Sarasota County Public Hospital Board v. Blue Cross and Blue Shield of Florida, Inc. et al

Filing 50

ORDER granting 48 Motion for ORDER ESTABLISHING ESI PROTOCOL. Signed by Magistrate Judge Sean P. Flynn on 10/8/2019. (Flynn, Sean)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Tampa Division

SARASOTA COUNTY PUBLIC
HOSPITAL BOARD d/b/a SARASOTA
MEMORIAL HEALTH CARE SYSTEM,

Plaintiff,
v.

CASE NO.: 8:18-cv-02873-T-23SPF

BLUE CROSS AND BLUE SHIELD OF
FLORIDA, INC., and HEALTH OPTIONS,
INC.,
Defendants.
______________________________________________/
STIPULATED ORDER ESTABLISHING ESI PROTOCOL
Pursuant to Rules 16(b) and 26(f) of the Federal Rules of Civil Procedure, the parties
have agreed to the following protocol for issues raised in the matter captioned above (herein the
“Litigation”) and related to the production of electronically stored information (“ESI”).”1
1.
Definitions and Scope. The following protocol and definitions shall be used in
conjunction with the Federal Rules of Civil Procedure, Federal Rules of Evidence and applicable
case law to guide the production of discoverable documents and electronically stored information
when production commences. The following terms shall be defined:
(a)
“Document(s)” means electronically stored information (ESI) existing in
any medium from which information can reasonably be obtained or translated into reasonably
usable form and shall have the same meaning as used in the Federal Rules of Civil Procedure and
case law construing the same.
(b)
“Native File(s)” or “Native Format” means the format they were created
or maintained. Native files should be collected, processed and produced in a manner that insures
that all files reflect accurate metadata associated with the creation and maintenance of the files
and is not corrupted by the methods of the collection of the data. Nothing herein shall be

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The format for production of hard copy documents is addressed in Paragraphs 8, and 12.

interpreted to require the review and production of ESI located on back up tapes absent further
agreement or Court Order.
(c)

“Metadata” herein means broadly any data about data.

(d)
“Static Image(s)” means a representation of ESI produced by converting a
Native File into a standard image format capable of being viewed and printed on standard
computer systems. A Tagged Image File Format (TIFF) image is an example of a Static Image.
(e)
“Load/Unitization file” means an electronic file containing information
identifying a set of paper-scanned images or processed ESI and indicating where individual
pages or files belong together as documents, including attachments, and where each document
begins and ends. A Load/Unitization file may also contain data relevant to the individual
Documents, including extracted and user created Metadata, coded data, as well as OCR or
Extracted Text.
(f)
“OCR” means the optical character recognition file which is created by
software used in conjunction with a scanner that is capable of reading text-based documents and
making such documents searchable using appropriate software.
(g)
“Extracted Text” means the text extracted from a Native File and includes
all header, footer, and document body information.
(h)
“Receiving Party” shall mean the party receiving production of
Documents in response to any request for production of document(s) pursuant to Fed. R. Civ. P.
34(a) or pursuant to initial production of documents identified in the party’s Rule 26(a)
disclosures.
(i)
“Producing Party” shall mean the party producing Documents in response
to any request for production of documents pursuant to Fed. R. Civ. P. 34(a) or pursuant to initial
production of documents identified in the party’s Rule 26(a) disclosures.
2.
Search Protocol. The parties will commence meet and confers on or before
September 13, 2019 to negotiate the search parameters applicable for each party to respond to
pending discovery requests. The search parameters may include, but are not limited to, ESI
sources, custodians, date scope, and search terms.
3.
Review of ESI. After the agreed-upon search protocol has been applied to the
ESI sources identified during the parties’ meet and confers the parties shall utilize attorneys or
other legal staff to identify responsive ESI. Individual custodians shall not make responsiveness
determination calls with respect to this ESI Protocol.
4.
Commencement of Production. The Producing Party shall arrange to preserve
native versions of all electronically stored information to be produced, prior to its production.
Production of Documents shall proceed at such time, place, and in such sequence as may be
agreed to by the Producing Party and the Receiving Party. In the event agreement cannot be
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reached, the Producing Party and the Receiving Party shall submit their respective positions to
the Court, and the Court will issue further orders concerning the productions, as necessary.
5.
General Format of Production. Subject to the provisions of Paragraph 7,
Documents that are produced pursuant to this protocol shall be produced in TIFF form in the
manner as described below. Notwithstanding the foregoing provisions of this paragraph, the
Parties reserve the right to request that an alternative format or method of production be used for
certain Documents, if such Document is not susceptible to production in the format or methods
of production addressed herein. In that event, the Receiving Party and the Producing Party will
meet and confer to discuss alternative production requirements, concerns, formats, or methods.
6.
formats:

