Hangingout, Inc. v. Google, Inc.

Filing 57

ESI PROTOCOL ORDER re 56 Joint MOTION for Production of Electronically Stored Information (ESI) Protocol filed by Google, Inc. Signed by Magistrate Judge Nita L. Stormes on 9/12/14.(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HANGINOUT, INC.,
Plaintiff,

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CASE NO. 13-CV-2811 AJB NLS

vs.
GOOGLE INC.,
Defendant.

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ESI PROTOCOL ORDER

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The Court ORDERS as follows:
1.

This Order supplements all other discovery rules and orders. It

4 streamlines Electronically Stored Information (“ESI”) production to promote a “just,
5 speedy, and inexpensive determination” of this action, as required by Federal Rule
6 of Civil Procedure 1.
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2.

This Order may be modified for good cause. If the parties cannot

resolve their disagreements regarding modifications, the parties may submit their
competing proposals and a summary of their dispute.
3.

Costs will be shifted for disproportionate ESI production requests

12 pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive
13 or dilatory discovery tactics will be cost-shifting considerations.
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4.

A party’s meaningful compliance with this Order and efforts to

promote efficiency and reduce costs will be considered in cost-shifting
determinations.
5.

Each requesting party will limit its ESI production requests to a total of

19 ten custodians per producing party for all such requests, excluding requests for
20 email which are addressed in paragraphs 7-9. A custodian may be identified by job
21 description or function so long as it identifies a single person. The parties may
22 jointly agree to modify this limit without the Court’s leave. The Court will consider
23 contested requests for additional custodians per producing party, or requests for
24 searches of servers, databases or other systems not maintained by a single person,
25 upon showing of good cause and distinct need based on the size, complexity, and
26 issues of this specific case. Should a party serve ESI production requests for
27 additional custodians beyond the limits agreed to by the parties or granted by the
28 Court pursuant to this paragraph, the requesting party may bear all reasonable costs
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1 caused by such additional discovery. While there is no per se limit on quantity of
2 search terms for the identified custodians for non-email ESI, a party may not request
3 more than twenty search terms absent consent or Order of the Court granted for
4 good cause shown. Parties must meet and confer to limit ESI custodians and search
5 terms prior to approaching the Court for assistance on any ESI matters. Each party
6 must use a common set of search terms for all custodians of another party from
7 whom it seeks ESI.
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6.

General ESI production requests under Federal Rules of Civil

Procedure 34 and 45 must not include email or other forms of electronic
correspondence (collectively “email”). To obtain email parties must propound
specific email production requests.
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Email production requests will only be propounded for specific issues,

14 rather than general discovery of a product or business.
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8.

Each requesting party must limit its email production requests to a total

of five custodians per producing party for all such requests. The parties may jointly
agree to modify this limit without the Court’s leave. The Court will consider
contested requests for additional custodians per producing party, upon showing of
good cause and distinct need based on the size, complexity, and issues of this
specific case. Should a party serve email production requests for additional
custodians beyond the limits agreed to by the parties or granted by the Court
pursuant to this paragraph, the requesting party may bear all reasonable costs caused
by such additional discovery.
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Each requesting party will limit its email production requests to a total

26 of five search terms per custodian per party. The parties may jointly agree to
27 modify this limit without the Court’s leave. The Court will consider contested
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1 requests for additional search terms per custodian, upon showing a distinct need
2 based on the size, complexity, and issues of this specific case.
3 I.

GENERAL PROVISIONS

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A.

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The parties will make reasonable efforts to prepare responsive and non-

privileged data for production in accordance with the agreed-upon specifications set

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forth below. These specifications apply to hard copy documents or electronically

8 stored information (“ESI”) which are to be produced in this litigation.
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B.

SECURITY. Both parties will make reasonable efforts to ensure that

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any productions made are free from viruses and provided on encrypted media.
C.

CONFIDENTIALITY DESIGNATION. Responsive documents in

TIFF format will be stamped with the appropriate confidentiality designations in

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15 accordance with the Protective Order in this matter. Each responsive document
16 produced in native format will have its confidentiality designation identified in the
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filename of the native file.

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D.

