Federal Deposit Insurance Corporation v. Baker et al

Filing 20

ORDER Establishing Protocol for Production of Electronically Stored Information. Signed by Judge Richard W. Story on 4/17/13. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FEDERAL DEPOSIT
INSURANCE CORPORATION,
as Receiver for First Security
National Bank,
Plaintiff,
v.
DAN R. BAKER, et al.,
Defendants.

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CIVIL ACTION NO.
1:12-CV-4173-RWS

ORDER ESTABLISHING PROTOCOL FOR PRODUCTION
OF ELECTRONICALLY STORED INFORMATION
Having considered the proposed protocols regarding electronically stored
information (“ESI”) submitted by the Parties, as well as the arguments of
counsel presented at the hearing held April 8, 2013, the Court enters the
following Order establishing the protocol for the production of ESI.
1.

On December 4, 2009, First Security National Bank (“FSNB” or
“the Bank”) was closed by the Office of the Comptroller of the
Currency (“OCC”), and the Federal Deposit Insurance
Corporation, as Receiver for First Security National Bank, (“FDIC-

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R”) was appointed as Receiver. As used herein, “FDIC-R” or
“Plaintiff” means FDIC-R in its capacity as Receiver of FSNB, and
“Defendants” shall mean collectively the D&O Defendants.1
2.

This Protocol applies to the ESI provisions of FED. R. CIV. P. 16,
26, 33, 34, and 37. As used herein, the words “Party” or “Parties”
include Plaintiff and Defendants.

3.

In this Protocol, the following terms have the following meanings:
a.

“Metadata” means: (i) information embedded in a Native
File that is not ordinarily viewable or printable from the
application that generated, edited, or modified such Native
File; and (ii) information generated automatically by the
operation of a computer or other information technology
system when a Native File is created, modified, transmitted,
deleted, or otherwise manipulated by a user of such system.
Metadata is a subset of ESI.

1

Dan R. Baker (“Baker”), Ralph N. Barber, Jr. (“Barber Jr.”), Ralph N. Barber,
Sr. (“Barber Sr.”), John A. Conway (“Conway”), Jerry G. Gardner (“Gardner”), Carl
Howington (“Howington”), and John R. Smith (“Smith”). 3 
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b.

“Native File(s)” means ESI in the electronic format of the
application in which such ESI is normally created, viewed,
and/or modified. Native Files are a subset of ESI.

c.

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. In the absence of agreement of the Parties or order
of Court, a Static Image should be provided in Tagged
Image File Format (TIFF, or .TIF files). If a TIFF or .TIF
file cannot be created, then the Static Image should be
provided in Portable Document Format (PDF). If load files2
were created in the process of converting Native Files to
Static Images, or if load files may be created without undue
burden or cost, load files shall be provided as set forth in
Exhibit “A”.

2

A “load file,” as that term is used herein, refers to the file necessary to load
data into a reviewable database. A load file can, for example, specify what individual
pages belong together as a document, what attachments are included with a document,
where a document begins and ends, and what metadata is associated with a document.
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4.

The provisions set forth in Exhibit “A” shall govern the production
of ESI.

5.

FDIC-R or its contractors are in possession of certain ESI related
to FSNB (the “FSNB ESI”). The FSNB ESI includes the following
databases, a list of which is attached hereto as Exhibit “B”. FDICR represents that the FSNB ESI listed on Exhibit “B” is a complete
and accurate listing of all FSNB ESI obtained from FSNB by
FDIC-R. Subject to the terms of this ESI Protocol and the proposed
Protective Order, FDIC-R shall process and produce any and all
documents to Defendants in accordance with the procedure set
forth in this ESI Protocol in the format specified in Exhibit “A”.

6.

FDIC-R shall produce the FSNB ESI in two phases. Phase I will
focus on targeted sets of documents not amenable to search terms.
Phase II shall include additional designated ESI and search terms
based on the information produced in Phase I.

7.