Production Format. Documents shall be produced according to the following

(a)
Electronically Stored Information. Except as provided in Paragraph 7(c)
below, Document images shall be generated from electronic Documents and produced as a
Group 4 compression single-page “TIFF” image that reflects the full and complete information
contained on the original document, together with a load file or functional equivalent specified in
Paragraph 6(b) that contains the metadata as set forth in Paragraph 12. In the event a Document
is redacted, the Producing Party shall withhold the redacted text for that Document. The failure
to withhold such text for a redacted document by a Producing Party shall not be deemed a waiver
of the privilege associated with that Document.
(b)
Load/Unitization File Structure. To the extent possible without undue
burden, the Producing Party shall produce a unitization file (“load file”) for all produced
Documents in accordance with the following formatting, including a separate load file for any
native Documents:
OCR and Extracted Text Files (.TXT Files):







Single text file per document containing all the document’s pages
Pages separated by form feed character (decimal 12, hex 0xC)
Filenames should be of the form:
<Bates num>.txt
Where <Bates num> is the BATES number of the first page in the document.
Text must be encoded in UTF-8.
To the extent available, the text of ESI for unredacted documents shall be
extracted directly from the native file and each text file will be named for the
BegBates number. Redacted documents will have text files based on Optical
Character Recognition ("OCR") consistent with Paragraph 15.

Images Files:




Group IV, 300 DPI
Single page per image
Single image per file
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



TIFF FORMAT Filenames should be of the form:
<Bates num>.<.tif>
Where <Bates num> is the BATES number of the page
Images shall be reduced by up to 10% to allow for a dedicated space for BATES
number and stamping of documents.

Index Files:







Comma Separated Value (.CSV) files (commonly .DAT files)
First line must contain the column/field names (set forth in paragraph 12 herein)
Every row must have the same number of columns/fields (empty values are
acceptable)
Text must be encoded in UTF-8
Values must be enclosed by decimal 17, hex 0x11 (ascii device control 1)
Values must be separated by decimal 19, hex 0x13 (ascii device control 3)

Native Index Files:





All lines contain data – first row must NOT contain column headers.
Every row must have 2 columns/fields (empty values are NOT acceptable)
 First column/field must contain the BATES number for the document
 Second column/field must contain the filename (NOT the full path) of the
native file. Filenames must be unique in the production – unless the
content is identical (for example, a native and an OCR text file may both
be named XYZ01234567.TXT if they are identical).
Text must be encoded in UTF-8

(c)
Resolution of Production Issues. Documents that cannot be read because
of imaging or formatting problems shall be promptly identified by the Receiving Party. The
Producing Party and the Receiving Party shall meet and confer to attempt to resolve problem(s),
to the extent the problem(s) are within the Parties’ control.
(d)
Native Format Documents. The Parties agree that to the extent they are
determined to be relevant and not unduly burdensome to produce and are in the possession,
custody, or control of the Producing Party, spreadsheets and presentation files, including but not
limited to Microsoft Excel and PowerPoint files and Lotus 123 files (or similar spreadsheets or
presentation files created using a different software program) (collectively referred to as “Native
Format Documents”) must be produced in native format. Similarly, files that are not amenable
to conversion to TIFF format will be produced in their native form and shall be considered
Native Format Documents for purposes of production under this Paragraph 7(d) so long as they
are determined to be relevant and not unduly burdensome to produce. All Native Format
Documents that are data complications in spreadsheets, Microsoft Excel, or in delimited text
formats, must contain all underlying data un-redacted with all underlying formulas and
algorithms intact unless they are redacted consistent with Paragraph 15.

