Hunter Douglas Inc. et al v. Ching Feng Home Fashions Co., Ltd.
Filing
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STIPULATION AND ORDER RE 66 Discovery of Electronically Stored Information for Patent Litigation. Signed by Judge Richard Seeborg on 6/12/17. (cl, COURT STAFF) (Filed on 6/13/2017)
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[COMPLETE LIST OF COUNSEL
IDENTIFIED ON SIGNATURE PAGES]
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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HUNTER DOUGLAS, INC. and
ANDREW J. TOTI TESTAMENTARY
TRUST,
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Plaintiffs,
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v.
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STIPULATION AND [PROPOSED]
ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION FOR PATENT
LITIGATION
CHING FENG HOME FASHIONS CO.,
LTD.,
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CASE NO. 3:17-CV-01069-RS
Defendant.
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STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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WHEREAS, Hunter Douglas, Inc. and the Andrew J. Toti Testamentary Trust
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(collectively, “Plaintiffs”), and Ching Feng Home Fashions Co., Ltd. (“Ching Feng”), have
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stipulated to certain modifications to the Court’s Model Stipulation & Order Re: Discovery of
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Electronically Stored Information For Patent Litigation, and for good cause shown and upon the
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stipulation of the parties, the Court ORDERS as follows:
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1.
This Order supplements all other discovery rules and orders. It streamlines
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Electronically Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
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determination of this action, as required by Federal Rule of Civil Procedure 1.”
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2.
This Order may be modified in the Court’s discretion or by stipulation.
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3.
As in all cases, costs may be shifted for disproportionate ESI production requests
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pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory
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discovery tactics are cost-shifting considerations.
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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.
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The parties are expected to comply with the District’s E-Discovery Guidelines
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(“Guidelines”) and are encouraged to employ the District’s Model Stipulated Order Re: the
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Discovery of Electronically Stored Information and Checklist for Rule 26(f) Meet and Confer
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regarding Electronically Stored Information.
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6.
General ESI production requests under Federal Rules of Civil Procedure 34 and 45
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shall not include email or other forms of electronic correspondence (collectively “email”). To
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obtain email parties must propound specific email production requests.
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7.
Email production requests shall only be propounded for specific issues, rather than
general discovery of a product or business.
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Email production requests shall be phased to occur after the parties have exchanged
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initial disclosures and basic documentation about the patents, the prior art, the accused
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instrumentalities, and the relevant finances. While this provision does not require the production
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of such information, the Court encourages prompt and early production of this information to
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promote efficient and economical streamlining of the case.
STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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9.
Email production requests shall identify the custodian, search terms, and time
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frame. The parties shall cooperate to identify the proper custodians, proper search terms and
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proper timeframe as set forth in the Guidelines.
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10.
Each requesting party shall limit its email production requests to a total of five
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custodians per producing party for all such requests. The parties may jointly agree to modify this
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limit without the Court’s leave. The Court shall consider contested requests for additional
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custodians, upon showing a distinct need based on the size, complexity, and issues of this specific
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case. Cost-shifting may be considered as part of any such request.
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Each requesting party shall limit its email production requests to a total of five
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search terms per custodian per party. The parties may jointly agree to modify this limit without the
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Court’s leave. The Court shall consider contested requests for additional search terms per
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custodian, upon showing a distinct need based on the size, complexity, and issues of this specific
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case. The Court encourages the parties to confer on a process to test the efficacy of the search
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terms. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such
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as the producing company’s name or its product name, are inappropriate unless combined with
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narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive
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combination of multiple words or phrases (e.g., “computer” and “system”) narrows the search and
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shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g.,
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“computer” or “system”) broadens the search, and thus each word or phrase shall count as a
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separate search term unless they are variants of the same word. Use of narrowing search criteria
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(e.g., “and,” “but not,” “w/x”) is encouraged to limit the production and shall be considered when
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determining whether to shift costs for disproportionate discovery. Should a party serve email
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production requests with search terms beyond the limits agreed to by the parties or granted by the
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Court pursuant to this paragraph, this shall be considered in determining whether any party shall
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bear all reasonable costs caused by such additional discovery.