In Phase II, Defendants shall collectively identify a reasonable set
of search terms to run across the FSNB ESI. Thereafter, the Parties
shall meet and confer in good faith to establish agreed search
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terms. In order to facilitate the good faith negotiation of search
terms between the FDIC-R and Defendants, FDIC-R shall provide
search term hit reports to Defendants which identify the number of
unique documents which hit upon each identified search term
requested by Defendants. FDIC-R shall also identify in the hit
reports the number of family members for the unique hits, and the
parties shall work in good faith to arrive at a mutually agreeable set
of search terms. If the Parties are unable to agree upon a final set of
search terms after conferring in good faith, any Party may raise the
issue with the Court by motion. After the Parties have agreed upon
search terms, or established search terms with the assistance of the
Court, FDIC-R shall apply the search terms to filter the ESI and
export to a Relativity database the documents captured by the
agreed upon search terms.
8.

Defendants shall be granted access to the Relativity database to
enable them to inspect documents and designate the documents
they wish to have produced. After Defendants review the
documents, Defendants may request a second round of email
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search terms utilizing the same protocol set out in Paragraph 7
hereof.3 FDIC-R shall produce non-privileged documents
designated for production by each Defendant, and log any
document reasonably believed not discoverable because it is
privileged, subject to the work product doctrine, non-responsive, or
otherwise not discoverable.
9.

Defendants are in possession of certain ESI, including, without
limitation, email and documents of various types. Defendants, at
their own expense, shall identify and produce non-privileged ESI
that is responsive to Plaintiff’s discovery requests in the format
specified in Exhibit A. Defendants shall log any document
reasonably believed to be not discoverable because it is privileged,
subject to the work product doctrine, or otherwise not discoverable
on the basis of a recognized protection or privilege.

10.

Producing any ESI for inspection shall be without prejudice to any
claim that such ESI is protected by the attorney-client privilege,

3

By agreement of the Parties, additional iterations of search terms may be run
to assure identification of relevant documents.
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work product doctrine, or any other applicable privilege or ground
for withholding production. Upon demand, the receiving party
shall return any such inadvertently produced ESI and all copies of
such ESI to the producing party. To the extent that the parties
disagree over the application of these principles to any such
production or challenge the privileged nature of such material, the
receiving party shall not make use of the material in question until
the matter is resolved by the Court.
11.

In accordance with Federal Rule of Evidence 502(b), no party shall
be deemed to have waived its right to assert the attorney-client
privilege and/or attorney work-product privilege (collectively
“Privilege”) if Privileged materials are inadvertently disclosed
despite the parties’ exercise of a reasonable standard of care with
respect to the production of such materials. Upon the discovery by
any party of an inadvertent disclosure of materials protected by
Privilege, in accordance with Federal Rule of Civil Procedure
26(b)(5)(B) that party shall promptly notify the other counsel in
writing of the disclosure, identify the document that contains such
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materials, and immediately take steps to preclude further
disclosure. In such an event, the party receiving the materials
protected by Privilege will return or destroy all copies of identified
materials and treat those materials as if they had been initially
excluded from production.
12.

The return or destruction of a document or materials over which
the producing party has asserted a claim of Privilege as set forth
above shall be without prejudice to the receiving party’s right to
seek an order from the Court directing the production of the
document on the ground that the claimed Privilege is invalid or
inapplicable; provided, however, that mere production of the
document or information in the course of this action shall not
constitute grounds for asserting waiver of the Privilege.

13.

All queries, searches, filters, document review, and other use of
Relativity shall be the work product of the attorney/firm working
in Relativity and shall not be available to any other party in this
case.

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14.

Nothing in this Protocol requires Plaintiff or Defendants to
produce again information that was produced to the other before
this action was commenced.

SO ORDERED, this 17th day of April, 2013.

________________________________
RICHARD W. STORY
United States District Judge

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Exhibit A to ESI Protocol
FDIC-R First Security National Bank v. Dan R. Baker et al.

Form of Production for Email
All electronic email from Windows-Based ESI (“WESI”) shall be
produced as Static Images complete with full text extracts and the following
fields of metadata, to the extent the metadata is available:
1.

Custodian (Name of Custodian from which file is being produced);

2.

Other Custodians (Name(s) of custodian(s) who had exact copy of
message before de-duplication);

3.

Author (FROM field);

4.

CC;

5.

BCC;

6.

Recipient (TO field);

7.

