Andren et al v. Alere Inc. et al

Filing 92

ORDER 91 Governing Discovery of Electronically Stored and Hardcopy Information. Signed by Magistrate Judge Andrew G. Schopler on 7/18/17. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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9 DINA ANDREN, SIDNEY BLUDMAN,
10 VIRGINIA CIOFFI, BERNARD FALK,
JEANETTE KERZNER-GREEN, CAROL
11 MONTALBANO, and DONALD RIGOT,
individually, and on behalf of other
12 members of the general public similarly
13 situated,
Plaintiffs,

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Case No. 16-cv-1255-GPC-AGS
Judge Gonzalo P. Curiel
Mag. Judge Andrew G. Schopler
ORDER GOVERNING
DISCOVERY OF
ELECTRONICALLY STORED
AND HARDCOPY INFORMATION

v.

16 ALERE INC., a Delaware corporation,
17 ALERE HOME MONITORING, INC., a
Delaware corporation, ALERE SAN
18 DIEGO, INC., a Delaware corporation,,
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Defendants.

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The Parties hereby agree to the following production of Electronically Stored
Information (“ESI”) and paper (“hardcopy”) documents. This protocol, subject to the
Protective Order in this litigation, governs all production in this litigation. Nothing
in this protocol shall limit a party’s right to seek or object to discovery as set out in
the applicable rules or to object to the authenticity or admissibility of any ESI or
hardcopy document produced in accordance with this protocol. The Parties having
conferred and agreed to entry of the within Consent Order, and good cause appearing
therefore, it is hereby ORDERED as follows:
-1Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1 I. GENERAL PROVISIONS
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1.

Applicability. This Order will govern the production of Electronically

3 Stored Information ("ESI") and hardcopy documents.
4

2.

Cooperation. The parties shall cooperate to identify and facilitate

5 access to the contents of encrypted, password-protected, corrupted or difficult-to6 access files produced. The parties will work cooperatively to fashion reasonable,
7 precise and cost-effective search strategies and to agree upon and implement
8 appropriate measures for quality assurance and quality control. Parties are obliged to
9 be forthcoming and transparent in disclosing their use of mechanized tools to cull
10 responsive data and encouraged to bring technically-adept personnel together to
11 resolve e-discovery issues.
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3.

Modification. This Order may be modified for good cause. If the parties

13 cannot resolve their disagreements regarding modifications, the parties may submit
14 their competing proposals and a summary of their dispute. Proposed modifications or
15 disputes regarding ESI that counsel for the parties are unable to resolve will be
16 presented to the Court as soon as practicable.
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4.

Designated ESI Liason.

Each party shall designate one or more

19 individuals as Designated ESI Liason(s) for the purpose of meeting and conferring
20 with the other Parties and of attending Court hearings on the subject of ESI. The
21 Designated ESI Liason(s) shall be prepared to speak and explain the Party’s relevant
22 electronic systems and capabilities and the technical aspects of the manner in which
23 the Party has responded to e-discovery, including (as appropriate) relevant ESI
24 retrieval technology and search methodology.
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5.

No Designation of Documents Requests.

Production of ESI and

26 hardcopy documents in the reasonably usable form set out in this protocol need not
27 include any reference to the document requests to which a document may be
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ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1 responsive. However, upon a reasonable request and on a case-by-case basis, a
2 Producing Party will provide a Bates range and/or source file when a particular set of
3 materials can be found in their production.
4

6.

Avoidance of Duplicate Production. A Producing Party shall take

5 reasonable steps to de-duplicate ESI vertically (i.e., within custodial or non-custodial
6 data source). “Duplicate ESI” means files that are exact duplicates based on the files’
7 MD5 or SHA-1 hash values. Parties will disclose the method upon which hash
8 values are calculated on emails and email families; any such method shall
9 include BCC values in the calculation. Entire document families may constitute
10 Duplicate ESI. De-duplication shall not break apart families. A document within a
11 family (such as an email attachment) shall not be considered a duplicate of a stand12 alone document even if the hash values are the same. In such instance, a copy of
13 both the document family and the stand-alone document will be produced.
14 The Producing Party will not use e-mail threading as a method of de-duplication.
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7.

Non-Discoverable ESI. The following categories of ESI are not subject

16 to preservation and are not discoverable:
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i.

