Radware, LTD. et al v. F5 Networks, Inc.

Filing 44

STIPULATED ORDER 42 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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ATTO RNEY S AT LAW

M C D ERMOTT W ILL & E MERY LLP

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Terrence P. McMahon (SBN 71910)
[e-mail]
Fabio E. Marino (SBN 183825)
[e-mail]
Judith S.H. Hom (SBN 203482)
[e-mail]
Nitin Gambhir (SBN 259906)
[e-mail]
Barrington Dyer (SBN 264762)
[e-mail]
McDERMOTT WILL & EMERY LLP
275 Middlefield Road, Suite 100
Menlo Park, CA 94025-4004
Telephone:
650 815 7400
Facsimile:
650 815 7401
ATTORNEYS FOR PLAINTIFFS
RADWARE, LTD. AND RADWARE, INC
Ramsey M. Al-Salam (SBN 109506)
[e-mail]
PERKINS COIE LLP
1201 Third Street, Ste. 4800
Seattle, WA 98101-3099
Telephone: [phone]
Facsimile: 206-359-7385
ATTORNEYS FOR DEFENDANT
F5 NETWORKS, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
RADWARE, LTD., an Israeli company;
RADWARE, INC., a New Jersey
corporation,
Plaintiffs,
v.
F5 NETWORKS, INC., a Washington
corporation,
Defendant.

CASE NO. 5:13-CV-02024 RMW
Related Case 5:13-CV-02021 RMW
Assigned to the Hon. Ronald M. Whyte
STIPULATED ORDER RE: DISCOVERY
OF ELECTRONICALLY STORED
INFORMATION

F5 NETWORKS, INC., a Washington
corporation,
Defendant.
Counterclaim-Plaintiff,
v.
RADWARE, LTD., an Israeli company;
RADWARE, INC., a New Jersey
corporation,
Counterclaim-Defendants.
STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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Plaintiffs Radware, Ltd. and Radware, Inc. (“Plaintiffs” or “Radware”) and Defendants F5
Networks, Inc. (“Defendant” or “F5”) (collectively “the Parties”) hereby stipulate as follows:

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A.

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

PURPOSE

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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.

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B.

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

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COOPERATION

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

C.

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Discovery of ESI.

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

LIAISON

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

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

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nature, accessibility, format, collection, search methodologies, and production of ESI in this

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

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

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Liaison by providing written notice to the other Party.

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D.

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

PRESERVATION

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preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the

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

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1)

Absent a showing of good cause by the requesting party, the parties shall not be

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required to modify, on a going-forward basis, the procedures used by them in the ordinary course

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of business to back up and archive data; provided, however, that the parties shall preserve the

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non-duplicative discoverable information currently in their possession, custody or control;

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2)

The parties will agree on the number of custodians per party for whom ESI will be

preserved;
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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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3)

These data sources are not reasonably accessible because of undue burden or cost

pursuant to Fed. R. Civ. P. 26(b)(2)(B), the parties agree not to preserve the following:

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a)

automatically saved versions of documents;

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b)

instant messaging, text messaging, SMS communications, telephonic
recordings, voicemail, or other digitally recorded conversations;

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c)

system or executable files (.exe, .dll, etc.);

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d)

audio, video, or audio-visual information (e.g., .wav, .mp3, .avi, .swf,
etc.), unless the information is known to be related to the claims asserted
in this case (e.g., training videos for product features accused of
infringement) or the responsiveness of specific files is made known to
counsel during search, review, collection, or production of other
responsive information;

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e)

unreadable or corrupt files;

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f)

data from Blackberry™, tablets or other portable and smartphone devices
where the Producing Party believes based on its standard practices that
the information contained therein is expected to be duplicative of other
sources (e.g., other email systems);

g)

materials retained primarily for backup or disaster recovery purposes, for
example materials retained in tape, floppy disk, optical disk, or similar
formats, and temporary data stored in a computer’s random access
memory or RAM;

h)

systems no longer is use or systems that cannot be accessed; and

i)

any other file types subsequently agreed by the Parties.

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4)

If responsive documents are located on a centralized server or network, the

producing party shall not be required to search for additional copies of such responsive
documents that may be located on the personal computer, or otherwise in the possession, of
individual employees except upon request for specific documents by opposing counsel with a
showing that such additional collection is justified (i.e., likely benefit outweighed by burden and
expense) and a meet and confer between respective ESI liaisons.
5)

In addition to the agreements above, the parties agree data from these sources (a)

could contain relevant information, but (b) under the proportionality factors, should not be
preserved: the parties reserve the right to identify further categories of documents that are unduly
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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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burdensome to collect and/or produce.
E.