FORMAT OF PRODUCTION. Hard copy documents will be

20 produced under the specifications outlined in Section III. Standard electronic files
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such as email, documents, spreadsheets, presentations, web pages, and PDFs will be

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23 produced under the specifications outlined in Section IV. The format of production
24 of large oversized hard copy documents and non-standard electronic files will be
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discussed before production to determine acceptable production format.

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E.

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PRODUCTION MEDIA. Documents shall be produced on external

hard drives, readily accessible computer(s) or other electronic media (“Production

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Media”). Each piece of Production Media shall identify a production number

5 corresponding to the production volume (e.g., “VOL001”, “VOL002”), as well as
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the volume of the material in that production (e.g. “-001”, “-002”). Each piece of

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production media shall also identify: (1) the producing party’s name; (2) the

9 production date; and (3) the Bates Number range of the materials contained on the
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Production Media; and (4) the set(s) of requests for production for which the

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12 documents are being produced.
13 II.
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DATA PROCESSING
A.

KEYWORD SEARCHING. To the extent that keyword or other

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16 methodologies are used to identify the universe of potentially responsive documents
17 to be processed for review, the parties shall meet and confer to try to develop a
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mutually agreeable list of search terms and protocols prior to the production of

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20 documents. Any search methodology employed must open compound and nested
21 files and de-compress archived files. The search utilities employed must support the
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use of stemmed searches (e.g. using ~ to include variations on a keyword), wildcard

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24 searches, Boolean searches, and proximity searching.
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B.

CULLING\FILTERING. Each party will use its best efforts to filter

out common system files and application executable files by using a commercially

28 reasonable hash identification process. Hash values that may be filtered out during
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1 this process are located in the National Software Reference Library (“NSRL”)
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NIST hash set list. Additional culling of system file types based on file extension

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may include, but are not limited to: WINNT, LOGS, DRVS, MP3, MP4, WAV,

5 C++ Program File (c), C++ Builder 6 (cpp), Channel Definition Format (cdf),
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Creatures Object Sources (cos), Dictionary file (dic), Executable (exe), Hypertext

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Cascading Style Sheet (css), JavaScript Source Code (js), Label Pro Data File (IPD),

9 Office Data File (NICK), Office Profile Settings (ops), Outlook Rules Wizard File
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(rwz), Scrap Object, System File (dll), Temporary File (tmp), Windows Error Dump

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12 (dmp), Windows Media Player Skin Package (wmz), Windows NT/2000 Event
13 View Log file (evt), Python Script files (.py, .pyc, .pud, .pyw), Program Installers.
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C.

DEDUPLICATION. A party is required to produce only a single copy

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16 of a responsive document and a party may de-duplicate responsive ESI (based on
17 MD5 or SHA-1 hash values at the document level) across Custodians. For emails
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with attachments, the hash value is generated based on the parent/child document

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20 grouping. A party may also de-duplicate “near-duplicate” email threads as follows:
21 In an email thread, only the final-in-time document need be produced, assuming that
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all previous emails in the thread are contained within the final message. Where a

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24 prior email contains an attachment, that email and attachment shall not be removed
25 as a “near-duplicate.” To the extent that de-duplication through MD5 or SHA-1
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hash values is not possible, the parties shall meet and confer to discuss any other
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1 III.
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PRODUCTION OF HARD COPY DOCUMENTS
A.

TIFFs. Documents that exist only in hard copy format shall be scanned

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and produced as single page Group IV TIFFs with at least 300 dots per inch (dpi).

5 Each TIFF image shall be named according to a unique corresponding bates number
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associated with the document. Each image shall be branded according to the bates

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number and the agreed upon confidentiality designation. Documents shall show all

9 text and images that would be visible to a user of the hard copy documents.
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In scanning hard copy documents, distinct documents should not be merged

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12 into a single record, and single documents should not be split into multiple records
13 (i.e., hard copy documents should be logically unitized). The parties will use
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reasonable efforts to unitize documents correctly.

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B.

OCR TEXT FILES. A commercially acceptable technology for optical

17 character recognition “OCR” shall be used for all scanned, hard copy documents.
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OCR text shall be provided as a single multi-page text file for each document, and

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20 the filename itself should match its respective TIFF filename. The text files will not
21 contain the redacted portions of the documents.
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C.

