Newmark Realty Capital, Inc. v. BGC Partners, Inc. et al

Filing 168

STIPULATED ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION. Signed by Magistrate Judge Susan van Keulen on 12/13/2017. (ofr, COURT STAFF) (Filed on 12/13/2017)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
12
13
14
15
16
17
18

NEWMARK REALTY CAPITAL, INC.
a California Corporation,
v.

Plaintiff,

BGC PARTNERS, INC., NEWMARK &
COMPANY REAL ESTATE, INC. dba
NEWMARK GRUBB KNIGHT FRANK,
and DOES 1 to 10,
Defendants.
AND RELATED COUNTERCLAIMS

Case No. 5:16-cv-01702-BLF
[PROPOSED] STIPULATED ORDER
REGARDING DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION
Before Hon. Susan van Keulen

Complaint Filed: April 4, 2016
Trial Date: January 14, 2019

19

WHEREAS, the Court ordered that plaintiff Newmark Realty Capital, Inc. and defendants

20

Newmark & Company Real Estate, Inc. and BGC Partners, Inc. (the “Parties”) submit a proposed

21

stipulated order governing the discovery of electronically stored information (“ESI”) at the

22

November 15, 2017 hearing and as codified in the Court’s written order at Dkt. 133:

23

The Parties stipulate as follows:

24

I.

25

1.

GENERALLY

Modification. This Order may be modified in the Court’s discretion or by

26

stipulation. The parties shall jointly submit any proposed modifications to the Court within 30 days

27

after the Federal Rule of Civil Procedure 16 Conference. If the parties cannot agree regarding any

28

such modification, the parties shall jointly submit their competing proposals and a summary of their
STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-1-

1
2

dispute to the Court.
2.

Cost-Shifting. The parties shall bear their own ESI-related discovery costs, unless

3

they agree otherwise or the Court orders otherwise. As in all cases, costs may be shifted for

4

disproportionate ESI production requests pursuant to Federal Rule of Civil Procedure 26. Likewise,

5

a party’s nonresponsive or dilatory discovery tactics are cost-shifting considerations. A party’s

6

meaningful compliance with this Order and efforts to promote efficiency and reduce costs will be

7

considered in cost-shifting determinations.

8
9
10
11

3.

Security. The parties will also make reasonable efforts to ensure that any

productions made are free from viruses and provided on encrypted media. The parties recognize
that sometimes productions will be served by secure FTP.
4.

No Waiver. The mere production of ESI in this litigation as part of a mass

12

production shall not itself constitute waiver for any purpose. Pursuant to Rule of Evidence 502(d),

13

the inadvertent production of an attorney-client privileged or work-product protected ESI is not a

14

waiver in the pending case or in any other litigation, including any foreign-, state-, or federal-court

15

proceeding.

16

5.

Data Not Reasonably Accessible. Absent a showing of good cause, voicemails,

17

mobile phones, and tablets are deemed not reasonably accessible and need not be searched or

18

collected from in response to a discovery request.

19

6.

Confidentiality Designation. Responsive documents in TIFF format will be stamped

20

with the appropriate confidentiality designations in accordance with the Protective Order in this

21

matter. Each responsive document produced in native format will have its confidentiality

22

designation identified in the filename of the native file to the extent possible. If the filename of the

23

native file does not identify the confidentiality designation, the producing party, at the time of

24

production, shall disclose to the requesting party whether the native file contains confidential

25

information under the Protective Order.

26

7.

Production. Documents may be produced by FTP, external hard drive(s), readily

27

accessible computer(s), or other electronic media (“Production Media”). The production shall

28

include identifying information, including (1) the producing party’s name; (2) the production date;
STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-2-

1

(3) the Bates number range of the materials contained in the production; and (4) whether the

2

production contains confidential information under the Protective Order in this case. All documents

3

produced to plaintiff by FTP shall be delivered to [e-mail] and

4

Fang Wong at [e-mail]; documents produced to plaintiff by other media shall

5

be delivered to the office of Sheppard Mullin Richter & Hampton LLP, c/o Mary Tom-Hum, 4

6

Embarcadero Center, 17th Floor, San Francisco, CA 94111. All documents produced to defendants

7

by FTP shall be delivered to [e-mail] and Louis Ferrari at

8

[e-mail]; documents produced to plaintiff by other media shall be

9

delivered to the office of Kilpatrick Townsend & Stockton LLP, c/o Victoria Hopper, 2

10
11

Embarcadero Center, Suite 1900, San Francisco, CA 94111.
8.

Technology Assisted Review. Nothing in this Order prevents the parties from

12

agreeing to use technology assisted review and other techniques insofar as their use improves the

13

efficacy of discovery.

14

9.

