Amgen Inc. et al v. Sandoz Inc. et al

Filing 77

ORDER by Magistrate Judge Maria-Elena James granting 70 Stipulation Regarding Discovery of Electronically Stored Information. (rmm2S, COURT STAFF) (Filed on 4/24/2017)

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SIDLEY AUSTIN LLP
Vernon M. Winters (SBN 130128)
Alexander D. Baxter (SBN 281569)
555 California Street, Suite 2000
San Francisco, CA 94104-1503
Telephone: [phone]
Facsimile: [phone]
[e-mail]
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
Nicholas Groombridge (pro hac vice)
Eric Alan Stone (pro hac vice)
Jennifer H. Wu (pro hac vice)
Jennifer Gordon
Peter Sandel (pro hac vice)
Ana J. Friedman (pro hac vice)
Arielle K. Linsey (pro hac vice)
Stephen A. Maniscalco (pro hac vice)
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: [phone]
Facsimile: [phone]
[e-mail]
AMGEN INC.
Wendy A. Whiteford (SBN 150283)
Lois M. Kwasigroch (SBN 130159)
One Amgen Center Drive
Thousand Oaks, CA 91320-1789
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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KIRKLAND & ELLIS LLP
Jeanna M. Wacker (pro hac vice)
601 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendants Sandoz Inc. and Lek
Pharmaceuticals, d.d.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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KIRKLAND & ELLIS LLP
James F. Hurst (pro hac vice)
Cristina Q. Almendarez (pro hac vice)
300 N. LaSalle
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for Plaintiffs Amgen Inc. and Amgen
Manufacturing Limited

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KIRKLAND & ELLIS LLP
James Beard (S.B.N. 267242)
555 California Street
San Francisco, CA 94403
Telephone: [phone]
Facsimile: [phone]
[e-mail]

AMGEN INC. and
AMGEN MANUFACTURING LIMITED,
Plaintiffs,
vs.
SANDOZ INC., SANDOZ INTERNATIONAL
GMBH, SANDOZ GMBH, and LEK
PHARMACEUTICALS, D.D.

Case No. 3:16-cv-02581-RS
STIPULATION AND [PROPOSED]
ORDER REGARDING DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION

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Defendants.
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__________________________________________________________________________________
STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

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Upon the stipulation of Amgen Inc., Amgen Manufacturing Limited, Sandoz Inc., and Lek

2 Pharmaceuticals, d.d. (collectively, “the parties”), the Court ORDERS as follows:
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Purpose

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1.

This Order supplements all other discovery rules and orders. It streamlines

5 Electronically Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
6 determination of this action, as required by Federal Rule of Civil Procedure 1.” Nothing in this Order
7 shall waive in whole or in part any objection raised by a party in its written responses to specific
8 discovery requests served in this action.
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Cooperation

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2.

The parties are aware of the importance the Court places on cooperation and commit to

11 cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the Discovery
12 of ESI.
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Modifications
3.

This Order may be modified in the Court’s discretion or by stipulation.

Cost Shifting
4.

As in all cases, costs may be shifted for disproportionate ESI production requests

17 pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory
18 discovery tactics are cost-shifting considerations.
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5.

A party’s meaningful compliance with this Order and efforts to promote efficiency and

20 reduce costs will be considered in cost-shifting determinations.
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Preservation
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The parties have discussed their preservation obligations and needs and agree that

23 preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs and
24 burdens of preservation and to ensure proper ESI is preserved, the parties agree that ESI from certain
25 data sources will be considered not reasonably accessible because of undue burden or cost pursuant to
26 Fed. R. Civ. P. 26(b)(2)(B), and for purposes of this litigation, the parties agree they need not preserve
27 the following: (i) recorded voice messages; (ii) instant messaging communications that are not
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STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

1 ordinarily retained in a server dedicated to instant messaging; (iii) draft email or electronic
2 communications that are not sent; (iv) temporary data stored in a computer’s random access memory
3 (RAM), or other ephemeral data that are difficult to preserve without disabling the operating system;
4 (v) online access data such as temporary Internet files, history, cache, cookies, and the like; (vi)
5 device-to-device (pin-to-pin) messages sent to or from mobile devices (e.g., Android, iPhone, and
6 Blackberry devices); (vii) other electronic data stored on a mobile device, such as calendar or contact
7 data or notes; (viii) logs of calls made from mobile devices; (ix) server, system or network logs; (x)
8 electronic data temporarily stored by laboratory equipment or attached electronic equipment, provided
9 that such data is not ordinarily preserved as part of a laboratory report; (xi) backup tapes intended for
10 data-recovery purposes (xii) deleted data remaining in fragmented form only accessible by forensics.
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7.

