Baird v. BlackRock Institutional Trust Company, N.A. et al

Filing 208

ORDER by Judge Haywood S. Gilliam, Jr. Granting 207 Stipulation Regarding Discovery of Electronically Stored Information.(ndrS, COURT STAFF) (Filed on 12/19/2018)

1
2
3
4
5
6
7

MORGAN, LEWIS & BOCKIUS LLP
Spencer H. Wan (CA Bar No. 304329)
[e-mail]
One Market, Spear Street Tower
San Francisco, CA 94105
Tel: [phone]; Fax: [phone]
Brian T. Ortelere (pro hac vice)
[e-mail]
1701 Market Street
Philadelphia, PA 19103-2921
Tel: [phone]; Fax: [phone]

8
9
10
11
12
13

Matthew A. Russell (pro hac vice)
[e-mail]
77 West Wacker Drive
Chicago, IL 60601
Tel: [phone]; Fax: [phone]
Attorneys for Defendant
Mercer Investment Consulting
UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

OAKLAND DIVISION

16
17

Charles Baird, et. al.,
Case No. 4:17-cv-01892-HSG

18
19
20
21
22

Plaintiffs,
v.

STIPULATION AND (PROPOSED)
ORDER REGARDING DISCOVERY OF
BlackRock Institutional Trust Co., N.A., et al., ELECTRONICALLY STORED
INFORMATION
Defendants.

23
24
25
26

Plaintiffs Charles Baird and Lauren Slayton, and Defendant Mercer Investment
Consulting (“Mercer”) (collectively referred to herein as the “Parties”), HEREBY STIPULATE
AND AGREE, by and through their undersigned counsel, that the following specifications shall

27
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI
DB1/ 101148692.1

1
2
3
4
5
6
7
8
9
10
11
12

govern discovery of all documents, electronically stored information (“ESI”), and any other
materials and information produced by the Parties during discovery in the above-captioned action.
I.

General
A.

this Stipulation.
B.

15
16

C.

19
20

terms of this Stipulation shall be construed so as to ensure the prompt, efficient, and cost-effective
exchange of information consistent with the Federal Rules of Civil Procedure, the Local Rules,
and any orders by this Court.
1.

23
24
25
26

to other courts, this Stipulation will remain in effect in all respects, until adopted by the transferee
court or replaced by a successor agreement.
2.

and the Court’s orders, nor imply that discovery produced under the terms of this Stipulation is
properly discoverable, relevant, or admissible in this or in any other litigation.
3.

PHILADELPHIA

Subject to this Stipulation, the Parties’ objections and responses to requests

for production of documents and interrogatories, and subject to a binding Stipulated Protective
Order filed with the Court (“Protective Order”), all documents that are responsive to discovery
requests and not designated as “privileged” shall be produced in the manner provided herein.
Nothing in this Stipulation shall be interpreted to require disclosure of materials that a Party
contends are not discoverable or are protected from disclosure by the attorney-client privilege, the
2

28
ATTORNEYS AT LAW

This Stipulation shall not enlarge, reduce, or otherwise affect the scope of

discovery in this litigation as imposed by the Federal Rules of Civil Procedure, the Local Rules,

27

MORGAN, LEWIS &
BOCKIUS LLP

Except as specifically limited herein, this Stipulation governs the

production of discoverable documents by the Parties during the litigation. In the event of transfer

21
22

To the extent reasonably possible, the production of documents shall be conducted

to maximize efficient and quick access to documents and minimize related discovery costs. The

17
18

This Stipulation is intended to streamline production to promote a “just, speedy

and inexpensive determination” of this action, as required by Federal Rule of Civil Procedure 1.

13
14

The Parties shall take reasonable steps to comply with the procedures set forth in

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4
5
6

attorney work product doctrine, or any other privilege that may be applicable. Additionally,
nothing in this Stipulation shall be deemed to waive or limit any Party’s right to object to the
production of certain electronically stored information, or to move for an appropriate order
pursuant to the Federal Rules of Civil Procedure on the ground that the sources are not reasonably
accessible because of undue burden or cost or on the ground that there is good cause for the
documents’ production.

