Brigiotta's Farmland Produce and Garden Center, Inc. v. United Potato Growers of Idaho, Inc. et al

Filing 274

ORDER FOR THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION re (227 in 4:10-md-02186-BLW-CWD) Case Management Order No.2; (235 in 4:10-md-02186-BLW-CWD) Case Management Order No.3. Signed by Judge B. Lynn Winmill. Associated Cases: 4:10-md-02186-BLW-CWD et al.(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IN RE: FRESH AND PROCESS
POTATOES ANTITRUST
LITIGATON

:
:
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___________________________________ :
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THIS DOCUMENT APPLIES TO:
:
ALL ACTIONS
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____________________________________:

Case No. 4:10-MD-2186-BLW
ORDER FOR
THE DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION

To facilitate the discovery of electronically stored information, the Court hereby
enters the following Order pursuant to the Case Management Orders No. 2 & 3 (ECF
Nos. 227 & 235) and Federal Rules of Civil Procedure 26 and 34, which binds all parties
and their counsel of record in this action.
I.

PRESERVATION OF ESI.
Preservation of all electronically stored information (“ESI”) shall be governed by

the Preservation Order signed by the Court on February 2, 2011 (ECF. No. 61). All
definitions in the Preservation Order are incorporated into this Joint Agreement.
II.

PRODUCTION OF DOCUMENTS.
A. Production of documents shall include production from both custodian and

non-custodian sources, subject to and without waiver of a party’s objections to the
opposing parties’ discovery requests or to any agreements reached in the parties’ meetand-confer process.
B. Production of documents from custodian sources will be limited to those
custodians identified in each party’s disclosures to satisfy the Preservation Order and any
supplemental disclosures of such custodians.

III.

PRODUCTION OF ESI.
A. Paper Documents in TIFF.
The producing party will provide OCR only for documents searched with agreed-

