Animal Care Systems, Inc. v. Hydropac/Lab Products, Inc.

Filing 39

ORDER Regarding E-Discovery. By Magistrate Judge Boyd N. Boland on 10/15/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-00143-MSK-BNB
ANIMAL CARE SYSTEMS, INC.,
Plaintiff,
v.
HYDROPAC/LAB PRODUCTS, INC.,
Defendant.
And
Civil Action No. 1:13-cv-00415-MSK-BNB
HYDROPAC/LAB PRODUCTS, INC.,
Plaintiff,
v.
ANIMAL CARE SYSTEMS, INC.,
Defendant.
ORDER REGARDING E-DISCOVERY

The parties in Hydropac/Lab Products, Inc. v. Animal Care Systems, Inc., Civil Action
Nos. 1:13-cv-00415-MSK-BNB and 1:13-cv-00143-MSK-BNB, pending in the United States
District Court for the District of Colorado, agree to the following guidelines concerning the
production of electronically stored information (“ESI”) in this civil action:

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I.

Image Format
All ESI and paper documents that are produced as scanned images shall be produced as

single-page TIFF (tagged image format file) documents, with the exception that any document
that would become illegible or unusable when converted to TIFF, such as certain Microsoft
Excel files, will be produced in native format. Documents that are converted to TIFF will be
produced in accordance with the following specifications:
•

Single page 1 bit TIFF files, Group IV compression at 300 DPI for B&W
documents;

•

Single page JPEG files for color documents;

•

Image load file format: Opticon load file (.OPT);

•

Bates numbers should be endorsed on the lower right corner of all TIFF images
and will be a unique, consistently formatted identifier, i.e. alpha prefix along with
a fixed length number (e.g., ABC0000001). The number of digits in the numeric
portion of the bates number format should not change in subsequent productions;

•

Confidential designations, if any, will be endorsed on the lower left corner of all
TIFF images;

•

Images will be delivered with an image load file in the Opticon (.OPT) format as
follows:
REL00001,REL001,D:\IMAGES\001\REL00001.TIF,Y,,,3
Column One (REL00001) –the page identifier
Column Two (REL001) –volume identifier; not required, but a space is required
in each line of the load file for this field as illustrated below:
REL00001, ,D:\IMAGES\001\REL00001.TIF,Y,,,3
REL00002, ,D:\IMAGES\001\REL00002.TIF,,,,
Column Three (D:\IMAGES\001\REL00001.TIF) –path to the image to be loaded
Column Four (Y) – Document marker –indicates the start of a unique document.
Column Five (blank) –can be used to indicate box
Column Six (blank) –can be used to indicate folder
Column Seven (3) –often used to store page count, but unused in Relativity

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II.

Data Format
All production documents will be produced with extracted text and load files. The parties

shall provide image load files in Relativity (.dat, .opt), (and if requested by a party, in
Concordance (.opt), Ipro (.lfp), or Summation (.dii)), to accompany productions of TIFF images
so as to facilitate the use of the produced images by a document management or litigation
support system. The parties shall also provide an ASCII delimited load file, such as a data (.dat)
or delimited text (.csv) load file, using the field delimiters required by Relativity, Summation or
Concordance, which will include: (1) beginning and ending document numbers; and (2)
beginning and ending attachment ranges (calculated from the first page of the parent document to
the last page of the last attached document); and custodian information.
Extracted data, including the data fields listed in Table 1 below, will be produced in a
delimited .DAT file accordance with the following technical specifications:
•

The first line of the .DAT file must be a header row identifying the field
names;

•

The .DAT file must use the following default delimiters:





Comma
Quote
Newline
Multi-value

¶
þ
®
;

ASCII character 020
ASCII character 254
ASCII character 174
ASCII character 59

•

Date fields should be provided in the format: mm/dd/yyyy;

•

All attachments should sequentially follow the parent document/email;

The data load file shall also include the following fields of information where available
(i.e., in existence):

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TABLE 1
REF NO

FIELD NAME

FIELD DESCRIPTION

1.

PRODBEG

2.

PRODEND

3.

