Babolat VS North America, Inc. v. Topteam Technology Taiwan Co., Ltd.

Filing 34

ESI PROTOCOL entered by Magistrate Judge Nina Y. Wang on 7/28/15.(bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:15-cv-01033-RM-NYW
BABOLAT VS NORTH AMERICA, INC.,
Plaintiff,
v.
TOPTEAM TECHNOLOGY TAIWAN CO., LTD.,
Defendant.

[PROPOSED] ESI PROTOCOL

The Parties agree to the following protocol for the production of Discoverable
Documents and Electronically Stored Information, and the court hereby adopts it for use
in the above-referenced matter. As used in this document, the term “Discoverable
Documents and Electronically Stored Information” means discoverable documents and
data existing in electronic form consistent with Fed. R. Civ. P. 34(a), including by way of
example and not by way of limitation, e-mail, calendars, word processing documents,
spreadsheets, electronic slide presentations, databases, and other reasonably
accessible electronically stored information relevant to the claim(s), defense(s) or
discovery requests of any party subject to discovery pursuant to Fed. R. Civ. P. 26.
I.
1.

ELECTRONIC DISCOVERY

After receiving requests for document production, the Producing Party shall

conduct a reasonable and good faith search for responsive documents and electronically
stored information. A Producing Party will disclose to a Requesting Party the existence
of those sources of electronically stored information that it believes contain responsive
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information and that are not reasonably accessible, and the Parties will meet and confer
concerning such information that the Producing Party contends is not reasonably
accessible because of undue burden or cost and otherwise engage in the briefing
process and procedure outlined in Fed. R. Civ. P. 26(b)(2), after complying with the
undersigned Magistrate Judge’s informal discovery dispute protocol.
II.
1.

PRODUCTION FORMAT

General Format of Production. Documents that originally existed in

electronic form that are produced in this matter shall be produced in electronic image
form in the manner provided herein. Documents that originally existed in paper form
may be produced in an electronic image form in the manner provided herein, produced in
a paper form, or made available for initial examination. Notwithstanding the foregoing
provisions of this paragraph, the Producing Party reserves the right to request that an
alternative format or method of production be used for certain documents and, in that
event, the parties will meet and confer to discuss alternative production requirements,
concerns, formats or methods.
2.

Document Image Format. Document images produced in electronic form

will be produced in multi-page Tagged Image File Format (“TIFFS” or “.tiff format”). The
Producing Party may produce all images generated from native electronic documents
shall be saved electronically in a Group 4 compression multi-page “TIFF” image that
reflects the full and complete information contained on the original document, or
alternatively, in PDF format.. Meta-data for documents generated from native electronic
documents shall be provided as set forth in subparagraph 9. The parties shall meet and
confer to the extent reasonably necessary to facilitate the import and use of the
produced materials with commercially available document management or litigation
support software such as Summation or Concordance. Notwithstanding the foregoing
provisions of this paragraph, the parties recognize that it may be appropriate for certain
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files to be produced in native file format and the Producing Party shall have the option to
produce those certain types of files in native format. Documents that present imaging or
formatting problems shall be promptly identified and the parties shall meet and confer to
attempt to resolve the problems.
3.

Attachments and Parent-Child Relationships. Separate document(s)

(the “child”) attached to another document (the “parent”) shall be produced
contemporaneously and sequentially immediately after the parent document. Parentchild relationships (the association between an attachment and its parent document)
shall be preserved. Documents embedded inside other documents (e.g., a Word file
embedded inside a PowerPoint file) shall be designated as “attachments” to the
embedding (parent) file. In the preceding example, the Word document would be
designated as an attachment (child) of the PowerPoint file (parent).
4.

Color. If an original document contains color, the Producing Party agrees

to honor reasonable requests for either the production of an original document for
inspection and copying or production of a color image of the document. The Requesting
Party agrees to pay for reasonable costs associated with the color scanning and
production of color images of documents already produced.
5.

