produced by any Party in the above-captioned matter.
b.

Plaintiff and Defendant, as well as their officers, directors, employees,

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partners, principals, agents, and legal counsel, are referred to as the “Parties” solely for the

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purposes of this Protocol.

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c.

“Plaintiff” as used herein shall mean Plaintiffs Steve Rabin and John

Chapman, and all current Opt-In Plaintiffs, as well as any other individually named plaintiff in

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this case or in any case that is consolidated with this matter, any other individual that opts-in to
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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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this case or any such consolidated matter, and any certified class member in this case or any

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such consolidated matter.

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d.

All other terms used herein shall be defined as they are in the Sedona

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Conference Glossary: E-Discovery & Digital Information Management (Fourth Edition).
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3.

Cooperation. The Parties shall conduct discovery in a cooperative manner,

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including without limitation, by reasonably drafting discovery requests and responses in

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accordance with Fed R. Civ. P. 1 and 26(g)(1); and producing ESI in accordance with Fed R.

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Civ. P. 34; and by meeting and conferring in good faith on topics such as identification of

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custodians of relevant ESI, potentially relevant data sources, search methodologies, and such
other issues as may arise during the course of discovery.

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4.

Deduplication. The Parties shall make reasonable efforts to de-duplicate ESI.

ESI shall be globally de-duplicated across all custodians and non-custodial sources.

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Documents are considered exact duplicates if a document family or stand-alone file has a

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matching MD5 or SHA-1 hash value as compared against the same document type (i.e., family

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or stand-alone file). The names of all custodians who were in possession of a document prior

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to deduplication will be populated in the ALL_CUSTODIANS metadata field. The original

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file paths of a document prior to de-duplication will be populated in the ALL_FILE PATHS
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metadata filed.
5.

Email Threading. Where multiple email messages are part of a single chain or

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“thread,” a Party is only required to produce the most inclusive message and need not produce

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earlier, less inclusive email messages or “thread members” that are fully contained, including

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attachments and including identical senders and recipients, within the most inclusive email

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message. For the avoidance of doubt, only email messages for which the parent document and

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all attachments are contained in the more inclusive email message will be considered less
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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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inclusive email messages that need not be produced; if the later message contains different text

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(such as where the later message adds in-line comments to the body of the earlier message) or

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senders or recipients, or does not include an attachment that was part of the earlier message, the

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earlier message must be produced.
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6.

Privilege Logs And Redaction. An email thread for which a Party claims a

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privilege may be logged in a single entry provided that such entry identifies all senders and

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recipients appearing at any point in the thread. The Parties agree that the following documents

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need not be included on a privilege log:

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a.

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Communications between the Parties and their counsel (including
internal communications within a law firm or within a legal department

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of the Party) on and after the filing of this lawsuit and before the lawsuit

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in anticipation of this litigation regarding the litigation or litigation

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strategy.

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b.

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Work product created by or for counsel in this matter after
commencement of this lawsuit and before the lawsuit in anticipation of

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this litigation.

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7.

Production Format For ESI.

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a.

General Provisions. Unless the Parties agree to a different format,

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documents should be produced with TIFF images and named according to the Bates number of

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the corresponding TIFF image. Each *.tiff file should be assigned a unique name matching the

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Bates number of the corresponding image. The Bates number should be consistent across the

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production, contain no special characters, and be numerically sequential within a given

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document. Attachments to documents should be assigned Bates numbers that directly follow in

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sequential order the Bates numbers on the documents to which they were attached. If a Bates
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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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number or set of Bates numbers is skipped, the skipped number or set of numbers should be

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noted, for example with a placeholder. All images should be provided in single-page, Group

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IV TIFF with a resolution of 300 DPI. Bates numbers and confidentiality designations should

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be electronically branded on each produced *.tiff image. These .TIFF images should be
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provided in a separate folder and the number of TIFF files per folder should be limited to 1,000
files.
b.

