Garner v. Boehringer Ingelheim Pharmaceuticals, Inc. et al

Filing 37

ORDER GOVERNING THE FORMAT OF DOCUMENT PRODUCTION. Signed by Chief Judge David R. Herndon on 7/24/2012. (Attachments: # 1 Exhibit A)(slj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
PAUL GARNER,
Plaintiff,
vs.
BOEHRINGER INGELHEIM
PHARMACEUTICALS, INC.,
BOEHRINGER INGELHEIM
CORPORATION, BOEHRINGER
INGELHEIM USA
CORPORATION, AND
BOEHRINGER INGELHEIM
VETMEDICA, INC.,

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Cause No. 3:12-cv-612

Defendants.

ORDER
GOVERNING THE FORMAT OF DOCUMENT PRODUCTION
WHEREAS, Plaintiff and Boehringer Ingelheim Pharmaceuticals, Inc. have
met and conferred on the procedures and format relating to the production of
documents and things, and having agreed on production formats for certain types
of documents, as well as a process for conferring on, and resolving, production
formats for other potential types of documents, it is SO ORDERED:
A. GENERAL
1.

The parties will take reasonable steps to comply with this Order.

2.

In the event this Order does not otherwise provide for the method of

production, the parties shall meet and confer in good faith on a manner of
production that balances the needs for production to be efficient, cost effective
and reasonably useable and in a manner that will avoid cumulative or duplicative

document discovery attempting to minimize the burdens and costs on the
producing party.
3.

Except as specifically limited herein, the Order governs the

production of discoverable documents by the parties during the Litigation. This
Order will not enlarge or affect the proper scope of discovery in this Litigation,
nor imply that discovery produced under the terms of this Order is properly
discoverable, relevant, or admissible in this or in any other litigation. Nor does
this Order alter or expand the preservation obligations of the parties.
4.

The parties are reminded of their respective obligations to preserve

relevant information as required under federal law.
5.

All documents that are responsive to discovery requests and not

designated as privileged (i.e., subject to the attorney-client privilege and/or work
product doctrine) will be produced, subject to objections and responses, and
subject to the parties’ Protective Order and/or Confidentiality Order, in the
manner provided herein. Conversely, nothing in this Order will be interpreted to
require disclosure of materials that a party contends are protected from
disclosure by the Protective Order, Confidentiality Order, or the attorney-client
privilege and/or the attorney work-product doctrine. Nothing in this Order will be
deemed to limit or modify in any way the terms of the parties’ Protective Order or
Confidentiality Order.
B. PRODUCTION PROTOCOLS

1. General Format of Production. All documents produced in this litigation
shall be produced as electronic TIFF images with associated text (OCR or
extracted text as set forth herein), metadata, and objective coding, unless another
production format is designated herein or otherwise agreed to by the parties.
2. Production of Electronic Images and Associated Data. Except as limited in
this paragraph or as described herein, all documents that originally existed in
electronic or hard-copy form that are produced in these proceedings shall be
produced in electronic image form in the manner provided herein. To the extent
exceptions to the foregoing are required, the parties will meet and confer to
discuss alternative production requirements, concerns, or formats. Except for
redacted documents, each document produced pursuant to this Order shall
convey the same information in the electronic image(s) produced as the original
document. Documents that present other imaging or formatting problems shall
be promptly identified by the receiving party and the parties shall meet and confer
to attempt to resolve the problems.
a. Document Image Format. All production document images, whether
scanned from hard copy documents or generated from native electronic
documents, shall be provided as single-page Tagged Image File Format (“.tiff
format”), using Group 4 compression at 300 dpi resolution, and shall reflect,
without visual degradation, the full and complete information contained in the
original document, unless redacted. Reasonable efforts will be used to scan the
pages at or near their original size and so that the image appears straight and not

skewed. Physically oversized originals, however, may appear reduced. In addition,
reducing image size may be necessary to display Bates numbers without
obscuring text. The documents shall be logically grouped together and produced
in accordance with Rule 34 of the Federal Rules of Civil Procedure. The parties
shall meet and confer to the extent reasonably necessary to facilitate the import
and use of the produced materials with commercially available document
management or litigation support software.
b. Load Files: Load file means an electronic file provided with a
production set of document images that facilitates the loading of such information
into a receiving party’s document review platform, and the correlation of such
data in the platform. A properly delimited ASCII text file containing Metadata and
any objective coding required to be provided pursuant to this Order, an IPRO
(LFP file) or OPTICON load file for tiff images, and document level ASCII OCR or
Extracted text files named with the corresponding StartBates or BegBates
document ID. The receiving party will provide the producing party with load file
specifications 14 days in advance of the date of the first production. The
producing party will have the right to request a sample load file and deliver a
small first production to ensure the load file works and avoid any unnecessary
costs associated with a faulty large-scale production.
c. Document Unitization. Each page of a hard copy document shall be
scanned into an image and if a document is more than one page, the unitization of
the document and any attachments shall be maintained as it existed in the

original when creating the image file. For documents that contain fixed notes, the
pages will be scanned with the notes and those pages will be treated as part of the
same document. The relationship of documents in a document collection (e.g.,
cover letter and enclosures, email and attachments, binder containing multiple
documents, or other documents where a parent-child relationship exists between
the documents) shall be maintained.

If more than one level of parent-child

relationship exists, documents will be kept in order, but all will be treated as
children of the initial parent document. Such information shall be produced in
the load file and metadata or objective coding, as set forth herein, in a manner to
enable the parent-child relationship among documents in a document collection
to be reconstituted by the receiving party in commercially available document
management software, such as Concordance. If a parent-child exists for an email
string an Email Thread ID shall be provided in the metadata.
d. Color. If an original document contains color, the producing party
shall not deny reasonable requests for color copies of the original. The parties
agree to meet and confer regarding which party shall bear the cost of color
copies.
e. Duplicates.

Each party will take reasonable steps to de-duplicate

electronic documents and other ESI. The parties will de-duplicate across all
sources (i.e., global or horizontal de-duplication). The producing party will
maintain references to all removed duplicate files in an index field titled

“Duplicate Custodian”. See Attachment A. Near duplicates or similar documents
will be produced.
f. Bates Numbering and Source Index.

Each page of a produced

document shall contain a legible, unique identification number (“Bates number”)
and confidentiality notice, where applicable, which will be electronically burned
onto the page image in a manner that does not obliterate, conceal, obscure, or
interfere with any information from the source document. No other stamp or
information

will

be

placed

on

a

document

other

than

Bates-number,

confidentiality notice, and any redactions as may be required.

This provision

does not apply to databases or documents produced in native electronic format.
With each production, the Producing Party shall provide a chart identifying the
source, start bates range, and end bates range for each category of documents
being produced (the “Production Index”). The Producing Party shall certify that,
to the best of its knowledge, the information contained in the Production Index is
accurate as to both the bates ranges and the source of the documents identified by
such bates ranges. The Production Index shall be updated with each production
by the Producing Party.
g. File Naming Conventions. Each page image file shall be named with
the unique Bates number of the page of document, followed by the extension
“.TIF.” In the event the Bates number contains a symbol and/or character that
cannot be included in a file name, the symbol and/or character will be omitted
from the file name.

h. Production Media. Document productions will be made on CD-ROM,
DVD, external hard drive, or such other readily accessible computer or electronic
media as the parties may hereafter agree upon (the “Production Media”). Each
piece of Production Media shall be marked with a specific identifying number, like
a Bates number, as well as the following: production number, production date,
and the Bates number range(s) of the materials on the Production Media.
i. Objective Coding. The producing party will provide objective coding
as set forth in Attachment A in a load file included on the production discs with
each production. If Defendant chooses to objectively code any hard copy
documents with index fields in addition to those required in Attachment A, it shall
provide the additional objective coding at the time of production to Plaintiff, or as
soon as the objective coding is available. The producing party may review and,
where necessary, revise or redact objective coding if it contains privileged or work
product information, or other protected information, so long as all revisions or
redactions are individually noted on the privilege log.
j. Metadata: Metadata means corresponding data about an electronic
document that is generally not seen on the face of the document or when the
document is printed (e.g., date created, date sent, author, recipient, etc.). For
electronic documents, e-mails and hardcopy documents, the parties agree to
produce metadata as set forth in “Attachment A”, to the extent such metadata is
responsive, not privileged, available and applicable. The producing party may

redact, or remove from production, protected and/or privileged metadata, so long
as all revisions or redactions are individually noted on the privilege log.
k. OCR/Extracted

Text:

The

producing

party

shall

produce

corresponding Optical Character Recognition (OCR) text files for hard-copy
documents and any electronic documents that require redaction prior to
production. For documents that exist in electronic format that have not been
redacted and that are produced as images, the producing party shall produce
extracted text files reflecting the full text that has been electronically extracted
from the original, native electronic files. The parties will coordinate regarding the
specifics for delivering OCR and extracted text as part of productions, including
any load files specifications. Redactions shall be clearly recorded in the index field
of the document. See Attachment A.
l. Native Format Productions.

Native production means electronic

documents that are produced in the format in which they were created and used
(also referred to in terms of “Native Format”). The parties will produce Excel and
PowerPoint files in native format, unless redacted. The parties will also produce
Microsoft Word (and similar word processing documents) documents in native
format if such documents contain hidden track changes or comments that are not
shown on the face of the document, unless redacted (all other documents will be
produced in TIFF format). Any native files that are produced shall be produced
with a Bates-numbered TIFF image slip-sheet stating "Document [Bates numbers]
is a [document type] that has been produced in native format." The slip-sheet

shall also contain a MD5 hash generated for the produced native file. Any native
files that are produced shall be produced with the source file path provided, as
well as all extracted text and applicable metadata fields set forth in Attachment A.
m. Databases. Database

means

electronic

data

organized

(often

structured data, organized in rows, columns and tables) in an electronic
environment for a particular purpose. Prior to production of any database, the
Parties will meet and confer regarding the discoverability and feasibility of any
request for production of a database including the form and content of any such
production. The producing party reserves the right to object to the production of
requested databases. The parties will cooperate to produce responsive, nonduplicative electronic data from relevant databases in a reasonably usable
production format where practical and feasible. Where such production is not
practical or feasible, the Parties will confer upon an appropriate form of
production. The Court’s assistance regarding the discoverability, form, and scope
of production of data from a database may only be sought after the parties have
failed to reach agreement after good-faith discussion.
n. Video, Audio, other electronic media that cannot be rendered as Tiff
images. Except as subject to redaction or other protection, the producing party
shall produce requested relevant video, audio and other electronic media that
cannot easily be rendered as Tiff images in their original media format, i.e., CD
Audio, DVD Video, etc. unless the original format is unreasonable, or unduly

burdensome or costly, in which situation the parties will meet and confer on the
format for producing this type of information.
o. Original Documents. The producing parties shall retain the original
hard-copy and native source documents in their original format (together with,
except as may be otherwise expressly agreed among the parties, the means to
access, retrieve, and view such documents; however, the original hardware does
not have to be kept) for all documents produced in this proceeding. Producing
parties shall maintain the original native electronic source documents in a
manner so as to preserve the “metadata” associated with these electronic
materials in the event review of such metadata becomes necessary. Subject to
preservation of appropriate privileges and other protections of Defendant’s
information from production in accordance with applicable law, upon a showing
of good cause or particularized need, after reasonable request and any necessary
meet and confer, where a document existed originally in only hard copy format,
Defendant will make originals of any produced document available for inspection
by the requesting party in the form in which such documents are kept in the
ordinary course of business.
3. Translated Documents.

If any document produced by a producing party

has an English language translation in the custodial or source file from which the
document was produced, the producing party will produce both the original nonEnglish document as well as the translation.

Otherwise, foreign language

documents will be produced in their original language and not translated. The

index field for Foreign Language Documents will note “yes” if a document contains
content in one or more foreign languages. See Attachment A for a list of index
fields.
4. Replacement Images. If a document produced by a producing party has an
error or the images must be replaced due to inadvertent or mistaken production,
a change in confidentiality, or other reason the replacement production must be
marked as a replacement, and the producing party must provide a reason for the
replacement. The load file of the replacement document(s) must be separately
produced in a complete replacement file and clearly marked as such in the
production index.
5. Clawback.

The parties understand that document discovery in this

Litigation may involve the production of large volumes of documents in a short
time period and, thus, the inadvertent or mistaken production of privileged,
confidential, private or otherwise protected information is possible. As the parties
wish to protect such information against use in the Litigation or further
disclosure, the parties acknowledge that the producing party may claw back such
inadvertently or mistakenly produced documents, and that nothing in this Order
waives, restricts or eliminates any “claw back” rights that may be included in any
Protective Order or Confidentiality Order to which the parties may become
subject, or governing law, rules (e.g., F.R.C.P. 26(b)(5)(B) & F.R.E. 502), orders
or agreements regarding inadvertently or mistakenly produced documents.

6. Costs:

While each party will bear, by default, its own document

production costs, each party reserves the right to pursue cost-shifting or costsharing pursuant to the Rules (e.g., Rule 26(b)(2)) and other applicable law.
7. Disputes: The parties will meet and confer in good faith, in person or by
phone, and endeavor to resolve any dispute related to this Order before
submitting such disputes to the Court for determination, or otherwise moving for
relief.
8. Relief and Modification: After an appropriate meet and confer in good
faith, either party may apply to the Court for relief or modification of this Order.

SO ORDERED

David R. Herndon
2012.07.24 08:24:35
-05'00'
Chief Judge
United States District Court

Date: July 24, 2012