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To the extent Producing Party produces video, animation, or audio files, such documents
shall also be produced in Native Format. The parties shall produce CAD or similar engineering
drawings or schematics in Native format as well where production is practicable and not
duplicative.
A placeholder image will be included in the TIFF files indicating the BegBates number of
the Native Format Documents and an indication that the document was produced in native
format. A relative file path or link to the Native Format Document in the .dat file shall be
provided as required in Paragraph 12 below. The parties will meet and confer regarding the
good cause need to produce or receive other documents in native format. All other documents
will be produced as single-page TIFF images with corresponding multi-page text, or in native
file format if applicable, and necessary load files. Native files, along with corresponding
metadata, will be preserved. In certain circumstances, variations to the production format
specified in this Protocol may be necessary. In such circumstances, the Parties will meet and
confer regarding the production format.
7.
Production Media. A Producing Party shall produce Documents through a
secured FTP site, on a CD-ROM, DVD, external hard drive, or such other readily accessible
computer or electronic media as the Producing Party and the Receiving Party may hereafter
agree upon (the “Production Media”). Information that shall be identified in conjunction with
the Production Media shall include: (1) the production date, and (2) the confidentiality notation
required by the Protective Order entered in this case, if the Production Media contains
Confidential Information, as defined in the Protective Order. The face of the Production Media
or any correspondence accompanying the Production Media shall also contain the Bates Number
range(s) of the Documents on or in the Production Media. The Producing Party shall encrypt,
“lock”, or password protect the production. The Producing Party shall include with the
production the necessary password(s) and/or an explanation of how to decrypt the files.
8.
Document Unitization. When scanning paper documents into Document Images
as described in paragraph 4(a), they shall be unitized in a manner so as to maintain the
document(s) and any attachments, as they existed in their original state. For electronic
documents, the relationship of documents in a document collection (e.g., cover letter and
enclosures, e-mail and attachments, binder containing multiple documents, or other documents
where a parent-child relationship exists between the documents) shall be maintained through the
scanning or conversion process from native format to TIFF, provided however, that the Parties
shall only be required to present one level of parent/child relationship. If a document (including
any email) is produced, all non-privileged attachments to it shall be produced. Likewise, if any
attachment to a document is produced, all non-privileged portions of the email or other parent
document and all other non-privileged attachments to that parent email or other document shall
be produced. Document Images generated from attachments to e-mails stored in Native Format
shall be produced contemporaneously and sequentially immediately after the parent e-mail. For
hard copy documents, the parties do not need to provide metadata or text files aside from
identifying in the hard copy metadata field described in Paragraph 12 (Row 31) below that the
document is a hard copy document. Bates numbering of a parent document and any attachments
shall be sequential such that the parent document has the lowest value Bates Number when
compared to its attachment(s).
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9.
Duplicates. A Producing Party who has more than one identical copy of an
electronic document (i.e., the documents are actual duplicates) need only produce a single copy
of that document (as long as all family relationships are maintained). A Producing Party need
not produce the same electronically stored information in more than one form. A Producing
Party may de-duplicate its production only by custodian or non-custodial source unless otherwise
agreed. For purposes of de-duplication, the parties may tie-duplicate globally (e.g., across
custodians) using Relativity processing or an industry equivalent. To the extent reasonably
accessible, all custodians of de-duplicated items will be listed in the “All Custodian” field. A
Producing Party will make a reasonable attempt to use a uniform description of a particular
custodian across productions.
10.
follows:

Bates Numbering. Each Producing Party shall Bates number its production(s) as

(a)
Document Images. 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. The Bates Number shall contain a prefix associated with the Producing
Party’s name followed by 8 numbers (e.g., ABCD00000001). The Producing Party will use a
consistent prefix throughout the matter. Thus, once a party chooses a prefix, e.g. ABCD, it shall
not later produce a Document using a different prefix, e.g. EFGH unless necessary for
organizational purposes. No other legend or stamp will be placed on the Document Image other
than a confidentiality legend (where applicable), redactions, the Bates Number identified above,
and any other internal tracking number that the Producing Party may choose to use.
(b)
Native Format Documents. In order to preserve the integrity of Native
Format Documents, no Bates Number, confidentiality legend or internal tracking number should
be added to the content of the Native Document. Until such time as the Producing Party and the
Receiving Party meet and confer and address procedures for maintaining the confidentiality of
Native Format Documents(s) as required in Paragraph 7(d) above, any Native Format files shall
remain designated as “Confidential” as set forth in the Protective Order.
11.
File Naming Conventions. To the extent reasonably possible given vendor
procedures and ability, each Document Image shall be named with the unique Bates Number for
the document.
12.
Metadata. The Producing Party shall produce the metadata information described
below with each production and in the format described in Paragraph 6 above. For images
generated from native electronic documents, a Producing Party shall produce with each
production the following fields, where available and to the extent the information exists within
the document such that it may be extracted and included in the load file automatically and
without undue burden. The parties agree to use Eastern Standard Time as the time zone during
processing. The field naming conventions shall be the following unless otherwise agreed and
consistently applied for each production:
FIELD

