Radware, LTD. et al v. A10 Networks, Inc.

Filing 51

STIPULATED ORDER 50 Re: Discovery of Electronically Stored Information. Signed by Judge Ronald M. Whyte on 9/27/13. (jgS, COURT STAFF) (Filed on 9/27/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RADWARE, LTD., an Israeli Company;
RADWARE, INC., a New Jersey Corporation,

Case No. 5:13-CV-02021-RMW

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Plaintiffs,
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v.

STIPULATED ORDER RE: DISCOVERY
OF ELECTRONICALLY STORED
INFORMATION

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A10 NETWORKS, INC., a California
Corporation,
Defendant.

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DM_US 45341587-2.092004.0012

STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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Plaintiffs Radware, Ltd. and Radware, Inc. (“Plaintiffs” or “Radware”) and Defendant A10

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Networks, Inc. (“Defendant” or “A10”) (collectively, “the parties”) hereby stipulate as follows:

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1.

PURPOSE

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This Order will govern discovery of electronically stored information (“ESI”) in this

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case as a supplement to the Federal Rules of Civil Procedure, this Court’s Guidelines for the

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Discovery of Electronically Stored Information, and any other applicable orders and rules. It is

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intended to streamline 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.

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2.

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COOPERATION
The parties are aware of the importance the Court places on cooperation and commit to

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cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the

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Discovery of ESI.

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3.

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LIAISON
Each Party agrees to designate an ESI Liaison who are and will be knowledgeable

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about and responsible for discussing their respective ESI. Each ESI liaison will be, or have

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access to those who are, knowledgeable about the technical aspects of e-discovery, including

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the location, nature, accessibility, format, collection, search methodologies, and production of

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ESI in this matter. The parties will rely on the ESI liaisons, as needed, to confer about ESI and

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to help resolve disputes without court intervention. Any Party is free to change their

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designated ESI Liaison by providing written notice to the other Party.

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4.

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PRESERVATION
The parties have discussed their preservation obligations and needs and agree that

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preservation of potentially relevant ESI will be reasonable and proportionate. The parties have

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discussed the subject matter of potentially relevant ESI that should be preserved and have

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taken appropriate steps to preserve such information.

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To reduce the costs and burdens of preservation and to ensure proper ESI is preserved,
the parties agree that:
a)

Materials retained in tape, floppy disk, optical disk, or similar formats primarily

DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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for back-up or disaster recovery purposes are deemed not reasonably accessible under Fed. R.

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Civ. P. 26(b)(2)(B) and, accordingly, are not subject to production unless specific facts

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demonstrate a particular need for such evidence that justifies the burden of retrieval. Archives

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stored on computer servers, external hard drives, notebooks, or personal computer hard drives

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that are created primarily for back-up or disaster recovery purposes and not used as reference

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materials in the ordinary course of a party’s business operations need not be searched or

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produced absent good cause, and further subject to the producing party’s claim of undue

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burden or cost or other objections.

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b)

Among the sources of data the parties agree are not reasonably accessible, the

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parties agree not to preserve the following: recorded telephone messages, including voice-mail

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messages attached to email messages; instant messaging, text message or SMS

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communications; and temporary data stored in a computer’s random access memory or RAM.

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5.

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PRODUCTION FORMAT
Generally speaking, the parties agree to produce documents in TIFF format with

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Concordance load files, with the exception of Microsoft Excel spreadsheets and audio-visual

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files, which should be produced in native file format. The parties agree to meet and confer

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regarding the native production of other file types (e.g., databases or files requiring specialized

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software) as appropriate. Parties agree to preserve, collect, and produce documents that

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include the specific metadata listed in Schedules A and B if such information is available in the

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document in native format or if such information is added during the collection or processing

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of the document. In other words, parties agree not to strip or otherwise degrade the metadata

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identified in Schedules A and B if it is available in a particular document in native format or

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added in the collection or processing of the document. No other metadata need be produced.

