Via Licensing Corporation v. Hisense International Co., Ltd. et al

Filing 42

ORDER by Judge Yvonne Gonzalez Rogers granting 41 Stipulation re: Production of Documents and Electronically Stored Information. (ygrlc2, COURT STAFF) (Filed on 6/21/2018).

1 Laura Kabler Oswell (SBN 241281)
Thomas E. Fullerton (SBN 305104)

2 Daniel A. Loevinsohn (SBN 311807)
SULLIVAN & CROMWELL LLP

3 1870 Embarcadero Road
Palo Alto, CA 94303
[phone]
Facsimile:
[phone]

4 Telephone:
5

Attorneys for Plaintiff

6
7 Robert J. Benson (SBN 155971)
ORRICK, HERRINGTON & SUTCLIFFE LLP

8 2050 Main Street, Suite 1100
Irvine, CA 92614
[phone]
Facsimile:
[phone]

9 Telephone:
10

11 Attorneys for Defendants
12 [Additional counsel listed on signature page]
13
14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16
17 VIA LICENSING CORPORATION,

Case No. 4:18-cv-01206-YGR

18

STIPULATION AND [PROPOSED]
ORDER RE: PRODUCTION OF
DOCUMENTS AND
ELECTRONICALLY STORED
INFORMATION
___

19

Plaintiff,
v.

20 HISENSE INTERNATIONAL CO., LTD and
HISENSE USA CORPORATION,

21
Defendants.

22
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25
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SULLIVAN & CROMWELL LLP

STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1 Upon the stipulation of the parties, the Court ORDERS as follows:
2 I.

PURPOSE

3

1.

This Stipulation and Order Regarding Production of Documents and

4
5

-captioned action as a

6 supplement to the Federal Rules of Civil Procedure, this Court
7 Electronically Stored Information, and any other applicable orders and rules.
8 II.

MODIFICATION

9

2.

10 stipulation.
11 III.
12

PRODUCTION OF DOCUMENTS ORIGINATING AS PAPER
3.

The following specifications govern the production of documents

13 originating as paper:
14

4.

TIFFs. Documents should be produced as single-page, black and white,

15 group IV TIFFs imaged at 300 dpi. Bates numbers, confidentiality designations (in accordance
16 with the protective order governing the case), and redactions (to the extent they are necessary)
17
18

5.

Unitizing Documents. In scanning paper documents, distinct documents

19 should not be merged into a single record, and single documents should not be split into multiple
20 records (i.e., paper documents should be logically unitized). As an example, the documents
21 contained in a binder should be produced in the same order in which they appear in the binder.
22 The parties will undertake reasonable efforts to have their vendors logically unitize documents
23 correctly, maintain parent-child relationships, and will commit to address situations of
24 improperly unitized documents.
25

6.

OCR. The producing party shall use optical character recognition

26
27 document-level in an appropriately formatted text file (.txt) that is named to match the first Bates
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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1 document is redacted, the text files should not contain the text of the redacted portions.
2

7.

Unique IDs. Each TIFF image should have a unique filename, which

3 corresponds to the Bates number of that page. The filename should not contain any blank spaces
4 and should be zero-padded (e.g., ABC-000001), taking into consideration the estimated number
5 of pages to be produced. If a Bates number or set of Bates numbers is skipped in a production,
6 the producing party will so note in a cover letter or production log accompanying the production.
7

8.

Data Load Files. Documents should be provided with an Opticon Cross-

8 Reference File and Concordance data load file using standard Concordance delimiters:
9

a.

Field Separator

10

b.

Quote

11

c.

New Line

12

Concordance-

13 folder.
14

9.

Metadata. Appendix 1 sets forth the minimum metadata fields that must

15 be produced to the extent that metadata exists for a particular document. To the extent that such
16 metadata does not exist, is not reasonably accessible or available, or would be unduly
17 burdensome to collect, nothing in this ESI Protocol shall require any party to extract, capture,
18 collect, or produce such data.
19 IV.
20

PRODUCTION OF EMAIL AND ESI
10.