7
8
9
10

4.

technical problems associated with complying with this Stipulation. To the extent compliance
with this Stipulation imposes an undue burden with respect to any protocol, source, or search term
listed herein, the Parties shall promptly confer in an effort to resolve the issue.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

5.

telephone, disputes regarding the issues set forth herein prior to filing a motion with the Court, or
otherwise seeking relief. If the Parties are unable to resolve the dispute after a good faith effort,
the Parties may seek Court intervention in accordance with the Court’s procedures.
II.

Production Format – Hardcopy
Hardcopy documents should be produced as single-page, Group IV, 300 DPI TIFF images

with an .opt image cross-reference file and a delimited database load file (i.e., .dat). The database
load file should contain the following fields: “BEGNO,” “ENDNO,” “BEGATTACH,”
“ENDATTACH,” “PAGES,” “CUSTODIAN,” and “FULLTEXT.” The documents should be
logically unitized (i.e., distinct documents should not be merged into a single record, and a single
document should not be split into multiple records) and should be produced in the order in which
they are kept in the usual course of business. If an original document contains relevant
information in color (including but not limited to documents that have charts, graphs, graphics
other than in the header or footer of the document, redline changes from more than one person,
and/or highlighting), the document should be produced as single-page, 300 DPI with a minimum
3

28
ATTORNEYS AT LAW
PHILADELPHIA

Consistent with their obligations under applicable Federal Rules of Civil

Procedure, the Parties will attempt to resolve, in person, in writing (including e-mail) or by

27

MORGAN, LEWIS &
BOCKIUS LLP

The Parties agree to promptly alert all other Parties concerning any

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

quality level of 75, 24-bit, color JPG images. OCR should also be provided. The OCR software
should maximize text quality over process speed. Settings such as “auto-skewing” and “autorotation” should be turned on during the OCR process.
III.

Production Format – Electronically Stored Information
Electronically stored information (“ESI”) should be produced as single-page, Group IV,

300 DPI TIFF images with the exception of source code, audio, video, and spreadsheet- and
database-type files, including, but not limited to, Microsoft Excel, CSV, PowerPoint and similar
files, and Access/database files – which should be produced in native format.
To the extent that a party obtains through discovery a non-redacted file or document that
it believes is not adequately represented in an image file format, the receiving party may request
that files or documents by Bates number be produced as a Native File, the production of which
may not unreasonably be withheld and thus produced within fourteen (14) days of the request
unless the volume is too large at which time the producing party will notify the requesting party
of the necessary turn-around time to complete the request. However, for requests for all files of
a certain type, from a certain custodian, or from a certain time period, the parties shall meet and
confer regarding such request before the native files are produced. If a producing party wishes to
designate a Native File “Confidential” it shall do so by producing the Native File on media that
is labeled “Confidential” or by branding the placeholder TIFF image. If a producing party
wishes to redact material from a file that it would otherwise produce as a Native File, it shall do
so by converting that file to a TIFF image and producing it in redacted form along with OCR text
that reflects such redactions, or if such conversion renders or will render the document
reasonably unusable, by producing the file in such other reasonably usable form as may be
agreed upon by the respective parties, including, but not limited to native file redaction.
All ESI should be produced with a delimited, database load file that contains the
metadata fields listed in Appendix 1, attached hereto, to the extent captured at the time of the
collection. To the extent that metadata does not exist, is not reasonably accessible or available

27

4

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

for any documents produced, nothing in this Stipulation shall require any Party to extract,
capture, collect or produce such data. If the Parties agree, certain documents identified and
collected as part of a targeted collection that originated as ESI may be produced without
metadata but compliant with Section II. An .opt image cross-reference file should also be
provided for all TIFF images.
To the extent a document is not produced natively, the TIFF images should show any
and all text and images which would be visible to the reader using the native software that
created the document. For example, TIFF images of e-mail messages should include the BCC
line; PowerPoint documents should be processed with hidden slides and all speaker notes
unhidden, and should be processed to show both the slide and the speaker’s notes on the
TIFF/JPG image; and Word documents should reflect all “track changes” and comment bubbles
present in the document. Color originals may be produced in B&W TIFF format, but the
receiving party may subsequently request, by Bates number(s), a replacement set of images in
color. When such request is made by the receiving party, the production of images in color
when may not unreasonably be withheld and thus the producing party must re-produce the color
images within fourteen (14) days of the request, unless the volume is too large at which time the
producing party will notify the requesting party of the necessary turn-around time to complete
the request. However categorical or wholesale requests are deemed invalid.
If a document is produced in native format, a single-page Bates-stamped TIFF image
slip-sheet containing the confidential designation and text stating the document has been
produced in native format should also be provided. If documents requested in native format
require redactions, the parties should meet and confer regarding how to implement redactions
while ensuring that proper formatting and usability are maintained. Each native file should be
named according to the Bates number it has been assigned, and should be linked directly to its
corresponding record in the load file using the NATIVELINK field. To the extent that either
party believes that native files should be produced for a specific document or class of documents

27

5

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4

not required to be produced in native format pursuant to this paragraph or to the extent records
do not easily conform to native or TIFF format (i.e., structured data), the parties should meet and
confer in good faith.
IV.

