The Regents of the University of California et al v. Affymetrix, Inc. et al

Filing 85

ORDER Granting Joint Motion for an Order Governing Discovery of Electronically Stored Information [Doc. No. 80 ]. Signed by Judge Marilyn L. Huff on 12/22/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA; and BECTON,
DICKINSON and COMPANY,

Case No.: 17-cv-01394-H-NLS
ORDER GRANTING JOINT
MOTION FOR AN ORDER
GOVERNING DISCOVERY OF
ELETRONICALLY STORED
INFORMATION

Plaintiffs,

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v.

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AFFYMETRIX, INC.; and LIFE
TECHNOLOGIES CORP.,

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[Doc. No. 80.]

Defendants.

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On December 18, 2017, the parties filed a joint motion for an order governing the

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discovery of electronically stored information. (Doc. No. 80.) For good cause shown, the

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Court grants the parties’ joint motion and enters the following order:

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1.

This Order supplements all other discovery rules and orders, including the

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Protective Order in this case. It streamlines ESI collection and searching to promote a

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“just, speedy, and inexpensive determination” of this action, as required by Federal Rule

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of Civil Procedure 1.

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2.

This Order may be modified in the Court’s discretion or by agreement of the

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parties. If the parties cannot resolve their disagreements regarding such modifications, the

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parties shall submit their competing proposals to the Court in accordance with the Court’s
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discovery dispute procedures.
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Proportionality:

Parties are expected to use reasonable, good faith and

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proportional efforts to preserve, identify and produce relevant information. This includes

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identifying appropriate limits to discovery, including limits on custodians, identification of

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relevant subject matter, phased discovery, time periods for discovery and other parameters

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to limit and guide preservation and discovery issues.

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4.

Search Terms:

Focused terms, rather than over-broad terms, shall be

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employed to search custodial data, e.g. email and other ESI collected from named

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custodians. The parties shall timely attempt to reach agreement on search terms, or a

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computer- or technology-aided methodology, and shall continue to cooperate in revisiting

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the search terms or computer or technology-aided methodology. The parties’ development

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and negotiation of search terms for custodial e-mail and other ESI shall not be grounds for

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a party to delay review, collection, or production of non-custodial or other documents (e.g.,

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network shared documents, laboratory notebooks, development files, etc.) that the

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producing party is able to, and without undue burden, identify and locate without the use

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of search terms. The parties shall also make reasonable efforts to engage in collection

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efforts prior to the finalization of search terms.

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a.

Each Producing Party shall be responsible for generating a searching protocol

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that it will apply to its custodial data that it believes in good faith will return a reasonably

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high proportion of responsive documents. Within fourteen (14) days of the entry of this

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Order or within such time as the Parties agree, the Parties will exchange proposed search

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terms that each Producing Party proposes to use to identify its responsive email or other

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custodial ESI. A Producing Party need not apply the same search terms to all custodians,

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but must disclose if it is applying some search terms to some custodians but not others.

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b.

A Producing Party is not limited to searches using the disclosed terms and

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may conduct broader searches using other terms, at the Producing Party’s discretion,

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without disclosing those additional or broader searches to the Requesting Party. A

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Producing Party need not disclose search terms or strategies that will reveal privileged or
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work product information.

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c.

The Requesting Party, within 7 days of the receiving the Producing Party’s

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proposed terms, may request revisions to the Producing Party’s proposed terms and may

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request no more than twenty (20) additional search terms per side to be used in connection

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with the search of email or other ESI that the Requesting Party in good faith believes will

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return a reasonably high proportion of responsive documents without overbreadth or undue

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burden. The foregoing limit assumes that the Producing Party has made good faith efforts

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to develop a robust initial set of proposed search terms, and the Court may consider the

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scope and reasonableness of the initial proposed search in considering requests for further

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searches. Notwithstanding this limit, the parties shall cooperate to minimize and narrow

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disputes, and meet and confer as necessary, to ensure that their search proposals identify

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responsive documents while avoiding overbreadth or undue burden, including agreeing to

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increase the limit on search terms if needed without Court leave. The Court may consider

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and grant contested requests for additional search terms, upon a showing that additional

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search terms are likely to identify relevant and responsive documents without overbreadth

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or undue burden and in view of the adequacy of the Producing Party’s initial proposed

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terms.

