Garmin Switzerland GmbH et al v. FLIR Maritime US, Inc.

Filing 33

STIPULATED ORDER REGARDING E-DISCOVERY. The court finds good cause to enter the order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 3/27/2017. (amh)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS Garmin Switzerland GmbH; and Garmin Corporation, Plaintiffs, Case No. 2:16-cv-2806-DDC v. FLIR Maritime US, Inc., Defendant. STIPULATED ORDER REGARDING E-DISCOVERY PRODUCTION The Court ORDERS as follows: 1. This order supplements all other discovery rules and orders. It streamlines Electronically Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive determination” of this action, as required by Federal Rule of Civil Procedure 1. 2. This order may be modified in the Court’s discretion or by agreement of the parties. If the parties cannot resolve their disagreements regarding these modifications, the parties shall submit their competing proposals and a summary of their dispute. 3. A party’s meaningful compliance with this order and efforts to promote efficiency and reduce costs will be considered in cost-shifting determinations. 4. Absent a showing of good cause, general ESI production requests under Federal Rules of Civil Procedure 34 and 45, or compliance with a mandatory disclosure requirement of this Court, shall not include metadata. However, fields showing the date and time that the document was sent and received, as well as the complete distribution list, shall generally be included in the production if such fields exist. O:\Protective Orders\16-2806-JWL-ESI.docx 5. Absent agreement of the parties or further order of this court, the following parameters shall apply to ESI production: A. General Document Image Format. Each electronic document shall be produced in single-page Tagged Image File Format (“TIFF”) format. TIFF files shall be single page and shall be named with a unique production number followed by the appropriate file extension. Load files shall be provided to indicate the location and unitization of the TIFF files. If a document is more than one page, the unitization of the document and any attachments and/or affixed notes shall be maintained as they existed in the original document. B. Text-Searchable Documents. No party has an obligation to make its production text-searchable; however, if a party’s documents already exist in text-searchable format independent of this litigation, or are converted to text-searchable format for use in this litigation, including for use by the producing party’s counsel, then such documents shall be produced in the same text-searchable format at no cost to the receiving party. C. Footer. Each document image shall contain a footer with a sequentially ascending production number. D. Native Files. A party that receives a document produced in a format specified above may make a reasonable request to receive the document in its native format, and upon receipt of such a request, the producing party shall produce the document in its native format. Parties may (without having received a request from the receiving party to do so) produce files in native format for which -2– conversion to image format is difficult or impractical, such as Excel and Access files, and video and audio files. E. No Backup Restoration Required. Absent a showing of good cause, no party need restore any form of media upon which backup data is maintained in a party’s normal or allowed processes, including but not limited to backup tapes, disks, SAN, and other forms of media, to comply with its discovery obligations in the present case. F. Voicemail and Mobile Devices. Absent a showing of good cause, voicemails, PDAs and mobile phones are deemed not reasonably accessible and need not be collected and preserved. G. Source Code. To the extent that source code is produced, it will be made available for inspection pursuant to the Protective Order entered in this case. H. Deduplication. A party is only required to produce a single copy of a responsive document and a party may de-duplicate responsive ESI (based on MD5 or SHA-1 hash values at the document level) across Custodians. For e-mails with attachments, the hash value is generated based on the parent/child document grouping. A party may also de-duplicate “near-duplicate” e-mail threads as follows: In an e-mail thread, only the final-in-time document need be produced, assuming that all previous e-mails in the thread are contained within the final message. Where a prior e-mail contains an attachment, that e-mail and attachment shall not be removed as a “near-duplicate.” To the extent that de-duplication through MD5 or SHA-1 hash values is not possible, the parties may meet and confer to discuss any other proposed method of de-duplication. 6. General ESI production requests under Federal Rules of Civil Procedure 34 and 45, or compliance with a mandatory disclosure order of this court, shall not include e-mail or -3– other forms of electronic correspondence (collectively “e-mail”). To be clear, general production requests therefore do encompass non-email ESI, unless otherwise specified. To obtain e-mail parties must propound specific e-mail production requests. 7. E-mail production requests shall be phased to occur timely after the parties have exchanged initial disclosures and a specific identification of the ten (10) most likely e-mail custodians in view of the pleaded claims and defenses, infringement contentions and accompanying documents pursuant to P.R. 3-1 and 3-2, invalidity contentions and accompanying documents pursuant to P.R. 3-3 and 3-4. The exchange of this information shall occur at the time required under the Federal Rules of Civil Procedure, Local Rules, or by order of the court. The court may allow additional discovery upon a showing of good cause. 8. The exchange of likely email custodians shall occur on May 8, 2017. The custodians shall be identified by name, title, and the subject matter of the information possibly relevant. 9. E-mail production requests shall identify the custodian, search terms, and time frame. The parties shall cooperate to identify the proper custodians, proper search terms, and proper time frame. Each requesting party shall limit its e-mail production requests to a total of five (5) custodians per producing party for all such requests. The parties may jointly agree to modify this limit without the court’s leave. The court shall consider contested requests for additional or fewer custodians per producing party, upon showing a distinct need based on the size, complexity, and issues of this specific case. 10. Each requesting party shall limit its e-mail production requests to a total of ten (10) search terms per custodian per party. The parties may jointly agree to modify this limit without the court’s leave. The court shall consider contested requests for additional or fewer -4– search terms per custodian, upon showing a distinct need based on the size, complexity, and issues of this specific case. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company’s name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” or “system”) broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the production and shall be considered when determining whether to shift costs for disproportionate discovery. 11. Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a privileged or work product protected ESI is not a waiver in the pending case or in any other federal or state proceeding. 12. The mere production of ESI in a litigation as part of a mass production shall not itself constitute a waiver for any purpose. Except as expressly stated, nothing in this order affects the parties’ discovery obligations under the Federal or Local Rules. -5– Date: March 24, 2017 s/ Aaron Hankel_____________________ B. Trent Webb Aaron Hankel Ryan Schletzbaum (admitted pro hac vice) Lauren Douville (admitted pro hac vice) SHOOK, HARDY & BACON LLP 2555 Grand Boulevard Kansas City, Missouri 64108-2613 816-474-6550 Telephone 816-421-5547 Facsimile ATTORNEYS FOR PLAINTIFFS Date: March 24, 2017 s/ Erin Sommer Good _____________ MCDONALD TINKER PA Erin Sommer Good 300 W. Douglas Avenue, Suite 500 Wichita, KS 67202 Telephone: 316-263-5851 Facsimile: 316-263-4677 WEIL, GOTSHAL & MANGES LLP Brian E. Ferguson (admitted pro hac vice) Anish R. Desai (admitted pro hac vice) Stephen Bosco (admitted pro hac vice) Matthew Sieger (admitted pro hac vice) 1300 Eye Street NW, Suite 900 Washington DC 2005 Telephone: (202) 682-7000 Facsimile: (202) 857-0940 ATTORNEYS FOR DEFENDANT -6– SO ORDERED this 27th day of March, 2017. s/ James P. O’Hara James P. O’Hara United States Magistrate Judge -7–

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?