METADATA FIELDS. The following information shall be produced

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24 in the delimited data file accompanying hard copy documents: (a) BEGBATES, (b)
25 ENDBATES, (c) BEGATTACH, (d) ENDATTACH, and (e) CUSTODIAN.
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D.
DATABASE LOAD FILES/CROSS-REFERENCE FILES.
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28 Productions shall include, in addition to single page TIFFs and Text Files, (a) an
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1 ASCII delimited data file (.txt, .dat, or .csv), and (b) an image load file that can be
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loaded into commercially acceptable production software (e.g., Concordance,

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Summation). Each TIFF in a production must be referenced in the corresponding

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

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total number of documents referenced in a production’s data load file should match

9 the total number of designated document breaks in the Image Load file(s) in the
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production.

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BATES NUMBERING. All images must be assigned a unique Bates

13 number that is sequential within a given document and across the production sets.
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IV.

PRODUCTION OF ELECTRONICALLY STORED INFORMATION

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A.

TIFFs. Unless excepted below, single page Group IV TIFFs should be

17 provided at least 300 dots per inch (dpi). Each TIFF image file should be one page
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and named according to the unique bates number, followed by the extension “.TIF”.

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20 Each image shall be branded according to the bates number and the agreed upon
21 confidentiality designation. Original document orientation should be maintained
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(i.e., portrait to portrait and landscape to landscape).

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B.

TEXT FILES. A single multi-page text file shall be provided for each

25 document, and the filename itself should match its respective TIFF filename. When
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possible, the text of native files should be extracted directly from the native file.
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1 Text files will not contain the redacted portions of the documents and OCR text files
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will be substituted instead of extracted text files for redacted documents.

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C.

METADATA FIELDS AND PROCESSING. Each of the metadata

5 and coding fields set forth in Appendix 1 that can be extracted shall be produced for
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that document. The parties are not obligated to populate manually any of the

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metadata fields in Appendix 1 if such fields cannot be extracted from a document,

9 with the exception of the following: (a) BEGBATES, (b) ENDBATES, (c)
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BEGATTACH, (d) ENDATTACH; and (e) CUSTODIAN, which should be

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12 populated by the party or the party’s vendor. The parties will make reasonable
13 efforts to ensure that the metadata fields automatically extracted from the documents
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are correct; however, the parties acknowledge that such metadata may not always be

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16 accurate and might instead contain irrelevant or incorrect information. Parties may
17 request other native files be produced as described in Section IV.I. below. To the
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extent that the term “native” is used in this agreement, it means either in native or

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20 otherwise comparable format. Thus, for example, if a Google slide presentation is
21 to be produced in native format, producing the document as a .ppt file would be
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appropriate.

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D.

DATABASE LOAD FILES/CROSS-REFERENCE FILES.

25 Productions shall include, in addition to single page TIFFs and Text Files, (a) an
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ASCII delimited data file (.txt, .dat, or .csv), and (b) an image load file that can be
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1 Summation). Each TIFF in a production must be referenced in the corresponding
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image load file. The total number of documents referenced in a production’s data

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load file should match the total number of designated document breaks in the Image

5 Load file(s) in the production. Each TIFF in a production must be referenced in the
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corresponding image load file. The total number of pages referenced in a

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production’s image load file should match the total number of pages or TIFF files

9 in the production. The total number of documents in a production should match the
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total number of records in the database load file.

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E.

BATES NUMBERING. All images must be assigned a unique Bates

13 number that is sequential within a given document and across the production sets.
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F.

PRESENTATIONS. The parties shall take reasonable efforts to

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16 process presentations (e.g., MS PowerPoint, Google Slides) with hidden slides and
17 speaker’s notes unhidden, and to show both the slide and the speaker’s notes on the
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TIFF image.

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G.

SPREADSHEETS. TIFF images of spreadsheets (e.g., MS Excel,

21 Google Sheets) need not be produced unless redacted, in which instance,
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spreadsheets shall be produced in TIFF with OCR Text Files. Native copies of

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24 spreadsheets shall be produced with a link in the NativeLink field, along with
25 extracted text and applicable metadata fields set forth in Appendix 1. A TIFF
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placeholder indicating that the document was provided in native format should
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1 and OCR text of the redacted document will suffice in lieu of a native file and
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extracted text. The parties will make reasonable efforts to ensure that any

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spreadsheets that are produced only as TIFF images are formatted so as to be

5 readable.
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H.