BEGATTACH

First Bates number of each document
being produced
Last Bates number of each document
being produced
Auto-generated number assigned to
first page of parent document

4.

ENDATTACH

5.

PARENT_ID

6.

ATTACH_IDS

7.

ATTCOUNT

8.

DOC_TYPE

9.

PAGECOUNT

10.

FROM

11.

TO

12.

CC

13.

BCC

14.

SUBJECT

15.

CUSTODIAN

16.

AUTHOR

17.
18.

DATE_SENT
TIME_SENT

Auto-generated number assigned to
last page of an attachment in a
document family
The beginning DOCID for a parent
document
The beginning DOCID for all
attachments
The number of attachments to an
email
The type of file from the header (e.g.,
Microsoft Outlook, Excel, Word,
etc.)
The number of pages of each
individual document
Name of the sender (Lastname,
Firstname) of an email from the
"From" field in Outlook
Recipients (Lastname, Firstname) of
an email from the "To" field in
Outlook
Name of persons (Lastname,
Firstname) to whom a copy of an
email was sent.
The name of any person (Lastname,
Firstname) blind copied on an email.
The text in the "Subject" line or "Re"
line of an email or application file
The name of the person (Lastname,
Firstname) and the department or
business unit, from which the
document originates
The name of the author (Lastname,
Firstname) or the creator of an
application file from the "Author"
field
The date on which an email was sent
The time an email was sent.

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APPLICABLE FILE
TYPE(S)
Email, EFile, and Hard
copy source documents
Email, EFile, and Hard
copy source documents
Email, and EFile
Email, and EFile
Email, EFile
Email, EFile
Email and EFile
Email, and EFile
Email, EFile
Email
Email
Email
Email
Email
Email, EFile, and Hard
copy source documents

EFile
Email
Email

REF NO

FIELD NAME

FIELD DESCRIPTION

APPLICABLE FILE
TYPE(S)

19.

DATE_RCVD

The date on which an email was
received

Email

20.

TIME_RCVD

The time an email was received.

Email

21.

DATE_LASTMOD

The date on which an email or
application file was last modified
Email: (empty)
Application File: Time the document
was last modified
**This data must be separate field
and cannot be combined with the
DATELASTMOD field
The date an email or application file
was created
Email: (empty)
Application File: Time the document
was created
**This data must be separate field
and cannot be combined with the
DATECREATE field
Email: (empty)
Application File: Date the document
was last accessed
Email: (empty)
Application File: Time the document
was last accessed
**This data must be separate field
and cannot be combined with the
DATEACCESSED field
The text in the "Title" field of an
application file
The name of the application file,
including extension
Link to the native email or
application file
** The link must be named per the
production Bates number
Extracted texts or OCR texts
(single extracted/OCR text file per
document, in ASCII Text format).
Confidentiality designation
Size of application file
document/email in KB
Email, attachment or loose
application file
Email: Full file path were original
email was stored

EFile

TIMELASTMOD
22.

23.

DATE_CREATED
TIMECREATE

24.

DATEACCESSED
25.
TIMEACCESSED
26.

27.

TITLE

28.

FILENAME
NATIVE_FILE

29.

30.

TEXT

31.
32.

DESIGNATION
FILESIZE

33.

FILETYPE

34.

FILEPATH

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EFile

EFile

EFile

EFile

EFile

EFile
Email, EFile
Email, EFile
Email, EFile, and Hard
copy source documents
Email, EFile
Email, EFile
Email, EFile
Email, EFile

REF NO

35.

FIELD NAME

36.
37.

THREAD

38.

HASHVALUE

39.

III.

FILEEXT
APPLICATION

OTHER
CUSTODIANS

FIELD DESCRIPTION
Application File: Full file path were
application file was stored including
original file name
The file extension of the native file
The name of the application that
generated the native file
Email or conversation thread for
emails
Hash value of each email or
application file
Additional custodians who possessed
a duplicate copy of an email or
application file

APPLICABLE FILE
TYPE(S)

Email, EFile
Email, EFile
Email, EFile
Email, EFile
Email, EFile

Searchable Text
Searchable text of entire documents will be produced either as extracted text for all

documents that originate in electronic format, or, for paper documents and any document from
which text cannot be extracted, as text generated using Optical Character Recognition (OCR)
technology.
For redacted documents, the text of the un-redacted portion of the document will be
produced, but the text of the redacted portions will not be produced.
Searchable text will be produced as a document-level multi-page ASCII text file with the
text file named the same as the PRODBEG field, placed in a separate folder. The full path of the
text file must be provided in the .DAT file for the TEXT field.
IV.