TIFFs. Documents should be produced as single-page, black and white,

21 group IV TIFFs imaged at 300 dpi. The
22 (i.e., portrait to portrait and landscape to landscape). Bates numbers, confidentiality designations
23 (in accordance with the protective order governing the above-captioned action), and redactions
24 (to the extent they are necessary) should be burned into the image. TIFF image files should be
25
26

11.

Extracted Text Files. For each electronic document, a text file (not OCR

27 text) should be provided along with the TIFF. The full text of native files should be extracted
28 directly from the native file and should be delivered in an appropriately formatted text file (.txt)
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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1 that is named to match the first Bates number of the document. Text files should be provided in
2

the extent that a document is redacted, the text files should not contain the

3 text of the redacted portions.
4

12.

Unique IDs. Each image should have a unique filename, which

5 corresponds to the Bates number of that page. The filename should not contain any blank spaces
6 and should be zero-padded (e.g., ABC-000001), taking into consideration the estimated number
7 of pages to be produced. If a Bates number or set of Bates numbers is skipped in a production,
8 the producing party will so note in a cover letter or production log accompanying the production.
9

13.

Parent-Child Relationships. The relationship between attachments,

10 enclosures, embedded files, and/or exhibits to any parent document shall be preserved. The
11 child-document(s) should be consecutively produced immediately after the parent-document,
12 except attachments withheld on privilege grounds, which will be indicated on the associated
13
14
15

14.

Native Format. The processed native for all spreadsheets (i.e., MS Excel,

16 .CSV, or similar) and electronic information containing audio or visual components should be
17
18 requesting party may ask for certain other documents and/or databases initially produced in their
19 petrified (TIFF or PDF) format to be produced in their native format in the event that the
20 petrified format is not reasonably usable, and the parties will meet and confer in good faith
21 regarding the form of production of that information. The requesting party shall identify the
22 documents by their Bates numbers and the documents should be produced in their unaltered
23 native format, subject to any meet and confer discussions conducted by the parties.
24

15.

To the extent that a native spreadsheet must be redacted, the producing

25 party may redact either the native file or produce TIFF images with burned in redactions in lieu
26 of a Native File and TIFF placeholder image. If redacting TIFF images, the producing party
27 should make reasonable efforts to ensure that it, or its ediscovery vendor, (1) reveals hidden cells
28 prior to converting the document to TIFF; (2) clears any filters that may conceal information;
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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1 (3) adjusts column wi

ensures that column

2 and row headings print; and (5) ensures that the tab name appears in the header or footer of the
3 document.
4

16.

Request for Native Files. Other than as specifically set forth above, a

5 producing party need not produce documents in native format. If good cause exists for the
6 receiving party to request production of certain documents in native format, the receiving party
7 may request production in native format by providing (1) a list of the Bates numbers of
8 documents it requests to be produced in native format; and (2) an explanation of the need for
9 reviewing such documents in native format. The producing party shall not unreasonably deny
10 such requests, but will meet and confer in good faith with the requesting party concerning the
11 format of production. Each document produced in response to such requests shall be produced
12
13 Native File on the production media, and all extracted text and applicable metadata fields set
14 forth in paragraph 21, subject to any meet and confer discussions conducted by the parties.
15

17.

Track Changes and Comments. To the extent that a document contains

16 tracked changes or comments, those tracked changes and comments should be preserved when
17 images of the document are created.
18

18.

Password Protected Files. The producing party shall produce passwords

19 for any non-privileged password-protected files to the extent the passwords are reasonably
20 available.
21

19.

System Files. Common system and program files as defined by the NIST

22 library (which is commonly used by-discovery vendors to exclude system and program files
23 from document review and production) need not be processed, reviewed, or produced.
24

20.

Data Load Files. Documents should be provided with an Opticon Cross-

25 Reference File and Concordance data load file using standard Concordance delimiters:
26

a.