Deleted, “slack,” fragmented, or unallocated data on hard drives;

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ii.

Random access memory (RAM) or other ephemeral data;

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iii.

On-line access data such as (without limitation) temporary internet

20 files, history files, cache files, and cookies;
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iv.

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v.

S y stem, network, server, or software application logs; and
Structural files not material to individual document contents (e.g.

23 .CSS, .XSL, .XML, .DTD, etc.). Files with the same file name extensions as structural
24 files but which contain substantive otherwise discoverable information, e.g., a .XML
25 file used for data transfer between systems, are still subject to preservation and are
26 discoverable.
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ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

9.

Production Media & Protocol. The production media for document

2 productions that do not exceed 5 GB shall be secure FTP link provided via email at
3 the time a production letter is emailed, unless the parties agree otherwise. On the
4 occasions when a particular document production exceeds 5 GB, the production media
5 may be a CD-ROM, DVD, external hard drive (with standard PC compatible
6 interface), or USB drive, so long as such production media is sent no slower than
7 overnight delivery via FedEx, UPS, or USPS. Each item of production media (or in
8 the case of FTP productions, each production transmittal letter) shall include: (1) text
9 referencing that it was produced in Andren, et al. v. Alere, Inc., et al., (2) the type of
10 materials on the media (e.g., “Documents,” “OCR Text,” “Objective Coding,” etc.),
11 (3) the production date, (4) the Bates number range of the materials contained on such
12 production media item, and (5) a short description of the categories of information in
13 the production (e.g., Custodian X’s email, centralized purchasing files, etc.). The ESI
14 Liaisons shall designate the appropriate physical address for productions exceeding 5
15 GB that are produced on physical media.
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II. GENERAL PRODUCTION FORMAT PROTOCOLS
1.

TIFFs. All production images will be provided as single page Group IV

19 TIFFs of at least 300 dpi resolution. Page size shall be 8.5 x 11 inches unless in the
20 reasonable judgment of the producing party, a particular item requires a different page
21 size. Each image will use the Bates number of the first page of the document as its
22 unique file name. Original document orientation should be maintained (i.e., portrait
23 to portrait and landscape to landscape). Hidden content, tracked changes or edits,
24 comments, notes and other similar information viewable within the native file shall
25 also be imaged so that this information captured on the produced image file.
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2.

Text Files. Each paper document or ESI item produced under this order

27 shall be accompanied by a text file as set out below. All text files shall be provided
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ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1 as a single document level text file for each item, not one text file per page. Each text
2 file shall be named to use the Bates number of the first page of the corresponding
3 production item.
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a.

OCR. Paper documents will be accompanied by an OCR file. The

5 parties will endeavor to generate accurate OCR and will utilize quality OCR processes
6 and technology. The parties acknowledge, however, that due to poor quality of the
7 originals, not all documents lend themselves to the generation of accurate OCR. OCR
8 text files should indicate page breaks where possible.
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b.

ESI. Emails and efiles will be accompanied by extracted text taken from

10 the ESI item itself. The extracted text will include any From, To, CC, BCC, Subject
11 and Attachment labels and values present in the email.
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5.

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

13 must always: (a) be unique across the entire document production; (b) maintain a
14 constant length (0- padded) across the entire production; (c) contain no special
15 characters or embedded spaces; and (4d) be sequential within a given document. If a
16 Bates number or set of Bates numbers is skipped in a production, the producing party
17 will so note in a cover letter or production log accompanying the production. The
18 producing party will brand all TIFF images in the lower right-hand corner with its
19 corresponding bates number, using a consistent font type and size. The Bates number
20 must not obscure any part of the underlying image. If the placement in the lower
21 right-hand corner will result in obscuring the underlying image, the Bates number
22 should be placed as near to that position as possible while preserving the underlying
23 image.
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6.

Parent-Child Relationships. Parent-child relationships (the association

25 between an attachment and its parent document) that have been maintained in the
26 ordinary course of business should be preserved. For example, if a party is producing
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ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1 a hard copy printout of an e-mail with its attachments, the attachments should be
2 processed in order behind the e-mail.
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7.

Load Files. All production items will be provided with a delimited data

4 file or “load file.” Acceptable formats for the load file are .log, .opt, .dii .lfp, .txt, .dat,
5 or .csv, as detailed in Appendix 1. Each party will designate its preferred load file
6 format. The load file must reference each TIFF in the corresponding production. The
7 total number of documents referenced in a production’s data load file should match
8 the total number of designated document breaks in the Image Load files in the
9 production.