Native Format
For documents produced in native format, in addition to producing extracted text and the

data fields in Table 1 above, the producing party will provide slip sheets endorsed with the
production number, level of confidentiality pursuant to an applicable protective order, and the
following statement "This File Was Produced In Native Format Only" (or something similar).
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Additionally, the filename of documents produced in native format shall be renamed to
include the production number (i.e. Bates number) of the corresponding slip sheet. The
confidentiality designation under the Protective Order to be entered in this action will be
provided in the document load file in the DESIGNATION field. Redacted documents will not be
produced in native format.
If documents produced in native format are printed for use in deposition, motion or
hearing, the party printing the document must label front page of the file that is printed with the
corresponding production number and a sequencing page number and, if applicable, the
confidentiality designation assigned by the producing party to that file under an applicable
protective order to be entered in this action.
Images, native files, text files and metadata should be stored and delivered in separate
folders named “IMAGES,” “NATIVE,” “TEXT” and “DATA.”
V.

Databases
Each party may specify the form in which ESI is to be produced when that ESI is

generated by or maintained in Microsoft Access or other database software (Microsoft Excel
files should be produced natively per this Agreement). If the Producing Party objects to such
form, the parties shall undertake reasonable efforts, and if necessary, will meet and confer to
resolve any disagreements as to production format prior to the time for production.
VI.

De-duplication
At the discretion of the producing party, documents may be de-duplicated prior to

production in the following manner:
•

As to emails that have not been printed into a paper form and remain in
electronic form, these emails will be considered duplicates if (i) the hash
values of two or more emails are identical, (ii) the following fields of
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metadata associated with the email are the same: (1) FROM, (2) TO, (3)
CC, (4) BCC, (5) DATESENT, (6) TIMESENT and (7) SUBJECT; and
(iii) the body or text of the email is exactly the same.
•

As to non-email electronic documents, these documents will be considered
duplicates if they have the same hash value and the following fields of
metadata are the same: (1) AUTHOR, (2) DATECREATE, and (3)
DATELASTMOD.

Should a producing party de-duplicate any documents in accordance with the procedure
outlined above, the producing party waives any objection as to the authenticity of the version of
the document produced and the fields of data associated with such copy.
Should a producing party de-duplicate any documents in accordance with the procedure
outlined above, the producing party agrees to produce in the OTHER CUSTODIAN data field
the name of each custodian who possessed or controlled a duplicate copy of any such documents.
If the OTHER CUSTODIAN data field is not available, de-duplication shall be carried out only
within each data custodians’ files rather than across all custodians’ files.
The parties agree that an email that includes content in the BCC or other blind copy field
shall not be treated as a duplicate of an email that does not include content in the BCC field, even
if all remaining content in the email is identical.
The parties will not de-duplicate near duplicate documents; only duplicate documents as
identified above may be withheld from production.
For good cause shown, the receiving party shall have the right to request all duplicates of
a produced document.
VII.

Hard Copy Documents
Documents that are not maintained in electronic form in a party’s ordinary course of

business and that are not scanned into electronic form prior to the date of production may be
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produced in the same manner in which they are maintained (e.g., hard copies). Copies of such
documents (whether in electronic format or hard copy) may be made available for inspection and
copying or may be delivered to the office of counsel for the requesting party.
VIII. Email Production [Clause Proposed by LPI]
Production of ESI in accordance with this Order excludes data that is not reasonably
accessible because of undue burden or cost (e.g., backup tapes intended for disaster recovery
purposes; legacy data leftover from obsolete systems that cannot be retrieved on the successor
systems; deleted data remaining in fragmented form that requires some type of forensic
inspection to restore and retrieve it).
For the production of emails, the parties shall exchange lists of custodians and search
terms to be searched.
The receiving party shall not use ESI that the producing party asserts is attorney client
privileged or work product protected to challenge the privilege or protection. Pursuant to
Federal Rule of Evidence 502(d), the inadvertent production of a privileged or work product
protected ESI is not a waiver in the pending case or in any other federal or state proceeding.
The mere production of ESI in this litigation as part of a mass production shall not itself
constitute a waiver for any purpose.
IX.