27

b.

28

c.

New
-4-

SULLIVAN & CROMWELL LLP

STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1

Concordance-

2 folder. Parties have the option to exchange sample load files. If this exchange occurs, the
3 receiving party will have 14 days to respond with load file change requests. Nothing in this ESI
4 Protocol will limit the parties from discussing load file changes throughout the course of the
5 litigation.
6

21.

Metadata. Appendix 1 sets forth the minimum metadata fields that must

7 be produced to the extent that metadata exists for a particular document. To the extent that such
8 metadata does not exist, is not reasonably accessible or available, or would be unduly
9 burdensome to collect, nothing in this ESI Protocol shall require any party to extract, capture,
10 collect or produce such data. The parties are not obligated to populate manually any metadata
11 fields.
12

22.

Deduplication. Documents may be globally de-duplicated at the family-

13 group level.
14 V.

PRODUCTION OF DATABASES AND OTHER STRUCTURED DATA

15

23.

If a database or other source of structured data contains responsive

16 information, the parties should meet and confer to determine a mutually agreeable format for
17 producing the database or other structured data or an appropriate alternative means for producing
18 information sought from the structured data.
19 VI.

PRODUCTION OF AUDIO AND VIDEO RECORDINGS

20

24.

If audio and/or video recordings are responsive, the parties should meet

21 and confer to determine a mutually agreeable format for producing the audio and/or video
22 recording.
23 VII.
24

PROCESSING OF THIRD-PARTY DOCUMENTS
25.

A party that issues a non-

25 copy of this ESI Protocol with the subpoena and request that the non-party produce documents in
26 accordance with the specifications set forth herein.
27

26.

The Issuing Party may request that the non-party simultaneously produce

28 documents to the Issuing Party and all other parties. If the non-party produces documents only
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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1 to the Issuing Party, to the extent practical given the data volume, productions by a non-party
2 should be produced by the Issuing Party to all other parties within seven days of the non3 production to the Issuing Party.
4

27.

Nothing in this ESI Protocol is intended to or should be interpreted as

5 narrowing, expanding, or otherwise affecting the rights of the parties or non-parties to object to a
6 subpoena.
7 VIII. DOCUMENTS PROTECTED FROM DISCOVERY
8

28.

Pursuant to Federal Rule of Evidence 502(d), the production of a

9 privileged or work-product-protected document, whether inadvertent or otherwise, is not a
10 waiver of privilege or protection from discovery in this case or in any other federal or state
11 proceeding. For example, the mere production of privileged or work-product-protected
12 documents in this case as part of a mass production is not itself a waiver in this case or in any
13 other federal or state proceeding.
14

29.

Communications subject to a claim of privilege that post-date the filing of

15 the complaint need not be placed on a privilege log.
16

30.

The parties shall meet and confer regarding the scope and timing for

17 identifying documents or other information withheld from production on the basis of the
18 attorney-client privilege or any other applicable privilege or protection from disclosure.
19 IX.

MISCELLANEOUS PROVISIONS

20

31.

The following specifications govern the production of all documents

21 regardless of source, unless otherwise noted in this ESI Protocol:
22

32.

Custodian or Originating Source. The custodian or originating source

23 shall be identified in the Custodian field of the database load files. Documents found in the
24 possession of
25 produced in such fashion as to identify the natural person. Documents found in the possession of
26 a department, group, entity, or other common facility (e.g., office, file room, archive, network
27 storage, file share, back-up, hard drive, etc.) should be produced in such a fashion as to identify
28 the department, group, entity, or facility. A producing party shall use a uniform description of a
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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1 particular custodian across productions.
2

33.

Color. Documents containing color need not be produced in color in the

3 first instance. However, if good cause exists for the receiving party to request production of
4 certain documents in color, the receiving party may request production of such documents in
5 color by providing (1) a list of the Bates numbers of documents it requests to be produced in
6 color format; and (2) an explanation of the need for production in color format. The producing
7 party shall not unreasonably deny such requests, but will meet and confer in good faith with the
8 requesting party concerning the format of production.
9

34.