Documents in this litigation will be produced in single-page TIFF format with full-text

12 extraction and Concordance load files. If there is no extractable text, the producing party shall perform
13 Optical Character Recognition (“OCR”) on the document and provide the associated text file. All text
14 files should be produced as document level text files with a path to the text file included in the
15 Concordance load file; extracted text/OCR should not be embedded in the load file itself. A party that
16 receives a document produced in a format specified above may make a reasonable request to receive
17 the document in its native format, and upon receipt of such a request, the producing party shall produce
18 the document in its native format to the extent reasonably accessible. Additionally, where production
19 of a document in TIFF image file format would be impracticable (such as Excel spreadsheets), the
20 producing party shall produce such document in native format.
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Email

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8.

General ESI production requests under Federal Rule of Civil Procedure 34 and 45 shall

23 not include email or other forms of electronic correspondence (collectively “email”). Email production
24 requests shall be governed by the search term process outlined below. To obtain email parties must
25 propound specific email production requests.
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9.

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

27 general discovery of a product or business.
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STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

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10.

A requesting party shall limit its email production requests to a total of eight custodians

2 per producing party for all such requests. The parties may jointly agree to modify this limit without
3 the Court’s leave. The Court shall consider contested requests for additional custodians, upon showing
4 a distinct need based on the size, complexity, and issues of this specific case. Cost-shifting may be
5 considered as part of any such request. The parties shall meet and confer as soon as possible to
6 identify the custodians who are most likely to have responsive or relevant emails.
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11.

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

8 terms per custodian. The parties may jointly agree to modify this limit without the Court’s leave. The
9 Court shall consider contested requests for additional search terms per custodian, upon showing a
10 distinct need based on the size, complexity, and issues of this specific case. The search terms shall be
11 narrowly tailored to particular issues. Indiscriminate terms, such as the producing company’s name or
12 its product name, are inappropriate unless combined with narrowing search criteria that sufficiently
13 reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g.,
14 “computer” and “system”) narrows the search and shall count as a single search term. A disjunctive
15 combination of multiple words or phrases (e.g., “computer” or “system”) broadens the search, and thus
16 each word or phrase shall count as a separate search term unless they are variants of the same word. A
17 disjunctive string of patent numbers that are asserted in this litigation shall only count as a single
18 search term. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the
19 production and shall be considered when determining whether to shift costs for disproportionate
20 discovery. Should a party serve email production requests with search terms beyond the limits agreed
21 to by the parties or granted by the Court pursuant to this paragraph, this shall be considered in
22 determining whether any party shall bear all reasonable costs caused by such additional discovery.
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12.

As with the production of any other documents in this litigation, production of email

24 shall be subject to and may be limited by the producing party’s objections, pursuant to Federal Rule of
25 Civil Procedure 34, and nothing in this Order shall be construed to the contrary.
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Other ESI

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13.

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For all other ESI that must be preserved and searched, reviewed and produced, and

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STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

1 which does not qualify as email ESI as set forth above, a producing party shall be subject to its general
2 obligation to conduct a reasonable search to locate and produce any responsive information (subject to
3 its objections) pursuant to Federal Rule of Civil Procedure 34. Such search may include using search
4 terms to search ESI on central databases, servers, or individual hard drives, or producing all ESI from
5 particular electronic folders or files likely to contain responsive information, and/or any other
6 appropriate method to capture the responsive information.
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Metadata

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14.

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FIELDNAME

DESCRIPTION

PRODBEG

Beginning production number

PRODEND

Ending production number

PRODVOL

Production volume (e.g., MF-PD001)

BEGATTACH

Beginning production family number

ENDATTACH

Ending production family Number

CUSTODIAN

Human custodian whose email was searched

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PGCOUNT

Total page count per document

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DOCTYPE

“EMAIL” (for email), “ATT” (for attachment)

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DOCEXT

File extension of original document

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TITLE

Subject of e-mail or Title of Attachment or Electronic Loose File

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DESIGNATION

Confidentiality designation

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DOCDATE

Document Last Modified Date or Document Sent Date, Use Sent
Date of Parent Email if Attachment

DOCTIME

Document Last Modified Time or Document Sent Time, Use
Sent Time of Parent Email if Attachment

TEXT

Text of email/attachment

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For email production, the following metadata shall be included, if available:

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STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

FILESIZE

Document file size in bytes

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FILENAME

Attachment or electronic loose filename

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AUTHOR

Author of document

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APPNAME

File Type, such as Word 6.0, Excel 2000, etc.