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12.
Nothing in this Order prevents the parties from agreeing to use technology assisted
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review and other techniques insofar as their use improves the efficacy of discovery. Such topics
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should be discussed pursuant to the District’s E-Discovery Guidelines.
STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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13.
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Absent further Court order, the following parameters shall apply to general ESI
production requests under Federal Rules of Civil Procedure 34 and 45:
13.1.
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Absent a showing of good cause, general ESI production requests or
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compliance with a mandatory disclosure requirement of this Court shall not include or require the
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production of metadata with the exception of the following information which shall be included:
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BEGBATES, ENDBATES, BEGATTACH, ENDATTACH, ATT_COUNT, CUSTODIAN_ALL,
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AUTHOR, SUBJECT, TITLE, SUBJ_EMAIL, FILE_NAME, CONFIDENTIALITY,
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COMMENTS,1 TEXT LINK, NATIVELINK, REDACTED, TO, FROM, CC, BCC, DATE SENT,
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TIME SENT, DATE RECEIVED, TIME RECEIVED, CREATE_DATE, LASTMODDATE,
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LASTPRNTDATE, DOC_TYPE, DOCEXT, PAGE_COUNT, DUPSTATUS, MD5HASH, TEXT,
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VOLUME, NATIVE LINK, and FOREIGN_LANG which should be populated by the party or the
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party’s vendor. Fields showing the date and time that the document was sent and received, as well
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as the complete distribution list, shall generally be included in the production if such fields exist.
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The parties will make reasonable efforts to ensure that metadata fields automatically extracted from
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the documents are correct, however, the parties acknowledge that such metadata may not always be
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accurate and might instead contain irrelevant or incorrect information generated during the
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collection process. Parties may request other native files be produced as described in Section IV
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below. To the extent that the term “native” is used in this agreement, it means either in native or
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otherwise comparable format. Thus, for example, if a Google slide presentation is to be produced in
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native format, producing the document as a .ppt file would be appropriate.
13.2.
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Accessible ESI. The parties agree that reasonably accessible sources of ESI
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for the purposes of this case include electronic documents stored on computer networks, hard
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drives, shared network drives, and workstation or laptop hard drives.
13.3.
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General Document Image Format. Each electronic document shall be
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produced in black and white or color single-page Group IV Tagged Image File Format (“TIFF”) or
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native format. TIFF files shall be single page and shall be named with a unique production number
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The parties agree that an acceptable alternative to producing COMMENTS metadata as a separate
field is to make comments visible in TIFF format.
STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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followed by the appropriate file extension. Load files stating the location and unitization of the
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TIFF files shall be provided. If a document is more than one page, the unitization of the document
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and any attachments and/or affixed notes shall be maintained as they existed in the original
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document.
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13.4.
Hard Copy Documents. Documents that exist in hard copy format only
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shall be scanned and produced as black and white or color single page Group IV TIFFs, with at least
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300 dpi. Each TIFF image shall be named according to the corresponding Bates number associated
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with the document. Each image shall be branded according to the production number and
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applicable confidentiality designation. TIFFs shall show all text and images that would be visible to
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a user of the hard copy documents. The documents should be unitized as they currently exist in the
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ordinary course of business.
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13.5.
De-Duplication. A party is only required to produce a single copy of a
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responsive document and a party may de-duplicate responsive ESI (based on MD5 or SHA-1 hash
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values at the document family level) across volumes. To the extent that a base document may
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contain nonprivileged handwriting, notes or other modifications or marginalia which render the
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document non-identical, a copy of each non-identical document shall be produced. To the extent
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that de-duplication through MD5 or SHA-1 hash values is not possible, the parties shall meet and
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confer to discuss any other proposed methods of de-duplication.
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13.6.
Text-Searchable Documents. Documents shall be produced in text-
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searchable format at no cost to the receiving party. However, documents that do not have
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extractable text or text that can be generated by optical character recognition (OCR) need not be
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produced in text-searchable format.
