Pragmatus AV, LLC v. Citrix Systems, Inc.

Filing 55

ORDER Regarding Electronically Stored Information. Signed by Magistrate Judge Andrea M. Simonton on 7/18/2012. (AMS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-62484-CIV-SEITZ/SIMONTON
PRAGMATUS AV, LLC,
Plaintiff,
vs.
CITRIX SYSTEMS, INC.,
Defendant.
___________________________________/
ORDER REGARDING ELECTRONICALLY STORED INFORMATION
Based upon the Parties’ Joint Notice (DE # 50), and a review of the record, 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 b y s t i p u l a t i o n o f t h e p a r t i e s for good

cause. If the parties cannot resolve any disagreements regarding any modifications, the parties shall
submit their competing proposals and a summary of their dispute pursuant to all applicable rules or
standing orders.
3.

Costs will be shifted for disproportionate ESI production requests pursuant to

Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory discovery tactics
will be cost-shifting considerations.
4.

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

efficiency and reduce costs will be considered in cost-shifting determinations.
5.

General ESI production requests under Federal Rules of Civil Procedure
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34 and 45 shall not include metadata absent a showing of good cause. However, fields showing the
date and time that the document was sent and received, as well as the complete distribution list, shall
generally be included in the production.
6.

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 parties must propound specific email production requests.
7.

Email production requests shall only be propounded for specific issues,

rather than general discovery of a product or business.
8.

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. The exception to paragraph 8 is that Citrix will
produce emails related to its knowledge and/or notice of the patents-in-suit or related patents, if any
such emails exist after a reasonable search, by August 14, 2012, so that Pragmatus may review
these materials in advance of the September 14, 2012, deadline to amend the pleadings.
9.

The parties shall cooperate to identify the proper custodians, proper search

terms and proper timeframe.
10.

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 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
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this paragraph, the requesting party shall bear all reasonable costs caused by such additional
discovery.
11.

Each requesting party shall limit its email production requests to a

reasonable set of search terms per custodian per party to be agreed upon by the parties prior to any
searching being conducted. The parties may jointly agree to additional search terms without the
Court’s leave. The Court shall consider contested requests for 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.
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 is not a waiver in the pending case or in any other
federal or state proceeding.
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14.

The mere production of ESI in a litigation as part of a mass production shall

not itself constitute a waiver for any purpose.
15.

In the event that production of an ESI document would be impracticable, the

producing party shall have the option of producing such document in native format. In all other
instances, after initial production of ESI, a party must demonstrate a particularized need for
production of that ESI in its native format. In the event that a receiving party requests production of
native format ESI, the producing party and the receiving party shall negotiate in good faith about
the timing, cost and method of such production. However, nothing in this Paragraph, except
pursuant to 16, is to be read as requiring any producing party, absent agreement or court order, to
produce ESI in native format. No document produced in native format shall be intentionally
manipulated to change the appearance or substance of the document prior to its collection.
16.

Notwithstanding Paragraph 15, to the extent a producing party produces

video, animation, audio files or Excel files such documents shall be produced in their native
format.
17.

To the extent identical copies of an ESI document (i.e., documents with

identical hash values) appear in responsive documents, the producing party need only produce one
such identical copy for that source.
DONE AND ORDERED this 18th day of July, 2012.

__________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE

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