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

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general discovery of a product of business. Email production requests shall be phased to occur

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after Radware has served its Disclosure of Asserted Claims and Infringement Contentions and

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accompanying disclosures under Patent Local Rules 3-1 and 3-2. The parties agree that disputes

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regarding entitlements or limits to email production from particular custodians should be

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governed by the Federal Rules of Civil Procedure, including Rule 26 and associated case law.

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1)

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

obtain email, parties must propound specific email production requests. Email production

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

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requests shall identify the custodian (by name, if possible, or by job description/title, or by

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knowledge of issues), search terms, and time frame. The parties shall cooperate to identify the

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proper custodians, proper search terms, and proper timeframe.

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2)

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

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search terms per custodian per party. A “search term” will be considered to include all

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permutations, abbreviations, and alternatives meaning the same thing and will count as a single

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term. For example, a search term for a product name will include the product’s name, all

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company-internal monikers, nicknames and code names including abbreviations thereof. The

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parties may jointly agree to modify this limit without the Court’s leave. The Court shall consider

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contested requests for additional search terms per custodian, upon showing a distinct need based

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on the size, complexity, and issues of this specific case. Should a party serve email production

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requests for additional search terms beyond the limits agreed to by the parties or granted by the

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Court pursuant to this paragraph, the requesting party shall bear all reasonable costs caused by

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such additional discovery.

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3)

Search terms shall be narrowly tailored to particular issues. Indiscriminate terms,

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such as the producing company’s name or its product name, are inappropriate unless combined

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with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive
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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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combination of multiple words or phrases (e.g., “computer” and “system,” “computer” w/x

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“system,” “computer” but not “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 variations 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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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 producing party may decline to respond or request that the producing party bear all

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costs caused by such additional discovery.
4)

If a producing party determines, either upon receipt or thereafter, that one or more

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proposed search terms results or will likely result in an unduly burdensome quantity of excessive

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or irrelevant information (“false hits”), the producing party shall promptly contact the requesting

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party to request a reassessment of the proposed search term(s), and the parties shall meet and

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confer in good faith to attempt to resolve such dispute.

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F.

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Documents shall be produced in the following folder structure.

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1)

Top-level folder. This folder will indicate the production volume (e.g., ABC-001).

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2)

Images Folder. Documents shall be produced in single page, black & white, TIFF
image format (Group 4, 300 dpi), and to the extent necessary to understand the
information presented therein, with color images produced in .jpeg format. Each
image will be sequentially stamped with a unique Bates number. Images shall be
placed in sub-folders where each sub-folder shall not contain more than 1,000
images. Embedded objects, such as email logos, shall be delivered as part of the
record absent party agreement to the contrary.

3)

Natives Folder. Excel spreadsheets and audio-video files shall be produced in
native file format; the parties agree to meet and confer regarding the native
production of other file types (e.g., databases or files requiring specialized
software) as appropriate.

4)

Text Folder. Extracted text or OCR text generated to render documents
searchable shall be produced at the document level. Text files shall be labeled to
correspond with the Bates number of the first image file for each document. If
documents are redacted, OCR text shall be provided for the unredacted text.

5)

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

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PRODUCTION FORMAT

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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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listed in Schedules A and B (to the extent such metadata fields or data for such
fields are reasonably available), and iPRO-ready .LFP and .OPT image load files
shall accompany the image, native and text files.

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6)

Hard Copy Documents. Paper documents shall be scanned and delivered in

accordance with the foregoing format specifications.

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7)

De-Duplication. Parties agree to globally de-duplicate files prior to production.

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G.

DOCUMENTS PROTECTED FROM DISCOVERY

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1)

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

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

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from discovery in this case or in any other federal or state proceeding. For example, the mere
production of privilege or work-product-protected documents in this case as part of a mass

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

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2)

In the event of inadvertent disclosure, the receiving party shall not use the content

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of ESI that the producing party asserts is protected by any applicable privilege or doctrine, or the

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fact of inadvertent production, to challenge the protection asserted. Further, the receiving party

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shall immediately return or confirm in writing that it has destroyed all information that contains

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privileged matter or work product that appears on its face to have been inadvertently produced or,

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if notice is provided, within fifteen (15) calendar days of the date of the notice.