5
6
7
8

Previously Collected and Produced Data
The Parties agree that there is no obligation to recollect or reproduce any prior collections

or productions collected or produced prior to the entry of this ESI Stipulation. This includes not
requiring either party to reproduce productions in the production format outlined in this ESI
Stipulation.

9
10
11

V.

Production – Handling Completely Non-Responsive Documents Attached to
Production-Eligible Documents
In an effort to avoid unnecessary expense and burden, the parties agree that completely

12

non-responsive documents attached to an otherwise production-eligible document can be

13

produced as a single-page Bates-stamped TIFF image slip-sheet containing the text stating the

14

document has been withheld as non-responsive. For all attachments withheld as non-responsive,

15

the producing party agrees to produce as part of the metadata load files the ESI metadata listed in

16

Appendix A (with the exception of text). To the extent that the receiving party, acting in good

17

faith after a reasonable review of the produced documents and withheld attachments, believes that

18

the attachments withheld are in fact responsive, the receiving party may make a narrowly-tailored

19

request for a non-excessive set of such documents, the production of which must be produced

20

within fourteen (14) days of the request unless the producing party provides to the requesting

21

party the basis for withholding each specific document selected as non-responsive within fourteen

22

(14) days of the request.

23
24

When producing responsive attachments, the parent email will be produced, regardless of
responsiveness unless otherwise protected from disclosure.

25
26
27

6

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1

VI.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Production Format – Social Media
ESI from social media websites (e.g., LinkedIn, Facebook, Twitter) may be produced by

capturing information through “screen shots” or “screen captures” and converting same into
images along with corresponding extracted text or OCR unless the Parties agree to perform bulk
exports of accounts, such as by exporting out a profile from LinkedIn or downloading a copy of
an individual’s Facebook data or archive
VII.

Production Format - Media
Documents shall be exchanged on DVD-ROMs, CD-ROMs, USB drives, portable hard

drives or through secure file transfer protocols (e.g., FTP) or similar secure electronic
transmission. The production media shall be labeled with the Volume Number along with the
Bates Number range(s) of the materials, and where not practicable to do so, may be provided in
an accompanying letter. Any document production that may contain “non-public personal
information” (as defined in the Gramm-Leach-Bliley Act) or “Confidential Health Information”
(as defined in the Protective Order that is protected under the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) Privacy Rule, 45 C.F.R., pts. 160 and 164, and/or other
applicable state or federal law or regulation concerning confidential health information) shall be
produced in encrypted form and the production media shall be labeled “MAY CONTAIN NONPUBLIC PERSONAL INFORMATION” or “MAY CONTAIN CONFIDENTIAL HEALTH
INFORMATION” as applicable. If a Producing Party encrypts or “locks” the production, the
Producing Party shall send, under separate cover, an explanation of how to decrypt the files.
VIII. Processing and Other Specifications
A.

permitted absent a good-faith showing by the Requesting Party of good cause and specific need or
upon agreement of the parties. As appropriate, the Court may condition on-site inspections of
ESI, as authorized in the preceding sentence, to be performed by independent third-party experts,
and the Court may set other conditions deemed appropriate by the Court.

27

7

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

On-Site Inspections: On-site inspections of ESI under Rule 34(b) shall not be

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

B.

Bates Numbering and Confidentiality Designations: Each page of a produced

image shall have a legible, unique Bates number that includes an alpha prefix along with a fixed
number, i.e., ABC00000001, electronically “burned” onto the image at a location that does not
unreasonably obliterate or obscure any information from the source document. Each image page
or native file assigned a Bates number shall be assigned a Bates number that is unique and
maintains a constant length across the entire document production. No other legend or stamp will
be placed on the document image other than confidentiality legends (where applicable) or
redactions.
C.