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FROM

Email sender

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RECIPIENT

Email recipient or paper recipients

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CC

Email CC or paper CC

BCC

Email BCC or paper BCC

CONVERSATIONID

Identification of a message chain

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CONVERSATIONINDEX Position of the message in a conversation

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CONVERSATIONTOPIC

Text topic of the conversation without RE, FW, etc.

MD5/SHA VALUE

Facilitates de-duplication

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15.

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FIELDNAME

DESCRIPTION

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PRODBEG

Beginning production number

PRODEND

Ending production number

PRODVOL

Production volume (e.g., MF-PD001)

CUSTODIAN

Human custodian whose files were searched

PGCOUNT

Total page count per document

DOCEXT

File extension of original document

TITLE

Title of original document

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DESIGNATION

Confidentiality designation

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CREATEDATE

Document Creation Date

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DOCDATE

Document Last Modified Date

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For production of all other ESI, the following metadata shall be included, if available:

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STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

DOCTIME

Document Last Modified Time

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TEXT

Text of document

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FILESIZE

Document file size in bytes

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FILENAME

Attachment or electronic loose filename

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AUTHOR

Author of document

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APPNAME

File Type, such as Word 6.0, Excel 2000, etc.

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MD5/SHA VALUE

Facilitates de-duplication

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16.

Should additional metadata exist that if provided would significantly aid a receiving

party in understanding or using a particular document(s), if requested, the producing party shall not
unreasonably withhold such metadata if such metadata is reasonably accessible.
17.

Nothing in this Order prevents the parties from agreeing to use technology assisted

review and other techniques insofar as their use improves the efficacy of discovery.

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STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

1 IT IS SO STIPULATED, through Counsel of Record.
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DATED: April 19, 2017

By: /s/ Stephen A. Maniscalco
Vernon M. Winters (SBN 130128)
Alexander D. Baxter (SBN 281569)
SIDLEY AUSTIN LLP
555 California Street, Suite 2000
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Plaintiffs Amgen Inc. and
Amgen Manufacturing Limited
OF COUNSEL:
Nicholas Groombridge (pro hac vice)
Eric Alan Stone (pro hac vice)
Jennifer H. Wu (pro hac vice)
Jennifer Gordon
Peter Sandel (pro hac vice)
Ana J. Friedman (pro hac vice)
Arielle K. Linsey (pro hac vice)
Stephen A. Maniscalco (pro hac vice)
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Wendy A. Whiteford
Lois M. Kwasigroch
AMGEN INC.
One Amgen Center Drive
Thousand Oaks, CA 91320-1789
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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__________________________________________________________________________________
STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

1 DATED: April 19, 2017
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By: /s/ James Warren Beard
James Warren Beard (S.B.N. 267242)
KIRKLAND & ELLIS LLP
555 California Street
San Francisco, CA 94403
Telephone: [phone]
Facsimile: [phone]
[e-mail]
James F. Hurst (pro hac vice)
Cristina Q. Almendarez (pro hac vice)
KIRKLAND AND ELLIS LLP
300 N. LaSalle
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Jeanna M. Wacker (pro hac vice)
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendants Sandoz Inc. and Lek
Pharmaceuticals d.d.

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STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS

ECF ATTESTATION

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In accordance with Civil Local Rule 5-1(i)(3), I attest that concurrence in the filing of this

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document has been obtained from any other signatory to this document.
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5 Dated: April 19, 2017
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By:

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/s/ James Warren Beard
James Warren Beard

8 PURSUANT TO STIPULATION, IT IS SO ORDERED

S

R NIA

FO

RT

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NO

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UNITED STATES DISTRICT JUDGE
THE HONORABLE RICHARD SEEBORG
es
lena Jam
Maria-E
Judge

H

ER

LI

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A

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Dated: April 24, 2017

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S DISTRICT
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UNIT
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D IS T IC T O
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__________________________________________________________________________________
STIPULATION AND [PROPOSED] ORDER REGARDING
DISCOVERY OF ELECTRONICALLY STORED INFORMATION

CASE NO. 3:16-CV-02581-RS