Weisenberger v. Ameritas Mutual Holding Company

Filing 44

ORDER - This matter is before the Court on the parties' Stipulation Regarding Production of Electronically Stored Information and Paper Documents. (Filing No. 40 .) The Stipulation is approved. IT IS SO ORDERED. Ordered by Magistrate Judge Susan M. Bazis. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CYNTHIA WEISENBERGER, individually
and on behalf of all others similarly situated,
CASE NO: 4:21-CV-3156
Plaintiff,
ORDER
vs.
AMERITAS MUTUAL HOLDING
COMPANY,
Defendant.
This matter is before the Court on the parties’ Stipulation Regarding Production of
Electronically Stored Information and Paper Documents. (Filing No. 40.) The Stipulation is
approved as set forth below.
I.

INTRODUCTION
a) Purpose.
This Stipulated Order (“Order”) Regarding Production Of Electronically Stored

Information And Paper Documents (“ESI Protocol Order”) shall govern the parties in the abovecaptioned case whether they currently are involved or become so in the future (the “Action”).
b) Admissibility.
Nothing in this Order shall be construed to affect the admissibility of discoverable
information. Pursuant to the terms of this Order, information regarding search process and
electronically stored information (“ESI”) practices may be disclosed, but compliance with this
Order does not constitute a waiver, by any Party, of any objection to the production of particular
ESI as irrelevant, undiscoverable, or otherwise inadmissible, unduly burdensome or not reasonably
accessible, or privileged, nor does it constitute a waiver of any right to discovery by any Party. For
the avoidance of doubt, a Party’s compliance with this Order will not be interpreted to require

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disclosure of information potentially protected by the attorney-client privilege, the work product
doctrine, or any other applicable privilege, protection, or immunity from disclosure. This Order
is a supplement to the Federal Rules of Civil Procedure, this Court’s Local Rules, and any other
applicable orders and rules. This Order is subject to amendment or supplementation by the parties.
c) Cooperation.
The parties are aware of the importance the Court places on cooperation and commit to
cooperating in good faith throughout the matter.
d) Authenticity.
Nothing in this Order shall be construed to affect the authenticity of any document or data.
All objections to the authenticity of any document or data are preserved and may be asserted at
any time.
II.

SCOPE AND LIMITATIONS OF PRESERVATION AND PRODUCTION
OF ESI
The parties agree to take the considerations addressed in Fed. R. Civ. P. 26(b) into account

for purposes of the preservation and production of discovery in this matter. Adopting a tiered or
sequenced approach to electronic discovery may be appropriate, and the parties agree to continue
to consider and confer about the most efficient processes as discovery proceeds.
The parties agree that they will engage in ongoing discussions regarding the appropriate
scope and limitations of the discovery of ESI. The parties will discuss possible options for
ensuring an efficient discovery process, such as the possible use of search terms or technology
assisted review, relevant date ranges, possible custodians that may have potentially responsive
information, any obstacles to accessing and producing ESI, information demonstrative of
adequate quality controls, and the timing of productions.

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III.

IDENTIFICATION OF RESPONSIVE DOCUMENTS
The parties shall meet and confer in an effort to conduct discovery in the most efficient

and effective manner. Specifically, the parties will attempt in good faith to come to an agreement
on search and culling methods used to identify responsive information. The parties will meet and
confer within a reasonable period of time after service of responses and objections to discovery
requests regarding any proposed limitations on the scope of discovery, including custodians,
custodial and non-custodial sources, date ranges, file types, or any additional proposed method to
cull documents for review (e.g., search terms, technology-assisted-review, predictive coding).
The parties will discuss and, where possible, attempt to reach an agreement on search
methodologies with the goal of limiting the scope of review for production, minimizing the need
for motion practice, and facilitating production in accordance with the deadlines set by the Court
or agreed upon by the parties. The parties will not seek Court intervention without first attempting
to resolve any disagreements in good faith, based upon all reasonably available information.
a) Sources
The parties will meet and confer within a reasonable period of time after service of
responses and objections to discovery requests to disclose and discuss the custodial and noncustodial data sources likely to contain responsive information. The meet and confer process will
address any relevant electronic systems and storage locations. The parties will also disclose and
describe any document retention policies or practices (e.g., retention schedules or policies, auto
delete functions, routine purging, mailbox size limits), or other practices likely to impact the
existence or accessibility of responsive documents or electronically stored information. The parties
will identify and describe sources likely to contain responsive information that a party asserts
should not be searched or are not reasonably accessible and will explain the reasons for such
assertions. The parties will disclose third-party sources, if any, likely to contain discoverable