ESI Date and Time Processing: Each Party’s ESI should be processed using a

consistent Time Zone for all data. The Party shall share the Time Zone selected for processing of
its data with the other Party.
D.

Global or Horizontal Deduplication: Removal of duplicate documents should only

be done on exact duplicate documents (based on MD5 or SHA-1 hash values, at the family level).
Attachments should not be eliminated as duplicates for purposes of production, unless the parent
e-mail and all attachments are also duplicates. When applying global deduplication, metadata
identifying all custodians in possession of each document that is removed as a duplicate must be
provided in the CUSTODIAN metadata field subject to any exceptions provided in this
Stipulation.
E.

Email Thread Suppression: Each Party may also deduplicate e-mails in such a

way as to eliminate earlier e-mails, and produce only the most complete iteration of an e-mail
chain. However, any de-duplication tool used by a party must ensure that an e-mail will be
suppressed only if its recipients (including cc and bcc recipients), subject, body text (excluding
specified automatic footers and normalized to consolidate white space) and attachments are
wholly included in another more representative e-mail. The producing party will be using
Brainspace’s email thread suppression tool and workflow.

26
27

8

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

F.

Embedded Objects: Some Microsoft Office and .RTF files may contain embedded

objects. Such objects typically are the following file types: Microsoft Excel, Word, PowerPoint,
Project, Outlook, Access and PDF. Subject to claims of privilege and immunity, as applicable,
objects with those identified file types shall be extracted as separate files and shall be produced as
attachments to the file in which they were embedded unless otherwise subject to an exception
provided within this Stipulation.
G.

Compressed Files: Compressed file types (i.e., .CAB, .GZ, .TAR. .Z, .ZIP) shall

be decompressed in a reiterative manner to ensure that a zip within a zip is decompressed into the
lowest possible compression resulting in individual files.
H.

Redactions: The producing party can redact documents for privilege, personally

identifiable information, and the names of Mercer clients other than BlackRock and/or the
BlackRock Plan, as well other information that would render the client easily identifiable (such
as, for example, employer identification numbers or email addresses, to the extent they contain
the client’s name). If, during the course of discovery, the parties identify other kinds of
information that any party has a reasonable basis for redacting, the parties will meet and confer
regarding it before such redactions are made. If the issue cannot be resolved, the parties will seek
resolution from the Court.
I.

No Designation of Discovery Requests: Production of hard copy documents and

ESI in the reasonably usable form set out in this Stipulation need not include any reference to the
requests to which a document or ESI may be responsive.
J.

Foreign Language Documents: To the extent that documents or ESI are produced

that contain languages other than English, in whole or in part, the Producing Party shall produce
all foreign language document and ESI in the original language. The Producing Party has no
obligation to provide a translation of the documents or ESI or any portion thereof.

25
26
27

9

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3

IX.

Identification and Collection of Documents
A.

confer in an effort to agree upon the following:

4

1.

3.
B.

9
10
11
12

15
16
17
18
19
20
21
22

25
26

locations may contain responsive information and such data is within the possession, custody or
control of the Producing Party.
2.

of hits yielded by each search string. After reviewing the search string hit report, the requesting
party may propose to the producing party for its consideration additional search strings to be run
based on the results received thus far. So long as the requesting party demonstrates that the
additional proposed search strings is likely to return additional relevant information, the
producing party will provide the requesting party with counts for the number of hits yielded by
each of the requesting party’s search string. The parties will then meet and confer to discuss the
hit reports and to determine whether additional review of documents is likely to return additional
relevant information.
3.

PHILADELPHIA

The parties envision an iterative process whereby the parties evaluate the

results of initial searches and, in good faith, tailor the use of search strings so as to effectively
identify potentially responsive material and avoid the false identification of material which is not
responsive. The producing party will identify to the requesting party any material changes to the
10

28
ATTORNEYS AT LAW

The Producing Party will run the initial search strings identified by the

parties against the identified data sources and provide the requesting party with counts for number

27

MORGAN, LEWIS &
BOCKIUS LLP

Email and Non-Email: the Parties agree to search for and produce unique,

responsive records from sources of hard copy and ESI to the extent a custodian reveals that such

23
24

Location of relevant data sources including custodial and non-custodial.

Search Methodology:
1.

13
14

Search methodology to be applied, including, but not limited to, search

terms and date restrictions; and

7
8

List of records custodians;

2.

5
6

Except at otherwise agreed upon in this Stipulation, the Parties will meet and

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4
5

search string lists. If the requesting party objects to the changes and proposes any modification of
its own, the parties will meet and confer regarding the requesting party’s proposal. If the parties
cannot reach an agreement regarding the requesting party’s proposed search terms or additional
search terms, either party may present the dispute to Magistrate Judge Westmore pursuant to her
dispute resolution procedures.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

4.

agreed upon search terms does not mean that such document is necessarily responsive to any
propounded discovery request or is otherwise relevant to this litigation. Determinations of
discoverability, responsiveness and privilege shall be made by the Producing Party, which shall
make such determinations in accordance with its obligations under the Federal Rules of Civil
Procedure.
X.

Preservation
A.

The Parties acknowledge that they have an obligation to take reasonable and

proportional steps to preserve discoverable information in the Party’s possession, custody or
control.
B.

The Parties agree that the circumstances of this case do not warrant the

preservation, collection, review, or production of ESI that is not reasonably accessible because
they anticipate that enough relevant information can be yielded from reasonably accessible
sources and, as necessary and appropriate, supplemented with deposition discovery. Moreover,
the remote possibility of additional relevant information existing in not reasonably accessible
sources is substantially outweighed by the burden and cost of preservation, collection, review and
production of ESI from sources that are not reasonably accessible. The Parties agree that the
following ESI is not reasonably accessible:

24
25

The mere fact that a document is hit or captured by the application of any

1.

Deleted, shadowed, damaged, residual, slack, fragmented, or other data

only accessible by forensics and “unallocated” space on hard drives.

26
27

11

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2

2.

ephemeral data that is difficult to preserve without disabling operating systems.

3

3.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

7.

fragments.
XI.

Privilege and Privilege Logs
A.

PHILADELPHIA

The Parties agree that they need not initially exchange the text of litigation

hold/retention instructions issued in this litigation.
B.

The parties agree that certain privileged communications or documents (excluding

those subject to the fiduciary exception to the attorney-client privilege, if any exist) need not be
included in a privilege log: (a) any privileged communications or documents involving trial
counsel for Mercer that post-date the filing of the complaint, (b) any internal communications
within a law firm, and (c) any communications regarding litigation holds or preservation,
collection, or review in this or any Litigation.
C.

In an effort to avoid unnecessary expense and burden, the Parties agree that, for

documents redacted or withheld from production on the basis of attorney-client privilege, work
product doctrine and/or any other applicable privilege, the Producing Party will prepare a
summary log containing, for each document (except those exempted above) claimed as
privileged, an export of all or a subset of the metadata fields listed below (as agreed upon by the
Parties) to the extent such information exists and has not been suppressed or redacted for
privilege. The summary log of documents redacted or withheld from production shall be
12

28
ATTORNEYS AT LAW

Computer programs, operating systems, computer activity logs,

programming notes or instructions, batch files, system files, and miscellaneous files or file

27

MORGAN, LEWIS &
BOCKIUS LLP

Legacy data or data remaining from systems no longer in use so long as the

legacy data is unintelligible on the systems in use.

8
9

Logs of calls made from cellular or land-line phones.

6.

6

Server, system or network logs.

5.

5

Data stored on photocopiers, scanners and fax machines.

4.

4

7

Data stored in random access memory (“RAM”), temporary files, or other

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2

provided by the Producing Party within fourteen (14) days of substantially completing its
productions. The export should include the following information from the top line email:

3
BEGNO (if not produced) or BEGBATES (if produced)
ENDNO (if not produced) or ENDBATES (if produced)
BEGATTACH (if not produced) or BEGBATESATTACH (if produced)
ENDATTACH (if not produced) or ENDBATESATTACH (if produced)
CUSTODIAN
FROM
TO
CC
BCC
SUBJECT
SENTDATE
RECEIVEDDATE
FILENAME
AUTHOR
CREATEDDATE
MD5 HASH
PRIV_TYPE

4
5
6
7
8
9
10
11
12
13
14
15
16
17

D.

If the requesting party requires further information, it shall explain in writing the

need for such information and identify, by Bates number or other unique identifier, each
document for which it seeks this information. Within fourteen (14) days of such a request, the
Producing Party must provide the requested information.

18
XII.
19
20
21
22
23
24
25

Production of Privileged or Otherwise Protected Material
A.