PROPRIETARY FILES. To the extent a response to discovery

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requires production of ESI accessible only through proprietary software, the parties

9 should continue to preserve each version of such information. The parties shall
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meet and confer to finalize the appropriate production format.

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I.

REQUEST(S) FOR ADDITIONAL NATIVE FILES. If good cause

13 exists to request production of certain files, other than those specifically set forth
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above, in native format, the party may request such production and provide an

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16 explanation of the need for native file review, which request shall not unreasonably
17 be denied. Any native files that are produced shall be produced with a link in the
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NativeLink field, along with extracted text and applicable metadata fields set forth

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20 in Appendix 1. A TIFF placeholder indicating that the document was provided in
21 native format should accompany the database record. If a file has been redacted,
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TIFF images and OCR text of the redacted document will suffice in lieu of a native

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24 file and extracted text.
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J.

REDACTION OF INFORMATION. If documents are produced

containing redacted information, an electronic copy of the original, unredacted data

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1 shall be securely preserved in such a manner so as to preserve without modification,
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alteration or addition the content of such data including any metadata therein.

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V.

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PROCESSING OF THIRD-PARTY DOCUMENTS
A.

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

a copy of this Stipulation with the subpoena and state that the parties to the litigation

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have requested that third-parties produce documents in accordance with the

9 specifications set forth herein.
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B.

The Issuing Party shall produce any documents obtained pursuant to a

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12 non-party subpoena to the opposing party.
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C.

If the non-party production is not Bates-stamped, the Issuing Party will

endorse the non-party production with unique prefixes and Bates numbers prior to

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16 producing them to the opposing party.
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D.

Nothing in this stipulation is intended to or should be interpreted as

narrowing, expanding, or otherwise affecting the rights of the parties or third-parties

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20 to object to a subpoena.
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SOURCES
A.

SOURCES THAT WILL BE SEARCHED FOR RESPONSIVE

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24 DOCUMENTS. The parties shall meet and confer to try to develop a mutually
25 agreeable list of custodians to be searched and search terms to be used. The parties
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will search any electronic files or folders, or other parts of media, including any
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1 recordable optical media, media cards, thumb drives, non-volatile memory, floppy
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disks, work desktop and laptop computers, email servers, intranet servers, network

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shares, public data shares and/or database servers) for each identified Custodian that

5 the Custodian reasonably anticipates may contain non-duplicative Responsive
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Documents.

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The parties agree to search central repositories, including central databases, or

9 relevant portions thereof to the extent that the party reasonably anticipates may
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contain non-duplicative Responsive Documents. The parties agree to meet and

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12 confer to limit the scope of production from central repositories if the search of
13 central repositories (or relevant portions thereof) that the producing party anticipates
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contain Responsive Documents is unduly burdensome or is likely to be

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16 unreasonably inefficient in identifying relevant documents. Specifically, the parties
17 recognize that certain repositories, by their nature, may not effectively or reasonably
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be searched using electronic search strings, and the parties agree to notify each other

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20 of any such repositories that contain Responsive Documents. The parties will then
21 meet and confer to discuss the collection of Responsive Documents from such
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repositories, including potentially using other effective collection methodologies.

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B.

SOURCES THAT WILL NOT BE SEARCHED FOR RESPONSIVE

DOCUMENTS. The following sources will not be searched under any
circumstances, and as such need not be preserved: automated disaster recovery
backup systems and/or disaster recovery backup tapes; RAM or temporary files;
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temporary internet files, history, cache, cookies, and other on-line access data; data
in metadata fields that are updated automatically such as last-opened dates; server,

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system, or network logs; personal digital assistants, mobile devices, voicemail
systems; and off the record instant messaging logs. In addition, to the extent that
custodial email are being collected and search, the parties agree that only sent and

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received custodial emails will be searched and that, with respect to documents that
automatically save, only the most recent version of such documents existing at the
time of collection need be searched. Notwithstanding the foregoing, the parties

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agree that Responsive Documents that a Custodian indicates are stored on an

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archival storage medium that the Custodian can readily identify and locate, that

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cannot be located in any other repository of information, and that can reasonably be

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searched, will be searched. In addition, nothing in this paragraph shall limit a

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receiving party’s right to request from a producing party more information about

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the nature of and burden associated with obtaining documents from a particular

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source. The parties further recognize their obligations to preserve any potentially

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relevant sources of data, whether live or in archival form, for purposes of this

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litigation.

