Lu v. Align Technology, Inc. et al

Filing 166

ORDER re Discovery of Electronically Stored Information for Standard Litigation. Signed by Magistrate Judge Virginia K. DeMarchi on 3/24/2021. (vkdlc2S, COURT STAFF) (Filed on 3/24/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 5:18-cv-06720-LHK Document 166 Filed 03/24/21 Page 1 of 10

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SEB INVESTMENT MANAGEMENT AB,
Individually and on Behalf of All Others Similarly
Situated,

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CLASS ACTION

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v.

[PROPOSED] ORDER RE: DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
FOR STANDARD LITIGATION

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ALIGN TECHNOLOGY, INC., JOSEPH M.
HOGAN, and JOHN F. MORICI,

Judge: Hon. Lucy H. Koh

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Plaintiff,

Case No. 5:18-cv-06720-LHK

Defendants.

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Case No. 5:18-cv-06720-LHK
[PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR
STANDARD LITIGATION

Case 5:18-cv-06720-LHK Document 166 Filed 03/24/21 Page 2 of 10

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1.

PURPOSE

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

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supplement to the Federal Rules of Civil Procedure, this Court’s Guidelines for the Discovery of

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Electronically Stored Information, and any other applicable orders and rules.

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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 cooperate

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in good faith throughout the matter consistent with this Court’s Guidelines for the Discovery of ESI.

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3.

LIAISON

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The parties have identified liaisons to each other who are and will be knowledgeable about and

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responsible for discussing their respective ESI. Each e-discovery liaison will be, or have access to those

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

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accessibility, format, collection, search methodologies, and production of ESI in this matter. The parties

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will rely on the liaisons, as needed, to confer about ESI and to help resolve disputes without court

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intervention.

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4.

PRESERVATION

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Consistent with this Court’s Guidelines for the Discovery of ESI and the Checklist for Rule 26(f)

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Meet and Confer Regarding Electronically Stored Information, the parties have discussed their

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preservation obligations and needs and agree that preservation of potentially relevant ESI will be

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reasonable and proportionate.

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5.

SEARCH

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The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if appropriate,

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and consistent with this Court’s Guidelines for the Discovery of ESI and the Checklist for Rule 26(f) Meet

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and Confer Regarding Electronically Stored Information, they will meet and confer about methods to

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identify, collect, search, validate, and review ESI, and whether any phasing of discovery is appropriate.

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6.

PRODUCTION FORMATS

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General Production Format: Except as provided herein, all ESI and paper documents shall be

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produced as single-page, black and white, Group IV TIFF image files with the associated text and metadata

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(as applicable and available) specified herein. If specific ESI cannot be produced in the manner described
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Case No. 5:18-cv-06720-LHK
[PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR
STANDARD LITIGATION

Case 5:18-cv-06720-LHK Document 166 Filed 03/24/21 Page 3 of 10

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below, the parties shall confer and cooperate to arrange for the mutually acceptable production of such

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ESI. This Order supersedes any ESI specifications served with document requests or any other requests

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for production of documents/ESI in this matter. This Order does not prevent any party from requesting or

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agreeing to different or additional ESI formats in future discovery requests, including pursuant to Fed. R.

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Civ. P. 34(b)(1)(C) and with respect to subpoenas pursuant to Fed. R. Civ. P. 45.

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a)

Image Requirements:

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TIFF images files shall be of at least 300 DPI resolution. The parties shall endeavor to ensure that

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the page orientation (i.e., portrait or landscape) of a TIFF image file shall be the same as the underlying

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document from which the TIFF image is created. The page size of a TIFF image file shall be 8.5 x 11

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inches unless, in the reasonable judgment of the producing party, a particular document requires a different

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page size. Each TIFF image shall be branded with a Bates number that must: (1) identify the party

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producing the document; (2) maintain a constant length of nine numeric digits (including 0-padding)

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across the entire production; and (3) be sequential within a given document. Each TIFF image file shall

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be named with the same page-level Bates-number branded on the underlying image.

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b)

Text Requirements:

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All ESI and paper documents shall be produced with a corresponding multipage text file

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(i.e., one .TXT file per electronic file or paper document as opposed to one text file per page). The text

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file for ESI shall be created by extracting text directly from the underlying native file, unless the ESI must

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be redacted prior to production, in which case the text file shall be generated by applying industry standard

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OCR technology to the redacted version of the ESI. The text file for paper documents shall also be created

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using industry standard OCR technology. Each text file shall be named with the beginning Bates number

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of the electronic file or paper document to which the text file relates.