No Waiver by Disclosure. This order is entered pursuant to Rule 502(d) of the

Federal Rules of Evidence. Subject to the provisions of this Order, if a party or subpoenaed
nonparty (the “Disclosing Party”) discloses information in connection with the pending litigation
that the Disclosing Party thereafter claims to be privileged or protected by the attorney-client
privilege or work product protection (“Protected Information”), the disclosure of that Protected
Information will not constitute or be deemed a waiver or forfeiture – in this or any other federal
or state action – of any claim of privilege or work product protection that the Disclosing Party

26
27

13

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

would otherwise be entitled to assert with respect to the Protected Information and its subject
matter.
B.

must promptly notify the party receiving the Protected Information (“the Receiving Party”), in
writing, that it has disclosed that Protected Information without intending a waiver by the
disclosure. Upon such notification, the Receiving Party must – unless it contests the claim of
attorney-client privilege or work product protection in accordance with paragraph (c) – promptly
(i) notify the Disclosing Party that it will make best efforts to identify and return, sequester, or
destroy (or in the case of electronically stored information, delete) the Protected Information and
any reasonably accessible copies it has and (ii) provide a certification that it will cease further
review, dissemination, and use of the Protected Information. Within five business days of receipt
of the notification from the Receiving Party, the Disclosing Party must explain as specifically as
possible why the Protected Information is privileged.
C.

must – within seven business days of receipt of the notice of disclosure – move the Court for an
Order compelling disclosure of the information claimed as unprotected (a “Disclosure Motion”).
The Disclosure Motion must be filed under seal and must not assert as a ground for compelling
disclosure the fact or circumstances of the disclosure. Pending resolution of the Disclosure
Motion, the Receiving Party must not use the challenged information in any way or disclose it to
any person other than those required by law to be served with a copy of the sealed Disclosure
Motion.
D.

PHILADELPHIA

Stipulated Time Periods. The parties may stipulate to extend the time periods set

forth in paragraphs (b) and (c).
E.

Attorney’s Ethical Responsibilities. Nothing in this order overrides any attorney’s

ethical responsibilities to refrain from examining or disclosing materials that the attorney knows
14

28
ATTORNEYS AT LAW

Contesting Claim of Privilege or Work Product Protection. If the Receiving Party

contests the claim of attorney-client privilege or work product protection, the Receiving Party

27

MORGAN, LEWIS &
BOCKIUS LLP

Notification Requirements; Best Efforts of Receiving Party. A Disclosing Party

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

or reasonably should know to be privileged and to inform the Disclosing Party that such materials
have been produced.
F.

retains the burden – upon challenge pursuant to paragraph (c) – of establishing the privileged or
protected nature of the Protected Information.
G.

H.

PHILADELPHIA

Voluntary and Subject Matter Waiver. This Order does not preclude a party from

voluntarily waiving the attorney-client privilege or work product protection. The provisions of
Federal Rule of Evidence 502(a) apply when the Disclosing Party uses or indicates that it may use
information produced under this Order to support a claim or defense.
I.

Review. Nothing contained herein is intended to or shall serve to limit a party’s

right to conduct a review of documents, ESI or information (including metadata) for
responsiveness and/or segregation of privileged and/or protected information before production.
Further nothing contained herein is intended to reduce the time frame provided to the Disclosing
Party to complete their review should they choose to do so.
J.

Proportionality. Nothing contained herein is intended to limit a party’s

proportionality and burden arguments specifically related to the costs to conduct a review of
documents, ESI or information (including metadata) for responsiveness and/or segregation of
privileged and/or protected information before production.
K.

Rule 502(b)(2). The provisions of Federal Rule of Evidence 502(b)(2) are

inapplicable to the production of Protected Information under this Order.
XIII. Discovery Liaisons
Each party shall designate one or more individuals as Designated ESI Liaison(s) for
purposes of meeting and conferring with the other parties and of attending Court hearings on the
subject of relevant ESI. The Designated ESI Liaison shall be reasonably prepared to speak about
15

28
ATTORNEYS AT LAW

In camera Review. Nothing in this Order limits the right of any party to petition

the Court for an in camera review of the Protected Information.