upon search terms per Section IV of this Agreement and Order. For any such documents,
the producing party shall, at the time it serves its initial search terms on the requesting
party pursuant to Case Management Order Nos. 2 & 3 (ECF Nos. 227 & 235), disclose to
the requesting party: 1) the estimated volume of paper documents the producing party
proposes to search using search terms; 2) categories or types of those documents (e.g.,
invoices, etc.); and 3) the efforts the party proposes to undertake in order to validate the
quality and reliability of the OCR of those documents, including confidence levels the
party considers acceptable if confidence levels are proposed as a means to assess quality
and reliability. The parties shall thereafter meet and confer regarding whether and under
what circumstances search terms may be applied to such documents. If the parties are
unable to reach agreement, the parties shall submit the matter to the Court for resolution.
Subject to and without waiver of a party’s objections to the opposing parties’
discovery requests or to any agreements reached in the parties’ meet-and-confer process,
each party will produce all responsive and non-privileged paper documents (i.e., those
documents not kept electronically by a party in the ordinary course of business) in singlepage TIFF format. Each TIFF format file of a paper document shall be marked with
Bates numbers on each page of the document. For paper documents for which OCR is
provided, the producing party shall provide document level text files, in accordance with
the provisions of Section III.B.3 below, that will be named according to the first Bates
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number of the corresponding paper document (e.g., TIFF file named EXAMPLE0001.tif
and OCR file named EXAMPLE0001.txt). The producing party shall identify the source
of the documents (e.g., hard copy, scanned documents, etc.). Load files for such
productions shall include data relevant to the individual documents, including Bates
numbering, designation of the custodian of the document, and OCR (where applicable).
No other metadata is required. No party shall convert existing ESI into paper documents
for production purposes.
B. Electronic Documents in TIFF.
Subject to Paragraph III.C below, each party will produce electronic documents in
TIFF format. Each TIFF format file of an electronic document must be created directly
from the original electronic document; a Party may not create a TIFF format file of an
electronic document by printing out paper copies of that electronic document and then
scanning the paper copy of it. If the producing party cannot adhere to the requirements of
this paragraph with regard to specific electronic documents, the producing party will
confer with the requesting party to determine a mutually agreeable production
methodology.
For each TIFF format file created from an electronic document, the producing
party will generate and preserve an MD5 hash value or SHA-1 hash value at the time of
ESI processing; this hash value must be produced to the requesting party if and when the
native format of the file is also produced to the requesting party. The producing party
will make reasonable efforts to preserve unchanged native files from the time the hash
values are created to the time, if ever, those native files or concomitant hash values are
produced to the requesting party.
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1. Technical Specifications for All TIFF Format Files.
All TIFF format files will conform to the following specifications:
a. All TIFF formatted files will be single page, black and white, dithered
(if applicable), Group IV TIFF at 300 X 300 dpi resolution and 8 ½ X
11 inch page size, except for documents requiring different resolution
or page size.
b. A unitization file, in standard format (e.g., Summation DII,
Concordance OPT, IPRO LFP or .csv file) showing the Bates number
of each page and the appropriate unitization of the documents, must
accompany each TIFF formatted file (beginning number, end number
of each document). The producing parties will use their best efforts to
unitize logically related documents appropriately.
c. The parties shall de-duplicate their ESI productions across custodians
(e.g., globally). No party may de-duplicate near duplicates. The
parties shall de-duplicate exact duplicates according to the following
requirements:
i. All custodians who were in possession of a deduplicated document must be identified in the
CUSTODIAN_OTHERS metadata field specified in
Section III.B.2.
ii. The parties agree that an email that includes content in
the BCC or other blind copy field shall not be treated as
a duplicate of an email that does not include content in
the BCC or other blind copy field, even if all remaining
content in the email is identical.
iii. Each party’s vendor will provide a written explanation
of their de-duplication methodology.
iv. If BCC is not used as one of the criteria to identify
duplicates, the BCC_Other field shall be populated with
the names shown in the BCC metadata field from the
email(s) that was de-duplicated. This does not relieve
parties from the obligation to comply with (ii) above.
d. Each e-mail and its attachment(s) must be produced as separate
documents.
e. All ESI should be processed with all hidden text (e.g., track changes,
hidden columns, comments, markups, notes, etc.) expanded, extracted
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and rendered in the TIFF file. When processing ESI for review and for
production in TIFF format, the producing party will instruct its vendor
to force off Auto Date and force on hidden columns or rows, hidden
worksheets, speaker notes, track changes, and comments. If the file
cannot be expanded, the native file shall be produced with the image
file.
2. Metadata for Electronic Documents.
The parties are not obligated to populate manually any metadata fields, except for
the CUSTODIAN and SOURCE fields, if such fields cannot automatically be extracted
from a document, and manually coded fields, except for CUSTODIAN and SOURCE
fields, shall not be included in the metadata import file. To the extent any ESI contains
information subject to a claim of privilege or any other applicable protection, its
respective metadata may be redacted or withheld. If metadata is redacted or withheld, the
producing party will so inform the requesting party and record the redaction on any
privilege log prepared by the producing party; redacted metadata shall be preserved.
Each party will produce metadata fields associated with each electronic document
produced in TIFF format (to the extent such metadata exists in the collected documents)
as follows:1
Field Name

DocType

No. of
Characters

Source

All

Unlimited

ProdBeg

All

Text

ProdEnd

All

Text

Description

Value

Name of party or third-party
producing the document

Single Value

Beg Bates Number. The document
ID number associated with the first
page of a document
End Bates Number. The document
ID associated with the last page of
a document

Single Value

1

Single Value

To the extent a producing party is unable to extract the agreed upon metadata, the parties
will meet and confer to resolve the issue.
And, to the extent a producing party is aware that certain metadata may have been altered
during a prior collection, the party will use its best efforts to describe the alterations and affected
field(s) when making the initial production of such data.
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Field Name

DocType

No. of
Characters

ProdBegAttach

All

Text

ProdEndAttach

All

Text

ParentBates

All

Text

AttachBates

All

Unlimited

AttachCount

All

Numerical

PgCount

All

Numerical

FileType

All

Unlimited

Sent_Date

Email

Sent_Time

Description
Begin Attachment Number. The
document ID number associated
with the first page of a Parent
Document
End Attachment Number. The
document ID number associated
with the last page of the last
attachment to a parent document
Begin bates number for the parent
email or e-file
Bates number from the first page of
each attachment
Number of attachment(s) to an
email or e-file
Number of pages in the document

Value
Single Value

Single Value

Single Value
Multi-Value

Single Value

MM/DD/YYYY

The record type of a document.
(e.g. Attachment, E-Mail, E-File,
Hardcopy, etc.)
The date an email was sent (GMT)

