Progressive Casualty Insurance Company v. Delaney et al

Filing 67

ORDER that each of the parties and their respective counsel shall be governed by the terms and conditions of the agreement concerning the production is ESI documents. Signed by Magistrate Judge Peggy A. Leen on 10/24/13. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 1 of 22

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MORRIS LAW GROUP
Robert McCoy, N o. 9121
Email: [e-mail]
Joni A. Jamison, No. 11614
Email: [e-mail]
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Telephone: [phone]
LEE, HONG, DEGERMAN, KANG & WAIMEY
Eric D. Olson (pro hac vice)
Email: [e-mail]
3501 Jamboree Road, Suite 6000
Newport Beach, California 92660
Telephone: [phone]

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DICKSTEIN SHAPIRO LLP
Andrew M. Reidy (pro hac vice)
Email: [e-mail]
Catherine J. Serafin (pro hac vice)
Email: [e-mail]
Joseph M. Saka (pro hac vice)
Email: [e-mail]
1825 Eye Street NW
Washington, DC 20006
Telephone: [phone]

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Attorneys for Intervenor Federal Deposit
Insurance Company as Receiver for
Sun West Bank
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PROGRESSIVE CASUALTY
INSURANCE COMPANY,
Plaintiff
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JACKIE K. DELANEY; LARRY E.
CARTER; MARK A. STOUT;
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KENNETH TEMPLETON; JOHN)

Case No. 2:11-cv-00678-LRH-PAL
JOINT PROPOSED ESI
PROTOCOL

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 2 of 22

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SHIVELY; STEPHEN C. KALB;
JEROME F. SNYDER; HUGH
TEMPLETON; and RICK
DRESCHLER,

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Defendants.

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Plaintiff and Defendants have conferred regarding the

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production of electronically stored information in their possession,

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custody, or control (“ESI”), agree to the following, and respectfully move
the Court to enter an Order approving the same.

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1.

As used herein, “Plaintiff” or “Progressive” means

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capacity as Receiver of Sun West Bank (“Sun West” or the “Bank”), and “Ds

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& Os” means Defendants Jackie K. Delaney, Larry E. Carter, Mark A. Stout,

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Progressive Casualty Insurance Company, “FDIC-R” means the FDIC in its

Kenneth Templeton, John Shively, Stephen C. Kalb, Jerome F. Snyder,

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Hugh Templeton, and Rick Dreschler. As used herein, the words “Party” or

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“Parties” include Plaintiff, FDIC-R, and the Ds & Os.

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2.

This Protocol, including the provisions set forth in Exhibit

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A, applies to the ESI provisions of Fed. R. Civ. P. 16, 26,33, 34, and 37.

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Insofar as it relates to ESI, this Protocol also applies to Fed. R. Civ. P. 45, if

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agreed to by the recipient of any subpoena issued pursuant to that rule, in

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all instances in which the provisions of Fed. R. Civ. P. 45 are the same as, or

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substantially similar to, the provisions of Fed. R. Civ. P. 16, 26, 33, 34, or 37.

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Nothing contained herein modifies Fed. R. Civ. P. 45 and, specifically, the

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provision of Rule 45(c)(2)(B) regarding the effect of a written objection to

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inspection or copying of any or all of the designated materials or premises.

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The Parties agree that this Protocol will serve as a guideline for any

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subpoena for documents issued to ABA Insurance Services Inc. (“ABAIS”),

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Progressive’s managing general agent, in this matter. The Parties shall
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meet and confer regarding the appropriateness of this Protocol with respect

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to any subpoena to ABAIS. Nothing in this Protocol shall be deemed to

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constitute a waiver of any objections ABAIS may have with respect to any

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such subpoena. Nothing in this Protocol shall be deemed to prevent a

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Party from seeking the Court’s intervention with respect to any issues that

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may arise regarding the application of this Protocol to a subpoena issued to

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ABAIS and/or any objections ABAIS may have with respect to any such

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subpoena if the Parties are unable to resolve any such issues or objections

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without the Court’s assistance. Likewise, nothing in this Protocol shall be

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deemed to prevent any other Party from opposing any relief sought from

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the Court.
3.

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In this Protocol, the following terms have the following

meanings:
A.

“Metadata” means: (i) information embedded in a

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Native File, including but not limited to the information identified in

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Exhibit A hereto, that is not ordinarily viewable or printable from the

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application that generated, edited, or modified such Native File; and (ii)

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information generated automatically by the operation of a computer or

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other information technology system when a Native File is created,

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modified, transmitted, deleted, or otherwise manipulated by a user of such

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system. Metadata is a subset of ESI.