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Document Text. All unredacted documents should be provided with

complete document-level extracted text files. In the event a document contains text which is to
be redacted, OCR text files should be provided for any un-redacted portions of the documents.
Document-level OCR text files should be provided for any unredacted portions of redacted

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documents and for all hard copy scanned documents. The extracted full text and/or OCR text
for all deliverables should be in separate document-level, ANSI or UTF-8 encoded TXT files

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provided in a separate folder. The number of TXT files per folder should be limited to 1,000

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files.

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c.

Parent-Child Relationships. For email collections, the parent-child

relationships (the association between emails and attachments) should be preserved. Email

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attachments should be consecutively produced with the parent email record.
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d.

Dynamic Fields. Documents with dynamic fields for file names, dates,

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and times will be processed to show the field code (e.g., “[FILENAME]” or “[AUTODATE]”),

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rather than the values for such fields existing at the time the file is processed.

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e.

Non-redacted Word Processing Files. Upon reasonable request, all word

processing files that do not require redactions, may be produced in native file format showing
comments and track changes, and as *.tiff images showing track changes and comments. A

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UNC file path must be included in the ESI load file.
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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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f.

Non-redacted Spreadsheet Files. Spreadsheet files, including without

limitation Microsoft Excel files, that do not require redactions will be produced as native files
showing comments and similar data. A UNC file path must be included in the ESI load file.

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Additionally a bates-stamped *.tiff placeholder matching the bates number of the native file,
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must be included in the production and reflected in the image load file. To the extent Parties

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prefer native file redaction of Spreadsheet File, the Parties will meet and confer to discuss the

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form of production.

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g.

Presentation Files. Microsoft PowerPoint files will be produced as

native files showing comments, hidden slides, speakers’ notes, and similar data. Upon
reasonable request, other presentation files may be produced as native files showing comments,

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hidden slides, speakers’ notes, and similar data. A UNC file path must be included in the ESI
load file. Additionally a bates-stamped *.tiff placeholder matching the bates number of the

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native file, must be included in the production and reflected in the image load file. The Parties

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will meet and confer regarding production of presentation files with alternate default settings.

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h.

Database Records and Structured Data. To the extent that

any Party requests data or information (other than e-mail) that is stored in a

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structured database (including but not limited to Oracle, SQL Server, DB2,
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Microsoft Access (*.mdb), Lotus Notes/Domino Server non-email databases),

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without waiving any objections to such a request, each Party will make

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reasonable efforts to determine whether such data can be produced and if so,

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make a production in existing report formats, or report formats that can be

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developed without undue burden. Nothing in this paragraph prevents any Party

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from asserting any objection(s) to such a request including, but not limited to,

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undue burden, relevance, proportionality, scope, and/or the imposition of costs
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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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on the other Party.

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i.

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Embedded Files. Embedded files are produced as family groups.

Embedded files should be assigned Bates numbers that directly follow the Bates numbers on

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the documents within which they are embedded.
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j.

Time Zone. All metadata provided pertaining to dates and times will be

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standardized to Universal Coordinated Time (UTC) for Plaintiffs’ data, and Eastern Time (ET)

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for Defendant’s data.

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k.

Bates Numbering. Files will be named according to the Bates number of

the corresponding *.tiff image. The Bates number will:

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i.

be consistent across the production;

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contain no special characters; and

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be numerically sequential within a given document.

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Attachments to documents will be assigned Bates numbers that directly follow

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the Bates numbers on the documents to which they were attached. If a Bates number or set of

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Bates numbers is skipped, the skipped number or set of numbers will be noted. In addition,

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wherever possible, each *.tiff image will have its assigned Bates number electronically

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“burned” onto the image.
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l.

Load File Formats. ESI will be produced with a standard Concordance

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(*.dat) load file format and an image load file that is in .OPT format. The Concordance (*.dat)

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load file shall be provided with UTF-8 or ANSI encoding.

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m.

Metadata to be Produced. Metadata to be produced: The following

metadata fields should be produced for each document to the extent that such information is
available at the time of collection and processing, except that if a field contains privileged

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information, that privileged information may be redacted and noted in a corresponding
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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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privilege log. All requests should be read to include a request for all metadata associated with

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all documents responsive to the request.