Single Value

Email

Unlimited

The time an email was sent (GMT)

Single Value

Recvd_Date

Email

MM/DD/YYYY

The date an email was received
(GMT)

Single Value

Recvd_Time

Email

Unlimited

The time an email was received
(GMT)

Single Value

Create_Date

All

MM/DD/YYYY

The date an email or e-file was
created (GMT)

Single Value

Create_Time

All

Unlimited

The time an email or e-file was
created (GMT)

Single Value

LastMod_Date

All

MM/DD/YYYY

The date an e-file was last modified
(GMT)

Single Value

LastMod_Time

All

Unlimited

The time an e-file was last modified
(GMT)

Single Value

LastSavedBy

All

Unlimited

Multi-Value

Call_Start

Email
Others

Unlimited

Value shows within the last saved
metadata field
Start date and time of a calendar or
appointment

Participants

Unlimited

Author

Email
Others
All

To

Email

Unlimited

Unlimited

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Names included in the meeting
invitation
Combine “Author” or “From” from email and e-files into one “Author”
field
Combine “TO” from e-mail and efiles into one “To” field.

6

Single Value

Single Value
Multi-Value
Multi-Value

Multi-Value

Field Name

DocType

No. of
Characters

Description
The “TO” field from an e-mail
header. Loose e-files have no “TO”
information.
Combine “CC” from e-mail and efiles into one “CC” field. The “CC”
field from an e-mail header. Loose
e-files have no “CC” information.
Combine “BCC” from e-mail and efile into one “BCC” field. The “BCC”
field from an e-mail header. Loose
e-files have no “BCC” information.
If BCC is not used as one of the
criteria to identify duplicates, the
BCC_ Other field shall be populated
with the names shown in the BCC
metadata field from the
document(s) that was deduplicated.
The subject of a document, (e-mail
or e-file). For e-files, this is the
metadata for the title of the
document.
The original file name of an
electronic document or an
attachment to an e-mail (e.g.
Outlook.pst; production.doc, etc.)
The custodian of a document (if
applicable)
If data was processed using global
deduplication, this field will be
populated with names of
custodian(s) from documents that
were de-duped.
The number of attachments to a
document

Value

CC

Email

Unlimited

BCC

Email

Unlimited

BCC_Other

Email

Unlimited

Subject

All

Unlimited

Orig_File_Name

All

Unlimited

Custodian

All

Unlimited

Custodian_Others

All

Unlimited

Attach_Count

All

Unlimited

AttachName

All

Unlimited

Name of attachment(s)

Multi-Value

File_Ext

All

Unlimited

The file extension of a document
(e.g. doc, nsf, rtf, pdf etc.)

Single Value

File_Size

All

Unlimited

The file size of a document
(including embedded attachments)

Single Value

MD5Hash

Edocs

Unlimited

Single Value

FilePath

All

Unlimited

NativeFile

All

256

The MD5 Hash value or a digital
signature that is automatically
generated for each electronic file
The full path to the file at its original
location
The full path to Excel, PowerPoint
or any other file type that is
produced in native