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information. The parties will retain the right, upon reviewing the initial production of documents,
and conducting other investigation and discovery, to request that files from additional custodial or
non-custodial sources be searched and to meet and confer regarding such request. If no agreement
can be reached, the parties will seek Court guidance.
b) Identification of Custodians
The parties will meet and confer regarding the identification and selection of custodians
within a reasonable period of time after service of responses and objections to discovery requests.
c) Easily Segregable Documents
If a producing party determines that certain documents are easily identifiable and
segregable, that party may collect such documents without the use of search terms or other agreedupon advanced search methodology (e.g., analytics, predictive coding, technology-assistedreview). Where potentially responsive ESI are more appropriately searched through the use of
search terms, the parties agree to follow the process identified below and the parties shall meet and
confer regarding any proposed deviation.
d) Search Terms
Certain discovery requests may be more aptly collected/responded to through the use of
search terms If a producing party proposes to use search terms, those terms will be subject to
negotiation between the parties.

The producing party will commence the negotiation process by

providing a proposed list of search terms with an explanation of how search terms will be applied,
a list of proposed custodians, and the time period or temporal scope of the documents that will be
searched.
If the parties are unable to resolve a disagreement over search terms following a meet and
confer, the producing Party will provide search term hit reports that show the number of hits for

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both the producing party’s proposal and the requesting party’s proposal for each of the disputed
search terms for each document collection where the terms were applied, including the following:
(i) the number of documents with hits for that term; and (ii) the number of unique documents for
that term, i.e., documents which do not have hits for any other term.
If disputed terms still exist at the end of the meet-and-confer process, the parties will submit
the issue to the Court in accordance with the case scheduling order and the District of Nebraska
Magistrate Judge Civil Case Management Practices.
e) Technology-Assisted-Review
A Party may use Technology Assisted Review (“TAR”) to sort documents for linear
review. If a Party elects to use TAR to cull or otherwise limit the volume of unstructured ESI
subject to linear review, the parameters set forth in this Section shall apply. A producing Party
shall describe to a requesting Party the vendor and the TAR technology or tool being used,
including a description of the TAR tool’s procedures, prioritization and training of the TAR tool,
as well as the precision and recall metrics that will be employed by the TAR tool.
A producing Party need not conduct any additional review of information subjected to, but
not retrieved by, its elected TAR tool as part of the identification of the subset of information that
will be subject to review and production.
IV.

CONFIDENTIALITY, PRIVACY, AND SECURITY OF INFORMATION
a) Confidential Information. The Protective Order, Filing No. 43, will govern the

treatment of information warranting confidential treatment.

Nothing contained herein shall

contradict the parties’ rights and obligations with respect to the Protective Order.
b) Specialized Treatment for PII and PHI. The prosecution and defense of this Action
will require the processing and review of ESI, including data containing Personally Identifiable
Information (“PII”) and Protected Health Information (“PHI”). In the interest of addressing

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privacy and security concerns, and in order to facilitate the processing and production of
documents containing such data, the parties are prepared to discuss appropriate precautions and
arrangements for reviewing such data, including, potentially, reviewing certain highly sensitive
information maintained by the producing party on a dedicated document repository to be
contracted for and managed by the producing party. The parties’ discussions concerning the nature
of information and data meriting this specialized treatment, the accessibility of this data, and the
specific parameters to govern specialized review arrangements are ongoing.
c) Privilege. Except as provided otherwise below, for any document withheld in its
entirety or produced but redacted, the producing Party will produce privilege/redaction logs.
Privilege logs shall be produced within a reasonable time of the document review and initial
production by the parties. The parties will have an ongoing responsibility to update their respective
privilege logs with subsequent production of documents, if necessary:
i.

