Nitsch v. Dreamworks Animation SKG Inc. et al

Filing 112

ORDER GRANTING STIPULATION REGARDING SEARCH TERM PROTOCOL by Magistrate Judge Paul Singh Grewal, granting 109 . Signed by Judge Paul S. Grewal on 4/21/2015. (ofr, COURT STAFF) (Filed on 4/21/2015)

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Steve W. Berman (pro hac vice)
Ashley A. Bede (pro hac vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Daniel A. Small (pro hac vice)
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW, Suite 500
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Marc M. Seltzer (54534)
SUSMAN GODFREY L.L.P
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067-6029
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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[Additional Counsel on Sig. Page]

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Interim Co-Lead Plaintiffs’ Counsel

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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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IN RE ANIMATION WORKERS ANTITRUST
LITIGATION

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THIS DOCUMENT RELATES TO:

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ALL ACTIONS

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010473-11 775193V1

Master Docket No. 14-CV-4062-LHK
STIPULATION AND [PROPOSED]
ORDER REGARDING SEARCH TERM
PROTOCOL

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A.

General Provisions

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1.

The Parties agree to meet and confer concerning search methodologies, including

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without limitation, the use of key word search terms. For any Party1 to this litigation who chooses to

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use keyword search terms to collect or cull documents for production in this litigation, the following

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protocol shall be used for the application and testing of search terms.

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2.

The parties further agree that the Guidelines for the Discovery of Electronically

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Stored Information (“the ESI Guidelines”) and the Checklist for Rule 26(f) Meet and Confer

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Regarding Electronically Stored Information (“the ESI Checklist”) adopted by the U.S. District

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Court for the Northern District of California shall apply as appropriate to ESI discovery, including

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any meet and confer sessions regarding ESI discovery.

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3.

The Parties recognize that even though a document contains one or more of the search

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terms identified in accordance with the procedures listed below, such document may not be

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responsive to any document request. In such cases, the Responding Party is not required to produce

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such documents.

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4.

A Responding Party choosing to use search terms to identify potentially responsive

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documents shall exercise reasonable due diligence in investigating and analyzing its data in

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providing its proposed list of search terms to the Requesting Party prior to applying the search terms.

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Examples of such due diligence include, but are not limited to: identification of commonly

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misspelled words appearing on responsive documents or electronically stored information;

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identifying idiosyncratic language and terms of art utilized by a party in responsive documents and

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by interviewing key custodians about the same; utilizing quality control metrics; and using an

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iterative search approach to identify the terms most likely to locate responsive documents.

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B.

Protocol

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1.

Document Collection: Each Responding Party will collect documents for custodians,

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within a date range, and from locations agreed to between the parties or pursuant to Court order.

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Each Responding Party will make a good faith effort to collect documents and information for each

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As used herein, a “Requesting Party” is the party who has served Requests for Production and a
“Responding Party” is the Party upon whom such Requests for Production were served.
STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK
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agreed-upon or court-ordered custodian within twenty-one (21) days of such agreement or court

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order, or as otherwise agreed as a result of a meet and confer between the relevant parties. Each

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party will provide, as appropriate, informal discovery consistent with Section III of the ESI Checklist

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for each electronic source of documents and information.

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2.

Proposed Search Terms: Within twenty-one (21) days of the Parties’ agreement or a

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Court order regarding a Search Terms Protocol, or as otherwise agreed as a result of a meet and

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confer between the relevant parties, each Responding Party shall provide to the Requesting Party a

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list of proposed search terms to run against the custodians and locations as determined in accordance

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with paragraph (B)(1), above. The Parties acknowledge that developing the final Agreed Terms will

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be an iterative process including evaluation of search terms proposed by the Responding and

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Requesting Party. If a search term proposed by a Responding Party pursuant to this paragraph

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causes issues of privilege, relevance, overbreadth, undue burden or costs, a Responding Party is

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permitted to propose modifications, provided: (i) the Responding Party explains in writing the

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issue(s) as to each term and does so separately for each term; and (ii) that the Responding Party

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provides the Requesting Party with the quantitative metrics outlined in paragraph five below for the

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initial and proposed modified terms. The parties then shall meet and confer regarding the proposed

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modifications and, if unable to come to an agreement, shall follow the procedures outlined in

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paragraph 7 below.

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3.

Additional Terms: If the Requesting Party objects to the sufficiency of the

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Responding Party’s proposed search terms, within twenty-eight (28) days after service of the

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Responding Party’s list of proposed search terms, the Requesting Party may propose modifications to

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the Responding Party’s terms or a list of additional terms, with the combination of modifications and

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additional terms being no more than 125 in total, subject to the paragraph regarding Additional

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Terms for Good Cause below.

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4.

Application of Agreed Terms: Each Responding Party will proceed with the

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application of (i) its own proposed search terms and (ii) the search terms from the Requesting Party’s

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proposed search term list to which the Responding Party does not object (“Agreed Terms”). The

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Parties shall meet and confer regarding the results of these searches with respect to issues such as,

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but not limited to privilege, relevance, overbreadth, undue burden and costs. To the extent the

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parties can agree to search terms without the Court’s assistance, those terms will be considered

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Agreed Terms and the results of these searches will then be reviewed for responsiveness and

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privilege, and for necessary redactions. If the parties do not come to agreement regarding any search

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term, it shall be considered a Disputed Search Term subject to paragraph 5 below.

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5.