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Multi-Value

Multi-Value

Multi-Value

Single Value

Single Value

Multi-Value
Multi-Value

Single Value

Single value
Single Value

Field Name

DocType

No. of
Characters

Description

Value

TextPath

All

256

The full path to the OCR/Extracted
Text file on producing media

Single Value

The parties must produce all files attached to each email they produce to the
extent the attachments are reasonably accessible. To the extent a party produces
electronic documents attached to emails, a party will produce the metadata for those
attached electronic documents in accordance with paragraphs III.B.1 and III.B.2.
To the extent that the extracted text file accompanying a TIFF is corrupt or
otherwise unusable, the requesting party shall identify the problematic document by
Bates number and the producing party shall provide either corrected document level
extracted text or OCR text file as a replacement.
By producing metadata, the producing party affirms that such metadata came
from its records, with the exception of the manually-entered CUSTODIAN and SOURCE
fields.
3. Extracted Searchable Full Text.
An extracted searchable full text, document level (multi-page) file version will be
produced for each electronic document. Each extracted full text version will be named
according to the first Bates number of the corresponding electronic document. Text files
will be located in a directory named “TEXT” that is separate from the TIFF image file. A
path to the corresponding .TXT file shall be included as a field in the metadata import
file.
4. Applicable Load Files.
The parties shall work together to provide suitable load files. Individual parties
have the option to exchange sample load files in advance of the production deadline. If
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this option is exercised, the receiving party will have 14 days to respond with load file
change requests.
5. Bates Numbering.
The Bates number and any confidentiality designation should be electronically
branded on each produced TIFF image. The parties shall use reasonable efforts to ensure
that Bates numbers: (1) be unique across the entire document production; (2) maintain a
constant prefix and page length (0-padded) across the entire production; (3) contain no
special characters or embedded spaces; and (4) be sequential within a given document.
Attachments must immediately follow the parent record. Bates numbering for any
Attachments must sequentially follow the Bates number(s) for the parent record. Bates
numbering shall be alphanumeric with an 8-digit sequential numbering with or without
hyphenation, e.g., B00000001 or B-0000001. Bates numbering shall be endorsed on the
bottom, right-hand side of each page, with any confidentiality or other designations
endorsed on the bottom, left-hand side of each page, both in not less than 10-pt font.
Bates prefixes must be derived from a Party’s name and shall be consistent across all
documents a party produces in the litigation.
6. Embedded Files.
If a document has another file embedded in it, (e.g., a PowerPoint presentation
that has a spreadsheet embedded in it), the receiving party may request that the embedded
file be produced as standalone file. The producing party shall promptly respond in
writing if it cannot produce the requested embedded files as standalone files, after which
the parties shall meet and confer. A party will have no obligation to produce any

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embedded file as a standalone file if the embedded file was not processed as a standalone
file through the normal processes of the producing party’s vendor.

a. All embedded files produced under this procedure shall be produced
subject to the same requirements set forth in Section III above. Load
files for such embedded files shall refer to the parent document in
which the file was embedded.
b. The parties will not object to the authenticity or admissibility of an
embedded document so produced on grounds relating to the process
used to produce the embedded document. All other objections shall be
preserved, including, but not limited to, completeness.
7. Redaction.
If a file that originates in ESI needs to be redacted before production, the file will
be rendered in TIFF, and the TIFF will be redacted and produced. However, to the extent
that the text is searchable in the native format, the producing party will replace the
extracted text with OCR. For paper documents, the producing party will provide OCR
for the portion of the documents that have not been redacted. Parties will meet and
confer if it is determined that redaction should be done in Native rather than TIFF on
particular types or categories of documents. Documents that are produced in redacted
form shall be recorded on any privilege log prepared by the producing party, and the
producing party shall retain an unredacted original copy on file.
8. Privilege Logs.
a. Privilege Logs shall be provided containing the following information,
to the extent it is reasonably available:2
i.

a sequential number associated with each Privilege Log record;

2

If a party requires additional information about a particular log entry to evaluate the
privilege claim, the parties agree to make reasonable efforts to provide additional information.
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ii.
iii.

ii

a description of the contents of the document that, without
revealing information itself privileged or protected, is sufficient
to understand the subject matter of the document and the basis
of the claim of privilege or immunity; and

viii.

i

the title or subject of a document;

vii.

Applicable)

the identity of all persons designated as addressees, copyees or
blind copyees;3

vi.

Log #

the identity (and title, if practicable), of all persons who
authored, signed or otherwise prepared the document, and
identification of which of them are attorneys;

v.

Bates # (If

the Bates numbers of documents redacted;

iv.

Privilege

the date of the document;

the type or nature of the privilege asserted (i.e., attorney-client
privilege; work product doctrine).

Date

iii

Author

iv

From or
Sender
iv or v

Privilege
Recipient

CC

BCC

Title

Subject

Log

Privilege

Description
V

v

v

vi

vi

vii

viii

b. Each member of a document “family” (e.g., an email attaching a
memorandum or other document) that is withheld or redacted on the
grounds of privilege, immunity or any similar claim shall be
individually logged on the privilege log in succession following the
redacted or withheld parent document, but the withholding party need
log only a single family-level description of the redacted or withheld
family documents in the log entry for the parent if such description is
sufficient for the propounding party to evaluate the claim of privilege
for each redacted or withheld family member.
c. The following documents presumptively need not be included on a
privilege log:

3

Information regarding blind copyees need be provided only if the BCC metadata exists for
the document.
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i.

