Lanx, Inc. v. Pioneer Surgical Technology, Inc.

Filing 38

ORDER regarding E-Discovery. by Magistrate Judge Boyd N. Boland on 10/7/13. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01035-WJM-BNB
LANX, INC.,
Plaintiff,
v.
PIONEER SURGICAL TECHNOLOGY, INC., et al.
Defendant.

[PROPOSED] ORDER REGARDING E-DISCOVERY IN THIS PATENT CASE

The Court ORDERS as follows:
1.

This Order supplements all other discovery rules and orders. It streamlines

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

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

3.

A party's meaningful compliance with this Order and efforts to promote efficiency

parties.

and reduce costs will be considered in any requested cost-shifting determinations.
4.

Absent a showing of good cause, general ESI production requests under Federal

Rules of Civil Procedure 34 and 45, or compliance with a mandatory disclosure requirement of
this Court, shall not include metadata. However, fields showing the author or creator of the
document, the date and time that the document was sent, received, and/or created, as well as the

complete distribution list (including courtesy copies and blind copies), shall generally be
included in the production if such fields exist.
5.

General 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 parties must propound specific email production requests.
6.

Email production requests shall only be propounded for specific issues, rather

than general discovery of a product or business.
7.

Email production requests shall be phased to occur after the parties have

exchanged initial disclosures and basic documentation about the patents, the prior art, the
accused instrumentalities, and the relevant finances. While this provision does not require the
production of such information, the Court encourages prompt and early production of this
information to promote efficient and economical streamlining of the case.
8.

Email production requests shall identify the custodian, search terms, and time

frame. The parties shall cooperate to identify the proper custodians, proper search terms and
proper timeframe.
9.

Each requesting party shall 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 shall consider contested requests for up to five
additional custodians per producing party, upon showing a distinct need based on the nature of
the information sought and 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 shall bear all
reasonable costs caused by such additional discovery, absent further order of the court.

10.

Each requesting party shall limit its email production requests to a total of ten

search terms per custodian per party. The parties may jointly agree to modify this limit without
the Court's leave. The Court shall consider contested requests for up to five 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 (e.g., "computer" or "system") broadens the search, and thus each
word or phrase shall count as a separate search term unless they are variants of the same word.
Use of narrowing search criteria (e.g., "and," "but not," "w/x") is encouraged to limit the
production and shall be considered when determining whether to shift costs for disproportionate
discovery. Should a party serve email production requests with search terms beyond the limits
agreed to by the parties or granted by the Court pursuant to this paragraph, the requesting party
shall bear all reasonable costs caused by such additional discovery.
11.

Absent agreement of the parties or further order of this Court, the following

parameters shall apply to ESI and email production:
A.

General Document Image Format. Each electronic document shall be produced

in single-page Tagged Image File Format ("TIFF") format. TIFF files shall be single
page and shall be named with a unique production number followed by the appropriate
file extension. Load files shall be provided to indicate the location and unitization of the
TIFF files. If a document is more than one page, the unitization of the document and any

attachments and/or affixed notes shall be maintained as they existed in the original
document.
B.

Text-Searchable Documents. No party has an obligation to make its production

text-searchable; however, if a party's documents already exist in text-searchable format
independent of this litigation, or are converted to text-searchable format for use in this
litigation, including for use by the producing party's counsel, then such documents shall
be produced in the same text-searchable format at no cost to the receiving party.
C.

Footer. Each document image shall contain a footer with a sequentially

ascending production number.
D.

Native Files. Spreadsheets shall be produced in native format. A party that

receives a document other than a spreadsheet produced in a format specified above may
make a reasonable request to receive the document in its native format, and upon receipt
of such a request, the producing party shall produce the document in its native format.
E.

No Backup Restoration Required. Absent a showing of good cause, no party

need restore any form of media upon which backup data is maintained in a party's normal
or allowed processes, including but not limited to backup tapes, disks, SAN, and other
forms of media, to comply with its discovery obligations in the present case.
F.

Voicemail and Mobile Devices. Absent a showing of good cause, voicemails,

PDAs and mobile phones are deemed not reasonably accessible and need not be collected
and preserved.
12.

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.

13.

Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a

privileged or work product protected ESI or email is not a waiver in the pending case or in any
other federal or state proceeding.
14.

The mere production of ESI or email in a litigation as part of a mass production

shall not itself constitute a waiver for any purpose.
15.

Except as expressly stated, nothing in this Order affects the parties' discovery

obligations under the Federal or Local Rules.
Dated October 7, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge