A Communication Company, Inc. v. Bonutti et al

Filing 45

AGREED ORDER GOVERNING ELECTRONIC DISCOVERY. Signed by Magistrate Judge Stephen C. Williams on 6/18/14. (amv)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
A COMMUNICATION COMPANY,
INC., d/b/a ACOM HEALTHCARE,

)
)
)
)
Plaintiff,
)
v.
)
)
PETER M. BONUTTI, BORIS P.
)
BONUTTI, DEAN A. KREMER, and
)
UNITY ULTRASONIC FIXATION, LLC, )
)
Defendants.
)

Case No. 3:13-cv-01193-JPG-SCW

AGREED ORDER GOVERNING ELECTRONIC DISCOVERY
This matter is before the Court on the parties’ Motion For Entry of An Agreed Order
Governing Electronic Discovery. The Court finds that good cause exists for the entry of this
Order. Accordingly, it is hereby ORDERED as follows:
I.

SCOPE
1.

The procedures and protocols outlined herein govern the production of

Discoverable Electronic Information (as defined below) by a party during the pendency of this
litigation.
2.

As used in this order, the term “Discoverable Electronic Information” means

discoverable documents and electronically stored information consistent with Fed. R. Civ. P.
34(a), including e-mail, word processing documents, spreadsheets, electronic slide presentations,
databases, and other electronically stored information relevant to the claims or defenses of any
party subject to discovery pursuant to Fed. R. Civ. P. 26(b)(1).

II.

IDENTIFICATION OF RESPONSIVE DATA
1.

Subject to the provisions below regarding repositories of electronically stored

information (“ESI”) that are not reasonably accessible, Discoverable Electronic Information shall
be timely reviewed, and unless privileged or non-responsive, produced in accordance with the
guidelines herein and the terms of any protective order entered in this case
2.

After receiving requests for document production, the party making production

(the “Producing Party”) shall conduct a reasonable and good faith search for responsive
documents and electronically stored information. A Producing Party will disclose to a requesting
party the existence of those sources of ESI that it believes may contain responsive information
and that are not reasonably accessible. A Producing Party shall not have an obligation to search
or produce from sources of electronically stored information that it in good faith identifies as not
reasonably accessible because of undue burden or cost. The parties will meet and confer about
the appropriateness of searching these repositories (to the extent the Receiving Party maintains
that these repositories should be searched) and submit any disputes they cannot resolve to the
Court for decision, if necessary.
3.

Metadata. To the extent that any of the following metadata fields associated with

all applicable documents are available, the Producing Party will produce those metadata fields to
the requesting party: Doc Id; Author; Date Created; Date Last Modified; Original File Path;
Subject Line; Date Sent; Sender/Author, Recipient(s); Copyee(s); Blind Copyee(s); Starting
Bates; Ending Bates; Begin Attach; End Attach; Parent ID; Attach ID; Author; Date Created;
Date Last Modified; File Ext.; Original Filename; File Size; Doc Type; MD5 Hash; Sha Hash;
Time Created; Time Last Modified; and Source (custodian/location from which document was
collected). The metadata listed above shall be labeled and produced on Production Media and

shall be provided in a manner suitable for importing the information in a commercially available
document management or litigation support software such as Summation or Concordance.
4.

Search Terms. The parties shall meet and confer on search terms to be used to

search custodian electronic documents to identify electronic documents that will be reviewed for
possible production
5.

Custodians. The parties shall meet and confer about custodians of devices that

likely contain responsive documents, and each party will identify in writing the custodians of the
devices likely containing responsive documents, and whose emails and/or hard drives will be
searched using the agreed search terms identified in paragraph II.4. above to identify electronic
documents that will be reviewed for possible production.
6.

Date Range. The parties shall meet and confer on the date range(s) to be used to

identify electronic documents that will be reviewed for possible production.
7.

Duplicate Production Not Required.

A party producing Discoverable

Electronic Information in electronic form need not produce the same document in paper format,
unless a party specifically requests production of a duplicative paper copy and identifies a
reasonable basis for requiring such duplicative production. Where a party has more than one
identical copy of an electronic document (i.e., the documents are visually the same and contain
matching hash values), the Producing Party need only produce a single copy of that document.
Furthermore, the parties are not required to produce multiple instances of an electronic message
sent to multiple recipients, provided that all of the recipients (including “blind carbon copy”
recipients) can be identified from documents or electronically stored information produced
pursuant to this protocol.

III.

GENERAL INSTRUCTIONS
1.

Document Production Format. The following provisions shall generally govern

the production format and procedure for Discoverable Electronic Information other than data
extracted from databases or mainframes or other similar computers.
a.

Format.

All Discoverable Electronic Information, other than the data

extracted from databases, mainframes, or other similar computers, shall be produced in a singleor multi-page 300 dpi TIFF image (or JPG for color) with a load file of the type designated by
the party receiving Discoverable Electronic Information from the Producing Party, such as a
Summation or Concordance load file, with page breaks that reflect how the source document
would have appeared if it were printed via an attached printer. The documents not produced in
native file format shall be processed through Optical Character Recognition (OCR) Software so
that they will be text-searchable. Notwithstanding the foregoing provisions of this paragraph, all
Excel spreadsheets, Lotus 123 spreadsheets, and other spreadsheets shall be produced in native
file format. Information from Databases shall be produced as set forth in Section III.2. If a
spreadsheet contains hidden pages or columns that the Receiving Party is unable to reveal, the
Parties will meet and confer to determine the best method to reveal the hidden data.
b.

