Disney Enterprises, Inc. et al v. Hotfile Corp. et al

Filing 67

NOTICE by Columbia Pictures Industries, Inc., Disney Enterprises, Inc., Hotfile Corp., Anton Titov, Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Warner Bros. Entertainment Inc. NOTICE OF FILING JOINT PROPOSED ESI PLAN (Attachments: # 1 Exhibit JOINT PROPOSED ESI PLAN)(Stetson, Karen)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,
vs.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.

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Case No. 1:11-cv-20427-UU
JOINT PROPOSED ESI PLAN

After conferring on these matters, plaintiffs Disney Enterprises, Inc., Twentieth Century
Fox Film Corporation, Universal City Studios Productions LLLP, Columbia Pictures Industries,
Inc., and Warner Bros. Entertainment Inc. and defendants Hotfile Corp. and Anton Titov
(collectively, “the parties”) have agreed to the following parameters regarding the discovery of
electronically stored information (“ESI”) and hard copy production format in this case.
The parties understand that agreements related to electronically stored information are
not customarily submitted as standalone filings. However, the parties’ joint Rule 26(f) report,
filed April 15, 2011, indicated to the Court that the parties were close to reaching an agreement
pursuant to Fed. R. Civ. P. 26(f)(3)(C), and that they would file such agreement with the Court
upon execution. The parties are hereby submitting the referenced agreement so that the Court, if
it so desires, can incorporate it with the parties’ April 15, 2011 report pursuant to Rule 26(f).

A. Identification of Responsive Documents
1.

Custodians. Following the exchange of requests for production, the parties agree

to meet and confer regarding the custodians for whom the producing party will search and
produce custodial documents and ESI. The parties agree to disclose the custodians whose
documents they intend to search for responsive documents, and to cooperate in good faith in
exchanging information and input regarding such selection.
2.

Backup Media: The parties agree that they shall not be required, during the initial

collection of documents, to collect documents from backup media. The parties agree during
discovery to meet and confer concerning whether good cause exists to collect documents from
backup media for any particular custodian(s) or repository(ies). In the event the parties are
unable to reach agreement and a party specifically requests that the other party collect documents
from backup media, the responding party’s obligations in responding to such request shall be
governed by the Federal Rules of Civil Procedure. This agreement is without prejudice to the
ability of either party to take any position with respect to whether either party’s backup media
are reasonably accessible within the meaning of Fed. R. Civ. P. 26(b)(2)(B).
3.

Method for collecting documents: The parties agree during discovery to meet and

confer in good faith concerning whether, for a limited subset of particular custodians, good cause
exists for the producing party to collect custodian documents by means of forensic images to be
reviewed by counsel prior to production.
4.

Keyword Searching: With respect to the documents and emails sought with

respect to specific subject matter(s) and collected from the custodians referenced in Paragraph
(A)(1) supra, the parties agree that each party may use reasonable keyword-based searching
methods and algorithms to limit its collection and search. However, use of keyword searching

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cannot be used as a means to avoid a party’s obligation to search for and/or produce documents
or emails it knows or has reason to believe exist, or to search for and produce documents or
emails whose responsiveness does not turn on their relationship to a specific subject matter.
B. Format for Production of Electronically Stored Information
ESI shall be produced, as far as reasonably possible, in the following formats:
1.

Tiff Format. The parties will produce all documents as Group IV single page tiff format

files imaged at 300 dpi.
2.

Unique IDs. The parties will name each tiff file with a unique name matching the Bates

number labeled on the corresponding page. Each tiff will contain a branded Bates number
located on the lower right side of each image. Bates numbers shall not contain spaces between
the prefix and the number.
3.

Image Load File. The parties will provide an image load file (Opticon file) that contains

document boundaries.
4.

Document Text. For documents that were originally stored as native electronic files and

which do not have redactions, the extracted, full text from the body of each document will be
produced in a separate .txt file named for the beginning Bates number of the document. For
documents that were originally stored as native electronic files and which have redactions, OCR
text will be produced from the redacted image(s) associated with each document as a separate
.txt file for each page of the document named for the Bates number of the page, in the same
directory as the corresponding page of the document. Any redacted, privileged material should
be clearly labeled to show the redactions on the tiff image.
5.