Communications exclusively between a party and its trial
counsel after commencement of the action.

ii.

Work product created by trial counsel, or by an agent of
trial counsel other than a party, after commencement of the
action.

d. In the interest of the parties’ time, and to minimize litigation costs, the
parties shall in good faith negotiate the exclusion of any other
categories of documents that while technically responsive and
privileged are relatively irrelevant to the issues in the litigation.
9. Encrypted or Password-Protected ESI.
For any ESI that exists in encrypted format or is password-protected, the
producing party will undertake reasonable efforts to provide a means to gain access to
those native files (e.g., by supplying passwords or engaging a vendor to employ
“password cracking” technology, with any costs to be borne by the producing party).
10. Production Media.
The producing party will use an appropriate electronic media (CD, DVD, or hard
drive) for its ESI production. The producing party will label the physical media with the
producing party, production date, media volume name, and document number range. In
the interest of efficiency, in certain circumstances and within reason, the producing party
may produce documents via email or via an FTP site, to be promptly followed by a
formal delivery of production media.
C.

Production of Specific Native Format Documents.

The parties agree as follows with respect to native format documents:
1. Parties to Meet and Confer Prior to Production of Database ESI.
The parties anticipate producing transactional and other types of data maintained
in electronic databases. Unless such material has already been converted to another
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usable form or contains privileged information or information subject to any other
applicable protection, database ESI (e.g., MS-Access, SAP, etc.) shall be produced in a
format to be agreed upon by the parties prior to production.
Nothing in this protocol prevents a party, if it elects to do so, from producing
database ESI as .TIFF images in addition to any other agreed-upon format, provided
however, that for spreadsheet files (e.g., Excel), the TIFF versions shall include all
hidden rows, cells, worksheets, formulaic metadata, as well as any headers or footers
associated with the produced native spreadsheet file.
2. Spreadsheet, Slide Presentation, and Multimedia Audio/Video ESI
Shall Be Produced in Native Format.
Unless such material has already been converted to another usable form or
contains privileged information or information subject to any other applicable protection,
spreadsheet, slide presentation (e.g., Excel and Power Point, etc.), multimedia
audio/video files (e.g., .wav, .mpeg, .avi), and comparable ESI that cannot render TIFF
images or for which rendering TIFF images is unduly burdensome shall be produced in
native format.
3. Other Native Format Documents.
No requesting Party may seek to compel the production of native format files of
electronic documents not included in paragraphs III.C.1 or III.C.2 on a wholesale basis.
A Party may request native format files of electronic documents from a producing Party
if:


The TIFF format file is difficult to read as formatted or is illegible;



The native format file would be necessary to view embedded
information that does not otherwise appear in the TIFF formatted file;

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

The native format file is necessary to understand or verify the
information contained in the TIFF formatted file; or



For other good cause shown.

If at any time a producing Party deems a requesting Party’s demand for native
format documents to be excessive, the request for native documents will be carried out
under the following protocol:


30 days before the close of discovery or 14 days after the production,
whatever is later, or at any time for good cause shown, the requesting
Party will identify in writing those native format files for which it
seeks production and the basis for seeking each native format file.



Within fourteen (14) days of receiving such a request, the producing
Party will respond in writing, setting forth its position on the
production of the requested native format files.



If the Parties are unable to agree as to the production of the requested
files in native format, the Parties will submit the matter to the Court
or, upon agreement, a special master.



If the requesting Party believes that the explanation supporting its
need to review native format files will reveal work product, the
requesting Party may, at its discretion, submit such explanation
directly to the Court or special master for in camera review.



The Court or special master will have the discretion to share with the
producing Party any explanation supporting the requesting Party’s
need to review native format files that is submitted for in camera
review.

4. Production Format of Native Documents.
The following format shall govern the production of native documents other than
database ESI. Each electronic file produced in native format will be assigned a unique
Bates number within the litigation database. The producing party will include a singlepage TIFF image branded with this unique Bates number and the phrase “PRODUCED
IN NATIVE ONLY” branded in the center of the page. The producing party will also
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brand any confidentiality or similar endorsements that apply to the native file in the lower
left-hand corner of the TIFF image. Native file names will be identical to the assigned
Bates number, followed by the file extension, e.g. B00000001.xls, and placed in a folder
called NATIVES, which is parallel to the Data, Images and Text folders on the
production volume structure.
IV.