DEFINITION
6

DOC TYPE

1

CUSTODIAN

2

ALL CUSTODIANS

3
4
5

BEGBATES
ENDBATES
BEGATTACH

6

7
8

9
10
11
12
13
14
15
16
17

(all Custodians/source locations
from which the document is
produced)
(to contain custodian information
about custodian/source for items deduplicated across custodians)

First Bates number of a family range
(i.e. Bates number of the first page
of the parent email)
ENDATTACH
Last Bates number of a family range
(i.e. Bates number of the last page of
the last attachment)
HASHVALUE
MD5 Hash or SHA Value for Edocs
LINK TO TEXT FILES
Link to text files containing
CONTAINING EXTRACTED extracted text should be included in
TEXT
the .dat file, but the extracted text
itself should not be included in the
.dat file.
LINK TO NATIVE FORMAT
DOCUMENTS
AUTHOR
Creator of document
LASTMODIFIEDBY
Person who has modified document
LASTMODIFIED
Last Modified date
(mm/dd/yyyy)
LAST MODIFIED TIME
Last Modified time
DATECREATED
Document creation date
(mm/dd/yyyy)
TIMECREATED
Document creation time

18

DOCUMENT FILE NAME
TITLE FROM DOCUMENT
PROPERTIES
INTFILEPATH

19
20

FILE EXTENSION
NATIVE PATH

21
22
23
24

FROM
TO
CC
BCC

GENERAL

GENERAL

GENERAL
GENERAL
GENERAL

GENERAL

EDOCS
GENERAL

GENERAL
EDOCS
EDOCS
EDOCS
EDOCS
EDOCS
EDOCS
EDOCS
EDOCS

Personal Folders\Board
Meetings\Board Meeting Minutes
for 7/1/03.msg
Relative path to the native version
of the ESI for the Native Format
Documents
Sender
Recipient
Additional Recipients
Blind Additional Recipients
7

EDOCS

EDOCS
EDOCS

EMAIL
EMAIL
EMAIL
EMAIL

25
26

SUBJECT
PARENTBATES

27

DATESENT
(mm/dd/yyyy)
TIMESENT
EMAIL RECEIVED DATE
EMAIL RECEIVED TIME
HARD COPY DOCUMENT

28
29
30
31

Subject line of Email
BeginBates number for the parent
email of a family (will not be
populated for documents that are
not part of a family)
Date sent

EMAIL
EMAIL

Time sent
Date received
Time received
Populated with a “Y” for any hard
copy documents