Appearance.

Each document’s electronic image shall convey the same

information and image as the original document. Documents that present imaging or formatting
problems shall be promptly identified and the parties shall meet and confer in an attempt to
resolve the problems.

If any document contains confidential information, both parties are

prepared to accept such document pursuant to an appropriate protective order, which is mutually
agreeable to the parties, and which is approved and entered by the Court.

c.

Document Unitization.

If a document is more than one page, the

unitization of the document and any attachments and/or affixed notes shall be maintained as it
existed in the original file or computer of the Producing Party or shall be documented in a load
file or otherwise electronically tracked.
d.

Color. The parties will produce documents in black and white format.

The parties will honor reasonable requests that certain documents be produced in color.
e.

“Bates Numbering.” Each page of a document produced in TIFF format

or pdf format shall have a legible, unique page identifier (Bates Number) electronically “burned”
onto the image at a location that does not obliterate, conceal or interfere with information from
the source document. There shall be no other legend or stamp placed on the document image
unless a document qualifies for confidential treatment pursuant to the terms of any Protective
Order entered in this matter or has been redacted in accordance with applicable law or Court
order. In the case of confidential materials or materials redacted in accordance with applicable
law or Court order, a designation may be “burned” onto the document’s image at a location that
does not obliterate or obscure information from the source document. In the case where a Bates
number cannot be placed on a native format document, the file name shall be a Bates number and
the load file shall contain the original file name.
f.

File Naming Conventions. Each TIFF image file shall be named with the

Bates Number corresponding to the number assigned to the document page contained in that
image.
g.

Production Media. The Producing Party shall produce documents on CD-

ROM, DVD, external hard drive (with standard PC compatible interface), 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 assigned a production number or other unique
identifying label corresponding to the date of the production of documents on the Production
Media (e.g., “Plaintiff Production Sept. 1, 2014”) as well as the sequence of the material in that
production wave (e.g. “-00001”, “-00002”). For example, if the production comprises document
images on three DVDs, the Producing Party may label each DVD in the following manner
“Plaintiff Production Sept. 1 2014-00001”, Plaintiff Production Sept. 1 2014-00002”, Plaintiff
Production Sept. 1, 2014-0003”. Additional information that shall be identified on the physical
Production Media includes: (1) text referencing that it was produced in the above-captioned
matter; (2) the Bates Number range of the materials contained on the Production Media; and (3)
the confidentiality designation(s) if the documents qualify for confidential treatment pursuant to
the terms of any Protective Order entered in this matter.
h.

Write Protection and Preservation. All computer media that is capable of

write protection should be write-protected before production.
2.

Production Format For Information From Databases.

The following

provisions shall generally govern the production format and procedure for Discoverable
Electronic Information extracted from databases, mainframes, or other similar computers.
a.

Production Information. Electronic records and computerized information

from databases, mainframes, and other similar computers must be produced in an intelligible
format or together with a technical description of the system from which they were derived
sufficient to permit rendering the records and information intelligible.
b.

Data Production Format.

To the extent that Discoverable Electronic

Information is produced from a database residing on a mainframe or other similar computer, it
shall be provided in a report or a reasonably usable and exportable electronic file in a format on

which the parties agree.

In the event a party at any time determines that production of

Discoverable Electronic Information from a database cannot reasonably be accomplished
pursuant to the formats indicated in the preceding sentence, Section V of this protocol shall
apply.
3.

Privilege Logs. A party withholding documents based on one or more claims of

privilege will produce a privilege log after production of corresponding responsive documents as
follows: for the first production in the case, within 60 days of the production of corresponding
responsive documents; for every other production in the case, within 21 days of production of
corresponding responsive documents. The parties may modify the deadlines for production of
the privilege logs by agreement or by filing a motion with the Court. There will be no obligation
to produce privilege logs identifying attorney-client communications concerning case strategy or
the course of litigation that occur following the commencement of this lawsuit.
4.

Inadvertent Disclosures. Should any party inadvertently produce Discoverable

Electronic Information subject to a claim of privilege, the Producing Party shall so notify the
receiving party (the “Receiving Party”) in writing within a reasonable time after discovering the
inadvertent production, and such inadvertently produced information shall be handled by the
parties as set forth in Paragraph 8 of the Stipulated Protective Order entered in this matter.
IV.

TIMING AND SEQUENCING OF ELECTRONIC DISCOVERY
Any party under an obligation to produce Discoverable Electronic Information shall

commence the production of such Discoverable Electronic Information and proceed with the
production of electronic information in a timely manner consistent with time considerations to be
developed by the parties and the Rules of Federal Procedure. The parties shall meet and confer
to arrange an orderly production of such Discoverable Electronic Information.

V.

EXCEPTIONS TO PROTOCOL
If the forms of production allowed by this protocol present an undue burden or cost for a

Producing Party, the parties shall meet and confer to agree on a reasonable, alternative form of
production. Any party may file a motion to seek individual relief from this protocol.
VI.

COSTS OF PRODUCTION
Each party will presumptively bear its own costs of production.

However, the parties

reserve the right to seek cost shifting, and/or to object to any proposed cost-shifting, as
appropriate at a later time.
VII.

DISCOVERY AND ADMISSIBILITY
Nothing in this Order shall be construed to affect the discoverability or admissibility of

any document or data. All objections to the discoverability or admissibility of any document or
data are preserved and may be asserted at the appropriate time.

IT IS SO ORDERED
Date: June 18, 2014

/s/ Stephen C. Williams
Stephen C. Williams
United States Magistrate Judge