Bio Med Technologies Corporation et al v. ELA Medical, Inc.

Filing 18

ORDER: the parties' Stipulation for the Treatment of Electronically Stored Information is approved and entered by the court. By Magistrate Judge Craig B. Shaffer on 04/07/2014. (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-00154-WJM-CBS
BIO MED TECHNOLOGIES CORPORATION,
Plaintiff,
v.
SORIN CRM USA, INC., f/k/a ELA MEDICAL, INC.,
Defendant.
_________________________________________________________________________
STIPULATION FOR THE TREATMENT OF ELECTRONICALLY STORED INFORMATION
_________________________________________________________________________
Plaintiff Bio Med Technologies Corporation and Defendant Sorin CRM USA, Inc.
(collectively, the “Parties”) hereby stipulate to the following guidelines for locating and producing
potentially relevant electronic Documents and avoiding unnecessary costs. This stipulation
does not prevent the parties from negotiating additional agreements regarding discovery as may
be necessary in the course of this case. Nor is this stipulation intended to override the
requirements of the Federal Rules of Civil Procedure as they apply to electronic discovery. In
the event of conflict, the Federal Rules of Civil Procedure govern.

A.

SCOPE OF E-DISCOVERY
Each party will conduct a diligent search of those reasonably accessible sources in which

it has reason to believe relevant electronically stored information (“ESI”) responsive to the
opposing party’s discovery requests will be found. Reasonably accessible sources of ESI
include personal computer hard drives, e-mail accounts, shared network drives, and other
storage devices or media.

B.

DEFINITIONS
1.

ESI. The term “ESI” refers to any electronically stored information in the

possession, custody, or control of the parties that are e-mail or active-user files—including, but
not limited to, e-mail, calendars, word-processing Documents, spreadsheets, electronic slide
presentations, databases, and other reasonably accessible electronically stored information
reasonably anticipated to be subject to discovery pursuant to the Federal Rules of Civil
Procedure.
2.

Document(s). The term “Document(s)” is synonymous and equal in scope to

usage of this term in Fed. R. Civ. P. 34(a) and to the terms “[w]ritings and records,”
“photographs,” “original,” and “duplicate” defined in Fed. R. Evid. 1001. Document means the
original (or an identical duplicate if the original is not available), and any non-identical copies
(whether non-identical because of notes made on copies or attached comments, annotations,
marks, transmission notations, or highlighting of any kind) of writings of every kind and
description that are fixed in any medium upon which intelligence or information can be recorded
or retrieved—including, but not limited to, documents fixed in tangible media or electronically or
digitally stored on disk or tape in native format. This includes, without limitation, all ESI.
3.

Preservation. The term “Preserve” or “Preservation” is to be interpreted in

accordance with the Federal Rules of Civil Procedure to accomplish the goal of maintaining the
integrity of all Documents, ESI, and tangible objects reasonably anticipated to be the subject of
discovery in this action. Preservation includes taking reasonable steps to prevent the partial or
full destruction, alternation, testing, deletion, shredding, incineration, wiping, relocation,
migration, theft, or mutation of such material, as well as negligent or intentional handling that
would make material incomplete or inaccessible.

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C.

PRESERVATION GUIDELINES
Each party has instituted a process to identify and Preserve the potentially relevant

electronic Documents of individual employees (or other individuals for whom a party has the
right to access electronic Documents) who can reasonably be identified as potentially having
information related to the proceeding. Each party has circulated a litigation hold notice designed
to ensure the Preservation of potentially discoverable electronic and other information to those
employees reasonably identified as potentially possessing such information.

D.

EXCLUSIONS
The parties agree that the circumstances of this case do not warrant the preservation,

review, or production of ESI that is not reasonably accessible because it is unlikely that
significant relevant information would be located in those sources that is not otherwise available
in reasonably accessible sources. Moreover, the remote possibility of locating relevant
information is substantially outweighed by the burden and cost of preservation and/or review
and production of ESI from those sources. The parties agree that the following ESI need not be
reviewed for production and is not discoverable except upon a showing of good cause:
1.