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B.

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“Native File(s)” means ESI in the electronic format

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of the software application m which such ESI is normally created, viewed,

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and/or modified. Native Files are a subset of ESI. Native Files include, but

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are not limited to, the files identified in Exhibit A.

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C.

“Static Image(s)” means a representation of ESI

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produced by converting a Native File, including but not limited to the

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types of files identified in Exhibit A, into a standard image format capable
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of being viewed and printed on standard computer systems. In the absence

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of agreement of the Parties or order of Court, a Static Image, when

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provided, should be provided in 300 dpi resolution, single-page black and

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white CCITT Group IV Tagged Image File Format (TIFF or .TIF files). If a

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TIFF or .TIF file cannot be created, then the Static Image should be

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provided in Portable Document Format (PDF).
4.

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Notwithstanding the protocols set forth in this Protocol,

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each Party shall produce any and all ESI it intends to rely upon in support

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of any claim or defense with respect to this matter.
5.

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Tn accordance with Federal Rule of Evidence 502(d), to

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information covered by the attorney-client privilege, work-product

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the extent any Party or subpoena recipient discloses a communication or
doctrine, or any other applicable privilege(s) or protection(s) (collectively

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Privilege’) that Privilege is not waived by disclosure connected with the

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litigation pendmg before the Court, and the disclosure is also not a waiver

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in any other federal or state proceeding. Upon discovery by any Party or

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recipient of a subpoena that produces documents subject to this Protocol

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that it inadvertently disclosed materials it believes to be protected by

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Privilege, that Party or subpoena recipient shall promptly notify all Parties

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or their counsel in writing of the disclosure, identify the document that

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contains or consists of material believed to be Privileged, and immediately

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take steps to prevent further disclosure of such material. The provisions of

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Federal Rule of Civil Procedure 26(b)(5)(B) shall govern the Parties and any

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subpoena recipient that produces documents subject to this Protocol with

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respect to any such material. Similarly, if any Party receives ESI from a

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producing Party or subpoena recipient that it reasonably believes the

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producing Party or subpoena recipient may have inadvertently produced

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because it clearly contains information that may be protected by the

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attorney-client privilege, work-product doctrine, or any other privileges or

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protections, the receiving Party shall notify the producing Party or

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subpoena recipient that it believes that such ESI may have been

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inadvertently produced. The provisions of Federal Rule of Civil Procedure

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26(b)(5)(B) shall govern the Parties and any subpoena recipients that

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produce documents subject to this Protocol with respect to any such

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material. To the extent the Parties or subpoena recipients disagree

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regarding the application of these principles to any such material, or

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challenge the privileged nature of such material, the receiving Parties shall

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not make use of the material in question until the matter is resolved by the

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Court.

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6.

Nothing in this Protocol requires Progressive, FDIC-R, or

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the Ds & Os to produce again information that was produced before this

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action was commenced and/or before this Protocol has been entered by the

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Court. The Parties reserve the right to address how to deal with any

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productions made before the action commenced.

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7.

The Parties have discussed whether the Party receiving

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ESI should be required to pay to the Party producing ESI six cents ($0.06)

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per Static Image for all ESI produced in Static Image format. The Parties

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have agreed to defer resolution of this issue until a later date. In the event

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that the Parties are unable to reach agreement regarding this issue, all

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Parties reserve the right to raise this issue with the Court if they deem it to

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be necessary. Moreover, nothing in this Protocol shall be deemed to

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constitute a waiver of any Party’s right to do so or a waiver of any Party’s

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right to contest any such effort. Other than the six cents ($0.06) per page

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addressed in this Paragraph, the Parties agree that all other costs associated

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with the production of ESI shall be borne by the producing Party unless

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otherwise specified in this Protocol.
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8. Nothing in this Protocol shall preclude any Party from

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seeking any documents in discovery. However, except for good cause

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shown, further agreement of the Parties, or as provided in this Protocol, the

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procedures set forth in this Protocol shall be the only way in which ESI

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shall be retrieved and produced in this matter.
9.