Each deliverable volume should limit directory contents to

10 approximately 1000 files per folder.
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8.

Color. Documents or ESI containing color shall be produced initially in

12 color. The production of documents and/or ESI in color shall be made in TIFF format
13 or in an alternative format, such as single page JPEG format, that provides sufficient
14 quality for the review of these documents and/or ESI.

All requirements for

15 productions stated in this Order regarding productions in TIFF format would apply to
16 any productions of documents and/or ESI in color made in such an alternative format.
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9.

Confidentiality Designations. If a particular paper document or ESI

18 item qualifies for confidential treatment pursuant to the terms of a Protective Order
19 entered by the Court in this litigation, or has been redacted in accordance with
20 applicable law or Court order, the designation shall be shown both on the face of all
21 TIFFs pertaining to such item/document, and in the appropriate data field in the load
22 file.
23 III. PRODUCTION OF HARDCOPY DOCUMENTS
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1.

Hardcopy Documents to be Produced Electronically. The parties

25 agree that responsive paper documents from Document Custodians will be scanned
26 and produced electronically rather than in paper format. Generally all centralized
27 paper documents will be scanned and produced electronically, unless a party
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ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1 establishes good cause for making such documents available via paper and reasonable
2 access is provided to the opposing party to review the documents directly.
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2.

Coding Fields. The following information shall be produced in the load

4 file accompanying production of paper documents: (a) BegBates, (b) EndBates, (c)
5 BegAttach, (d) EndAttach, (e) PgCount, (f) Custodian, (g) Source Party, (h) TextPath,
6 (i) Confidentiality, and (j) Redacted (Y/N). Additionally, all paper documents will be
7 produced with a coding field named “Paper Document” marked with a “Y.”
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3.

Unitization of Paper Documents. Paper documents should be logically

9 unitized for production. Therefore, when scanning paper documents for production,
10 distinct documents shall not be merged into a single record, and single documents
11 shall not be split into multiple records.
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4.

File/Binder Structures.

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a. Unitization: Where the documents were organized into groups, such as

14 folders, clipped bundles and binders, this structure shall be maintained and provided
15 in the load file. The relationship among the documents in a folder or other grouping
16 should be reflected in proper coding of the beginning and ending document and
17 attachment fields. The parties will make their best efforts to unitize documents
18 correctly.
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b. Identification: Where a document, or a document group – such as folder,

20 clipped bundle, or binder – has an identification spine or other label, the information
21 on the label shall be scanned and produced as the first page of the document or
22 grouping.
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c. Custodian Identification: The parties will utilize best efforts to ensure that

24 paper records for a particular custodian, which are included in a single production, are
25 produced in consecutive Bates stamp order.
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27 IV. PRODUCTION OF ELECTRONICALLY STORED INFORMATION
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ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

1.

System Files. ESI productions may be de-nisted using the industry

2 standard list of such files maintained in the National Software Reference Library by
3 the National Institute of Standards & Technology. Other file types may be added to
4 the list of excluded files by agreement of the parties.
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2.

Metadata Fields and Processing.

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a. Auto date/time stamps: ESI items shall be processed so as to preserve the

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date/time shown in the document as it was last saved, not the date of

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collection or processing.

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b. Except as otherwise set forth in this Order, infra, ESI files shall be produced

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with at least each of the data fields set forth in Appendix 2 that can be

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extracted from a document.

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c. The parties are not obligated to manually populate any of the fields in

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Appendix 2 if such fields cannot be extracted from the document using an

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automated process, with the exception of the following fields: (a) BegBates,

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(b) EndBates, (c) BegAttach, (d) EndAttach, (e) Custodian, (f)

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Confidentiality, (g) Redacted (Y/N), (h) AttachCount, (i) AttachName, (j)

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PGCount, and (k) NativeLink fields, which should be populated regardless

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of whether the fields can be populated pursuant to an automated process.

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d. With respect to the italicized fields in Appendix 2, a producing party need

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produce only those fields that it can provide (or can provide without

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additional cost) if it (a) provides the receiving party or parties with a good

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faith, written representation describing the fields it cannot provide or cannot

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provide without additional cost, and (b) agrees not to use any of the

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requested fields that it did not produce. The parties will meet and confer in

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good faith to the extent that additional issues arise.