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d.

Upon receipt of the Requesting Party’s search terms, the Producing Party shall

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use the search terms proposed by the Requesting Party unless the Producing Party objects

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to the use of a given term within 7 days and explains the basis of its objection. Where

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possible, the Producing Party shall propose with its objection revisions to the search terms

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or other computer or technology-aided methodology in an effort to resolve or narrow its

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objections.

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e.

The parties shall meet and confer in good faith to resolve any disputes that

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may arise over the search terms and/or the use of other technology-aided methodology and

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to ensure the terms are sufficiently tailored to capture documents relevant to the above-

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captioned litigation. The parties shall work cooperatively to minimize and narrow disputes

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and ensure that their respective searches identify responsive documents while avoiding
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overbreadth or undue burden. If the parties cannot resolve their dispute regarding search

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terms and/or the use of other computer- or technology-aided methodology after reasonable,

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thorough good faith negotiations, the Requesting Party may seek relief from the Court in

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accordance with the Court’s discovery dispute procedures.

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f.

A Producing Party may amend its search terms at any time if any term in good

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faith appears to be overly broad, either in general or as applied to a particular custodian or

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custodial data source. The Producing Party shall notify the Requesting Party of its

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amendment and whether the amendment will apply to searches of all custodians or only

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with respect to particular custodians or custodial data sources. The parties agree to the

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same dispute resolution procedures set forth in paragraph (e) above with respect to any

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such amendment.

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g.

The parties recognize that discovery is an iterative process. A Requesting

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Party may therefore request the use of supplemental search terms (up to a cumulative total

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limit of fifteen (15) supplemental search terms for each side) at any time prior to thirty (30)

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days before the date set by the Court for substantial completion of document discovery if

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i) discovery reveals information that in good faith indicates supplemental term(s) will

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capture relevant, responsive documents and are not cumulative of previous searches or ii)

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the Requesting Party serves additional noncumulative discovery requests necessitating

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additional searches. The Requesting Party must identify the specific custodians and time

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periods it requests be searched using the supplemental search term(s). The parties may

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jointly agree to modify this limit without the Court’s leave. The foregoing limitation does

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not modify each party’s existing independent obligations under Fed. R. Civ. P. 26(e) to

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ensure that its discovery disclosures are not incomplete or incorrect in any material respect,

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including by conducting additional searches as necessary. The Court may consider and

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grant contested requests for additional supplemental search terms, upon a showing that

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relevance or materiality of such search terms could not have been reasonably known when

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the parties negotiated their initial search terms and are likely to identify noncumulative

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relevant and responsive documents without overbreadth or undue burden, taking into
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account the progress of discovery and the proximity of the request to discovery deadlines.

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The same dispute resolution procedures set forth in paragraph (e) above applies with

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respect to supplemental terms or if a Requesting Party seeks Court approval of additional

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supplemental search terms beyond the limit as to number of terms or time of request set

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forth above.

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5.

Custodian Collection: The parties will negotiate in good faith to identify and

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limit the number of custodians whose data (both email and user-generated data) is

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collected. The Requesting Parties can request collection and search of data from up to a

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total of ten custodians per side from the Producing Parties. The parties may jointly agree

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to modify this limit without the Court’s leave. The Court may consider contested requests

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for additional custodians per side, upon showing a distinct need based on the size,

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complexity and issues of this specific case.

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6.

Non-Custodial ESI Collection:

Nothing in this Order shall require a

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producing party to utilize any particular collection protocol for any particular source of

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Non-Custodial ESI. For avoidance of doubt, targeted collection may be used to collect

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potentially relevant documents from any Non-Custodial ESI data source.

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7.

System File Filtering: The parties will use their best efforts to filter out

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

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hash identification process. Hash values that may be filtered out during this process are

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located in the National Software Reference Library (“NSRL”) NIST hash set list.

