Vishay Dale Electronics, Inc. v. Rohm Co., Ltd.

Filing 29

ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION - Upon stipulation of the parties (filing 27 ), the Court enters the following Order regarding discovery of electronically stored information (ESI). Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VISHAY DALE ELECTRONICS, INC.,
Plaintiff,

)
)
)

8:13-CV-03201

)
v.

)
)

ROHM CO., LTD

)
)
Defendant.

)

ORDER REGARDING DISCOVERY
OF ELECTRONICALLY STORED INFORMATION
Upon stipulation of the parties (filing 27), the Court enters the following
Order regarding discovery of electronically stored information (ESI):
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 for good cause in the Court’s discretion or

by agreement of the parties. If the parties cannot resolve their disagreements
regarding any modifications, the parties shall submit their competing proposals and
a summary of their dispute.
3.

Costs will be shifted for disproportionate ESI production requests

pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive
or dilatory discovery tactics will be cost-shifting considerations.

4.
promote

A party’s meaningful compliance with this Order and efforts to
efficiency

and

reduce

costs

will

be

considered

in

cost-shifting

determinations.
5.

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.
6.

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 textsearchable format for use in this litigation, including for use by the producing

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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.
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.
7.

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 email or other forms of electronic correspondence (collectively
“email”). To obtain email parties must propound specific email production requests.
Email production requests shall only be propounded for specific issues, rather than
general discovery of a product or business.

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8.

Email production requests shall be phased to occur after the parties

have exchanged initial disclosures and basic documentation about the patents, the
prior art, the accused instrumentalities, and the relevant finances. While this
provision does not require the production of such information, the Court encourages
prompt and early production of this information to promote efficient and economical
streamlining of the case.
9.

Email 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 timeframe. Each requesting party shall limit its
email production requests to a total of seven 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 email production requests to a

total of ten 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 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

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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.
13.

Except as expressly stated, nothing in this order affects the parties’

discovery obligations under the Federal or Local Rules.
IT IS SO ORDERED.
DATED November 26, 2014.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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