Backup tapes and systems created for the sole purpose of disaster recovery.

2.

Voicemail, except for voicemail, if any, that is converted to text and forwarded to
the recipient's email account.

3.

Instant Messaging, except for instant messaging that has been logged in the
ordinary course of business.

4.

Residual, deleted, fragmented, damaged, or temporary data (e.g., data stored in a
computer's RAM) or other data only accessible by forensics.

5.

Encrypted data/password protected files, where the key or password cannot be
ascertained after reasonable efforts.
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6.

Electronic mail or pin-to-pin messages sent to or from mobile devices (e.g., iPhone
and Blackberry devices), provided that a copy of such mail is routinely saved
elsewhere.

7.

Other electronic data stored on a mobile device, such as calendar or contact data
or notes, provided that a copy of such data is routinely saved elsewhere.

8.

Logs of calls made from mobile devices.

9.

Server, system or network logs.

10.

Data remaining from systems no longer in use that is unintelligible on the systems
in use.

Nothing in this provision or Order precludes the Parties from subsequently agreeing to
otherwise or further limit the scope of ESI.

E.

FILTERING
Each party will conduct a diligent search of those reasonably accessible sources in which

it has reason to believe relevant ESI responsive to the opposing party’s discovery requests will
be found. The producing party shall then collect and process relevant Documents using
forensically sound methods that avoid spoliation of data. In an effort to control costs and reduce
the volume of ESI that is not relevant to the matter, the parties may filter responsive ESI using
the following techniques:
1.

Search Terms and Custodians. The parties may employ reasonable keyword

search terms by custodian to filter for responsiveness, relevance, date, and file extension prior
to review and production.
2.

Duplicates. The parties may remove duplicative ESI to reduce unnecessary cost

of reviewing and producing duplicative ESI. The parties must retain metadata for all duplicate
Documents as described in Section F.3 below.
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F.

FORM OF PRODUCTION
1.

Paper Documents. Hard copy, paper Documents will be produced as sequentially

bates-numbered images. Each party will produce paper Documents in image format in order to
reduce copying charges thus controlling costs. The images produced by both parties will be
black-and-white portable Document format (“PDF”) images. Each party will accommodate
reasonable requests for production of images in color.
2.

Electronic Documents. Electronic Documents will be produced in the form most

conducive to the type and nature of the specific electronic Documents.
a.

Image and Searchable Text File. Except as noted below, each party will

produce electronic Documents as PDF images, adhering to the specifications noted
above for paper Documents. The production shall include an Opticon load file and
Concordance .dat file that indicates Document breaks to accompany the PDF images.
The parties further agree that when possible extracted text (for all Documents that have
extracted text – e.g., Word Documents, Excel™ spreadsheets, etc.) or OCR information
(for those files that do not have extracted text or Documents produced in redacted
format) will be exchanged for each Document produced. Metadata information will be
produced in a .dat file with first row of the file to contain the name of fields being
produced. Production in image format with searchable text provides both parties with a
static image that can be redacted, numbered, authenticated and allows both parties the
ability to search the text of the electronic Documents. Moreover, production in image
format with searchable text eliminates the problems associated with opening files
maintained in a variety of software applications.
b.

Email. In the case of email, the corresponding .dat file shall include header

information including: (1) the individual to whom the communication was directed (“To”),
(2) the author of the email communication (“From”), (3) who was copied and blind copied
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on such email (“CC” and “BCC”), (4) the subject line of the email (“RE” or “Subject”), (5)
the date sent, and (6) the date received. In the case of email that is a parent Document
within a user’s mailbox (i.e., contains attachments such as other Documents or emails),
the producing party shall also provide the Document identification range of each
responsive and non-privileged attachment in order to determine email parent-child
relationship.
c.