The form of production required by this Order shall not by itself, absent further

15

agreement by the parties, require any party to re-produce materials that were previously produced in

16

this litigation.

17

10.

Keyword Searching. To the extent that keyword searching will be used to identify

18

the potentially responsive documents to be collected for review, the parties shall make reasonable

19

efforts to employ a search methodology that opens compound and nested files and de-compresses

20

archived files. The parties shall also make reasonable efforts to employ search utilities that support

21

the use of stemmed searches (e.g. using ! or * to include variations on a keyword), wildcard

22

searches, Boolean searches, [highlighted portion is proposed by plaintiff; objected to by

23

defendants] and proximity searching. The parties agree to meet and confer about further methods

24

to search ESI in order to identify ESI that is subject to production in discovery and filter out ESI

25

that is not subject to discovery.

26

11.

Culling/Filtering. To the extent that keyword or other methodologies are used to

27

identify the universe of potentially responsive documents to be collected for review, each party will

28

use reasonable efforts to filter out common system files and application executable files by using a
STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-3-

1
2

commercially reasonable hash identification process.
12.

De-Duplication. A party is required to produce only a single copy of a responsive

3

document, and a party shall make reasonable efforts to de-duplicate responsive ESI (based on MD5

4

or SHA-1 hash values at the document level) across Custodians (i.e., “global deduplication”). For

5

emails with attachments, the hash value is generated based on the parent/child document grouping.

6

A party may also de-duplicate “near-duplicate” email threads as follows: In an email thread, only

7

the final-in-time document need be produced, assuming that all previous emails in the thread are

8

contained within the final message. Where a prior email contains an attachment, that email and

9

attachment shall not be removed as a “near- duplicate.” To the extent that de-duplication through

10

MD5 or SHA-1 hash values is not possible, the parties shall meet and confer to discuss any other

11

proposed method of de-duplication.

12
13
14
15

II.
13.

PRODUCTION OF HARD COPY DOCUMENTS

This section applies only to documents in hard copy format that have been scanned

for the purposes of production.
14.

TIFFs. Documents scanned into hard copy format shall be scanned and produced as

16

single page Group IV TIFFs, with at least 300 dots per inch (dpi). Each TIFF image shall be named

17

according to a unique corresponding Bates number associated with the document. Each image shall

18

be branded according to the Bates number and the agreed upon confidentiality designation. TIFFs

19

shall show all text and images that would be visible to a user of the hard copy documents. The

20

parties will accommodate reasonable requests for production of specific images in color.

21

15.

Unitizing of Documents. In scanning hard copy documents, distinct documents

22

should not be merged into a single record, and single documents should not be split into multiple

23

records (i.e., hard copy documents should be logically unitized). The parties will use reasonable

24

efforts to unitize documents correctly.

25

16.

Metadata Fields. The following information shall be produced in the delimited data

26

file accompanying hard copy documents: (a) BEGBATES, (b) ENDBATES, (c) BEGATTACH, (d)

27

ENDATTACH, (e) CONFIDENTIALITY, and (f) CUSTODIAN.

28

17.

Database Load Files/Cross-Reference Files. Productions shall include, in addition to

STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-4-

1

single page TIFFs and Text Files, (a) an ASCII delimited data file (.txt, .dat, or .csv), and (b) an

2

image load file (.opt or .lfp) that can be loaded into commercially acceptable production software

3

(e.g., Relativity). Each TIFF in a production must be referenced in the corresponding image load

4

file. The total number of pages referenced in a production’s image load file should match the total

5

number of TIFF files in the production. The total number of documents referenced in a

6

production’s data load file should match the total number of designated document breaks in the

7

Image Load file(s) in the production.

8
9
10
11

18.

Bates Numbering. All images must be assigned a unique Bates number that is

sequential within a given document and across the production sets.
III.
19.

PRODUCTION OF ELECTRONICALLY STORED INFORMATION
Metadata Fields and Processing. Absent a showing of good cause, ESI produced in

12

response to a request under Federal Rule of Civil Procedure 34 and/or in compliance with a

13

mandatory disclosure requirement of this Court shall not include metadata, with the exception of the

14

following to the extent available: BEGBATES, ENDBATES, BEGATTACH, ENDATTACH,

15

CUSTODIAN, TO, FROM, CC, BCC, SUBJECT, DATE SENT (MM/DD/YYYY), TIME SENT

16

(PST), DATE RECEIVED (MM/DD/YYYY), TIME RECEIVED (PST), LAST MODIFIED DATE

17

(MM/DD/YYYY), DATE CREATED (MM/DD/YYYY), FILE NAME, FILE EXTENSION,

18

TITLE, AUTHOR, REDACTED, CONFIDENTIALITY, HASH, TEXT LINK, NATIVELINK,

19

and VOLUME, which should be populated by the party or the party’s vendor. Fields showing the