IDENTIFICATION OF RESPONSIVE DOCUMENTS AND ESI.
A.

Search Terms & Methodology. The exchange of search terms is

governed by the provisions of Case Management Order Nos. 2 & 3 (ECF Nos. 227 &
235). The parties shall disclose whether they intend to use search terms and if so,
disclose to propounding party data sources to be searched. Parties intending to
electronically search their ESI using a methodology other than through use of search
terms shall disclose such methodology to the propounding party prior to employing it.
Further, parties intending to use search terms to search their ESI (“Search-Term Parties,”
or “Search-Term Defendants”) shall meet and confer with the propounding party and use
reasonable best efforts to reach agreement on the search methodology, terms to be used,
and the categories of document requests to which such search methodology shall and
shall not be applied.
1. Globally Applicable Search Terms.
Search Term Defendants, by certain sub-groups enumerated below, may elect to
submit to the requesting parties a set of proposed global search terms with their initial list
of party specific terms. Plaintiffs must respond to any proposed global search terms no
later than 7 days from the date Search-Term Defendants submit such list. The parties
then agree to meet and confer to finalize the global terms. If this meet and confer process
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exceeds 30 days from the date Search-Term Defendants initially submitted the global
terms, the deadline to produce documents will be extended one day for each additional
day of delay. The Search-Term Defendant sub-categories may include: cooperative
defendants, marketing companies, processing companies, packing sheds, growers,
shippers and individuals.
2. Search-Term Parties’ Obligations Regarding Proposed Search
Terms.
Pursuant to CMO Nos. 2 & 3, the Search-Term Parties shall serve the
propounding party with a list of terms they plan to use to search for responsive ESI. In
accordance with the following subparts, prior to serving their proposed search terms on
the propounding party and throughout the meet and confer process, the Search-Term
Parties shall validate any proposed and agreed-upon terms and make reasonable inquiries
regarding the terms and phrases used by such Search-Term Parties to refer to the subject
matter reflected in the propounding party’s document requests. At the time Search Term
Parties finalize search terms, they shall certify that they made a reasonable efforts to:
a. Test the accuracy and efficacy of the proposed search terms. Such
iterative testing shall include, but is not limited to:
i.

generating and reviewing search term reports;

ii.

experimenting with a variety of search terms and search syntax
to capture potentially relevant data that may be missed by the
terms;

iii.

reviewing a vendor-generated statistically significant random
sample of data captured by the searches;

iv.

developing additional searches based on the relevant
documents captured by the initial round of search hits to help
ensure that relevant data is captured; and

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v.

reviewing a vendor-generated statistically significant random
sampling of the data not captured by the terms to confirm the
efficacy of the searches.

b. Identify, disclose to the propounding party, and include in their searchterm proposals:
i. other terms, phrases or acronyms used by the parties and/or
their employees to refer to the subject matter reflected in the
propounding party’s document requests;
ii.

other terms, phrases or acronyms that the parties and/or their
employees used to refer to other parties or other members of
UPGI, United II or UPGA; and

iii.

special terms, phrases or acronyms used by the parties and/or
their employees to refer to potato supply, potato supply
management, and/or potato pricing, grading, marketing or
processing.

c. Identify and disclose to the propounding party any email addresses
other than their assigned business email address that custodians may
have used to send emails to or receive emails from employees of other
parties or other members of UPGI, United II or UPGA, including
personal email addresses, such as those for yahoo, gmail, and hotmail
accounts, among others.
At the completion of document production, the Search-Term Parties shall certify
that they made reasonable efforts to test the accuracy and efficacy of the search terms
throughout the review process, including sampling based on statistically significant
random samples drawn across the corpus of collected documents, consistent with
paragraph IV.A.2.a above.
3. Revisions to Agreed-Upon Search Terms.
The exchange of search terms is governed by the provisions of Case Management
Order Nos. 2 & 3. For good cause shown, or after sufficient demonstration that the
agreed terms were over- or under-inclusive, the Requesting Party and the Producing Party

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may modify the search terms or search strategies during the course of the litigation
subject to agreement of the parties or Court order.
4. Obligation to Produce Responsive Documents.
To the extent that any Search-Term Party identifies any responsive documents not
hit upon by key word searches, any such non-privileged documents must be produced,
subject to any agreements reached in the parties’ meet-and-confer process regarding the
parties’ objections to discovery requests.
B.