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The Parties shall exchange a list of electronic data sources

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that will be searched for relevant ESI and a list of all custodians whose

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electronic files will be searched for relevant ESI. Absent agreement among

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the Parties otherwise, all searches shall be run against all electronic data

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sources and custodians’ files disclosed by the producing Party. In the event

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a specific search for ESI will be run against only certain discrete data

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sources or a subset of custodians’ files, then the Parties shall exchange a list

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of the discrete data sources and/or the subset of custodians’ files that will

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be searched. If a Party contends the production of materials sought from

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one or more custodians is unduly burdensome or that the list of custodians

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whose electronic files will be searched is too broad or too narrow, the

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Parties agree to meet and confer to attempt to resolve the issue. Nothing in

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this Protocol shall prevent a Party from seekmg the Court s mtervention

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with respect to any such issue if the Parties are unable to resolve it

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themselves or from preventing any other Party from opposing any relief

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sought.
PROGRESSIVE ESI

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10.

Progressive represents it is in possession, custody, or

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control of the following categories of ESI: (1) Email; (2) General Documents;

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(3) Website Documents; and (4) Progress Documents. “General

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Documents” consists of all electronic documents that may include relevant

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ESI not encompassed solely in categories (1), (3), or (4). In addition to the

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foregoing, Progressive has certain ESI stored on backup tapes (“Backup
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Documents”). Upon restoration from backup, Backup Documents also

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would be in Progressive’s possession. Backup Documents are addressed in

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Paragraph 17 below. Progressive represents that, to the best of its

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knowledge, this is a full, complete, and accurate listing of all categories of

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ESI from which materials relevant to this action may be retrieved.

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and the Ds & Os reserve the right to seek additional ESI in the possession,

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custody, or control of Progressive or ABAIS, and nothing contained herein

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shall be deemed to constitute a waiver of their right to do so. Progressive

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and ABAIS reserve the right to object to any efforts by FDIC-R or the Ds &

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FDIC-R

Os to seek any such additional ESI, to the extent it exists.
11.

Subject to the terms of this Protocol, including, but not

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limited to, Paragraph 9, and the Confidentiality Agreement and Stipulated

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Protective Order in this matter (Docket No. 63), and pursuant to an Order

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of this Court which shall be deemed made by approval of this Protocol,

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Progressive shall produce relevant, non-privileged documents in categories

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(1) and (2), collectively referred to as the “Progressive Searchable ESI,” in

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accordance with the procedures set forth in this Protocol and in the format

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specified m Exhibit A hereto. Progressive shall produce relevant, non

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privileged ESI in category (3) as specifically addressed in Paragraph 15

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below. Progressive shall produce relevant, non-privileged ESI in category

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(4) as specifically addressed in Paragraph 16 below.

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12.

The Parties shall collectively agree upon a reasonable set

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of search terms to run across the processed Progressive Searchable ESI. If

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the Parties are unable to agree upon search terms after conferring in good

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faith, any Party may raise the issue with the Court by motion. In order to

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facilitate the good faith negotiation of search terms among the Parties, with

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respect to any search term requested by FDIC-R or the Ds & Os but

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objected to by Progressive on the grounds that it is overly broad or unduly
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burdensome, Progressive shall provide search term hit reports to FDIC-R

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and the Ds & Os which identify the number of unique documents that hit

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upon each identified search term requested by FDIC-R or the Ds & Os and

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objected to by Progressive. This search term process will be iterative and

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therefore might require several iterations of revised search terms and hit

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reports. If requested by FDIC-R or the Ds & Os with respect to any search

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term to which Progressive objects on the grounds that it is overly broad or

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unduly burdensome, Progressive shall also produce statistically random

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subsets of search-term-positive, non-privileged data for FDIC-R and the Ds

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& Os to assess the utility of the search terms prior to final agreement on

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search terms (“test production”). The Parties shall meet and confer to

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determine the specific parameters of the test production, including, but not

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limited to, the sample size and data sources from which the test production

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will be derived. The Parties reserve the right to seek the Court s

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intervention with respect to such issues if they are unable to reach

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agreement. To the extent there is a dispute among the Parties regarding

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documents retrieved by the search terms that Progressive does not

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produce, or an issue arises regardmg the timeliness of Progressive

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producing the documents, the Parties shall meet and confer and determine

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whether there are ways to resolve the dispute without Court intervention.

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Tn the event that the Parties are unable to reach agreement regarding this

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issue, all Parties reserve the right to raise the issue with the Court.

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Progressive shall also provide FDIC-R and the Ds & Os with an exception

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report listing any data that could not be searched or processed (“Exception

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Documents”). The report shall include, without limitation, the file

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extension for each Exception Document contained in the report.

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13.