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13.7.
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Footer. Each document image shall contain a footer with a sequentially
ascending production number.
13.8.
Native Files. Excel spreadsheets shall be produced in their native format
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when requested. However, native format production shall not be required if an Excel spreadsheet
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requires redaction (for privilege or otherwise). Moreover, document types that cannot be reduced to
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TIFF image (e.g., media files, etc.) shall be produced in their native format with an accompanying
STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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slip-sheet branded with the appropriate production number and confidentiality designation. For
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other documents, a party may make a reasonable request to receive the document in its native
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format, and upon receiving such a request, the producing party shall produce the document in its
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native format with an accompanying slip-sheet branded with the appropriate production number and
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confidentiality designation.
13.9.
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Color. A party that receives a document produced in a format specified
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above may make a reasonable request to receive a color version. Upon receipt of such a request, the
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producing party shall produce color images in single-page JPEG format.
13.10. 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 party’s normal or
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allowed processes, including but not limited to backup tapes, disks, SAN, and other forms of media.
13.11. Inaccessible ESI. Absent a showing of good cause, voicemails; instant
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messages; legacy data; residual, fragment, damaged, permanently deleted slack and unallocated
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data; PDAs; and mobile phones are all deemed not reasonably accessible and need not be collected
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and preserved.
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14.
Under Federal Rule of Evidence 502(d), the inadvertent production of privileged or
work product protected ESI is not a waiver in this case or in any other federal or state proceeding.
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The mere production of ESI in litigation as part of a mass production shall not itself
constitute a waiver for any purpose.
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Except as expressly stated, nothing in this order affects the parties’ discovery
obligations under the Federal or Local Rules.
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STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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IT IS SO STIPULATED, through Counsel of Record.
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DATED: June 8, 2017
Respectfully submitted,
KILPATRICK TOWNSEND & STOCKTON LLP
By: /s/ Frederick L. Whitmer
KILPATRICK TOWNSEND & STOCKTON LLP
Frederick L. Whitmer, pro hac vice
1114 Avenue of the Americas
New York, NY 10036
Email: fwhitmer@kilpatricktownsend.com
Telephone: (212) 775-8773
Facsimile: (212) 775-8821
Matthew C. Holohan, (SBN 239040)
Kent T. Dallow, pro hac vice
1400 Wewatta Street
Denver, CO 80202
Email: mholohan@kilpatricktownsend.com
kdallow@kilpatricktownsend.com
Telephone:
(303) 571-4000
Facsimile:
(303) 571-4321
A. James Isbester (SBN 129820)
Two Embarcadero Center, Suite 1900
San Francisco, CA 94111
Email: jisbester@kilpatricktownsend.com
Telephone:
(415) 273-4335
Facsimile:
(415) 576-0300
Attorneys for Plaintiffs Hunter Douglas Inc. and Andrew J. Toti
Testamentary Trust
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STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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Dated:
June 8, 2017
K&L GATES LLP
By: /s/ Peter E. Soskin (with permission)
Harold H. Davis, Jr.
Jas S. Dhillon
Rachel E. Burnim
Peter E. Soskin
K&L GATES LLP
4 Embarcadero Center, Suite 1200
San Francisco, California 94111
Tel: 415.882.8200
Fax: 412.882.8220
Jay C. Chiu (SBN 205385)
jay.chiu@klgates.com
K&L GATES LLP
1 Park Plaza
Twelfth Floor
Irvine, CA 92614
Tel: 949.253.0900
Fax: 949.253.0902
Attorneys for Defendant Ching Feng Home Fashions Co.,
Ltd.
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STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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PURSUANT TO STIPULATION, IT IS ORDERED that the forgoing Order is
approved.
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Dated: 6/12/17
UNITED STATES DISTRICT/MAGISTRATE JUDGE
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12687277V.2
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STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY
STORED INFORMATION FOR PATENT LITIGATION
CASE NO. 3:17-CV-01069-RS
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