20

date and time that the document was sent and received, as well as the complete distribution list,

21

shall generally be included in the production if such fields exist. The parties will make reasonable

22

efforts to ensure that metadata fields automatically extracted from the documents are correct;

23

however, the parties acknowledge that such metadata may not always be accurate and might instead

24

contain irrelevant or incorrect information generated during the collection process. To the extent

25

that the term “native” is used in this agreement, it means either in native or otherwise comparable

26

format. Thus, for example, if a Google slide presentation is produced in native format, producing

27

the document as a .ppt file would be appropriate.

28

20.

TIFFs. The parties agree to produce documents pursuant to ESI production requests

STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-5-

1

in TIFF file format. Unless excepted below, TIFFs should be provided with at least 300 dots per

2

inch (dpi). Each TIFF image shall be named according to a unique corresponding Bates number

3

associated with the document. Each image shall be branded according to the Bates number and the

4

agreed upon confidentiality designation. Original document orientation should be maintained (i.e.,

5

portrait to portrait and landscape to landscape). If particular documents warrant a different format,

6

the parties will cooperate to arrange for the mutually acceptable production of such documents. The

7

parties agree not to degrade the searchability of documents as part of the document production

8

process.

9

21.

Database Load Files/Cross-Reference Files. Productions shall include, in addition to

10

single page TIFFs and Text Files, (a) an ASCII delimited data file (.txt, .dat, or .csv), and (b) an

11

image load file that can be loaded into commercially acceptable production software (e.g.,

12

Concordance, Relativity). Each TIFF in a production should be referenced in the corresponding

13

image load file (.opt or .lfp). The total number of documents referenced in a production’s data load

14

file should match the total number of designated document breaks in the Image Load file(s) in the

15

production. Each TIFF in a production must be referenced in the corresponding image load file.

16

The total number of pages referenced in a production’s image load file should match the total

17

number of TIFF files in the production. The total number of documents in a production should

18

match the total number of records in the database load file.

19
20
21

22.

Bates Numbering. All images must be assigned a unique Bates number that is

sequential within a given document and across the production sets.
23.

Presentations. The parties shall take reasonable efforts to process presentations (MS

22

PowerPoint, Google Presently) with hidden slides and speaker’s notes unhidden, and to show both

23

the slide and the speaker’s notes on the TIFF image.

24

24.

Spreadsheets. The parties shall take reasonable efforts to product spreadsheets in

25

native format with a TIFF placeholder identifying that the document has been produced in native

26

format. Native copies of spreadsheets shall be produced with a link in the NativeLink field, along

27

with applicable metadata fields set forth above. A TIFF placeholder indicating that the document

28

was provided in native format should accompany the database record. The TIFF placeholder should
STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-6-

1
2

also indicate the Bates number and confidentiality level assigned to the native document.
25.

Proprietary Files. To the extent a response to discovery requires production of ESI

3

accessible only through proprietary software, the parties should continue to preserve each version of

4

such information. The parties shall meet and confer to finalize the appropriate production format.

5

26.

Request(s) for Additional Native Files. If good cause exists to request production of

6

certain files, other than those specifically set forth above, in native format, any party may request

7

such production and provide an explanation of the need for native file review, which request shall

8

not be unreasonably denied. Any native files that are produced shall be produced with a link in the

9

NativeLink field, along with applicable metadata fields set forth above, where reasonably possible.

10

A TIFF placeholder indicating that the document was provided in native format should accompany

11

the database record. The TIFF placeholder should also indicate the Bates number and

12

confidentiality level assigned to the native document.

13

27.

Redaction of Information. If documents are produced containing redacted

14

information, an electronic copy of the original, unredacted data shall be securely preserved in such a

15

manner so as to preserve without modification, alteration or addition the content of such data

16

including any metadata therein.

17
18

IV.
28.

PROCESSING OF THIRD-PARTY DOCUMENTS

Subpoena. A party that issues a non-party subpoena (“Issuing Party”) shall include a

19

copy of this Order with the subpoena and state that the parties to the litigation have requested that

20

third parties make reasonable efforts to produce documents in accordance with the specifications set

21

forth herein. However, nothing in this Order is intended to or should be interpreted as narrowing,

22

expanding, or otherwise affecting the rights of the parties or third parties to object to a subpoena.

23

29.

Production Not Bates-Stamped. If the non-party production is not Bates-stamped,

24

the Issuing Party will endorse the non-party production with unique prefixes and Bates numbers

25

prior to producing them to the opposing party.