Email Production [Proposed by Animal Care]
Production of ESI in accordance with this Order excludes data that is not reasonably

accessible because of undue burden or cost (e.g., backup tapes intended for disaster recovery
purposes; legacy data leftover from obsolete systems that cannot be retrieved on the successor
systems; deleted data remaining in fragmented form that requires some type of forensic
inspection to restore and retrieve it).
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General ESI production requests under Federal Rules of Civil Procedure 34 and 45 shall
not include email or other forms of electronic correspondence (collectively "email"). To obtain
email, the parties must propound specific email production requests. Email production requests,
if any, shall only be propounded for specific issues, rather than general discovery of a product or
business.
Email production requests, if any, shall identify the requested custodian, search terms,
and time frame. The parties shall cooperate to identify the proper custodians, proper search
terms and proper timeframe.
Each party shall limit its email production requests to a total of five custodians. The
parties may jointly agree to modify this limit without the Court's leave. The Court shall consider
contested requests for up to three additional custodians per producing party, upon showing a
distinct need based on the size, complexity, and issues of this specific case.
Each requesting party shall limit its email production requests to a total of ten search
terms per custodian. No custodian shall be required to search more than ten terms. The parties
may jointly agree to modify this limit without the Court's leave. The Court shall consider
contested requests for up to three additional search terms per custodian, upon showing a distinct
need based on the size, complexity, and issues of this specific case. The search terms shall be
narrowly tailored to particular issues. Indiscriminate terms, such as the producing company's
name or its product name, are inappropriate unless combined with narrowing search criteria
that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words
or phrases (e.g., "computer" and "system") narrows the search and shall count as a single
search term. A disjunctive combination of multiple words or phrases shall be treated as separate
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search terms unless they are variants of the same word. Any single email production request
that yields greater than 200 email records (not including attachments) after global deduplication shall be presumed to be too broad and must be further narrowed.
The receiving party shall not use ESI that the producing party asserts is attorney client
privileged or work product protected to challenge the privilege or protection.
Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a privileged
or work product protected ESI is not a waiver in the pending case or in any other federal or state
proceeding.
The mere production of ESI in this litigation as part of a mass production shall not itself
constitute a waiver for any purpose. Further, performing keyword searches as a privilege screen
prior to production of documents constitutes "reasonable steps to prevent disclosure" as that
term is used in Federal Rules of Evidence 502(b).
DATED October 15, 2013.
BY THE COURT:

s/ Boyd N. Boland
United States Magistrate Judge
APPROVED:

s/ Craig R. Smith
Jane Michaels
HOLLAND & HART LLP
555 17th Street, Suite 3200
Denver, CO 80202
Telephone: [phone]
Facsimile: 303-295-8261
Email: [e-mail]
Craig R. Smith
Lando & Anastasi, LLP
Riverfront Office Park

s/ Todd P. Blakely
Todd P. Blakely
George T. Scott
SHERIDAN ROSS P.C.
1560 Broadway, Suite 1200
Denver, CO 80202-5141
Telephone: [phone]
Facsimile: 303-863-0223
E-mail:
[e-mail]
[e-mail]
[e-mail]
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One Main Street, 11th Floor
Cambridge, MA 02142
Telephone: [phone]
Email: [e-mail]
ATTORNEYS FOR PLAINTIFF-DEFENDANT
ANIMAL CARE SYSTEMS, INC.

Steven B. Pokotilow
Vivian Luo
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
Telephone: [phone]
Facsimile: 212-806-7663
E-mail:
[e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANT-PLAINTIFF
HYDROPAC/LAB PRODUCTS, INC.

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