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3)

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

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

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category, rather than individually, if appropriate. For each document withheld or redacted, the

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Privilege Log shall contain the following information: (i) the date of the document; (ii) the

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

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of all persons designated as addressees or copyees, including blind copyees; (iv) a description of

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the contents of the document that, without revealing information itself privileged or protected, is

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sufficient to understand the subject matter of the document and the basis of the claim of privilege

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or immunity; (vi) the type or nature of the privilege asserted (e.g., attorney-client privilege, work

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product doctrine, common interest, etc.); (vii) the unique document number assigned to the

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withheld document; and (viii) the Bates numbers corresponding to the first and last page of any
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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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redacted document, if the document has been assigned any such Bates numbers. Any email

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message (whether produced individually or as part of a series or chain of emails linked together

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by email responses and forwarding) that is withheld or redacted on the grounds of privilege,

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immunity or any similar claim shall be logged as one document and shall be identified by the top-

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most email in the thread that is withheld or redacted (e.g., if a party withholds on the basis of

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privilege an email thread consisting of a sent email, a first reply email and a second reply email,

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the thread shall be identified by the second reply email; if a party produces the same email thread

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but redacts the sent email and the first reply email, the thread shall be identified by the first reply

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

exchange initial privilege logs by no later than six weeks after the document production to which

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

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each log relates. At this time, the parties need not log privileged communications or work

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product created in connection with the prior litigation identified as Case No. 04-3376 (D. N.J.)

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and Case No. 10-654MJP (W.D. Wash) between Radware and its legal counsel, and between F5

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and its legal counsel. Parties, however, reserve the right to request privilege logs upon meeting

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and conferring should a specific issue arise.

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4)

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

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

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production and discovery pursuant to Fed. R. Civ. P. 26(b)(4)(C) and (D). Materials,

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communications, and other information exempt from discovery under this paragraph shall be

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

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H.

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

COST-SHIFTING

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

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be subject to 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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///
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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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I.

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The parties will serve all documents related to this Litigation by 11:59 PM Pacific Time

MANNER OF SERVICE

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on the day of service, and such service shall constitute timely service on that day. Service may be

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

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produced documents attached in .pdf format. When the size of the file containing any such

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document(s) are too large for service by electronic mail, service may be made by hand delivery or

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by Federal Express (or similar means) for next day delivery, and a CD, diskette, .ftp site or other

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means of electronically providing the documents being served shall be provided. Where service

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is made by next day delivery, service shall be effective on the day sent. The Parties may
electronically serve large documents via an FTP site in accordance with the same rules applicable

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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 local

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

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stipulation:

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Party
Radware

Service by E-mail
[e-mail]

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

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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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F5
Networks

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[e-mail]
[e-mail]
[e-mail]

Ramsey M. Al-Salam
Nathaniel E. Durrance
PERKINS COIE LLP
1201 Third Street, Ste.
4800
Seattle, WA 98101-3099

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J.

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

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MODIFICATION

Court for good cause shown.

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Schedule A: Production Fields for ESI
Description

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

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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.

Authors(s)

If available, the person(s) who created, wrote, reviewed,
signed, or approved the document. If no author 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.

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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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

Description

Date Created

If available, the date the document was created.

Date Modified

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If available, the date the document was last modified.

Sent Date

Date email message was sent.

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Received Date

Date email message was received.

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Source(s)

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

File Name

Original file name.

Document Type

The file extension describing the type of document (e.g.,
Microsoft Word document).

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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Schedule B: Production Fields for Paper Discovery

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Description

Volume

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

The Production Volume.

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Beg Bates

Number endorsed on first page of document.

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End Bates

Number endorsed on last page of document.

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Page Count

Total number of pages in document.

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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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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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

Description

Source(s)

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

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IT IS SO STIPULATED, through Counsel of Record.
Dated: September 5, 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 5, 2013

Respectfully submitted,
PERKINS COIE LLP

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By: /s/ Christopher Kao
Christopher Kao

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Attorneys for Defendant
F5 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 filing
of this document from all the signatories for whom a signature is indicated by a “conformed”
signature (/s/) within this e-filed document and I have on file records to support this concurrence
for subsequent production for the Court if so ordered or for inspection upon request.

Dated: September 5, 2013

/s/ Fabio E. Marino
Fabio E. Marino

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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW

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[] ORDER
PURSUANT TO STIPULATION OF THE PARTIES, IT IS SO ORDERED.

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DATED: ____________

________________________________________
THE HONORABLE RONALD M. WHYTE
UNITED STATES SENIOR DISTRICT JUDGE

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STIPULATED ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
CASE NO. 5:13-cv-02024 RMW