26
27
28

V.
30.

SOURCES

Sources to be Searched for Responsive Documents. The parties agree to search

central repositories or relevant portions thereof to the extent that either party reasonably anticipates
STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-7-

1

such locations may contain non-duplicative Responsive Documents. The parties agree to meet and

2

confer to limit the scope of production from central repositories if the search of central repositories

3

(or relevant portions thereof) that the producing party anticipates contain Responsive Documents is

4

unduly burdensome or is likely to be unreasonably inefficient in identifying relevant documents.

5

31.

Limit on Email Production. General ESI production requests under Federal Rules of

6

Civil Procedure 34 and 45, or compliance with a mandatory disclosure of this Court, shall not

7

include email or other forms of electronic correspondence (collectively “email”). Any production

8

requests for “documents” or “all documents,” for example, generally do not encompass email. To

9

obtain email parties must make specific email requests pursuant to Section VII below.

10
11

VI.
32.

EMAIL PRODUCTION

Production Requests. Email production requests shall identify the custodian(s),

12

search term(s), and date range(s) for the emails sought. The parties shall cooperate to identify the

13

proper custodians, search terms, and date ranges for email production requests.

14

33.

Custodians. Each requesting party shall limit its email production requests to a total

15

of fifteen custodians per side for all such requests. The parties may jointly agree to modify this

16

limit without the Court’s leave. The Court shall consider contested requests for additional

17

custodians per side, upon showing a distinct need based on the size, complexity, and issues of this

18

specific case.

19

34.

Search Terms. Each requesting party shall limit its email production requests to a

20

total of fifteen search terms per custodian per side. The parties may jointly agree to modify the

21

foregoing limit on search terms without the Court’s leave. The Court shall consider contested

22

requests for additional or fewer search terms, upon showing a distinct need based on the size,

23

complexity, and issues of this specific case. The Court encourages the parties to confer on a process

24

to test the efficacy of the search terms. The search terms shall be narrowly tailored to particular

25

issues. Indiscriminate terms are inappropriate unless combined with narrowing search criteria that

26

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

27

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

28

A disjunctive combination of multiple words or phrases (e.g., “computer” or “system”) broadens the
STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-8-

1

search, and thus each word or phrase shall count as a separate search term unless they are

2

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

3

“w/x”) is encouraged to limit the production and shall be considered when determining whether to

4

shift costs for disproportionate discovery. Should a party request email production with search

5

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

6

after entry of this Order, this shall be considered in determining whether any party shall bear all

7

reasonable costs caused by such additional discovery.
35.

8
9

Limit on Number of Searches. Upon agreement of search term(s), custodian(s), and

date range(s), a party shall only be required to run an email search once in this litigation, absent

10

further agreement between the parties or an order of the Court. However, if a party contends that

11

the results of this one email search are overbroad, such party may elect to confer with the other

12

parties to narrow the search to a subset of those results. Any contention that email search results are

13

overbroad should be accompanied by a report showing hit results for each search term and

14

custodian, as well as one or more examples of emails or documents that demonstrates the

15

overbreadth of the search.
36.

16

Privilege Filter. If a party uses a “privilege filter” to presumptively filter out

17

purportedly privileged documents, such party must disclose the terms of the privilege filter to the

18

other parties.
37.

19

Archived Emails. If emails of a custodian falling within the date range(s) agreed to

20

by the parties have been archived or are not readily accessible, and the producing party intends not

21

to search such emails, the producing party shall make reasonable efforts to promptly disclose this to

22

the requesting party.
38.

23

Email Attachments. Attachments to emails, in addition to the emails themselves,

24

shall be searched for the search term(s) agreed to by the parties.

25

IT IS SO STIPULATED, through Counsel of Record.

26

///

27

///

28

///
STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

-9-

1

DATED: December 1, 2017

Respectfully submitted,
KILPATRICK TOWNSEND & STOCKTON LLP

2
3

By: /s/Gregory S. Gilchrist
Gregory S. Gilchrist

4
5

Attorneys for Defendants/Counterclaimants
BGC Partners, Inc., and Newmark & Company Real
Estate, Inc., dba Newmark Grubb Knight Frank

6
7
8

DATED: December 1, 2017

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

9
10

By: /s/Laura L. Chapman
Laura L. Chapman

11

Attorneys for Plaintiff/Counterdefendant
Newmark Realty Capital, Inc.

12
13
14

IT IS ORDERED that the forgoing Agreement is approved.

15
16

Dated:

December 13, 2017

17

U.S. MAGISTRATE JUDGE SUSAN VAN KEULEN

18
19
20

70378785V.1

21
22
23
24
25
26
27
28
STIPULATED ORDER RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION
CASE NO. 5:16-CV-01702-BLF

- 10 -