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”):
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.

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.
4.

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.
7.

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.
12.

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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Case No. 4:13-cv-01710-CW

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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

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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)
[e-mail]
[e-mail]
[e-mail]
BANYS, P.C.
1032 Elwell Court, Suite 100
Palo Alto, California 94303
Telephone: [phone]
Facsimile: [phone]

Dated: October 30, 2013

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/s/ Timothy S. Teter
Stephen Neal (170085)
[e-mail]
Timothy S. Teter (171451)
[e-mail]
Cooley LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Telephone:
[phone]
Facsimile:
[phone]
Eamonn Gardner (admitted pro hac vice)
[e-mail]
Matthew Leary (admitted pro hac vice)
[e-mail]
Cooley LLP
380 Interlocken Crescent, Suite 900
Broomfield, CO 80021-8023
Telephone: [phone]
Facsimile:
[phone]

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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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Case No. 4:13-cv-01710-CW

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JOINT PROPOSED E-DISCOVERY ORDER