DCG Systems, Inc v. Checkpoint Technologies, LLC

Filing 33

ORDER REGARDING E-DISCOVERY re 25 Case Management Statement filed by DCG SystemsInc, heckpoint Technologies, LLC. Signed by Judge Paul S. Grewal on November 2, 2011. (psglc1, COURT STAFF) (Filed on 11/2/2011)

Exhibit B

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DCG SYSTEMS, INC.,

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SAN JOSE DIVISION
Case No. 5:11-cv-03792-PSG

Plaintiff,

[PROPOSED] ORDER REGARDING EDISCOVERY

v.
JUDGE: HON. PAUL S. GREWAL
CHECKPOINT TECHNOLOGIES, LLC,
Defendant.

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ORDER REGARDING E-DISCOVERY
CASE NO. 5:11-CV-03792-PSG

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The Court ORDERS as follows:

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1.

This Order supplements all other discovery rules and orders. It streamlines

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Electronically Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive

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

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2.

This Order may be modified for good cause. The parties shall jointly submit any

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proposed modifications within 30 days after the Federal Rule of Civil Procedure 16 conference of

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November 1, 2011. If the parties cannot resolve their disagreements regarding these

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modifications, the parties shall submit their competing proposals and a summary of their dispute.

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3.

Costs will be shifted for disproportionate ESI production requests pursuant to

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Federal Rules of Civil Procedure 26 and 37. Likewise, a party’s nonresponsive or dilatory

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discovery tactics will be cost-shifting considerations.

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4.

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 beyond the fields agreed to in Section 8.B. of the Joint Case

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Management Statement and [Proposed] Order, filed October 25, 2011.

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6.

General ESI production requests under Federal Rules of Civil Procedure 34 and 45

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shall not include email or other forms of electronic correspondence (collectively “email”). To

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obtain email parties must propound specific email production requests.

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7.

Email production requests shall only be propounded for specific issues, rather than

general discovery of a product or business.
8.

Email production requests shall be phased to occur after the parties have

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exchanged initial disclosures and basic documentation about the patents, the prior art, the accused

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instrumentalities, and the relevant finances. While this provision does not require the production

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of such information, the Court encourages prompt and early production of this information to

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promote efficient and economical streamlining of the case.

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ORDER REGARDING E-DISCOVERY
CASE NO. 5:11-CV-03792-PSG

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9.

Email production requests shall identify the custodian, search terms, and time

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frame. The parties shall cooperate to identify the proper custodians, proper search terms and

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proper timeframe.

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10.

Each requesting party shall limit its first email production requests to a total of ten

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(10) custodians per producing party for all such requests. Sixty (60) days after the receipt of

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initial documents responsive to the first set of email production requests, a party may make

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additional email production requests to five (5) custodians. The five custodians who receive the

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additional email production requests may include custodians from whom documents have already

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been requested. The parties may jointly agree to modify these limits without the Court’s leave.

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The Court shall consider contested requests for up to five (5) additional custodians per producing

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party, upon showing a distinct need based on the size, complexity, and issues of this specific case.

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Should a party serve email production requests for additional custodians beyond the limits agreed

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to by the parties or granted by the Court pursuant to this paragraph, the requesting party shall bear

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all reasonable costs caused by such additional discovery.

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11.

Each requesting party shall limit its first email production requests to a total of

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twenty (20) search terms per custodian per party. Each requesting party shall limit its additional

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email production requests to a total of five (5) search terms per custodian per party. The parties

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may jointly agree to modify these limits without the Court’s leave. The Court shall consider

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contested requests for up to five (10) additional search terms per custodian, upon showing a

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distinct need based on the size, complexity, and issues of this specific case. The search terms shall

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be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company’s

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name or its product name, are inappropriate unless combined with narrowing search criteria that

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sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words or

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phrases (e.g., “computer” and “system”) narrows the search and shall count as a single search

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term. A disjunctive combination of multiple words or phrases (e.g., “computer” or “system”)

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broadens the search, and thus each word or phrase shall count as a separate search term unless

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they are variants of the same word. Use of narrowing search criteria (e.g., “and,” “but not,”

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“w/x”) is encouraged to limit the production and shall be considered when determining whether
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ORDER REGARDING E-DISCOVERY
CASE NO. 5:11-CV-03792-PSG

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to shift costs for disproportionate discovery. Should a party serve email production requests with

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search terms beyond the limits agreed to by the parties or granted by the Court pursuant to this

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paragraph, the requesting party shall bear all reasonable costs caused by such additional

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discovery.

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12.

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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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14.

The mere production of ESI in a litigation as part of a mass production shall not

itself constitute a waiver for any purpose.

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November 2, 2011
Dated: ________________________

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The Honorable Paul S. Grewal
United States Magistrate Judge

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ORDER REGARDING E-DISCOVERY
CASE NO. 5:11-CV-03792-PSG