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)

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

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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

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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

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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.

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Date: March 24, 2017

s/ Aaron Hankel_____________________
B. Trent Webb
[e-mail]
Aaron Hankel
[e-mail]
Ryan Schletzbaum (admitted pro hac vice)
[e-mail]
Lauren Douville (admitted pro hac vice)
[e-mail]
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
[e-mail]
300 W. Douglas Avenue, Suite 500
Wichita, KS 67202
Telephone: [phone]
Facsimile: 316-263-4677
WEIL, GOTSHAL & MANGES LLP
Brian E. Ferguson (admitted pro hac vice)
[e-mail]
Anish R. Desai (admitted pro hac vice)
[e-mail]
Stephen Bosco (admitted pro hac vice)
[e-mail]
Matthew Sieger (admitted pro hac vice)
[e-mail]
1300 Eye Street NW, Suite 900
Washington DC 2005
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT

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SO ORDERED this 27th day of March, 2017.
s/ James P. O’Hara
James P. O’Hara
United States Magistrate Judge

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