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Further, the parties agree that documents shall be produced in the following folder structure:

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a)

Top-level folder. This folder will indicate the production volume (e.g., ABC-

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Images Folder. Documents shall be produced in single page, black & white,

001).

TIFF image format (Group 4, 300 dpi) with color images produced in .jpeg format. Each image

DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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will be sequentially stamped with a unique Bates number. Images shall be placed in sub-folders

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where each sub-folder shall not contain more than 1,000 images. Embedded objects, such as

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email logos, shall be delivered as part of the record absent party agreement to the contrary.

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c)

Natives Folder. Excel spreadsheets and audio-video files shall be produced in

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native file format; the parties agree to meet and confer regarding the native production of other

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file types (e.g., databases or files requiring specialized software) as appropriate.

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d)

Text Folder. The parties agree not to degrade the searchability of documents as

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part of the document production process. Extracted text or OCR text generated to render

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documents searchable shall be produced at the document level. Text files shall be labeled to

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correspond with the Bates number of the first image file for each document. If documents are

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redacted, OCR text shall be provided for the unredacted text.

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e)

Load Files. Concordance .DAT data load files containing the metadata fields

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listed in Schedules A and B, when reasonably available in the native document, and iPRO-ready

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.LFP and .OPT image load files shall accompany the image, native and text files.

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f)

Deduplication. The parties agree to use reasonable efforts to globally de-

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duplicate files prior to production, but to maintain merged custodian information for the

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document where possible and available (i.e., the single de-duped document produced would be

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produced with a field identifying all custodians for the duplicate version of the document).

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6.

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

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shall not include email. The following provisions govern the process for requesting and

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producing email where appropriate. However, neither party is agreeing to entitlements or

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limits to such production, including, but not limited to a specific number of email custodians.

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The parties agree that disputes regarding entitlements or limits to email production from

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particular custodians should be governed by the Federal Rules of Civil Procedure, including

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Rule 26 and associated case law.

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To obtain email, parties must propound specific email production requests. Email
production requests shall only be propounded for specific issues, rather than general discovery

DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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of a product or business. Email production requests shall identify the custodian, search terms,

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and time frame. Email custodians shall be identified in the first instance by name, if possible,

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or by job description/title. If the custodian’s name and job description/title are unknown to the

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propounding party, the propounding party may identify the custodian by reference to

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knowledge of a specific issue, and the parties shall meet and confer to identify the appropriate

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custodian. The parties shall also cooperate to identify the proper search terms and proper

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timeframe.

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

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terms per custodian per party. The parties may jointly agree to modify this limit without the

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Court’s leave. A “search term” will be considered to include all permutations, abbreviations,

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and alternatives meaning the same thing and will count as a single term. For example, a search

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term for a product name will include the product’s name, all company-internal monikers,

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nicknames and code names including abbreviations thereof. The search terms shall be

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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

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that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple

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

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

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or “system”) broadens the search, and thus each word or phrase shall count as a separate search

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term unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,”

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“but not,” “w/x”) is encouraged to limit the production and shall be considered when

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determining whether to shift costs for disproportionate discovery. Should a party serve email

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production requests with search terms beyond the limits agreed to or modified 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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7.

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COST-SHIFTING
Costs may be shifted for disproportionate ESI production requests pursuant to Federal

Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory discovery tactics

DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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will be cost-shifting considerations. A party’s meaningful compliance with this Order and

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efforts to promote efficiency and reduce costs will be considered in cost-shifting

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determinations.

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DOCUMENTS PROTECTED FROM DISCOVERY
a)

Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-

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product-protected document, whether inadvertent or otherwise, is not a waiver of privilege or

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protection from discovery in this case or in any other federal or state proceeding. For example,

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the mere production of privileged or work-product-protected documents in this case as part of a

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mass production is not itself a waiver in this case or in any other federal or state proceeding.