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3.

Production of Native Items.

The parties agree that ESI shall be

27 produced as TIFFs with an accompanying load file, which will contain, among other
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ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1 data points, the ESI data points listed in Appendix 2 hereto. The exception to this rule
2 shall be word processing documents with tracked changes or comments (e.g. MS
3 Word), presentation-application files (e.g., MS PowerPoint), spreadsheet-application
4 files (e.g., MS Excel), personal databases (e.g., MS Access), and multimedia
5 audio/visual files such as voice and video recordings (e.g., .wav, .mpeg, and .avi), for
6 which all ESI items shall be produced in native format. In the case of personal
7 database (e.g., MS Access) files containing confidential or privileged information, the
8 parties shall meet and confer to determine the appropriate form of production. In
9 addition to producing the above file types in native format, the producing party shall
10 produce a single-page TIFF slip sheet indicating that a native item was produced and
11 providing the file name of the natively produced document (e.g., “Order.docx”). The
12 corresponding load file shall include NativeFileLink information for each native file
13 that is produced. Further, the parties agree to meet and confer prior to producing
14 native file types other than MS PowerPoint, MS Excel, and multimedia audio/visual
15 file types such as .wav, .mpeg and .avi. Prior to processing non-standard native files
16 for production, the producing party shall disclose the file type, and meet and confer
17 with, the receiving party on a reasonably useable production format. The parties agree
18 to meet and confer to the extent that there is data in databases, database application
19 files, or other applications using structured data or aggregated data, such as SQL
20 databases, adverse event tracking applications, SAS, and SAP, to determine the best
21 reasonable form of production of usable data.

Through the pendency of this

22 Litigation, the producing party shall exercise reasonable, good faith efforts to
23 maintain all preserved and collected native files in a manner that does not materially
24 alter or modify the file or the metadata.
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4.

Requests for Other Native Files. Other than as specifically set forth

26 above, a producing party need not produce documents in native format. A party may
27 request that a document not produced in native format be produced in native format,
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1 and the producing party will comply with such requests to the extent that they are
2 reasonable and proportional to the needs of the case, in accordance with the applicable
3 rules of civil procedure. The parties will meet and confer with respect to any
4 disagreements of the reasonableness and proportionality of a request, and may apply
5 to the Court for determination in the event of continued disagreement. The requesting
6 party will provide a specific Bates range for documents it wishes to be produced in
7 native format. Any native files that are produced should be produced with a link in
8 the NativeLink field, along with all extracted text and applicable metadata fields set
9 forth in Appendix 2.
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5.

Redaction.

a. The parties agree that where ESI items need to be redacted, they shall be

12 produced solely in TIFF with each redaction clearly indicated, except in the case of
13 personal database files, which shall be governed by ¶ V(3), supra. Any unaffected
14 data fields specified in Appendix 2 shall be provided. For example, if attorney-client
15 privilege requires that the BCC field of a document needs to be redacted, all other
16 available data fields specified in Appendix 2 shall be provided and the redacted
17 metadata fields will be clearly indicated.
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b. If the items redacted and partially withheld from production are Word-type

19 documents, PowerPoint-type presentation decks or Excel-type spreadsheets as
20 addressed in ¶ IV.3, supra, and the native items are also withheld, the entire ESI item
21 must be produced in TIFF format, including all unprivileged pages, hidden fields and
22 other information that does not print when opened as last saved by the custodian or
23 end-user. For PowerPoint-type presentation decks, this shall include, but is not limited
24 to, any speaker notes. For Excel-type spreadsheets, this shall include, but is not limited
25 to, hidden rows and columns, all cell values, annotations and notes. The producing
26 party shall also make reasonable efforts to ensure that any spreadsheets produced only
27 as TIFF images are formatted so as to be legible. For example, column widths should
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1 be formatted so that the numbers in the column will display rather than
2 “##########.”
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c. If the items redacted and partially withheld from production are audio/visual

4 files, the producing party shall provide the unredacted portions of the content. If the
5 content is a voice recording, the parties shall meet and confer to discuss the
6 appropriate manner for the producing party to produce the unredacted portion of the
7 content.
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6.