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c)

Metadata Requirements:

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All ESI shall be produced with the metadata specified in Exhibit A to this Order (as applicable),

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unless such metadata itself contains information subject to the attorney-client privilege or attorney work-

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product protection. If some or all of the metadata cannot be extracted from its ESI during standard

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processing, the document shall be produced in native format (as specified below) where possible. If some

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or all of the metadata cannot be extracted during standard processing and the producing party believes it
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[PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR
STANDARD LITIGATION

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is not possible to produce the document in native format, the parties shall confer and cooperate to arrange

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for the mutually acceptable production of such document.

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d)

Native Production:

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The following types of ESI shall be produced in native format: (1) spreadsheet files such as

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Microsoft Excel (including .csv and similar files); (2) Microsoft Access Files; (3) slide presentation files

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such as Microsoft PowerPoint; (4) word processing files such as Microsoft Word; and (5) audio or video

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files such as .wav or .mpeg files. Additionally, ESI shall be produced in native format if the TIFF version

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of the Document is not reasonably usable. Slide presentation files and word processing files shall be

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produced in both TIFF and native format.

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When producing ESI in native format, the producing party shall provide a corresponding single-

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page TIFF placeholder stating “Document Produced in Native Format” unless the ESI is being produced

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in both native and TIFF format, in which case no TIFF placeholder is required. The TIFF placeholder shall

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be branded with a Bates number meeting the requirements set forth above and any applicable

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confidentiality or other designation permitted by the parties’ agreement or the Court’s orders. The

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producing party shall name the produced version of the native electronic file with the Bates number affixed

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to the TIFF placeholder corresponding to the electronic file or, in the case of ESI produced in both native

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and TIFF formats, with the BEGNO for that document. The producing party also shall provide the text

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and metadata for the underlying electronic file, including the original file name, as explained above.

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When producing ESI that contains color in both native and TIFF format, the producing party need
not produce the ESI in TIFF format in color.

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If the ESI must be redacted for attorney-client privilege or attorney work product protection, the

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producing party shall first utilize native redaction tools where possible for documents that only are

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produced in native format. If the producing party believes that it is not possible to utilize native redaction

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tools for documents that are only produced in native format, the parties shall confer and cooperate to

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arrange for the mutually acceptable production of such documents. If ESI that shall be produced in both

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TIFF and native format requires redaction for attorney-client privilege or attorney work-product

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protection, that ESI may be produced in TIFF format with the necessary redactions and no native shall be

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provided. In the event that the original of such a document contains color, it shall be produced be produced

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as single-page, 300 DPI, color JPG images.

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The parties shall comply with their obligations under Fed. R. Civ. P. 26(b)(5)(A)(i) by providing

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a list that identifies each document or file as to which information has been withheld on the basis of the

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attorney-client privilege or work-product doctrine via redaction. The parties shall confer regarding the

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format in which they shall comply with their obligations under Fed. R. Civ. P. 26(b)(5)(A)(ii) for

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information withheld on the basis of the attorney-client privilege or work-product doctrine via redaction.

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e)

Load Files:

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All productions of ESI and paper documents shall be accompanied with data load files and image

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load files. Each producing party shall provide data and image load files in a format that is reasonably

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necessary to allow a receiving party to load productions to its document review or case management

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database.

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f)

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Parent-child relationships between electronic files (e.g., the association between an attachment and

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its parent email, or a spreadsheet embedded within a word processing document), must be preserved by

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assigning sequential Bates numbers to all files within a parent-child group, and by providing accurate

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attachment ranges for those files in the metadata fields identified below.

Family Relationships:

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To the extent a document that will be withheld in its entirety due to an assertion of attorney-client

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privilege or the attorney work-product doctrine (“Withheld Document”) is part of a “document family”

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that includes both privileged and non-privileged documents, the following instructions govern the

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production of that ESI.

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If the Withheld Document within the “document family” is a parent email, a copy of the Withheld

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Document shall be produced with the header of the email visible and the remainder of the Withheld

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Document redacted. The Withheld Document’s metadata also shall be produced. If there is an assertion

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of privilege with respect to the header email or email metadata of the Withheld Document, only the

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information that is itself subject to the privilege shall be redacted (in the case of the email header) or

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withheld (in the case of the email metadata).

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[PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR
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If the Withheld Document within the “document family” is a child attachment, the Withheld

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Document will be represented in the production by a placeholder TIFF image that bears the legend,

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“Document Withheld as Privileged” and will be endorsed with a sequential Bates number. The Withheld

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Document’s metadata shall be produced. If there is an assertion of privilege with respect to the Withheld

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Document’s metadata, only the information that is itself subject to the privilege shall be withheld.

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Each Withheld Document shall be logged on a privilege log, regardless of whether it is a parent
email or a child attachment.

