Potter Voice Technologies LLC, v. Apple, Inc., et al.,
Filing
370
ORDER by Judge Claudia Wilken Granting 368 Stipulated E-Discovery Order (ndr, COURT STAFF) (Filed on 10/30/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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Potter Voice Technologies LLC,
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Case No. 4:13-cv-01710-CW
E-DISCOVERY ORDER
Plaintiff,
v.
Apple Inc.,
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Defendant.
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Plaintiff Potter Voice Technologies LLC (“Plaintiff”) and Defendant Apple Inc.
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(“Defendant”) conferred pursuant to Federal Rule of Civil Procedure 26(f). The parties agree
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regarding the standards for e-discovery and electronically stored information in this case and
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submit the following Proposed E-Discovery Order:
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Proposed E-Discovery Order
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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good cause
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for the following Joint Proposed E-Discovery Order (“Order”):
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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.
Costs will be shifted for disproportionate ESI production requests pursuant to
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Case No. 4:13-cv-01710-CW
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JOINT PROPOSED E-DISCOVERY ORDER
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Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory discovery
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tactics will be cost-shifting considerations.
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3.
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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General ESI production requests under Federal Rules of Civil Procedure 34 and 45
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shall not include metadata absent a showing of good cause or agreement of the parties. However,
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fields showing the date and time that the document was sent and received, as well as the complete
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distribution list, shall generally be included in the production.
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5.
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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6.
Email production requests, if any, shall only be propounded for specific issues,
rather than general discovery of a product or business.
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By November 8, 2013, each party will provide to the other party a list of fifteen e-
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mail custodians affiliated with the party (which may include current and/or former employees)
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who the party believes to be relevant e-mail custodians in view of the pleaded claims and
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defenses and discovery disclosures exchanged to date. The list of custodians shall include the
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names and titles of each custodian, as well as dates of employment.
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custodians shall also include an identification of the portion(s) of Siri on which the custodian has
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worked. Plaintiff’s list of custodians shall also include each custodian’s relationship to the
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litigation. Email production requests, if any, shall be phased after November 29, 2013.
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8.
Defendant’s list of
Email production requests, if any, shall identify the custodian, search terms, and
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time frame. The parties shall cooperate to identify the proper custodians, proper search terms and
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proper timeframe.
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9.
Each requesting party shall limit any email production requests to a total of seven
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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 up to five
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additional custodians per producing party, upon showing a distinct need based on the size,
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Case No. 4:13-cv-01710-CW
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JOINT PROPOSED E-DISCOVERY ORDER
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complexity, and issues of this specific case. Should a party serve email production requests for
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additional custodians beyond the limits agreed to by the parties or granted by the Court pursuant
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to this paragraph, the requesting party shall bear all reasonable costs caused by such additional
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discovery.
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10.
Each requesting party shall limit its email production requests to a total of ten
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search terms per custodian per party. The parties may jointly agree to modify this limit without
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the Court’s leave. The Court shall consider contested requests for up to five additional search
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terms per custodian, upon showing a distinct need based on the size, complexity, and issues of
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this specific case. The search terms shall be narrowly tailored to particular issues. Indiscriminate
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terms, such as the producing company’s name or its product name, are inappropriate unless
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combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A
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conjunctive combination of multiple words or phrases (e.g., “computer” and “system”) narrows
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the search and shall count as a single search term. A disjunctive combination of multiple words or
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phrases (e.g., “computer” or “system”) broadens the search, and thus each word or phrase shall
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count as a separate search term unless they are variants of the same word. Use of narrowing
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search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the production and shall be
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considered when determining whether to shift costs for disproportionate discovery. Should a party
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serve email production requests with search terms beyond the limits agreed to by the parties or
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granted by the Court pursuant to this paragraph, the requesting party shall bear all reasonable
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costs caused by such additional discovery.
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11.
The receiving party shall not use ESI that the producing party asserts is attorney-
client privileged or work product protected to challenge the privilege or protection.
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Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a
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privileged or work product protected ESI is not a waiver in the pending case or in any other
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federal or state proceeding.
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13.
The mere production of ESI in a litigation as part of a mass production shall not
itself constitute a waiver for any purpose.
14.
The parties will provide documents and ESI in one of the following formats: (1)
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JOINT PROPOSED E-DISCOVERY ORDER
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native format with appropriate accompanying Concordance or Summation load files; (2) in single
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page TIFF format with appropriate accompanying Concordance or Summation load files and
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extracted text or OCR text files; or (3) in PDFs. For documents which already exist in PDF
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format prior to production (i.e., which the producing party receives from a client or third party in
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PDF format), the producing party may provide them in that same PDF format, whether searchable
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or non-searchable. For documents converted to PDF format prior to production, the producing
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party shall make reasonable efforts to convert to searchable PDF. The parties, however, reserve
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the right to request the production of any particular ESI document in its native format. The parties
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agree to meet and confer to attempt to accommodate such requests. The Concordance or
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Summation load files will contain the custodian of the document and the Bates number of the
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document. If documents are produced as PDFs, the PDFs will be accompanied with Bates
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numbers and identification of the custodian for each document. The load files will contain
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beginning and ending Bates numbers, To/From/CC/ email fields, and any parent email to child
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attachment relationship, to the extent the native file contains the email fields and parent/child
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relationship.