Queries will be run against all ESI collected to which the parties agree

search terms will be applied.
C.

Queries of email will be run against email and attachments (i.e., both

emails and their attachments shall be searched). If either an e-mail or any of its
attachment is responsive and non-privileged, both the email and all of its attachment will
be produced, subject to any agreements reached in the parties’ meet-and-confer process
regarding the parties’ objections to discovery requests.
D.

All queries will be run in a non-case sensitive manner, except as provided

in the agreed-upon search terms or otherwise agreed to by the parties.
E.

Hyphenation of terms will not affect search results (e.g., a query for “all

inclusive index” will return “all-inclusive index” and vice versa).
F.

If the search syntax required by the tool being used is different from the

search syntax agreed to by the parties, the actual syntax used for the search and the tool
used will be identified to the requesting party prior to conducting the search.
G.

Subject to the parties’ agreement or Court Order regarding the scope of

Plaintiffs’ or Defendants’ document requests, agreed-upon search terms shall be used to
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identify ESI responsive to Plaintiffs’ or Defendants’ discovery requests, and produced if
responsive and non-privileged subject to and without waiver of a party’s objections to the
opposing parties’ discovery requests and to any agreements reached in the parties’ meetand-confer process.
H.

With respect to ESI, the fact that a document is captured by application of

agreed-upon search terms to the ESI does not mean that such document is responsive to
any propounded discovery request or otherwise relevant to this litigation. Propounded
discovery requests shall govern the scope of documents to be produced, subject to any
agreements reached in the parties’ meet and-confer process with respect to the parties’
objections. For document requests that the parties have agreed can be addressed by
search terms:
1. a party’s obligation to conduct a reasonable search for documents
in response to propounded discovery requests shall be deemed to
be satisfied by reviewing or otherwise producing documents that
are captured by use of the agreed-upon search terms and
methodology to be applied to ESI; and
2. a party shall have no obligation to produce any documents, except
as otherwise agreed to in writing by the parties, that are not either
(a) captured by the agreed-upon search terms and methodology to
be applied to ESI; or (b) otherwise identified or known by the
party to be non-privileged and responsive to a specific propounded
discovery request, or which the party later identifies or comes to
know is non-privileged and responsive.
I.

The parties shall review (e.g., may not apply search terms) textual PDF

and TIFF files (including textual PDF and TIFF files stored within RAR or ZIP files) and
any scanned or faxed textual files in another format (if the party regularly scans
documents or receives electronic copies of facsimiles in another format in the ordinary

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course of business) that are identified by the parties’ respective vendors as files that
cannot be programmatically searched by the application of agreed-upon search terms.
V.

CONFIDENTIALITY.
The parties shall have the right to designate documents according to the terms of

the Protective Order entered by the Court.
VI.

DISPUTE RESOLUTION.
To expedite discovery of relevant electronic evidence and reduce costs, the parties

will discuss and attempt in good faith to resolve all issues before bringing them to the
Court. This responsibility shall be continuing, unless otherwise ordered by the Court.
VII.

OBJECTIONS AND RIGHTS PRESERVED.
A.

Nothing in this Agreement and Order shall be interpreted to require

disclosure of irrelevant information, or relevant information protected by the attorneyclient privilege, work-product doctrine, or any other applicable privilege or immunity.
Nothing in this agreement precludes any party from seeking cost shifting. Subject to
III.B.6.b, the parties do not waive any objections as to the production, discoverability,
admissibility, or confidentiality of ESI through this Agreement and Order. All objections
to the discoverability or admissibility of any document or data are preserved and may be
asserted at any time, except as provided in III.B.6.b.
B.

Nothing in this Agreement and Order waives the right of any party to

petition the Court for an Order modifying its terms upon sufficient demonstration that
compliance with such terms is either (1) unexpectedly and unreasonably burdensome, or
(2) impossible, provided, however, that counsel for such party must first meet and confer
with the counsel for the opposing party and the parties shall use reasonable best efforts to
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negotiate an exception from or modification to this Agreement and Order prior to seeking
relief from the Court.
VIII. TERMS OF AGREEMENT.
This Agreement shall continue in full force and effect until further order of the
Court or until this litigation is terminated by a final judgment.

DATED: August 31, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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