After the Parties have agreed upon search terms or

established search terms with the assistance of the Court, Progressive shall
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apply the search terms to the documents in categories (1) and (2), review

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the documents retrieved, and produce to FDIC-R and the Ds & Os, at its

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option, either all non-privileged documents captured by the agreed-upon

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search terms or all non-privileged documents captured by the agreed-upon

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search terms that are responsive to FDIC-Rs or the Ds’ & Os’ document

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requests and relevant pursuant to the Federal Rules of Civil Procedure,

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subject to any proper objections Progressive may have to such requests.

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Progressive shall advise FDIC-R and the Ds & Os which option it selects.

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FDIC-R and the Ds & Os agree that Progressive need not review the

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option. Progressive shall advise FDIC-R and the Ds & Os whether it has

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reviewed documents for relevance or responsiveness prior to production

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and, if so, whether it has withheld documents on the grounds that they are

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?

responsiveness prior to production but that Progressive may do so at its

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v,c

documents captured by the agreed-upon search terms for relevance or

not relevant or responsive. Progressive shall produce documents in the

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format specified in Exhibit A. The Parties agree that Progressive will, as

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practicable, produce documents on a rolling basis and will produce

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documents as soon as practicable after the Parties have agreed upon search

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terms or established search terms with the assistance of the Court. To the

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extent Progressive does not produce documents retrieved by the agreed

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upon search terms based on its determination that such documents are not

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relevant or an issue arises regarding the timeliness of Progressive’s

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production, the Parties shall meet and confer and determine whether there

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are ways to resolve the issue without Court intervention. In the event that

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the Parties are unable to reach agreement regarding this issue, all Parties

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reserve the right to raise the issue with the Court.

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14.

The Parties may make multiple, reasonable requests for

production of ESI utilizing this process. In the event the producing party
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believes a subsequent request is not reasonably calculated to lead to the

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discovery of admissible evidence and objects to the subsequent request,

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then the burden shall be on the requesting party to demonstrate that such

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subsequent request is reasonable and necessary.

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15.

Progressive represents that ESI in category (3), Website

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Documents, consists of: (a) the website located at http://www.abais.com

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as of August 20, 2012 (the “ABAIS Website”); (b) previous iterations of the

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ABAIS Website, if any, maintained by ABAIS; (c) the website located at

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http://banks.progressive.com as of March 8, 2013 (the “Progressive

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Website”); and (d) previous iterations of the Progressive Website, if any,

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maintained by ABAIS or Progressive. Progressive shall produce the ABAIS

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Website (item (a)) and the Progressive Website (item (c)) in a form that will

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allow them to be viewed in their entirety in a standard web browser, i.e.,

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Internet Explorer, Firefox, Chrome. Progressive shall produce previous

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iterations of the ABAIS Website (item (b)), if any, and previous iterations of

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the Progressive Website (item (d)), if any, in this same form where

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available and, when not available in a readable electronic format, by

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printing out copies and producing them in accordance with the procedures

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for producing physical documents agreed to by the Parties. Progressive

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shall produce all documents within category (3) as soon as practicable after

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execution of this Protocol by all Parties.

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16.

Progressive represents that ESI in category (4), Progress

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Documents, consists of documents maintained in a proprietary computer

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system utilized by Progressive, commonly referred to as “Progress.”

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Among other things, Progress contains information also contained in

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physical copies of Progressive’s claim and underwriting files. Progressive

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represents that ESI stored in Progress is not amenable to production as ESI

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in accordance with the terms of this Protocol. Therefore, Progressive shall
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produce all relevant, non-privileged documents and information stored in

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Progress, that it is not otherwise producing as part of its production of

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physical documents, in a manner that most accurately reflects the

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appearance and content of such documents when viewed using the

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Progress software. At the time it produces such documents, Progressive

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shall provide a description of the manner in which it selected or procured

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them and of the ways in which the appearance or content of the documents

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as produced differs from the appearance or content of the documents when

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viewed using Progress. Nothing in this paragraph shall be deemed to

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constitute acknowledgement or agreement by FDIC-R or the Ds & Os

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concerning Progressive’s representation that ESI stored in Progress is not

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amenable to production as ESI in accordance with the terms of this

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Protocol. Further, the Parties reserve the right to re-address the

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methodology of how ESI in this category is produced in the event it can be

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produced in its electronic format. In the event that the Parties are unable to

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reach agreement regarding this issue, all Parties reserve the right to raise

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this issue with the Court if they deem it to be necessary. Moreover,

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nothing in this Protocol shall be deemed to constitute a waiver of any

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Party’s right to do so or a waiver of any Party’s right to contest any such

20

effort. Progressive shall produce all documents within category (4) as soon

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as practicable after execution of this Protocol by all Parties.