Exception Logs: ESI that cannot be reviewed, produced and/or imaged

9 because of technical issues should be identified as exception files and included on a
10 log that lists the file name, custodian, and reason for exception: for example,
11 corruption, unavailable password protection, proprietary software, or other technical
12 issues. The producing party shall provide an updated copy of this log to the receiving
13 party within three (3) business days of a production, and shall provide a final copy of
14 the log upon completion of document production. If the receiving party requests
15 production of any files listed on the exception log, the parties will meet and confer on
16 a reasonable and cost-effective means for attempting to provide the requested files.
17 V. APPLICATION OF SEARCH TERMS & OTHER CULLING METHODS
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1.

Search Terms. The Parties agree to meet and confer in good faith

regarding the formulation and validation of appropriate search terms and protocols in
advance of any search to cull Document Custodians’ ESI.
2.

Other Methods to Streamline Culling of ESI. The parties agree to

meet and confer in good faith about any other technology or process that a producing
party proposes to use to reduce the document population to be produced or to identify
documents to be included or excluded from that population in this case (e.g., near deduplication, any technology assisted review or advanced analytic (i.e., non-Boolean)
automated “filtering” or “culling” application to identify items which are potentially
responsive or which are to be excluded from its production).
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1 VI. SPECIAL ESI ISSUES
2

1.

Password-Protected or Encrypted Files. With respect to any ESI items

3 that are password-protected or encrypted, the Producing Party will take reasonable
4 steps based on industry standards to break the protection so that the document can be
5 reviewed and/or produced. In the event that encrypted or password-protected
6 documents, which are reasonably likely to be responsive to Plaintiffs’ document
7 requests, remain for a particular custodian after such reasonable efforts have been
8 made, the producing party shall let the receiving party know the total number of such
9 documents and each individual producing party shall meet and confer with the
10 receiving party.
11

2.

Hidden text. ESI items processed after the execution date of this

12 Production Order shall be processed, to the extent practicable, in a manner that
13 preserves hidden columns or rows, hidden text or worksheets, speaker notes, tracked
14 changes and comments.
15

3.

Embedded Objects. Objects embedded in Microsoft Word and .RTF

16 documents, which have been embedded with the “Display as Icon” feature, will be
17 extracted as separate documents and treated like attachments to the document. Other
18 objects embedded in documents, e.g., in PowerPoint presentations, shall be produced
19 as native files and treated like attachments to the document. Image files in emails,
20 e.g., as part of signature blocks, should not be separately produced.
21

4.

Compressed Files. Compression file types (i.e., .CAB, .GZ, .TAR, .Z,

22 .ZIP) shall be decompressed in a reiterative manner to ensure that a zip within a zip
23 is decompressed into the lowest possible compression resulting in individual folders
24 and/or files.
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1 VII. PARAMETERS FOR CUSTODIAL ESI COLLECTION
2

For each of Defendants’ current or former employees identified as a Document

3 Custodian (through the parties’ meet and confer process), Defendants will do the
4 following:
5

1.

Email. Unless Defendants establish good cause to the contrary, the

6 presumption is that Defendants will collect all emails sent to or received by a
7 Document Custodian regardless of whether such emails are in the Document
8 Custodian’s actual email account.
9

2.

Cloud Based ESI. To the extent a Document Custodian made any use

10 of cloud-based document storage services (such as DropBox) for work-related
11 purposes, Defendants will obtain such information and produce responsive
12 information. If for some reason Defendants are unable to obtain cloud-based ESI for
13 a Document Custodian, then Defendants will provide Plaintiffs with a written
14 explanation of the circumstances of the inability, including (a) the name of the
15 Document Custodian, (b) the name of the cloud-based system on which the data is
16 believed to be stored, (c) a description of the type of ESI believed to be stored in the
17 Cloud-based system, (d) the efforts Defendants undertook to obtain the information,
18 (e) whether any data on the cloud-based email system is believed to have been deleted
19 or lost, and if so, when, and (f) whether or not the user name and password for such
20 information is known to the Document Custodian and/or Defendants.
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VIII. CLAIMS OF PRIVILEGE AND REDACTIONS
1.
entirety

Production of Privilege Logs.
or

produced

but

redacted,

the

For any document withheld in its
producing

party

will

produce

privilege/redaction logs in Excel format or any other format that permits electronic
sorting and searching, except that the Parties shall have no obligation to log
information generated after the date of commencement of this lawsuit. A producing
party will produce a separate privilege/redaction log for each production within 21
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1 days of the production of documents for which a privilege is asserted. A party
2 asserting privilege over a chain of emails must assert privilege separately on the
3 privilege log as to each portion of the email chain.
4

2.