Privilege logs will include the privilege claimed, a description of the nature of the
document that will enable other parties to assess the privilege claim and designated
objective metadata fields to the extent they contain information and the information is not
privileged or protected. Designated objective metadata fields are: Author, From, To, CC,
BCC, Date, Email Subject, File Name, and File Extension. Legal personnel shall be
identified as such by adding an asterisk before or after their names in the privilege log.

ii.

A party shall only be required to include on the privilege log the most inclusive email in a
chain with the same participants and discussing the same subject matter. Lesser included
emails need not be separately logged provided they meet these criteria. If the participants
or subject matter change in the course of the chain, a new entry shall be required on the
privilege log.

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iii.

Privilege logs need not include redactions from produced Documents, provided the reason
for the redaction (such as “Redacted for Privilege,” “Redacted for PII,” or “Redacted for
PHI”) appears on the redaction label and the unredacted portion of the document contains
content that allows other parties to assess the claim of privilege.

iv.

The parties are not required to log privileged communications or work product created after
the filing of Plaintiff’s initial Complaint. Moreover, the parties agree that, as it pertains to
Defendant’s investigation of and response to the cybersecurity incident giving rise to
Plaintiff’s Complaint, Defendant may produce a categorical privilege log in lieu of a
document-by-document privilege log. Nothing in this Paragraph is intended to preclude
negotiation of additional exclusions to reduce the burdens of privilege logging.

V.

PRODUCTION SPECIFICATIONS
a) Format
The parties agree that attending to issues relating to form of production at the outset

facilitates the efficient and cost-effective conduct of discovery. Appendix A sets forth technical
specifications that the parties propose to govern the form of production of paper documents and
ESI in this litigation, absent other agreement by the parties. Among other things, the proposed
technical specifications incorporate the directive of Fed. R. Civ. P. 34(b)(2)(E)(iii) and provide
that a party need not produce ESI in more than one form, unless otherwise agreed to in limited
circumstances (as contemplated in the technical specifications). The parties agree to produce
documents in PDF, TIFF, native and/or paper or a combination thereof as set forth in Appendix A.
For good cause, a requesting party may request the production of documents in a format other than
as specified in this Protocol. The parties shall thereafter meet and confer and the producing party
shall not unreasonably deny such requests. The parties agree not to degrade the searchability of
documents as part of the document production process. The parties also recognize that in some

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instances where documents have been produced in a form other than native, subsequent production
of the same documents in native form may be warranted for certain purposes.
b) De-Duplication
Each party shall remove exact duplicate documents based on MD5 or SHA-1 hash values,
at the family level. Attachments should not be eliminated as duplicates for purposes of production,
unless the parent e-mail and all attachments are also duplicates.
A party may also de-duplicate “near duplicate” email threads as follows: In an email thread,
only the final-in-time document need be produced, assuming that all previous emails in the thread
are contained within the final message and provided that the software used to identify these “nearduplicate” threads is able to identify any differences to the thread such as changes in recipients
(e.g., side threads, subject line changes), dates, selective deletion of previous thread content by
sender, etc. To the extent such differences exist, documents with such differences shall be
produced. Where a prior email contains an attachment, that email and attachment shall not be
removed as a “near-duplicate”.
To the extent that deduplication is utilized, the parties expressly agree that a document
produced from one custodian’s file but not produced from another custodian’s file as a result of
deduplication will nonetheless be deemed as if produced from that other custodian’s file for
purposes of deposition, interrogatory, request to admit and/or trial testimony.
c) Searchable Format
The parties share a desire to ensure that ESI is produced in an acceptable, searchable
format. To that end, the parties have discussed but have not yet identified potentially relevant ESI
that would not be amendable to the proposed technical specifications. The parties agree to meet