Spreadsheets. Excel™ and other types of spreadsheets are often

dynamic in nature and may not be conducive to static image; therefore, a party may at its
option produce (or request production of) Excel™ and other spreadsheets in their native
application if it appears that there is a legitimate need for information that cannot be
derived from the static image. To the extent that print-outs or images of all or part of a
spreadsheet were also maintained in static form (e.g., as a .pdf attachment or a hard
copy in a file), those Documents will be produced as static images consistent with the
specifications for production of paper. Native files will be produced with accompanying
slip sheets indicating that the Document has been produced as a native file. The file
name of any file produced in native format will include the Document identification, and
may include the confidentiality designation, where applicable.
d.

Databases. Certain types of databases are dynamic in nature.

Furthermore, they will often contain information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence. A party may at its option
produce relevant information from a database in an alternate form, such as a report or
data table. These reports or data tables will be produced in either a static image format
or in a popular database application, such as Access™ database, upon a showing of the
need for and relevance of having the information in a database application. To the extent
that relevant and responsive reports or data tables were also maintained in static form
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(e.g., as a .pdf attachment or a hard copy in a file), those Documents will be produced as
static images consistent with the specifications for production of paper.
e.

Image Not Readable/Conversion Not Practicable. Where PDF images of

certain Documents (for example, spreadsheets, Powerpoint™ files, or drawings) are not
readable due to processing constraints, the parties may request their production in native
or other appropriate format.
3.

Metadata. The parties will preserve all original ESI, including the associated

metadata. However, because the majority of metadata is unusable and the time required to
review the metadata makes its production cost-prohibitive, the parties will not produce metadata
in the first instance, with the exceptions of (a) spreadsheet formulas contained in natively
produced spreadsheets, (b) PowerPoint™ notes or the equivalent, (c) hidden comments in
Word™ or equivalent software programs, (d) Date Created, (e) Original File Name, and (f) the email fields noted in Section F.2.b above. Each party will accommodate reasonable requests for
production of additional metadata in connection with a reasonable number of specific
Document(s) upon a showing of the need for and relevance of such metadata. Such requests
for metadata must be made in writing.
4.

Production Format – Physical Form of Production. Electronic Documents shall be

produced, where possible, on a CD-ROM, DVD, or a portable hard drive.

G.

INFORMATION NOT ADDRESSED IN THIS PROTOCOL
To expedite discovery of relevant electronic evidence and reduce costs, the parties will

discuss and attempt in good faith to resolve all issues involving information not addressed in this
Stipulated Electronic Discovery Protocol before bringing them to the Court.

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H.

NO WAIVER
By complying with this Stipulated Electronic Discovery Protocol, no Party waives any

objection to the production of the Documents, tangible items or things, and ESI that is
preserved. Furthermore, nothing contained herein relieves the Parties of their obligations to
preserve evidence under other applicable laws, procedures, or regulations.

I.

PROTECTIVE ORDER
The terms of the Protective Order governing inadvertent production of privileged

information also govern all production pursuant to this Stipulated Order. The production of ESI
is subject to the Parties' rights under the Protective Order, the practices of the Court, and the
rules to request the return of inadvertently produced ESI.

STIPULATED AND AGREED BY THE PARTIES:

/s/ JoAnne Zboyan
JoAnne Zboyan
Springer and Steinberg, P.C.
1600 Broadway, Suite 1200
Denver, Colorado 80202
Phone: [phone]
Fax: [phone]
Email: [e-mail]

/s/ Jared B. Briant
Faegre Baker Daniels LLP
3200 Wells Fargo Center
1700 Lincoln St.
Denver, Colorado 80203
Phone: [phone]
Fax: [phone]
Email: [e-mail]

Brian J. Rayment
Kivell, Rayment & Francis, P.C.
7666 East 61st St., Suite 550
Tulsa, OK 74133
Phone: [phone]
Fax: [phone]
Email: [e-mail]

Kathryn A. Feiereisel
Faegre Baker Daniels LLP
311 S. Wacker Drive, Suite 4400
Chicago, Illinois 60606-6622
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Attorneys for Plaintiff

Attorneys for Defendant

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ENTERED BY THE COURT this 7th day of April, 2014.

s/Craig B. Shaffer
United States Magistrate Judge

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