Challenges to Privilege Claims. Following the receipt of a

5 privilege/redaction log, a receiving party may identify, in writing, the particular
6 documents that it believes require further explanation. Within 21 days of such
7 identification, the producing party must respond to the request. If a party challenges
8 a request for further information, the parties shall meet and confer to try to reach a
9 mutually agreeable solution. If they cannot agree, the matter shall be brought to the
10 Court.
11

3.

“Relevancy” Redactions. The parties will not make any redactions

12 based upon the purported relevancy of a document.
13

4.

All other issues of privilege, including the production of privileged or

14 protected documents or information, shall be governed by the Protective Order
15 entered by the Court in this litigation. Officers, directors, employees, agents, and legal
16 counsel, are referred to as the “Parties” solely for the purposes of this Protocol.
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IX. MISCELLANEOUS PROVISIONS
1.

Objections Preserved. Nothing in this protocol shall be interpreted to

require disclosure of information protected by the attorney-client privilege, workproduct doctrine, or any other applicable privilege or immunity. Except as provided
expressly herein, the parties do not waive any objections as to the production,
discoverability, authenticity, admissibility, or confidentiality of documents and ESI.
2.

Databases and Other Structured or Aggregated Data. To the extent

a response to discovery requires production of discoverable electronic information
contained in a database, or other structured or aggregated data source, the parties shall
meet and confer to determine the format of production. In the absence of agreement,
a party may apply to the Court for resolution. Prior to the meet and confer, the
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1 requesting party may make reasonable requests for additional information, e.g., to
2 explain the database’s or data source’s purpose and function, reporting or exporting
3 functionality and formats, schema, codes, abbreviations, user and administrator
4 manuals, etc.
5

3.

Inaccessible ESI.

If a producing party asserts that certain ESI is

6 inaccessible or otherwise unnecessary under the circumstances, or if the requesting
7 party asserts that, following production, certain ESI is not reasonably usable, the
8 parties shall meet and confer with their respective technology experts to discuss
9 resolving such assertions. If the parties cannot resolve any such disputes after such a
10 meet and confer has taken place, the issue shall be presented to the Court for
11 resolution.
12

4.

No party shall modify the date or time as contained in any original ESI.

13

5.

If either party objects to producing the requested information on the

14 grounds that such information is not reasonably accessible because of undue burden
15 or cost, or because production in the requested format is asserted to be not reasonably
16 accessible because of undue burden or cost, and before asserting such an objection,
17 the responding party will inform the requesting party of the format, if any, in which
18 it is willing to produce it, the nature and location of the information claimed to not be
19 reasonably accessible, the reason(s) why the requested form of production would
20 impose an undue burden or is unreasonably costly, and afford the requesting party 21
21 business days from receipt of such notice to propose an alternative means of
22 compliance with the request. Such proposal may include alternative cost estimates for
23 ESI discovery production. Prior to a party producing ESI in a format not requested
24 and/or agreed to by the requesting party, (1) the parties will meet and confer regarding
25 the issue, and failing resolution, the parties will (2) file a joint letter brief with the
26 Court regarding the issue, with each party permitted 2 pages to lay out its position.
27
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-15Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

6.

If a party believes that responsive ESI no longer exists in its original

2 format, or is no longer retrievable, the responding party shall explain where and when
3 it was last retrievable in its original format, and disclose the circumstances
4 surrounding the change in status of that ESI, including the date of such status change,
5 the person or persons responsible for such state change, the reason or reasons such
6 ESI is no longer retrievable in that format, and whether any backup or copy of such
7 original ESI exists, together with the location and the custodian thereof.
8
9 Dated: July 18, 2017
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-16Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

Appendix 1: File Formats

2 Image Load Files
3
4
5
6
7
8
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12
13
14
15
16
17
18
19
20
21
22
23
24
25