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g)

Paper Documents:

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All paper documents should be scanned and produced as single-page, TIFF images as described in

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section 6(a) above. All documents are to be provided with per document searchable text files that contain

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full text extraction. In the event a document is scanned into TIFF format, the text file should contain that

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document’s OCR text. The OCR software should maximize text quality over process speed. Settings such

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as “auto-skewing” and “auto-rotation” should be turned on during the OCR process. The documents

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should be logically unitized (i.e., distinct documents should not be merged into a single record, and a

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single document should not be split into multiple records) and should be produced in the order in which

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they are kept in the usual course of business. The text and image load files should indicate page breaks. If

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an original document contains color, the document should be produced as single-page, 300 DPI, color JPG

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images. This includes color on graphs, charts, presentations, edits, or highlights that were made by hand

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or electronically on the original.

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Metadata for hard copy documents shall include: (i) Production Number Begin; (ii) Production

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Number End; (iii) Production Attachment Range Number Begin; (iv) Production Attachment Range

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Number End; (v) Production Doc Page Count; and (vi) Custodian.

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h)

Embedded Files:

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Files embedded within other files shall be extracted, and shall be considered “child” attachments.

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An embedded document should be processed and produced consistent with its category of ESI, rather than

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the category of its parent document. All embedded files produced under this procedure shall be produced

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subject to the same requirements set forth above. Load files for such embedded files shall refer to the

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parent document in which the file was embedded.
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i)

Hidden Content:

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To the extent that a document being produced with TIFF image files contains hidden content,

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tracked changes, comments, notes, or other similar information, it shall be imaged so that such information

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is captured on the produced image file.

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j)

Deduplication:

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Removal of duplicate documents must be done for exact duplicate documents (based on MD5 or

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SHA-1 hash values at the parent-document level) and must be done across custodians and sources. Near-

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duplicate documents shall be produced rather than removed. The custodian associated with the first copy

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of a document processed will be considered the primary custodian for that document (the custodian who

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will be used as the basis for determining which other collected documents are duplicates). The producing

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party shall produce an “All Custodian” field listing each processed custodian or source who or which

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possessed a duplicate document.

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k)

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The producing party may not utilize email threading to cull the set of ESI searched or reviewed

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Email Threading:

in response to discovery requests without first meeting and conferring with the receiving party.

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l)

Handwritten Notes or Other Alterations:

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If there are any handwritten notes, or any other markings, on a document, it shall not be considered

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a duplicate. Any document that contains an alteration, marking on, or addition to the original document

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shall be treated as a distinct version, and shall be produced as such. These alterations include handwritten

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notes, electronic notes/tabs, edits, highlighting, or redlining.

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m)

Encrypted Data:

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If any data source with ESI responsive to discovery request(s) or individual ESI responsive to

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discovery request(s) is corrupted, password-protected, encrypted, or not readable, the producing party

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shall make reasonable efforts to access the data source or file and produce to requesting party the

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responsive ESI and any additional information necessary to access it. If the producing party believes that

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the efforts necessary to access the data source or file are not reasonable, the parties shall confer and

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cooperate to arrange for the mutually acceptable production of such ESI.

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Case No. 5:18-cv-06720-LHK
[PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR
STANDARD LITIGATION

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n)

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The parties will promptly meet and confer regarding the format of production of data from

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Production of Relational Database ESI:

enterprise or other corporate relational databases if responsive ESI is contained in such databases.

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o)

Other ESI:

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If the producing party agrees or is otherwise required to search a source of ESI not identified above,

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the parties shall meet and confer regarding the appropriate collection and production formats for such ESI.

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p)

Requests for Color or Native Production:

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After the production of imaged ESI, a requesting party may request that the producing party

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produce individual imaged files in color and/or native format if some or all of the imaged files are not

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sufficiently readable or legible or if the requesting party can otherwise demonstrate a particularized need

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for production of the document in another format.

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q)

Production:

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The producing party may deliver productions on digital media (such as a CD-ROM, DVD, or

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external hard drive) or via a secure internet transfer tool (such as an SFTP site or ShareFile).

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7.

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MODIFICATION
This Order may be modified by a stipulated order of the parties or by the Court for good cause

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shown.

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8.

DOCUMENTS PROTECTED FROM DISCOVERY

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

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protected document is not a waiver of privilege or protection from discovery in this case or in any other

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federal or state proceeding. For example, the mere production of privileged or work-product-protected

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documents in this case as part of a mass production is not itself a waiver in this case or in any other federal

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or state proceeding.

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IT IS ORDERED.