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24 VII. PRIVILEGE
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A.

Nothing in this Agreement shall be interpreted to require disclosure of

irrelevant information or relevant information protected by the attorney-client

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1 The parties do not waive any objections as to the production, discoverability,
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admissibility, or confidentiality of documents and ESI. Disclosures among

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defendants’ attorneys of work product or other communications relating to issues of

5 common interest shall not affect or be deemed a waiver of any applicable privilege
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or protection form disclosure.

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B.

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

9 work-product-protected document is not a waiver of privilege or protection from
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discovery in this case or in any other federal or state proceeding. For example, the

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12 mere production of privileged or work-product-protected documents in this case as
13 part of a mass production is not itself a waiver in this case or any other federal or
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state proceeding. A producing party may assert privilege or protection over

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16 produced documents at any time by notifying the receiving party in writing of the
17 assertion of privilege or protection. In addition, information that contains privileged
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matter or attorney work product shall be returned if such information appears on its

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20 face to have been inadvertently produced, or if requested.
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C.

As the parties previously stipulated, communications between them and

their respective legal counsel need not be logged, even if responsive to a discovery

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24 request, and may be withheld.
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Activities undertaken in compliance with the duty to preserve
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information are protected from discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
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1 VIII. MISCELLANEOUS PROVISIONS
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A.

NO EFFECT ON COST SHIFTING. Nothing in this Agreement shall

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affect, in any way, a producing party’s right to seek reimbursement for costs

5 associated with collection, review, and/or production of documents or ESI.
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B.

TIMING. Production of ESI shall commence on a rolling basis

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promptly after the parties finalize custodian and search term lists.
C.

MODIFICATION. This Stipulated Order may be modified by a

Stipulated Order of the parties or by the Court for good cause shown. Any such

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12 modified Stipulated Order will be titled sequentially as follows, “First Modified
13 Stipulated Order Regarding the Production of Electronically Stored Information,”
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and each modified Stipulated Order will supersede the previous Stipulated Order.

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So ORDERED and SIGNED this 12th day of September, 2014.

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Hon. Nita L. Stormes
U.S. Magistrate Judge

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Appendix 1

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A.
Production Components. Productions shall include, in addition to
single page TIFFs and Text Files, (a) an ASCII delimited metadata file (.txt, .dat, or
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.csv), and (b) an image load file that can be loaded into commercially acceptable
4 production software (e.g., Concordance).
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B.
Image Load File shall contain the following comma-delimited fields:
6 BEGBATES, VOLUME, IMAGE FILE PATH, DOCUMENT BREAK, FOLDER
BREAK, BOX BREAK, PAGE COUNT
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C.
Metadata Load File shall be delimited according to the following characters:
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o Delimiter = D(ASCII:0020)
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o Text-Qualifier = þ (ASCII:00254)
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D.

The following Metadata Fields shall appear in the metadata load file:

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Field Name
12 BEGBATES
13 ENDBATES
14 BEGATTACH
15 ENDATTACH
16 CUSTODIAN
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18 SUBJECT
TITLE
19 DATESENT
TO
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FROM
21 CC
22 BCC
23 AUTHOR
24 FILENAME
DATEMOD
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DATECREATED
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NATIVELINK
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Field Description
Beginning Bates number as stamped on the production
image
Ending Bates number as stamped on the production
image
First production Bates number of the first document in a
family
Last production Bates number of the last document in a
family
Includes the individual (Custodian) from whom the
documents originated and all Individual(s) whose
documents de-duplicated out (De-Duped Custodian).
Subject line of email
Title from properties of document
Date email was sent (format: MM/DD/YYYY)
All recipients that were included on the “To” line of the
email
The name and email address of the sender of the email
All recipients that were included on the “CC” line of the
email
All recipients that were included on the “BCC” line of the
email
Any value populated in the Author field of the document
properties
Filename of an electronic document (Edoc only)
Date an electronic document was last modified (format:
MM/DD/YYYY) (Edoc only)
Date the document was created (format: MM/DD/YYYY)
(Edoc only)
Native File Link (Native Files only)

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