The name of the image load file should mirror the name of the delivery volume, and should have
the appropriate extension (e.g., ABC001.LFP).
The volume names should be consecutive (i.e., ABC001, ABC002, et. seq.).
There should be one row in the load file per TIFF image.
Every image in the delivery volume should be contained in the image load file.
The image key should be named the same as the Bates number of the page.
Load files should not span across media (e.g., CDs, DVDs, Hard Drives, Etc.), i.e., a separate
volume should be created for each piece of media delivered.
Files that are the first page of a logical document should include a “D” where appropriate. Files
that are the first page of an attachment to an e-mail should include a “C” where appropriate.
Subsequent pages of all documents (regular document, e-mail, or attachment) should include a
blank in the appropriate position.
IM,VN00000001,D,0,@29502601;295026001\0000;VN00000001.TIF;2
IM,VN00000002, ,0,@29502601;295026001\0000;VN00000002.TIF;2
IM,VN00000003, ,0,@29502601;295026001\0000;VN00000003.TIF;2
IM,VN00000004, ,0,@29502601;295026001\0000;VN00000004.TIF;2
IM,VN00000005,D,0,@29502601;295026001\0000;VN00000005.TIF;2
IM,VN00000006, ,0,@29502601;295026001\0000;VN00000006.TIF;2
IM,VN00000007, ,0,@29502601;295026001\0000;VN00000007.TIF;2
IM,VN00000008, ,0,@29502601;295026001\0000;VN00000008.TIF;2
IM,VN00000009,D,0,@29502601;295026001\0000;VN00000009.TIF;2
IM,VN00000010, ,0,@29502601;295026001\0000;VN00000010.TIF;2

26

Opticon Delimited File:

27

MSC000001,MSC001,D:\IMAGES\001\MSC000001.TIF,Y„,3

28
-17Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

MSC000002,MSC001,D:\IMAGES\001\MSC000002.TIF,Y,,,,

2

MSC000003,MSC001,D:\IMAGES\001\MSC000003.TIF,Y,,,,

3

MSC000004,MSC001,D:\IMAGES\001\MSC000004.TIF,Y,,,2

4

MSC000005,MSC001,D:\IMAGES\001\MSC000005.TIF,Y,,,,

5
Summation DII File:

6

@C HASIMAGE YES

7

@T EPRG036023 2

8

@DD:\FILES\PRODUCTION\CD0004\VOL0011\Images

9

EPRG036023.tif

10

EPRG036024.tif

11

12 Concordance Delimited Files:
13

þBegDocþþEndDocþþBegAttachþþEndAttachþþPgCountþþCustodianþ

14 The data load file should use standard Concordance delimiters:
15

Comma - ¶ (ASCII 20);

16

Quote - þ (ASCII 254);

17

Newline - ® (ASCII174).

18 The first record should contain the field names in the order of the data.
19 All date fields should be produced in mm/dd/yyyy format.
20 Use carriage-return line-feed to indicate the start of the next record.
21 Load files should not span across media (e.g., CDs, DVDs, Hard Drives, etc.); a separate volume
22

should be created for each piece of media delivered.

23 The name of the data load file should mirror the name of the delivery volume, and should have a
24

.DAT extension (i.e., ABC001.DAT).

25 The volume names should be consecutive (i.e., ABC001, ABC002, et. seq.).
26 If Foreign Language / Unicode text exists, DAT file shall be in appropriate UTF-8 or UTF-16
27

format.

28
-18Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1 OCR / Extracted Text Files
2 OCR or Extracted Text files shall be provided in a separate \OCR\ directory containing Document
3

level text files

4 If Foreign Language / Unicode text exists, TEXT files shall be in appropriate UTF-8 or UTF-16
5

format

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-19Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

Appendix 2: ESI Metadata and Coding Fields
Field Name
Populated For
Field Description
(Email, Edoc,
Calendar, Contact
or All)
BegBates
All
Control Numbers.
1

2
3
4

EndBates

All

Control Numbers.

BegAttach

All

Control Numbers (First
production bates
number of the first
document of the
family).

EndAttach

All

Control Numbers (Last
production bates
number of the last
document of the
family).

12

PgCount

All

Page Count.

13

Custodian

All

Custodian name (ex.
John Doe).

CustodianOther

All

All custodians who
were in possession of a
de-duplicated
document besides the
individual identified in
the “Custodian” field.

Size

All

Size (in bytes) of the
original document.