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March 24, 2021
DATED: ________________________

_____________________________________
Hon. Virginia K. DeMarchi
United States Magistrate Judge

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[PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR
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EXHIBIT A

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METADATA FIELDS

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Field Name
BEGDOC
ENDDOC
BEGATTACH

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ENDATTACH

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PARENT ID

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PGCOUNT
CUSTODIAN

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ALL CUSTODIAN

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FILE PATH / FOLDER

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VOLUME

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RECORD TYPE

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CONFIDENTIALITY

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Description
The Document ID number of first page of the document.
The Document ID number of the last page of a document.
The Document ID number of the first page of the parent
document.
The Document ID number of the last page of the last
attachment.
Bates number associated with first page of parent
document
The number of pages in a document. (image records)
The primary custodian/source of a document from which
the document
originated.
All processed custodians/sources of a document from
which the document originated.
Location of the original document / location in the
ordinary course of business.
This field should be populated for email and electronic
files, and for hard copies where available.
The name of the CD or Hard Drive for ESI, or collection,
binder, cabinet for hard
copy docs
The type of document / record.

Indication if the document has been designated as
“Confidential” pursuant to any applicable confidentiality
or protective order
REDACTED
Indication if the document has been redacted to withhold
information protected by the attorney-client privilege or
attorney work product doctrine; “Yes” for redacted
documents or “No” for non-redacted documents
WITHHELD
Indication that the document has been withheld on the
basis of the attorney-client privilege or attorney work
product doctrine; “Yes” for withheld documents
EMAIL SUBJECT
The subject line of the e-mail.
EMAIL AUTHOR / FROM The display name and e-mail of the author of an e-mail.

Example / Format
ABC0000001
ABC0000003
ABC0000001
ABC0000008

Numeric
Smith, Joe; Doe, Jane

Joe Smith/E-mail/Inbox Joe
Smith/E-mail/Deleted
Items
VOL0001
Email, hard copy, loose
eFile
Confidential

Joe Smith
<[e-mail]>
EMAIL RECIPIENTS / TO The display name and e-mail of the recipient(s) of an eJoe Smith
mail.
<[e-mail]>;
[e-mail]
EMAIL CC
The display name and e-mail of the copyee(s) of an e-mail. Joe Smith
<[e-mail]>;
[e-mail]
EMAIL BCC
The display name and e-mail of the blind copyee(s) of an Joe Smith
e-mail.
<[e-mail]>;
[e-mail]
EMAIL ATTACHMENT
The number of attachments to a parent
Numeric
COUNT
EMAIL ATTACHMENT
The original file name of attached record.
Attach1.doc
NAME
RECEIVED DATE
The date the document was received.
MM/DD/YYYY
RECEIVED TIME
The time the document was received.
HH:MM
SENT DATE
The date the document was sent.
MM/DD/YYYY

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SENT TIME
EMAIL IMPORTANCE
EMAIL CONVERSATION
INDEX /
THREAD TEXT
TIME OFFSET VALUE /
TIMEZONE
PROCESSED
FILE NAME
FILE AUTHOR
DOC TITLE
FILE MANAGER /
APPLICATION
DESCRIPTION
FILE EXTENSION
HIDDEN DATA

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The time the document was sent.
E-mail Importance Flag
ID used to tie together e-mail threads.

HH:MM
Normal, Low, High
01C72AC4C

The time zone that the data is set to when processed.

PST, CST, EST, etc

The file name of a native document.
The author of a document from extracted metadata.
The extracted title of the document
Native file application

Document Name.xls
jsmith
Table of Contents
Microsoft Excel, Word, etc.

The file extension of a document.
Whether hidden exists in the doc. For example, hidden
Excel cells or
Powerpoint comments or slides
The date the document was created.
The time the document was created.
The date the document was last modified.

XLS
Y,N,Blank

FILE CREATE DATE
FILE CREATE TIME
FILE LAST
MODIFICATION DATE
FILE LAST ACCESS DATE The date the document was last accessed.
FILE LAST SAVED BY
The last individual to save the file.
FILE LAST EDITED BY
The name of the last person to edit the document from
extracted metadata.
DATE APPOINTMENT
Date of calendar appointment entry
START
TIME APPOINTMENT
Start time of calendar appointment entry
START
DATE APPOINTMENT
End date of calendar appointment entry
END
TIME APPOINTMENT
End time of calendar appointment entry
END
FILESIZE
The file size of a document (Including embedded
attachments).
MD5HASH
The MD5 Hash value or de-duplication key" assigned to a
document. "
NATIVE LINK
The full path to a native copy of a document.
FULL TEXT

MM/DD/YYYY
HH:MM
MM/DD/YYYY
MM/DD/YYYY
jsmith
jsmith
MM/DD/YYYY
HH:MM
MM/DD/YYYY
HH:MM
Numeric

D:\NATIVES\ABC000001.
xls
The path to the full extracted text of the document. There D:\TEXT\ABC000001.txt
should be a folder on the deliverable, containing a separate
text file per document. These text files should be named
with their corresponding bates numbers. Note: E-mails
should include header information: author, recipient, cc,
bcc, date, subject, etc. If the attachment or e-file does not
extract any text, then OCR for the document
should be provided.

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Case No. 5:18-cv-06720-LHK
[PROPOSED] ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR
STANDARD LITIGATION