Foreign Language. Foreign language text files and metadata should be

35.

Production Media. The preferred means of producing documents is via

10
11 language.
12

13 secure FTP or a secure file sharing site. However, documents may also be produced via CD,
14 DVD, thumb drive, or hard drive if the size of the production exceeds the size limitations
15
16

36.

Encrypted Data. To the extent data is encrypted before it is produced,

17 the producing party shall contemporaneously transmit the credentials necessary to decrypt the
18 data.
19

37.

Non-Waiver. Nothing in this ESI Protocol shall be interpreted to require

20 disclosure of irrelevant information or relevant information protected by the attorney-client
21 privilege, work-product doctrine, or any other applicable privilege or immunity. The parties do
22 not waive any objections to the production, discoverability, admissibility, or confidentiality of
23 documents.
24

38.

Protective Order. All productions are subject to the Stipulated Protective

25 Order entered by the Court in this Action.
26 X.
27

MEET AND CONFER
39.

Good Faith Resolution of Disputes. The parties shall make good faith

28 efforts to comply with and resolve any differences concerning compliance with this ESI
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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1 Protocol. If a producing party, notwithstanding their good faith efforts, cannot comply with any
2 material aspect of this ESI Protocol or if compliance with such material aspect would be
3 unreasonable, such party shall inform the requesting party in writing a reasonable time before the
4 date of production as to why compliance with the ESI Protocol is impossible or unreasonable.
5 No party may seek relief from the Court concerning compliance with the ESI Protocol unless it
6 has conferred in good faith with the affected parties.
7

40.

The parties agree that in responding to an initial Federal Rule of Civil

8 Procedure 34 request, or earlier if appropriate, they will meet and confer about methods to search
9 ESI in order to identify ESI that is subject to production in discovery and filter out ESI that is not
10 subject to discovery.
11
12
13

IT IS SO STIPULATED, through Counsel of Record.
________________________
________________________
/s/ Laura Kabler Oswell
Laura Kabler Oswell (SBN 241281)
Thomas E. Fullerton (SBN 305104)
Daniel A. Loevinsohn (SBN 311807)
SULLIVAN & CROMWELL LLP
1870 Embarcadero Road
Palo Alto, CA 94303
Telephone:
[phone]
Facsimile:
[phone]

/s/ Robert J. Benson
Robert J. Benson (SBN 155971)
ORRICK, HERRINGTON &
SUTCLIFFE LLP
2050 Main Street, Suite 1100
Irvine, CA 92614
Telephone:
[phone]
Facsimile:
[phone]

21

Garrard R. Beeney (pro hac vice)
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004
Telephone:
[phone]
Facsimile:
[phone]

22

Attorneys for Plaintiff

Xiang Wang
ORRICK, HERRINGTON &
SUTCLIFFE, LLP
5701 China World Tower A
No. 1 Jianguomenwai Avenue, Chaoyang
District
Beijing, 100004 China
Telephone:
+011 86 10 8595 5600
Facsimile:
+011 86 10 8595 5700

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John A. Jurata, Jr. (SBN 478602)
ORRICK, HERRINGTON &
SUTCLIFFE, LLP
Columbia Center
1152 15th Street, N.W.
Washington, D.C. 20005-1706
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendants

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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR

1
2

ATTESTATION
Pursuant to Civil Local Rule 5-1(i)(3), the filer of this document attests that

3 concurrence in the filing of this document has been obtained from the other signatories above.
4 Dated: June 20, 2018

/s/ Laura Kabler Oswell
Laura Kabler Oswell

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*

*

*

7
8 IT IS ORDERED that the forgoing Agreement is APPROVED.
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Dated: June 21, 2018
THE HONORABLE YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF DOCUMENTS AND ESI
CASE NO. 4:18-CV-01206-YGR