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8.

Deduplication:

A party is only required to produce one copy of each

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responsive document and a party may de-duplicate responsive ESI (based on MD5 or SHA-

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1 hash values at the document level) on a global scale as long as the Producing Party has

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the ability to, and does, provide information identifying the other custodians who possessed

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any given record or ESI, for example in a “custodian” meta data field. Alternatively, a

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party may elect to de-duplicate each custodian’s responsive ESI and may de-duplicate the

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party’s non-custodial ESI (based on MD5 or SHA-1 hash values at the document level).

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To the extent emails are produced, the following procedures shall apply. For emails with
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attachments, the hash value is generated based on the parent/child document grouping. To

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the extent that de-duplication through MD5 or SHA-1 hash values is not possible, the

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parties shall meet and confer to discuss any other proposed method of de-duplication.

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9.

Production Specifications and Format: The parties have agreed to produce

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documents using the format described in the ESI Protocol attached to the Joint Discovery

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Plan. To the extent that circumstances require a party to produce documents in a format

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other than the format described in the ESI Protocol, e.g. prior or to or during a deposition

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or other proceeding, the Producing Party will produce the documents in the agreed format

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shortly thereafter.

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10.

Preservation of Discoverable Information:

A party has a common law

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obligation to take reasonable and proportional steps to preserve discoverable information

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in the party’s possession, custody or control. Absent a showing of good cause, the parties

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shall not be required to modify, on a going-forward basis, the procedures used by them in

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the ordinary course of business to back-up and archive data; provided, however, that the

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parties shall preserve discoverable information currently in their possession, custody or

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control.

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11.

The parties agree that, absent good cause, the following categories of

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information need not be preserved nor searched: (1) deleted, slack, fragmented, or other

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data only accessible by forensics; (2) random access memory (RAM), temporary files, or

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other ephemeral data that are difficult to preserve without disabling the operating system;

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(3) on-line access data such as temporary internet files, history, cache, cookies, and the

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like; (4) data in metadata fields that are frequently updated automatically, such as last-

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opened dates; (5) data stored on disaster recovery tapes, back-up tapes or other back-up

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data not otherwise accessed in the normal and ordinary course of business; (6) voice

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messages; (7) instant messages that are not ordinarily printed or maintained in a server

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dedicated to instant messaging; (8) electronic mail or pin-to-pin messages sent to or from

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mobile devices (e.g., smart phones), provided that a copy of such mail is routinely saved

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elsewhere; (9) other electronic data stored on a mobile device, such as calendar or contact
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data or notes, provided that a copy of such information is routinely saved elsewhere; (10)

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logs of calls made from mobile devices; (11) server, system or network logs; (12) electronic

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data temporarily stored by laboratory equipment or attached electronic equipment,

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provided that such data is not ordinarily preserved in the ordinary course of business or as

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part of a laboratory report; (13) unindexed electronic data generated by laboratory

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equipment and kept in a proprietary / non-standard file format provided that such data is

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not ordinarily preserved in the ordinary course of business or as part of a laboratory report;

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or (14) data remaining from systems no longer in use that is unintelligible on the systems

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in use. Nothing in this section shall limit a Requesting Party’s right to request from a

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Producing Party more information about the nature of and burden associated with obtaining

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documents from a particular location.

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Third-Party Confidentiality Obligations: To the extent that relevant ESI or

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other documents sought for production implicate confidentiality obligations owed to third-

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parties (“Protected Third-party Information”), the Producing Party will negotiate with

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those third-parties in good faith to secure the third-party’s approval for production of the

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Protected Third-party Information. To the extent that the Producing Party is unable to

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secure approval from the third-party, the Producing Party will promptly inform the

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Requesting Party of the existence of the Protected Third-party Information and the contact

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information for the third party such that the Requesting Party is able to negotiate with the

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third-party and, if necessary, seek appropriate relief from the Court.

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IT IS SO ORDERED.

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DATED: December 22, 2017

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MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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