Special File Types. Upon specific request by a receiving party, files created by software

programs for which a TIFF image may be inadequate (such as Excel or other spreadsheet

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programs, PowerPoint or other presentation programs, and Word Processing documents) shall
also be produced in native format. The produced file should be named with the Bates number of
the first page of the corresponding tiff production of the document (e.g., “ABC00001.xls”).
6.

De-Duplication. The parties will perform duplicate consolidation, producing a single

unique copy of a given e-mail message and its attachments, or standalone file, with references to
each custodian/location in which a copy originally appeared as set forth in the metadata
specifications below. Documents shall be consolidated both vertically (within custodial data
sets) and horizontally (across custodial data sets). In the case of duplicates maintained by
custodians in different time zones, it is understood that the image and date/time metadata will
reflect an arbitrary custodian’s local time zone. Information regarding documents not produced
due to de-duplication efforts may be provided by means of a “Duplicate Log” metadata field for
produced documents, as described in Paragraph 7 below, or by means of a de-duplication report
providing metadata field information for custodians/datasets that possessed copies of files that
were not produced.
7.

Document Metadata. The parties will produce extracted metadata for each document in

the form of a .dat file, and include the following fields, except that if the field contains privileged
information, that privileged information may be redacted. Any redactions for privilege reasons
shall be recorded on a privilege log to include the following information shown in the table
below, as applicable:
FIELD NAME
Bates_Begin
Bates_End
Attach_Begin

DESCRIPTION
The Bates label of the first page of the document
The Bates label of the last page of the document
The Bates label of the first page of a family of
documents (e.g., email and attachment)

Attach_End

The Bates label of the last page of a family of
documents

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Record_Type
Time_Zone
Sent_Date
Sent_Time
Create_Date

The record type of a document (e.g. email,
attachment, efile, etc.)
The time zone used to process the document
For email, the sent date of the message
For email, the sent time of the message
For efiles or attachments, the document’s creation
date or operating system creation date

Create_Time

For efiles or attachments, the document’s creation
time or operating system creation time

DateLastMod

For efiles or attachments, the document’s last
modified date or operating system last modified date

TimeLastMod

For efiles or attachments, the document’s last
modified time or operating system last modified time

Email_Subject

The subject of an email or the filename of an
attachment or stand-alone e-file

Author
From
To

The author of a stand-alone efile or attachment
The sender of an email message
The recipients of an email message, in a semi-colon
delimited, multi-value list

CC

The copyee(s) of an email message, in a semi-colon
delimited, multi-value list

BCC

The blind copyee(s) of an email message, in a semicolon delimited, multi-value list

Custodian

The custodian in whose file the document was found,
and the custodians of any duplicates, in a semi-colon
delimited multi-value list
The custodian name plus email folder information or
native file path and filename, for the document and
all duplicates, in a semi-colon delimited, multi-value
list. In the alternative to producing this metadata
field for produced documents, the parties may also
provide a de-duplication report providing metadata
field information for custodians/datasets that
possessed copies of files that were not produced due
to de-duplication efforts.
The calculated MD5 hash value of the document
The file path to the location of the native file if
produced natively
The confidentiality designation, if any, for the
document pursuant to any protective order in the case

Duplicate Log

MD5
Native_File
Conf_Desig
Pagecount

Number of pages in document

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File_Name

The file name of an attachment to an email or a loose
document not attached to an email

File_Ext

The file extension of an attachment to an email or a
loose document not attached to an email

8.

Retention of Original Documents. Each party agrees to retain native electronic source

documents for all ESI produced in this litigation. Each party agrees to use reasonable measures
to maintain the original native source documents in a manner so as to preserve the metadata
associated with these electronic materials as it existed at the time of the original production in the
event the review of such metadata becomes necessary. Notwithstanding this, each party
understands and acknowledges that producing the metadata may effect some changes in the
metadata itself, and agrees that any metadata change that results from production to requesting
parties is permissible.
C. Non-Production of Certain Electronically Stored Information
The parties agree that it would be unnecessarily burdensome to produce certain forms of ESI,
and will not do so. These include random access memory, with the exception of server log data,
which is addressed in Paragraph E below. These also include voicemail messages that are not
saved in, and cannot be readily converted to, transferrable formats such as email.
D. Production of Instant, SMS, and MMS Messages
The parties agree that to the extent any instant messages or chats of relevant custodians have
been saved, such instant messages and chats will be searched and produced. This agreement
does not address the obligations of the parties to initiate logging of chats or instant messages
going forward; however, the parties will meet and confer in good faith concerning the treatment
of such ESI, if any.