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FIELD NAME
BEGDOC

DESCRIPTION
Starting bates

CATEGORY
Hardcopy, edoc, email and
attachment

ENDDOC

Ending bates

Hardcopy, edoc, email and
attachment

CUSTODIAN

Custodial or non-custodial
source(s) from which the
document was collected

Hardcopy (if coded), edoc,
email and attachment
(populated through
processing)

ALL CUSTODIANS

Edoc, email and attachment
(populated through
processing)

FAMILYIDOR
ATTACHID

Custodial source(s) from which
document was collected but
subsequently suppressed as a
duplicate during processing.
Family (Range of bates related
documents (i.e email &
attachment) - this field will be
populated for all records in the
family), and will distinguish parent
documents from attachments.

PRPERTIES OR
RCRDTYPE

Record type – will be either
“email,” “attachment,” “edoc,” or
“hardcopy.”

FROM

Email Author

Emails (populated through
processing)

TO

Recipient

Emails (populated through
processing)

CC

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CC field - In the event of emails

Emails (populated through
processing)

BCC

Bcc field - in the event of emails

Emails (populated through
processing)

SUBJECT

Subject

Emails (populated through
processing)

DOCTITLE

Document Title/name of the
original native file as it existed at
the time of collection.

Hardcopy (if coded), edoc or
attachment (populated through
processing)

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Hard copy, edoc, emails and
attachments (populated
through processing)

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STIPULATION AND [PROPOSED] ORDER
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CASE No. 16-cv-02276

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DOCDATE

Document Date/Date Sent, format
MM/DD/YYYY, this is the
SORT_DATE field, so populate
across families

Email and Attachments

DATESENT

Email Sent Date, format
MM/DD/YYYY

Emails (populated through
processing)

TIMESENT

Time sent, format 00:00:00
AM/PM

Emails (populated through
processing)

DATECREATED

Date first created, format
MM/DD/YYYY

Edoc or attachment
(populated through
processing)

DATESVD

Date last saved/modified, format
MM/DD/YYYY

Edoc or attachment
(populated through
processing)

TIMESVD

Time saved, format 00:00:00
AM/PM

(populated through
processing)

PAGECOUNT

Document page count

Edoc or attachment
(populated through
processing)

ATTILE

File name/attachment name

Electronic files and/or
attachments (populated
through processing)

APPLICAT

Application used to open the file
(Word, Powerpoint, Adobe, Excel,
Explorer, Quicken, etc.)

Electronic files and/or
emails, attachments
(populated through
processing)

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FOLDERID OR
File path/folder structure of
ORIGFOLDERPATH original native file as it existed at
OR FILEPATH
the time of collection.

Electronic files and/or
emails, attachments
(populated through
processing)

i.e. path of email in mailbox
(populate for email attachments
also); filepath of edocs or scanned
documents (if requested)

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STIPULATION AND [PROPOSED] ORDER
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ALL FILEPATHS

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File path/folder structure of
original native file as it existed at
the time of collection but
subsequently removed as a
duplicate.

Electronic files and/or
emails, attachments
(populated through
processing)

i.e. path of email in mailbox
(populate for email attachments
also); filepath of edocs or scanned
documents (if requested) when
duplicate copies were suppressed
during processing.

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NATIVEFILE

Active link reflecting current
filepath back to the native file

Electronic files and/or emails,
attachments (populated
through processing and only
provided if receiving native
files.)

FILEEXTEN

In the event of attachments or
emails, this will enable us to
search by document type. Sample
contents: PST, MSG, PDF, DOC,
PPT, HTM, etc.

Electronic files and/or
emails, attachments
(populated through
processing)

FILESIZE

Numerical file size, in bytes, of
any natively-produced documents.

AUTHOR

In the event of attachments, this
field contains the ‘author’ of the
document

Electronic files and/or edocs
(populated through
processing).
For Hard Copy documents (if
coded) or electronic files
and/or attachments
(populated through
processing)

HASH

MD5 Hash value for de-dupe

Electronic files and/or
attachments (populated
through processing)

CONVERSATION
INDEX

Value that indicates the relative
position of a message within a
conversation thread.