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and confer in good faith to address any issues that may raise in this regard, and to seek judicial
intervention only if their efforts to resolve the issues on an informal basis are unsuccessful.
d) Metadata
All ESI will be produced with a delimited, database load file that contains the metadata
fields listed in Appendix A, attached hereto.
e) Embedded Objects
Microsoft Excel (.xls) spreadsheets embedded in documents will be extracted as separate
documents and treated like attachments to the document. The parties agree that other embedded
objects, including, but not limited to, logos, icons, emoticons, and footers, may be culled from a
document set and need not be produced as separate documents by a producing Party (e.g., such
embedded objects will be produced within the document itself, rather than as separate
attachments).
f) Zero-Byte Files
The parties may filter out stand-alone files identified as zero-bytes in size that do not
contain responsive file links or file names. If the requesting Party in good faith believes that a zerobyte file was withheld from production and contains information responsive to a request for
production, the requesting Party may request that the producing Party produce the zero-byte file.
The requesting Party may provide a Bates number to the producing Party of any document that
suggests a zero-byte file was withheld from production and contains information responsive to a
request for production.
g) Attachments
The parties agree that non-responsive parent documents must be produced if they contain
a responsive attachment and are not withheld as privileged. Non-responsive attachments to

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responsive parent emails need not be produced. A Bates numbered placeholder will be provided
for any document withheld pursuant to this Section and shall state that a non-responsive attachment
has been withheld from production.
h) Compressed File Types
Compressed file types (e.g., .ZIP, .RAR, .CAB, .Z) should be decompressed so that the
lowest level document or file is extracted.
i) Structured Data
To the extent a response to discovery requires production of electronic information stored
in a database, the parties will meet and confer regarding methods of production of the data that
will allow the requesting party to use and search the data in a meaningful way and exchange
information for this purpose, which may include information concerning the (a) database schema,
(b) database schema standardized reports and queries, and (c) training manuals or standing
operating procedures concerning operation and maintenance of the database.
j) Exception Report
The producing party shall compile an exception report enumerating any unprocessed or
unprocessable documents, their file type and the file location.
k) Encryption
To maximize the security of information in transit, any media on which documents are
produced may be encrypted. In such cases, the producing party shall transmit the encryption key
or password to the receiving party, under separate cover, contemporaneously with sending the
encrypted media.
l) Redactions

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If documents that the parties have agreed to produce in native format need to be redacted,
the parties will meet and confer regarding how to implement redactions while ensuring that proper
formatting and usability are maintained.
IT IS SO ORDERED.
Dated this 2nd day of August, 2022.
BY THE COURT:

s/ Susan M. Bazis
United States Magistrate Judge

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Appendix A
Technical Specifications for Production
1.

PRODUCTION OF DOCUMENTS ORIGINATING AS PAPER

For documents that have originated in paper format, the following specifications should be used
for their production.
•

Images should be produced as single page TIFF group IV format imaged at 300dpi.
If not practical to produce in TIFF format, images should be produced in native
format with a placeholder TIFF image stating that the document was produced
natively.

•

Each filename must be unique and match the Bates number of the page. The
filename should not contain any blank spaces and should be zero padded (for
example ABC00000001).

•

Media may be delivered on CDs, DVDs or External USB hard drives. Media may
also be delivered using a secure FTP site. Each media volume should have its own
unique name and a consistent naming convention (for example ZZZ001 or
SMITH001).

•

Each delivery should be accompanied by an image cross reference file that contains
document breaks.

•

A delimited text file that contains available fielded data should also be included and
at a minimum include Beginning Bates Number, Ending Bates Number, Custodian
and Number of Pages. The delimiters for that file should be:
Field Separator, ASCII character 020: ““
Quote Character, ASCII character 254 “þ”
Multi-Entry Delimiter, ASCII character 059: “;”

•

To the extent that documents have been run through an Optical Character
Recognition (OCR) Software in the course of reviewing the documents for
production, full text should also be delivered for each document. Text should be
delivered on a document level in an appropriately formatted text file (.txt) that is
named to match the first bates number of the document.