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b)

Communications involving trial counsel that post-date the filing of the

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complaint need not be placed on a privilege log. Communications may be identified on a

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privilege log by category, rather than individually, if appropriate. For each document withheld

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or redacted, the Privilege Log shall contain the following information: (i) the date of the

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document; (ii) the identity of all persons who authored, signed or otherwise prepared the

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document; (iii) the identity of all persons designated as addressees or copyees, including blind

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copyees; (iv) a description of the contents of the document that, without revealing information

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itself privileged or protected, is sufficient to understand the subject matter of the document and

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the basis of the claim of privilege or immunity; (vi) the type or nature of the privilege asserted

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(e.g., attorney-client privilege, work product doctrine, common interest, etc.); (vii) the unique

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document number assigned to the withheld document; and (viii) the Bates numbers

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corresponding to the first and last page of any redacted document, if the document has been

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assigned any such Bates numbers. Any email message (whether produced individually or as

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part of a series or chain of emails linked together by email responses and forwarding) that is

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withheld or redacted on the grounds of privilege, immunity or any similar claim shall be

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logged as one document and shall be identified by the top-most email in the thread that is

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withheld or redacted (e.g., if a party withholds on the basis of privilege an email thread

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consisting of a sent email, a first reply email and a second reply email, the thread shall be

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identified by the second reply email; if a party produces the same email thread but redacts the

DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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sent email and the first reply email, the thread shall be identified by the first reply email). The

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parties shall not be required to log identical copies of an email that is included in a thread that

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has been logged in accordance with this Paragraph. The parties hereby agree to exchange

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privilege logs by no later than four weeks after the document production to which each log

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relates, except to the extent that production is made less than five weeks prior to the close of

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fact discovery in which case privilege logs shall be due at the same time as the document

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production to which each log relates.

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c)

Testifying experts shall not be subject to discovery on any draft of their reports

in this action and such draft reports, notes, or outlines for draft reports are also exempt from

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production and discovery. No discovery can be taken from any non-testifying expert except to

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the extent that the non-testifying expert has provided information, opinions, or other materials

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to a testifying expert, who relies upon such information, opinions, or other materials in forming

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his or her final report, or any opinion in this action. No conversations or communications

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between counsel and any testifying or non-testifying expert, including emails or

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correspondence, will be subject to discovery unless the conversations or communications are

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relied upon by a testifying expert in formulating his or her final report, or any opinion in this

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action. Materials, communications, and other information exempt from discovery under this

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paragraph shall be treated as attorney work product for the purposes of this action.

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9.

MANNER OF SERVICE

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The following memorializes the parties’ agreement regarding electronic service

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applicable to service occurring on or after July 16, 2013. The parties will serve all documents

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related to this Litigation by 11:59 PM Pacific Time on the day of service, and such service

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shall constitute timely service on that day. Where service is not made through the ECF, service

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may be made by electronic mail to counsel of record (identified below), with the filed,

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submitted, or produced documents attached in .pdf format. When the size of the file containing

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any such document(s) are too large for service by electronic mail, service may be made by

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hand delivery or by Federal Express (or similar means) for next day delivery, and a CD,

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diskette, FTP site or other means of electronically providing the documents being served shall

DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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be provided. Where service is made by via FTP or any other electronic means where the

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documents are immediately available to the receiving party, service shall be effective on the

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day access is provided to the receiving party. Where service is made by next day delivery,

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service shall be effective on the day received. The Parties may electronically serve large

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documents via an FTP site in accordance with the same rules applicable to e-mail.

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All discovery requests shall be served by electronic means in .pdf format accompanied by

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a Word version for use by the receiving party. All responses and objections thereto (but not

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necessarily documents produced pursuant to any such request) shall be served by electronic mail

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in a searchable .pdf format.