Duplicates. Where a party has more than one identical copy of an

electronic document (i.e., the documents are visually the same and contain the same
electronic text), the Producing Party need only produce a single copy of that document.
Furthermore, the parties are not required to produce multiple instances of an electronic
message sent to multiple recipients, provided that all of the recipients (including “blind
carbon copy” recipients) can be identified from documents or electronically stored
information produced pursuant to this protocol and, as described in the remainder of this
paragraph, no information is missing from the electronic message. Where a subsequent
electronic mail message contains all of the portions of an earlier message produced
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pursuant to this protocol, it is not necessary for a producing party to produce the earlier
message in addition to the subsequent inclusive message. If the subsequent inclusive
message does not include an attachment to an earlier message, the attachment must
also be produced pursuant to this protocol, in addition to the subsequent inclusive
message.
6.

Bates Numbering. Each page of a produced document shall have a

legible, unique page identifier (“Bates Number”) electronically “burned” onto the image at
a location that does not unreasonably obliterate, conceal, or interfere with any
information from the source document.
7.

File Naming Conventions. Each page image file shall be named with the

unique Bates Number of the page of the document, followed by the extension “.TIF,” or
“.PDF,” as appropriate.
8.

Production Media. A Producing Party shall produce documents that it

produces in an electronic image form on CD-ROM, DVD, external hard drive, or such
other readily accessible compute or electronic media as the parties may hereafter agree
upon.
9.

Meta-Data. To the extent a Producing Party extracts any of the following

metadata fields associated with its email production, the Producing Party will produce
those metadata fields to the Requesting Party:
a.

Subject line;

b.

Date sent;

c.

Sender/Author;

d.

Recipient(s);

e.

Copyee(s);

f.

Blind copyee(s);

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For images generated from native electronic documents, a Producing Party shall
produce a load file with each production with the following fields, where available:
a.

Starting Bates (Beginning documents Bates number);

b.

Ending Bates (Ending documents Bates number);

c.

Begin Attach (Beginning Bates number for any attachment or range

of attachments);
d.

End Attach (Ending Bates number for any attachment or range of

e.

Source (custodian/location from which document was collected).

attachments);

Alternatively, a Producing Party can satisfy its obligations under this
subparagraph by providing information sufficient to identify any attachments to the
documents produced.
10.

Search Terms. The parties shall meet and confer on search terms to be

used for electronic documents to identify electronic documents that will be reviewed for
possible production.
11.

Databases. To the extent response to discovery requires production of

discoverable electronic information contained in a database, in lieu of producing the
database, the Producing Party may produce reports from the database. The reports
produced shall be fully responsive to the discovery request. Upon review of the reports,
the Requesting Party may make reasonable requests for additional information to explain
the database scheme, codes, abbreviations or to request reports in different formats.
12.

Production of Other Electronic Documents. This Agreement only

applies to the production of the following categories of electronic documents: databases,
e-mails (and any associated attachments), word processing documents, spreadsheets,
presentations, and imaged documents. The parties shall meet and confer to agree on
the form of any production of electronic documents other than the foregoing.
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III.

COST OF PRODUCTION

The parties reserve the right to seek cost shifting as appropriate at a later time. If
the forms of production allowed by this protocol present an undue burden or cost for a
Producing Party, the parties shall meet and confer to agree on a reasonable, alternative
form of production.
IV.

INADVERTENT PRODUCTION

The parties are continuing their discussions regarding a protocol for produced
documents that are subsequently alleged to be privileged. If an agreement cannot be
reached, the parties may subject the matter to the Court.
V.

MODIFICATION OF PROTOCOL

The parties agree that this protocol was agreed upon based upon the information
available at the time that it was executed by the parties and this Agreement may be
subject to modification in the future.
VI.

DISCOVERY AND ADMISSIBILITY

Nothing in this Agreement shall be construed to affect the discoverability or
admissibility of any document or data. All objections to the discoverability or admissibility
of any document or data are preserved and may be asserted at any time.
DATED this 28th day of July, 2015.

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

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STIPULATED AND AGREED BY:
By: /s/ Amber J. Munck
Amber J. Munck
Greenberg Traurig, LLP

By: /s/ Daniel S. Mount
Daniel S. Mount
Kathryn Spelman

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