LogicalPath

All

The directory structure
of the original file(s).
Any container name is
included in the path.

EmailFolder

Email

Mailbox folder from
which an email was
collected.

Fingerprint

All

The MD5 or SHA-1
hash value.

NativeFile

All

Native File Link.

5
6
7
8
9
10
11

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22
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1

Field names can vary from system to system and even between different versions of systems. Thus, parties are to be
guided by these Field Names and Descriptions when identifying the metadata fields to be produced for a given
document pursuant to this Order.

-20Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1
2
3

Field Name1

Populated For
(Email, Edoc,
Calendar, Contact
or All)
Email Thread ID Email

4
5
6
7
8
9
10

Field Description

Unique identification
number that permits
threading of email
conversations. For
instance, unique MS
Outlook identification
number
(“PR_CONVERSATIO
N_INDEX”) is 22
bytes in length,
followed by zero or
more child blocks each
5 bytes in length, that
permits email threading
in review software

Thread Index

Email

Message header
identifier, distinct from
“PR_Conversation_Ind
ex”, that permits
threading of email
chains in review
software.

15

EmailSubject

Email

Subject line of email.

16

DateSent

Email

Date email was sent.

17

DateMod

Email, Edoc

Date the document was
modified.

TimeSent

Email

Time email was sent.

ReceiveTime

Email

Time email was
received.

To

Email

All recipients that were
included on the “To”
line of the email.

From

Email

The name and email
address of the sender of
the email.

CC

Email

All recipients that were
included on the “CC”
line of the email.

BCC

Email

All recipients that were
included on the “BCC”

11
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14

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-21Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

Field Name1

2

Populated For
(Email, Edoc,
Calendar, Contact
or All)

line of the email.

3
4
5

AttachmentCount Email

Number of attached
documents.

Attach

Email

The file name(s) of the
attached documents.

Importance
Ranking

Email

Level of
importance/sensitivity
of messages.

Status as READ
or UNREAD

Email

Whether or not a
message was READ or
UNREAD.

GUID/$Message Email
ID

The unique Email
message identifier (to
extent different from
“Email Conversation
Threading Index
Number” noted above).

ID of Original
Message
REPLIED to or
FORWARDED

Email

The unique Email
message identifier of
the previous message in
the thread (the message
that was replied to or
forwarded).

DateCreated

Edoc

Date the document was
created.

FileName

Email, Edoc

File name of the edoc
or email.

Title

Edoc

Any value populated in
the Title field of the
document properties.

Subject

Edoc

Any value populated in
the Subject field of the
document properties.

Author

Edoc

Any value populated in
the Author field of the
document properties.

6
7

Field Description

8
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-22Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

Field Name1

DocExt

Populated For
(Email, Edoc,
Calendar, Contact
or All)
All

TextPath

All

Relative path to the
document level text file
specified in Paragraph
I.C of this ESI Order.

Redacted

All

“X,” “Y,”
“Yes,”
“True,” are all
acceptable
indicators that
the document
is redacted.
Otherwise,
blank.

Confidentiality

All

Indicates if document
has been designated as
“Confidential” or
“Highly Confidential”
under the Protective
Order.

MD5

Email, Edoc

MD5 or SHA-1 hash
value of the document

Date of Creation

Contact

Date the contact entry
was created or sent

Last Modified
Date

Contact

Date the contact entry
was last modified.

Importance
Ranking

Contact

Level of
importance/sensitivity
of the contact entry

Date of Creation

Calendar

The date the calendar
entry was created or
sent

Last Modified
Date

Calendar

Date the contact entry
was last modified.

2
3
4
5
6
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10
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13
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21
22
23
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25
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27

Field Description

File extension of the
document.

28
-23Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION

1

Field Name1

2
3

Originator /
Author

Populated For
(Email, Edoc,
Calendar, Contact
or All)
Calendar

4
5
6

9
10
11

The author of the
calendar entry or the
person who sent the
calendar entry.

Recipients

Calendar

The persons that the
calendar entry was sent
to.

Subject / Title
field(s)

Calendar

The subject or titles for
the calendar entry.

Importance
Ranking

Calendar

Level of
importance/sensitivity
of the calendar entry

7
8

Field Description

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-24Case No. 16-cv-1255-GPC-AGS
ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED AND HARDCOPY INFORMATION