Subject

8.

MD5 Hash Value or Equivalent;

9.

Date Sent (Date the email was sent);

10.

Date Received (Date the file was received);

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11.

Time Sent (Time the email was received);

12.

Time Received (Time the email was received);

13.

File Type (Application used to create the file);

14.

Page Count;

15.

File Ext (Extension for the file);

16.

PST Name (File name);  

17.

Body Text (Extracted text);

18.

Bates Begin (Beginning Production Number);

19.

Bates End (Ending Production Number);

20.

Attach Begin (Beginning Attachment Range Number);

21.

Attach End (Ending Attachment Range Number).

Electronic mail shall be produced along with attachments to the extent the
message and/or any attachment is responsive, relevant and not privileged. As a
general matter, subject to specific review, a message and its attachments(s) shall
not be withheld from production based on the fact that one or more attachments
are privileged, irrelevant or non-responsive. To the extent the message and/or
one or more attachments is privileged or non-responsive, the responsive, non-

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privileged documents shall be produced along with placeholders indicating
whether the individual record was withheld as non-responsive or privileged.
Form of Production for Other WESI
All other WESI (including attachments to electronic mail) shall be produced as
Static Images complete with full text extracts and the following fields of
metadata to the extent the metadata is available:
1.

Custodian (Name of Custodian from which file is being produced);

2.

Other Custodians (Name(s) of custodian(s) who had exact copy of
file before de-duplication);

3.

Author;

4.

Doc Title (Title of file from properties);

5.

Doc Subject (Subject of file from properties);

6.

Created Date (Date the file was created);

7.

Created Time (Time the file was created);

8.

Last Modified Date (Date the file was last modified);

9.

Last Modified Time (Time the file was last modified);

10.

Last Saved By (Name of user who last saved the file);

11.

File Type (Application used to create the file);

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12.

Doc Type;

13.

Page Count;

14.

File Ext (Extension for the file);

15.

Path (Full path of the original location where the file was located);

16.

MD5 Hash (MD5 hash value of the original native file);

17.

Body Text (OCR for paper data or Extracted text for all ESI);

18.

Bates Begin (Beginning Production Number);

19.

Bates End (Ending Production Number);

20.

Attach Begin (Beginning Attachment Range Number);

21.

Attach End (Ending Attachment Range Number),

Form of Production for Spreadsheets
ESI in the form of spreadsheets shall be produced in native format. There will
be a static image placeholder within the final Bates-numbered set, stating that
the document will be produced natively. The file name of the placeholder will
be changed to reflect the static image’s Bates number for cross-reference
purposes. These documents will be accompanied with the appropriate load files
indicating a cross reference to the Bates numbered Static Image.

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Load Files
All WESI shall be produced along with an IPRO, Opticon, or Summation DII
load file indicating Bates numbers and document breaks. Metadata shall be
produced in Concordance DAT file format, DII format and summary text file
for Summation, or XML format and extracted full text shall be provided in TXT
file format at the document level. Non-Windows-Based Applications and Data
shall be subject to the same production requirements to the extent technically
and legally feasible.
Data Culling
The following file types shall be processed for production:

Extension

File Type Description

cab

Windows cabinet (data will be extracted and container file)

csv

Comma Separated Values file

dat

Data file

dbx

Outlook Express E-mail Folder

doc

Microsoft Word

doom

Microsoft Word Template

docx

Microsoft Word 2007

dxl

Lotus Notes Message File

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efax

Electronic fax documents

email

Outlook Express E-mail Message

eml

Outlook Express Saved Mail Messages files

emlx

Apple Mail email message

htm

Web based Hypertext Markup Language.File

html

Web based Hypertext Markup Language File

ics

Calendar items in Apple, Mozilla and Google

key

Apple Keynote presentation

maildb

MSN Mail file

mbox

Unix MAC file mailbox

mlm

Novell Group Wise saved email message file

mdb

Microsoft Access Database

mht

Multipurpose Internet Mail Extension

mim

Multipurpose Internet Mail Extension

mpp

Microsoft Project

msg

Outlook Mail Message

nsf

Lotus Notes (data will be extracted and container file discarded)