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All such electronic service under this agreement will be effective as if service had been

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accomplished by hand delivery, i.e., 3 days will not be added under the Federal Rules or any

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local rule. The parties designate the following counsel to receive documents pursuant to this

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stipulation:

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Party

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Radware

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Service by E-mail
[e-mail]

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A10
Networks

[e-mail]

Dean G. Dunlavey
LATHAM & WATKINS LLP
650 Town Center Drive,
20th Floor
Costa Mesa, CA 926261925

#[e-mail]

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Elliot Brown
IRELL & MANELLA LLP
1800 Avenue of the Stars,
Suite 900
Los Angeles, CA 90067

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Service by Hand
Fabio Marino
MCDERMOTT WILL &
EMERY LLP
275 Middlefield Road,
Suite 100
Menlo Park, CA
94025-4004

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MODIFICATION
This Stipulated Order may be modified by a Stipulated Order of the parties or by the

Court for good cause shown.

DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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IT IS SO STIPULATED, through Counsel of Record.

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Dated: September 26, 2013

Respectfully submitted,
McDERMOTT WILL & EMERY LLP

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By: /s/ Fabio E. Marino
Fabio E. Marino

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Attorneys for Plaintiffs
RADWARE, LTD. and RADWARE, INC.

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Dated: September 26, 2013

Respectfully submitted,
LATHAM & WATKINS LLP

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By: /s/ Andrew Fossum
Andrew Fossum (SBN 250373)

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Attorneys for Defendant
A10 NETWORKS, INC.

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SIGNATURE ATTESTATION

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Pursuant to Civil L.R. 5.1, I hereby attest that I have obtained the concurrence in the

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filing of this document from all the signatories for whom a signature is indicated by a

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“conformed” signature (/s/) within this e-filed document and I have on file records to support this

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concurrence for subsequent production for the Court if so ordered or for inspection upon request.

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Dated: September 26, 2013
/s/ Fabio E. Marino
Fabio E. Marino

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IT IS ORDERED that the forgoing Agreement is approved.

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Dated:
UNITED STATES DISTRICT JUDGE

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DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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Schedule A: Production Fields for ESI

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Field Name (variations of
the names below may be
used)

Description

Volume

The Production Volume.

Beg Bates

Number endorsed on first page of document.

End Bates

Number endorsed on last page of document.

Page Count

Total number of pages in document.

Beg Attach

Number endorsed on first page of first document in a family
(i.e., documents and all attachments thereto).

End Attach

Number endorsed on last page of last document in a family
(i.e., documents and all attachments thereto).

Confidential Designation

The confidential designation endorsed on the document. If
no designation is present, a default value of “None” will be
coded.

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FROM

Sender of email message.

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TO

Recipient of email message in the “To” field.

CC

Recipient of email message in the “CC” field.

BCC

Recipient of email message in the “BCC” field.

Title / Subject

If available, verbatim subject or re: line, or discernible
document title appearing on the document’s first page.

Sent Date

Date email message was sent.

Received Date

Date email message was received.

FullText

Relative path to text file containing extracted text or OCR
text on Production Media.

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Native Path

Relative path to native file on Production Media.

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MD5 Hash Value

The MD5 hash of the native produced file, not the produced
TIFF files.

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Source(s)

Custodial or Non-custodial source(s) from which the
document was collected.

File Name

Original file name.

Creation Date

Application-recorded date on which file was generated

Modification Date

Application-recorded date on which file was last modified

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DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW

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Schedule B: Production Fields for Paper Discovery

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Description

Volume

The Production Volume.

Beg Bates

Number endorsed on first page of document.
Number endorsed on last page of document.

Page Count

Total number of pages in document.

Beg Attach

Number endorsed on first page of first document in a family
(i.e., documents and all attachments thereto).

End Attach

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Field Name (variations of
the names below may be
used)

End Bates

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Number endorsed on last page of last document in a family
(i.e., documents and all attachments thereto).

Confidential Designation

The confidential designation endorsed on the document. If
no designation is present, a default value of “None” will be
coded.

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DM_US 45341587-2.092004.0012

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STIPULATED ORDER RE:
DISCOVERY OF ESI
CASE NO. 5:13-CV-02021-RMW