27

MORGAN, LEWIS &
BOCKIUS LLP

Burden of Proving Privilege or Work-Product Protection. The Disclosing Party

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2
3
4

and explain the party’s relevant electronic systems and capabilities and the technical aspects of
the manner in which the party has responded to eDiscovery, including (as appropriate) relevant
ESI retrieval technology and search methodology.
XIV. Cooperation & Good Faith

5
6
7

The Parties are aware of the importance the Court places on cooperation and commit to
cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the
Discovery of ESI.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

The Parties shall make their best efforts to comply with and resolve any differences
concerning compliance with this Stipulation. If a Producing Party cannot comply with any
material aspect of this Stipulation, such Party shall inform the Requesting Party as to why
compliance with the Stipulation was unreasonable or not possible within seven (7) days after so
learning. No Party may seek relief from the Court concerning compliance with the Stipulation
unless it has conferred with other affected Parties to the action.
XV.

No Effect on Discovery or Admissibility
This Stipulation does not address, limit, or determine the relevance, discoverability,

agreement to produce, or admissibility of ESI. The Parties are not waiving the right to seek any
discovery, and the Parties are not waiving any objections to specific discovery requests. Nothing
in this Stipulation shall be interpreted to require disclosure of materials that a Party contends are
not discoverable or are protected from disclosure by the attorney-client privilege, the work
product doctrine, or any other privilege that may be applicable. Nothing in this Stipulation shall
be construed to affect the admissibility of any document or data. All objections to the
admissibility of any document or data, except as to the authenticity of the documents produced by
a Party as to which that Party stipulates, are preserved and may be asserted at any time.
XVI. Protective Order
Nothing in this Stipulation shall be deemed to limit, modify, or override any provision of
the Protective Order.

27

16

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2

XVII. Modification
This Stipulation may be modified by Stipulation of the Parties or by Order of the Court.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Dated: December 18, 2018
COHEN MILSTEIN SELLERS & TOLL,
PLLC
/s/ Mary J. Bortscheller
Michelle C. Yau

MORGAN, LEWIS & BOCKIUS, LLP

.

/s/ Matthew A. Russell
Brian T. Ortelere (pro hac vice)
1701 Market Street
Philadelphia, PA 19103
Tel: [phone]
Fax: [phone]
[e-mail]

Michelle C. Yau (admitted Pro Hac Vice)
Mary J. Bortscheller (admitted Pro Hac Vice)
Daniel R. Sutter (admitted Pro Hac Vice)
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, D.C. 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Matthew A. Russell (pro hac vice)
77 West Wacker Drive
Chicago, IL 60601
Tel: [phone]
Fax: [phone]
[e-mail]
Spencer H. Wan (CA Bar No. 304329)
[e-mail]
One Market, Spear Street Tower
San Francisco, CA 94105
Tel:
415.442.1126
Fax: [phone]

FEINBERG, JACKSON, WORTHMAN
& WASOW, LLP
Nina Wasow (Cal. Bar No. 242047)
Todd Jackson (Cal. Bar No. 202598)
2030 Addison Street
Suite 500
Berkeley, CA 94704
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Attorneys for Mercer Investment Consulting

21
Attorneys for Plaintiffs
22
23
24
25
26
27

17

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

1
2

ATTESTATION
I attest that for all conformed signatures indicated by an “/s/,” the signatory has concurred

3

in the filing of this document.

4

Dated: December 18, 2018

By:

5

_/s/ Matthew A. Russell _________
Matthew A. Russell

6
7
8
9
10

[PROPOSED] ORDER
PURSUANT TO THE STIPULATION, IT IS SO ORDERED: the above Stipulation and
Proposed Order Regarding Discovery of Electronically Stored Information is approved and all
parties shall comply with its provisions.

11
12

12/19/2018
Dated: ______________________

____________________________

13

U.S. District Court for the
Northern District of California

14
15
16
17
18
19
20
21
22
23
24
25
26
27

18

28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
PHILADELPHIA

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

ABC00000003 (Unique ID)
ABC00000001 (Unique ID Parent- Child
Relationships)
ABC00000008 (Unique ID Parent- Child
Relationships)

ENDBATES

BEGATTACH

Yes

MM/DD/YYYY
HH:MM

MM/DD/YYYY

REDACTED

SENTDATE
SENTTIME

CREATEDDATE

DB1/ 101148692.1

Confidential, Highly Confidential, etc.