ost

Microsoft Outlook Offline folder file (data will be converted, extracted
and container file discarded)

pbx

Outlook Express message folder file

pdf

Portable Document Format File

pop

PopMail Messages file

pps

Microsoft PowerPoint Show file

ppt

Microsoft PowerPoint file

pptx

Microsoft PowerPoint 2007

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pst

Microsoft Outlook personal folder file (data will be extracted and
container file discarded)

rar

WinRAR compressed archive (data will be extracted and container file
discarded)

rtf

Rich Text Format

tif

Tagged Image Format

txt

Plain Text File

wks

Works Spreadsheet

wpd

Corel WordPerfect

wps

Microsoft Works Word Processor Document

xls

Microsoft Excel

xlsx

Microsoft Excel 2007

xml

Extensible Markup Language file

xps

XML Paper Specification

zip

Zipped Compressed File (data will be extracted and container file
discarded)

zipx

Extended Zipped Compressed File (data will be extracted and
container file will be discarded)

Duplicates
To avoid the production of more than one copy of a particular unique item, the
Parties shall use industry standard MD5 or SHA-1 hash values within (1) all
emails identified for production, and (2) all loose files identified for production.
The Parties will not de-duplicate attachments to emails against loose files.

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Other Methods to Streamline Discovery
The Parties agree to meet and confer in good faith about any other technology
or process that a producing party proposes to use to streamline the culling,
review and production of ESI (e.g., email threading, near de-duplication,
technology assisted review). The Parties shall make reasonable good faith
efforts to resolve any objections to the use of such technology or process before
seeking relief from the court.
Production Media
Documents shall be produced on external hard drives, readily accessible
computer or electronic media, e.g., CDs or DVDs, or by FTP upload
(“Production Media”). All Production Media should have the following four
directories: (1) IMAGES for the images; (2) DATA for the .dat and .opt files;
(3) TEXT for the extracted text/OCR files; and (4) NATIVES for the native
Excel files. The Production Media shall identify: (a) the producing party’s
name; (b) the production date; and (c) the Bates Number range of the materials
contained on the Production Media.

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Color
Where the original of a produced document is in color, and color is material to
the interpretation of the document, the receiving party may request that the
document be produced in color (whether electronic or paper).
Physical Documents
Documents that exist solely in physical hard-copy format shall be converted and
produced following the same protocols outlined above. The metadata shall
indicate document breaks and identify the custodian from whom the document
was collected. The “.tiff’ files shall be subject to an Optical Character
Recognition (“OCR”) process.
Inaccessible Data
The Parties need not collect documents stored on disaster recovery backup tapes
unless a showing of specific need is made.

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Exhibit B to ESI Protocol
FDIC-R First Security National Bank v. Dan R. Baker et al.
10157 First Security National Bank
DMS Scope of Data
S6 Email Database
S6 Email Database V2
S6 Fedline Advantage Domestic Incoming Wirelog Info 8
S6 Fedline Advantage Domestic Outgoing Wirelog Info 9
S6 Fedline Advantage International Incoming Wirelog Info 10
S6 Fedline Advantage International Outgoing Wirelog Info 11
S6 File Shares and Miscellaneous Documents 1
S6 Files and Departmental Shares Part 2 14
S6 FIS Harland LaserPro Customer Master Info 3
S6 FIS Harland LaserPro Loan Customer Capacity 5
S6 FIS Harland LaserPro Loan Origination Info 4
S6 Fiserv IPS Sendero AP Vendor Master Info 12
S6 Fiserv IPS Sendero AP Vendor Transactions Info 13
S6 Fiserv ITI Premier Certificate of Deposit Master Info 18
S6 Fiserv ITI Premier Customer Master Info 16
S6 Fiserv ITI Premier DDA and SAV Master Info 17
S6 Fiserv ITI Premier Loan Master Info 20
S6 Fiserv ITI Premier Safe Deposit Box Master Info 19
S6 Fiserv Web Director Core Banking Reports 6

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S6 Fiserv Web Director Statements 7
S6 Forensic Data 2
S6 Forensic Data Email
S6 Forensic File Inventories
S6 Pending ADP Payroll Info 21
S6 Scanned Documents

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