EMAIL
EMAIL
EMAIL
HARD COPY

EMAIL

13.
Search Terms. The Receiving Party and the Producing Party shall meet and
confer on search terms to be used to identify electronic documents collected that will be
reviewed for possible production. The Producing Party shall undertake a reasonable
investigation to identify potentially relevant search terms and propose them to the Receiving
Party. During the course of the litigation, the Receiving Party and the Producing Party may
modify the search terms by agreement. An initial list of search terms shall be agreed upon no
later than 30 days following rulings on any objections or motions for protective order filed by a
Producing Party relating to any request for production of Documents propounded by Plaintiffs.
14.
Databases. To the extent discovery requires production of discoverable electronic
information contained in a database, in lieu of producing the database, the Producing Party shall
produce a list of all fields within the database, and exemplar reports from the database in image
format as described in Paragraph 7. The parties shall meet and confer on search strategies to be
used to identify electronic records from such database(s) including whether it would be
appropriate and necessary to produce any user or administrative manuals for the database.
During the course of the litigation, the Receiving Party may request additional, non-duplicative
search strategies for identified databases.
15.
Redactions. During the pendency of the litigation, an electronic copy of the
original unredacted data shall be securely preserved in such a manner so as to preserve without
modification, alteration, or addition the content of such data including any metadata associated
therewith. For ESI that is redacted, OCR shall be performed on the redacted version of the
document and the corresponding OCR text files shall be produced. The OCR text file shall be
provided in ASCII text format and named with the Bates number of the first page of the
corresponding document followed by the extension ".txt." Such OCR files shall be provided as
document level files suitable for importing into Concordance. To the extent available, the parties
may apply redactions natively to Native Format Documents. When ESI is redacted and an OCR
text file is produced, the requirement to produce (extracted text metadata) in Paragraphs 6 and 12
above is superseded and extracted text will not be produced.
16.
Privilege Logs. The Producing Parties will produce privilege logs in Excel format
or a similar electronic format that allows text searching and organization of data. A Producing
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Party will produce a separate privilege log for each production within a reasonable time after the
production of documents for which a privilege is asserted. When there is a chain of privileged emails, the Producing Party need only include one entry on the privilege log for the entire e-mail
chain, and need not log each e-mail contained in the chain separately. Absent exigent
circumstances, the production of a privilege log for a custodian or his/her department shall be not
less than 20 days prior to that custodian’s deposition. The Producing Party and the Receiving
Party may modify the deadlines for production of privilege logs by agreement. The Parties
agree the following categories of documents do not need to be logged:
(a)
Communications with Outside Counsel. The Parties agree that no Party is
required to list on a privilege log communications between exclusively between a Party and its
outside counsel, an agent of outside counsel other than the Party, any non-testifying experts, or
with respect to information protected by Fed. R. Civ. P. 26(b)(4), testifying experts.
(b)
Outside Counsel Work-Product. The Parties agree that no Party is required
to list on a privilege log privileged materials or work product created or received by its outside
counsel, an agent of outside counsel other than the Party, any non-testifying experts, or with
respect to information protected by Fed. R. Civ. P. 26(b)(4), testifying experts. This provision
extends to the attachments of privileged or work product emails. This provision also extends to
work product created by the client at the request, instruction, or guidance of outside counsel.
(c)

Redacted Documents. Redacted documents need not be logged if:

(i)
The reason for the redaction and any other information that would
otherwise appear on a log is noted on the face of the document;
(ii)

The bibliographic information (to, from, date, subject, etc.) is not

redacted;
(iii)
each redacted document.

The Parties provide the metadata identified in Paragraph 12 for

17.
Inadvertent Disclosure. Any inadvertent disclosure or production of Privileged
ESI will not constitute a waiver of any such privilege by the disclosing Party. In the event that
the Receiving Party discovers that it has received Privileged ESI, it will immediately notify the
Producing Party. Upon request of the Producing Party, the Receiving Party will promptly destroy
or return to the Producing Party any Privileged Documents so identified and represent that such
destruction has been completed (or explain the extent to which such destruction was not
completed if not feasible). The Producing Party shall provide a privilege log for the
inadvertently produced documents within 10 days of being notified that the inadvertently
disclosed documents have been destroyed. The Receiving Party will not introduce the Privileged
ESI as evidence in this proceeding or any other case, proceeding or action, and will not otherwise
use or disseminate the Privileged ESI for any reason, including to argue that there has been a
waiver of any privilege as a result of the manner in which the Privileged ESI was produced.

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18.
Discovery and Admissibility. Nothing herein 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.
19.
Objections Preserved. Nothing in this ESI Protocol shall be interpreted to require
disclosure of relevant information protected by the attorney-client privilege, work product
doctrine, or any other applicable privilege or immunity. The Parties do not waive any objections
as to the production, discoverability, admissibility, or confidentiality of documents.
20.
Modifications. Any practice or procedure set forth herein may be varied by
agreement of the parties, confirmed in writing, where such variance is deemed appropriate to
facilitate the timely and economical exchange of documents or ESI.
21.
Costs. Each party will be responsible for its own production costs unless
otherwise ordered by the Court.
22.
Retention. The parties agree to take reasonable steps to ensure that relevant
electronically stored information is not permanently deleted in the ordinary course of business,
nor that it is altered.

DONE AND ORDERED in Tampa, Florida, this 8th day of October 2019.

________________________
SEAN P. FLYNN
UNITED STATES MAGISTRATE JUDGE

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