•

A text cross reference load file should also be included with the production delivery
that lists the beginning bates number of the document and the relative path to the
text file for that document on the production media.

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PRODUCTION OF EMAIL AND ELECTRONIC DOCUMENTS1

2.

Attachments, enclosures, and/or exhibits to any parent documents should also be produced and
proximately linked to the respective parent documents containing the attachments, enclosures,
and/or exhibits.
For standard documents, emails, and presentations originating in electronic form, documents
should be produced as tiff images using the same specifications above with the following
exceptions:
•

Provide a delimited text file (using the delimiters detailed above) containing the extracted
metadata fields where they exist in the file being produced. (But nothing shall require the
production of metadata that does not exist or would be unduly burdensome to collect.)
o Beginning Production Number
o Ending Production Number
o Beginning Attachment Range
o Ending Attachment Range
o Number of Attachments
o Attachment File Names
o Custodian
o Other Custodian (if global de-duplication is employed)
o Confidentiality Designation
o Document Type
o Document Title
o Document Extension
o Author
o Page Count
o File Name
o File Size
o Hash Value
o Date Last Modified
o Time Last Modified
o Date Created
o Time Created
o Date Last Accessed
o Date Sent
o Time Sent
o Date Received
o Time Received
o Meeting Start Time
o Meeting End Date
o Meeting End Time
o Email From
o Recipients
o Copyees
o Blind Copyees
o Email Subject
o Importance
o Path/Link to Native File (Relative path to any files produced in native format, such

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For electronically stored information other than email and e-docs that do not conform to the metadata listed
here, such as text messages, Instant Bloomberg, iMessage, Google Chat, Yammer, Slack, Microsoft Teams, etc., the
parties will meet and confer as to the appropriate metadata fields to be produced.

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as Excel spreadsheets or PowerPoints or media files)
o OCR/ExtractedText Path
o Conversation Index
•
•
•

•

3.

Extracted full text (not OCR text) should also be delivered for each electronic document.
The extracted full text should be delivered on a document level according to the
specifications above similar to paper documents.
Foreign language text files and metadata should be delivered with the correct encoding to
enable the preservation of the documents’ original language.
All spreadsheets should be produced in their native format and in the order that they were
stored in the ordinary course of business, i.e. emails that attach spreadsheets should not be
separated from each other and should be linked using the Attachment Range fields above.
The file name should match the bates number assigned to the file. The extractable metadata
and text should be produced in the same manner as other documents that originated in
electronic form.
Presentation, media, and audio visual files (including but not limited to photos, videos and
audio files) will be produced as native files showing comments, hidden texts and
comments, and similar data, excluding near zero image files and such images in signature
blocks. A UNC file path must be included in the ESI load file. Additionally, a batesstamped *.tif placeholder matching the bates number of the native file, must be included
in the production and reflected in the image load file, with language to indicate the file was
produced natively.
PRODUCTION OF DATABASES AND OTHER STRUCTURED DATA
•

4.

If a database or other source of structured data contains responsive information, the
parties agree to meet and confer to determine whether it is proportionate to the
needs of the case to produce the responsive information and, if so, the method and
manner for producing responsive information in a manner that is reasonable and
proportionate to the needs of the case.

PRODUCTION OF TRANSCRIPTS
•

If deposition or other transcripts are responsive, the parties should meet and confer to
determine a mutually agreeable format for producing the transcripts. Before meeting and
conferring, the producing party will provide the following information about the responsive
transcripts. To the extent that the information listed below does not exist or is not
reasonably accessible or available, nothing in this ESI Protocol shall require any party to
extract, capture, collect or provide such information.
o Date of the deposition, trial, hearing or other event (each an “event”);
o Duration of the event;
o Name of the individual(s) who was/were recorded;
o The forms in which the transcripts exist such as PDF, text file,
o livenote or etranscript format (.lef, .ptx, or .ptz); and
o List of exhibits associated with the transcript and/or event.

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