Disputed Search Terms: To the extent that a Responding Party believes that any of

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the remaining search terms (the “Disputed Terms”) proposed by a Requesting Party are unreasonably

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overbroad and/or will result in the identification of disproportionate numbers of irrelevant

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documents, the Responding Party will identify:
(i)

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the aggregate hits for each of the Disputed Terms (i.e. the number of documents
returned by a search term);

(ii)

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the number of unique hits for each of the Disputed Terms (the number of documents
which contain the a particular search term, but no other);

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(iii)

the total number of documents returned by the Agreed Terms;

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(iv)

the total number of documents being searched for the Disputed Terms; and

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(v)

the nature and type of irrelevant documents that the search term is returning. With

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respect to any search term for which the Responding Party believes that there exists a modification

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that will reduce the number of irrelevant documents returned by the search term, the Responding

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Party will meet and confer with the Requesting Party to discuss in good faith any such modification.

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For any terms that a Responding Party believes are burdensome, overly broad, and/or objectionable

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and for which there does not appear to be any modification that would resolve such issues, the

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Responding Party will meet and confer with the Requesting Party to discuss in good faith its

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objections to such search terms. As part of that process, the Responding Party will not refuse to

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provide the Requesting Party with the quantitative information discussed above.

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6.

Qualitative Sampling Information Regarding Disputed Terms: In the event that

the parties are unable following good faith efforts to resolve any dispute after exhausting the

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Disputed Search Terms procedures set forth in Paragraph 5 above, the Requesting Party may request

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that random sampling be done. If the parties cannot reach agreement, they will stipulate for the

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motion to be heard on shortened time under Local Rule 6-2. This agreement is made without

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prejudice to plaintiffs re-raising the issue of qualitative sampling should defendants’ motion(s) to

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dismiss the consolidated second amended complaint with prejudice be denied.

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7.

Presentation to the Court: If, after engaging in the process described above, there

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still remain search terms about which the Parties cannot reach agreement, the Parties agree to submit

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a joint discovery letter to the Court explaining their respective positions with respect to such search

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terms.

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8.

Additional Terms for Good Cause: Once a search term list is finalized (either

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though agreement of the parties or Order of the Magistrate Judge) and all iterative searches for a

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custodian are complete, the Requesting Party may propose additional search terms for a Responding

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Party to consider, but the Responding Party will have no obligation to re-search the custodian’s

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electronic data using different or additional search terms without agreement or a court order. The

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Requesting Party must show good cause for any additional proposed search terms. If a Responding

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Party cannot meet any applicable deadlines for the production of documents as a result of this

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provision, the parties will negotiate in good faith a reasonable timeline for production or seek an

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order from the Court.

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IT IS HEREBY STIPULATED:
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DATED: April 17, 2015

HAGENS BERMAN SOBOL SHAPIRO LLP

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By

/s/ Jeff D. Friedman
JEFF D. FRIEDMAN

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Shana E. Scarlett (217895)
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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Steve W. Berman (Pro Hac Vice)
Ashley A. Bede (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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DATED: April 17, 2015

SUSMAN GODFREY L.L.P

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By

/s/ Steven G. Sklaver
STEVEN G. SKLAVER

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Marc M. Seltzer (54534)
Matthew R. Berry (237612)
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067-6029
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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Julian Ari Hammond (268489)
HAMMONDLAW, PC
1180 S Beverly Dr., Ste. 610
Los Angeles, CA 90035
Phone: [phone]
Fax: [phone]
[e-mail]

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Craig Ackermann (229832)
ACKERMANN & TILAJEF PC
1180 S Beverly Dr., Ste. 610
Los Angeles, CA 90035
Phone: [phone]
Fax: [phone]
[e-mail]

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DATED: April 17, 2015

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COHEN MILSTEIN SELLERS &
TOLL PLLC
By

/s/ Daniel A. Small
DANIEL A. SMALL

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Brent W. Johnson

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STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK
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Jeffrey B. Dubner
1100 New York Ave. NW, Suite 500
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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Interim Co-Lead Plaintiffs’ Counsel
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DATED: April 17, 2015

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COVINGTON & BURLING LLP
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/s/ Emily Johnson Henn
EMILY JOHNSON HENN

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333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94061
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Attorneys for Defendants The Walt Disney Company,
Lucasfilm Ltd., LLC, Pixar, and Two Pic MC LLC

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DATED: April 17, 2015

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GIBSON DUNN & CRUTCHER LLP
By

/s/ Rod J. Stone
ROD J. STONE

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333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Counsel for Defendant DreamWorks Animation SKG,
Inc.

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DATED: April 17, 2015

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ORRICK HERRINGTON & SUTCLIFFE LLP
By

/s/ David M. Goldstein
DAVID M. GOLDSTEIN

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405 Howard Street
San Francisco, CA 94105-2669
Telephone: [phone]
Facsimile: [phone]

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[e-mail]
[e-mail]

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Counsel for Defendants Sony Pictures Animation Inc.
and Sony Pictures Imageworks Inc.

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DATED: April 17, 2015

WILLIAMS & CONNOLLY LLP
By

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/s/ Jonathan Bradley Pitt
JONATHAN BRADLEY PITT

725 Twelfth Street, NW
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Counsel for Defendant Blue Sky Studios, Inc.

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Pursuant to Civil Local Rule 5-1(i)(3), the filer attests that concurrence in the filing of this
document has been obtained from each of the signatories.

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* * *

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[PROPOSED] ORDER
The parties’ stipulation is adopted and IT IS SO ORDERED.
The parties’ stipulation is modified as follows, and IT IS SO ORDERED.

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DATED:

4/21/2015
HONORABLE PAUL S. GREWAL
UNITED STATES MAGISTRATE JUDGE

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