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The parties agree that it would be unnecessarily burdensome to produce SMS and MMS
messages for every custodian, and therefore agree that they will not do so. However, the parties
agree to meet and confer concerning whether good cause exists to search and produce SMS and
MMS messages, as well as other information from mobile handsets that is not duplicative of data
stored on email servers, from a limited subset of custodians.
E. Production of Databases and Related Information
The parties disagree regarding the extent to which databases will be produced in this case. In
the event and to the extent such production is ordered or agreed upon, databases should be
produced in a standard recoverable backup format, such as mysqldump or comparable format.
Defendants are currently preserving certain server log data. The parties shall meet and confer
regarding the production of server log data, as well as the retention and production of data in any
particular dynamic fields in databases or log files.
F. Production of Source Code
The parties disagree regarding whether source code will be produced in this case. In the
event and to the extent such production is ordered or agreed upon, the parties shall meet and
confer regarding the format of such production. Any such production would also be subject to
any provisions of the protective order governing source code.
G. Production of Paper Documents
Hard copy documents shall be produced, as far as reasonably possible, in the following
formats:
1.

Tiff Format. The parties will produce all documents originally maintained in paper files

as Group IV single page tiff format files imaged at 300 dpi. They will name each tiff file with a
unique name matching the Bates number labeled on the corresponding page. Each tiff will

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contain a branded Bates number located on the lower right side of each image. Bates numbers
shall not contain spaces between the prefix and the number.
2.

Image Load File. The parties will provide an image load file (Opticon file) that contains

document boundaries.
3.

Document Text. The OCR text will be produced from the image(s) associated with each

document as a separate .txt file for each page of the document named for the Bates number of the
page, in the same directory as the corresponding page of the document.
4.

Document Metadata. The parties will produce data for each document in the form of a

.dat file including the following fields:
FIELD NAME
Bates_Begin
Bates_End
Attach_Begin

DESCRIPTION
The Bates label of the first page of the document
The Bates label of the last page of the document
The Bates label of the first page of a family of
documents (e.g., email and attachment)

Attach_End

The Bates label of the last page of a family of
documents
The custodian in whose file the document was
found, and the custodians of any duplicates, in a
semi-colon delimited multi-value list
Number of pages in document

Custodian

Pagecount

5.

Unitization of Documents. In scanning paper documents, distinct documents should not

be merged into a single record, and single documents should not be split into multiple records
(i.e., paper documents should be logically unitized). The parties should re-unitize improperly
unitized documents.
6.

Parent-Child Relationships. Parent-child relationships (the association between an

attachment and its parent document) should be preserved.

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H. Scope of Agreement
The Parties agree that this Plan shall govern the conduct of ESI and hard copy document
production with respect to the issues addressed in this Plan. The parties may seek to alter the
scope and requirements of this Plan for good cause by Order of the Court. Nothing in this Plan is
intended to waive any privileges or, except as specifically provided herein, to impose obligations
different from those contained in the Federal Rules of Civil Procedure.

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Dated: May 12, 2011

By:

/s/ Luke C. Platzer
Luke C. Platzer
JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W., Suite 900
Washington, DC 20001
Phone: [phone]
Fax: [phone]
GRAY-ROBINSON, P.A.
Karen L. Stetson (FL Bar No. 742937)
1221 Brickell Avenue
Suite 1600
Miami, FL 33131
Phone: [phone]
Fax: [phone]
Attorneys for Plaintiffs

By:

/s/ Anthony P. Schoenberg
Anthony P. Schoenberg
RASCO KLOCK
Janet T. Munn (FL Bar No. 501281)
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]
FARELLA BRAUN + MARTEL LLP
Roderick M. Thompson (Pro Hac Vice)
Anthony P. Schoenberg (Pro Hac Vice)
Andrew Leibnitz (Pro Hac Vice)
Deepak Gupta (Pro Hac Vice)
Janel Thamkul (Pro Hac Vice)
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]
Attorneys for Defendants

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