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15.
To the extent either party believes, on a case-by-case basis, that documents should
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be produced in an alternative format, the parties will meet and confer in good faith concerning
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such alternative production arrangements. The parties will also meet and confer in good faith to
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ensure that the format of each party’s production is compatible with the technical requirements of
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the receiving party’s document management system and the parties agree to conduct additional
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meet and confer conferences, as necessary, to attempt to reach further agreement on electronic
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document production.
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16.
Locations That Will Not Be Searched for Responsive Documents. The following
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locations will not be searched under any circumstances, and as such need not be preserved:
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information stored on personal digital assistants, mobile phones, voicemail systems, instant
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messaging systems, and automated disaster recovery backup systems and/or disaster recovery
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backup tapes. In addition, the parties agree that only sent and received custodial emails will be
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searched. Notwithstanding the foregoing, the parties agree that Responsive Documents that a
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Custodian indicates are stored on an archival storage medium that the Custodian can readily
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identify and locate, that cannot be located in any other repository of information, and that can
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reasonably be searched, will be searched. In addition, nothing in this paragraph shall limit a
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receiving party’s right to request from a producing party more information about the nature of and
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burden associated with obtaining documents from a particular location. The parties further
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recognize their obligations to preserve any potentially relevant sources of data, whether live or in
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archival form, for purposes of this litigation.
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17.
Excluded File Types and Extensions: In addition to email, as discussed above, a
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party is generally not required to search, review, collect, or produce the following categories of
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electronic files except when those files are relevant and attached or identified in a text file, or
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specifically requested by a party (subject to any appropriate objections that may be lodged):
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a. system or executable files (.exe, .dll, etc.);
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b. audio, video, or audio-visual information, including telephonic recordings or
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voicemail (e.g., .wav, .mp3, .avi, .swf, etc.), unless the responsiveness of specific files is made
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known to counsel during search, review, collection, or production of other responsive
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information;
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c. unreadable or corrupt files;
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d. data from BlackBerry™ or other smartphone devices where the producing party
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believes based on its standard practices that the information contained therein is expected to be
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duplicative of other sources (e.g., other email systems);
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e. materials retained primarily for backup or disaster recovery purposes;
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f. “embedded” materials (e.g., Microsoft Office files embedded within Microsoft
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Office files such as Word and PowerPoint) not including e-mail attachments, subject to the
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requesting party's right to request specific “embedded” material in specific produced documents;
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and
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g. any other file types subsequently agreed by the parties.
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Case No. 4:13-cv-01710-CW
5.
JOINT PROPOSED E-DISCOVERY ORDER
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Dated: October 30, 2013
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Attorneys for Plaintiff
Potter Voice Technologies LLC
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/s/ Jennifer C. Lu
Christopher D. Banys (State Bar No. 230038)
Richard C. Lin
(State Bar No. 209233)
Jennifer C. Lu
(State Bar No. 255820)
cdb@banyspc.com
rcl@banyspc.com
jcl@banyspc.com
BANYS, P.C.
1032 Elwell Court, Suite 100
Palo Alto, California 94303
Telephone: (650) 308-8505
Facsimile: (650) 353-2202
Dated: October 30, 2013
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/s/ Timothy S. Teter
Stephen Neal (170085)
nealsc@cooley.com
Timothy S. Teter (171451)
teterts@cooley.com
Cooley LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Telephone:
(650) 843-5000
Facsimile:
(650) 849-7400
Eamonn Gardner (admitted pro hac vice)
egardner@cooley.com
Matthew Leary (admitted pro hac vice)
mleary@cooley.com
Cooley LLP
380 Interlocken Crescent, Suite 900
Broomfield, CO 80021-8023
Telephone: (720) 566-4000
Facsimile:
(720) 566-4099
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Attorneys for Defendant Apple Inc.
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ATTESTATION:
I, Timothy S. Teter, am the ECF User whose identification and
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password are being used to file this Joint Proposed E-Discovery Order for Apple Inc. and Potter
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Voice Technologies, Inc. I hereby attest that Jennifer C. Lu has concurred in this filing.
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/s/ Timothy S. Teter
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Case No. 4:13-cv-01710-CW
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JOINT PROPOSED E-DISCOVERY ORDER
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IT IS SO ORDERED.
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Dated: 10/30/2013
United States District Judge Wilken
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COOLEY LLP
ATTORNEYS AT LAW
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Case No. 4:13-cv-01710-CW
7.
JOINT PROPOSED E-DISCOVERY ORDER
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