DESIGNATION

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

19

*Parties acknowledge that the CREATEDATE field may not actually reflect the date the
file was created, due to the ease of change to that field and the technical definition of the
field (e.g., the created date and time reflects the date when the file was created in that
particular location on the computer or on the other storage device location)

The date the document was created.

The date the email was sent.
The time the email was sent.

Please populate this field for all documents that carry a confidentiality designation,
separate and apart from the stamping of produced TIFFs. If the document is only provided
in native, this field would be populated with the designation the native file should have if
printed.
Please populate this field for all documents that have a redaction.

3 (Numeric)
The number of pages for a document.
VOL001
The name of CD, DVD or Hard Drive (vendor assigns).
Options: e-mail, attachment, hard copy, loose The record type of a document.
e-file

The Document ID Number associated with the last page of the last attachment.

The Document ID Number associated with the first page of the parent document.

The Document ID Number associated with the last page of the document.

The Document ID Number associated with the first page of the document.

Description

PAGES
VOLUME
RECORDTYPE

ENDATTACH

ABC00000001 (Unique ID)

Example / Format

BEGBATES

Field Name

APPENDIX 1: METADATA FIELDS

i.e. John Smith/E-mail/Inbox
Jsmith

Jsmith
Joe Smith <[e-mail]>
Joe Smith <[e-mail]>;
[e-mail]
Joe Smith <[e-mail]>;
[e-mail]
Joe Smith <[e-mail]>;
[e-mail]

FILEPATH
AUTHOR

LASTEDITEDBY

FROM

TO

DB1/ 101148692.1

E-mail Importance Flag (0 = Normal, 1 = Low Importance, 2 = High Importance)

IMPORTANCE

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

20

The subject line of the e-mail.
The extracted document title of a document.

The display name or e-mail of the blind copyee(s) of an e-mail.

The display name or e-mail of the copyee(s) of an e-mail.

The display name or e-mail of the recipient(s) of an e-mail.

The display name or e-mail of the sender of an e-mail.

The name of the last person to edit the document from extracted metadata.

*Parties acknowledge that the Author field may not actually reflect the author of the
document.

Location of the original document. The source should be the start of the relative path.
The author of a document from extracted metadata.

*Parties acknowledge that the CREATETIME field may not actually reflect the time the
file was created, due to the ease of change to that field and the technical definition of the
field (e.g., the created date and time reflects the time when the file was created in that
particular location on the computer or on the other storage device location).
The date the document was last modified.
The time the document was last modified.
The date the document was received.
The time the document was received.
The time zone the document was processed in.

SUBJECT
DOCTITLE

BCC

0 or 1 or 2

MM/DD/YYYY
HH:MM
MM/DD/YYYY
HH:MM
PST, CST, EST, etc.

LASTMODDATE
LASTMODTIME
RECEIVEDDATE
RECEIVEDTIME
TIMEZONE
PROCESSED

CC

HH:MM

CREATETIME

The time the document was created.

Numeric
XLS
Document Name.xls
Numeric

D:\NATIVES\ABC000001.xls
D:\TEXT\ABC000001.txt

ATTACH COUNT
FILEEXT
FILENAME

FILESIZE

MD5HASH (or
equivalent)
EMAIL
CONVERSATION
INDEX
NATIVELINK

FULLTEXT

DB1/ 101148692.1

STIPULATION AND (PROPOSED) ORDER
REGARDING DISCOVERY OF ESI

21

** Same is true with all DATE and TIME Fields. These fields can be provided in separate fields or be combined into a single field as
long as the required information is produced in the load file.

** As it relates to the CUSTODIAN metadata field above, the Producing Party reserves the right to produce in multiple fields (e.g.,
CUSTODIAN + DUPLICATE CUSTODIAN) since the metadata may already be exported and logged as such.

If the attachment or e-file does not extract any text, then OCR for the document should
be provided.

The path to the full extracted text or OCR of the document. There should be a folder on
the deliverable, containing a separate text file per document. These text files should be
named with their corresponding bates numbers.

The relative path to a native copy of a document.

ID used to tie together e-mail threads.

The MD5 Hash value or "de-duplication key" assigned to a document.

The file size of a document (including imbedded attachments).

The number of attachments to a document.
The file extension of a document.
The file name of a document.

John Smith; Tim Jones; Finance Department The custodian/source of a document. NOTE: If the documents are de-duped on a global
level, this field should contain the name of each custodian from which the document
originated.

CUSTODIAN