Emails (populated through
processing)

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8.

Production Format for Hard Copy Documents. Hard copy documents will be

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scanned and processed as .tiff images with OCR. To the extent this production format is not

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feasible or causes the producing Party undue burden, the Parties agree to meet and confer to

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discuss the different form of production.

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9.

Encryption. To maximize the security of information in transit, any media on
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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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which documents are produced may be encrypted by the producing Party. In such cases, the

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producing Party shall transmit the encryption key or password to the requesting Party, under

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separate cover, contemporaneously with sending the encrypted media.

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10.

Fed. R. Evidence 502(d) Order. The production of privileged or work-product

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protected documents, ESI or information, whether inadvertent or otherwise, is not a waiver of

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the privilege or protection from discovery in this case or in any other federal or state

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proceeding. This Order shall be interpreted to provide the maximum protection allowed by

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Federal Rule of Evidence 502(d). Nothing contained herein is intended to or shall serve to

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limit a Party’s right to conduct a review of documents, ESI or information (including metadata)
for relevance, responsiveness and/or segregation of privileged and/or protected information

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before production. A producing Party which seeks the return of documents under this section
may request the return of documents which should have been withheld on the basis of the

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attorney-client and/or work product protection. Upon receipt of such a request for return, the

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Party to whom the documents were produced must immediately destroy the documents

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including all information contained in the documents that has been incorporated into notes,

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summaries, communications or other work product and confirm within three (3) business days

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that the destruction is complete. Should the receiving Party disagree with the assertion of
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privilege, it may move to compel production of the documents within fourteen (14) days.

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Further, any Party who receives a privileged or work-product protected document, ESI or

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information and knows or reasonably should know that the document, ESI or information was

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inadvertently produced shall promptly notify the producing Party.

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11.

Nothing contained in this Order is intended to or shall serve to place any

obligations on the Parties regarding what each Party will search for, collect, and/or produce.

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Further, nothing contained in this Order is intended to or shall serve to limit a Party’s right to
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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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conduct a review of documents, ESI or information (including metadata) for relevance,

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responsiveness and/or segregation of privileged and/or protected information before

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production. Each Party reserves all rights to assert any objection(s) to any discovery request

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including, but not limited to, undue burden, relevance, proportionality, scope, the imposition of
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costs on the opposing Party, or any other applicable objection.

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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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Dated: October 5, 2016

Respectfully submitted,
By: /s/ Jahan C. Sagafi
Jahan C. Sagafi

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Jahan C. Sagafi (Cal. Bar No. 224887)
Katrina L. Eiland (Cal. Bar No. 275701)
Julia Rabinovich (Cal. Bar No. 290730)
OUTTEN & GOLDEN LLP
One Embarcadero Center, 38th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

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Adam T. Klein (pro hac vice)
OUTTEN & GOLDEN LLP
3 Park Avenue, 29th Floor
New York, New York 10016
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Daniel Kohrman (admitted pro hac vice)
Laurie McCann (admitted pro hac vice)
Dara Smith (admitted pro hac vice)
AARP FOUNDATION LITIGATION
601 E. Street, N.W.
Washington, D.C. 20049
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

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Jennifer L. Liu (Cal. Bar No. 279370)
THE LIU LAW FIRM, P.C.
1170 Market Street, Suite 700
San Francisco, CA 94102
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Attorneys for Plaintiffs and Proposed Class and
Collective Members

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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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Dated: October 5, 2016

By: /s/ Emily Nicklin

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Michael P. Esser (Cal. Bar No. 268634)
KIRKLAND & ELLIS LLP
555 California Street
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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Emily Nicklin (pro hac vice)
Gabor Balassa (pro hac vice)
Christina Briesacher (pro hac vice)
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-Mail: [e-mail]
Attorneys for Defendant

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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276

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PURSUANT TO THE STIPULATION, IT IS SO ORDERED.

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Date: _____________
October 11, 2016

______________________________
Honorable Jon S. Tigar
United States District Judge

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STIPULATION AND [PROPOSED] ORDER
CONCERNING ESI
CASE No. 16-cv-02276