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17.

Progressive represents that Backup Documents consist of

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documents maintained by Progressive on backup tapes. Progressive shall

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provide to FDIC-R and the Ds & Os a description of ESI maintained solely

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in the form of Backup Documents. Progressive contends that Backup

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Documents are not readily available and that the production of Backup

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Documents by Progressive would be unduly burdensome and would

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require the expenditure of significant time and resources. For that reason,
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Progressive does not intend to produce Backup Documents. In the event

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that FDIC-R or the Ds & Os believe that Progressive should produce such

3

documents, they may file a motion with the Court seeking an order

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compelling such production. Nothing contained herein shall be deemed to

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constitute a waiver of their right to do so or a waiver of Progressive’s right

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to contest any such motion.

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18.

Progressive has converted, or will convert, to electronic

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format, ESI, relevant documents that exist solely in physical, hard-copy

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format. With respect to hard-copy documents Progressive converted to ESI

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prior to the execution of this Protocol in this matter, such documents were

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subject to an Optical Character Recognition (“OCR”) process when they

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were collected. To the extent not previously produced by Progressive prior

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to execution of this Protocol, Progressive shall produce such relevant, non

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privileged ESI in the format specified in Exhibit A along with metadata

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created when the hard-copy documents were converted to ESI, if any. For

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purposes of this paragraph, metadata means the following: (1) Custodian

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(Name of Custodian from whom the document was collected); (2) Author;

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(3) Doc Title (Title of file or email subject); (4) Doc Date (Visible data on

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loose files or Sent Date on emails); (5) Doc Type; (6) Page Count; (7) Bates

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Begin (Beginning Production Number); and (8) Bates End (Ending

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Production Number). Progressive shall not be required to create metadata

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with respect to such hard-copy documents that does not presently exist.

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The load file shall indicate document breaks. With respect to relevant,

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hard-copy documents Progressive has not yet converted to ESI, Progressive

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will convert such documents to ESI and shall subject them to an OCR

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process. Progressive shall produce such relevant, non-privileged ESI in the

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format specified in Exhibit A. The load file shall indicate document breaks,

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and, where readily available, the metadata created when the hard-copy
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documents were converted to ESI. Nothing in this paragraph shall be

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deemed to require Progressive to produce again any hard-copy documents

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it produced prior to execution of this Protocol, regardless whether its prior

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production(s) conformed to the requirements of this Protocol.

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19.

Documents withheld by Progressive on the basis of

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privilege, work product, or any other privilege or protection shall be

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logged, and Progressive shall provide the log to FDIC-R and the Ds & Os

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together with Progressive’s ESI production or within thirty (30) days after

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its production of the ESI material the privileged documents relate to.
FDIC-R ESI

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ii

20.

FDIC-R represents it is in possession, custody, or control

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of ESI related to Sun West Bank (“SWB ESI”). The SWB ESI includes the

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following databases: (1) S5 Forensic Data; (2) S5 Scanned Documents; (3)

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S5 Forensic Data Email; (4) various loan-related databases (S5 Director

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Loan Reports, S5 Laserpro Loan Origination Information, S5 OMS Loan

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Info); and (5) network file shares database (S5 Fileshares). A complete list

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of available databases is attached hereto as Exhibit B. FDIC-R represents

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that, to the best of its knowledge, Exhibit B is a full, complete, and accurate

19

listing of all categories of ESI from which materials relevant to this action

20

may be retrieved. As it relates to ESI in the possession or control of FDIC

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R, this Protocol applies only to SWB ESI as defined herein. Progressive and

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the Ds & Os reserve the right to seek additional ESI in the possession,

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custody, or control of the FDIC and/or FDIC-R, and nothing contained

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herein shall be deemed to constitute a waiver of their right to do so. FDIC

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R and the FDIC-Corporate reserve the right to object to any efforts to seek

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any such additional ESI, to the extent it exists.

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21.

Subject to the terms of this Protocol, including, but not

limited to, Paragraph 9, and the Confidentiality Agreement and Stipulated
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Protective Order in this matter (Docket. No. 63), and pursuant to an Order

2

of the Court which shall be deemed made by approval of this Protocol,

3

FDIC-R shall produce relevant, non-privileged documents from databases

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(1) through (4) in accordance with the procedure set forth in this Protocol

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and in the format specified in Exhibit A hereto.

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22.

The Parties shall collectively agree upon a reasonable set

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of search terms to run across the processed SWB ESI. If the Parties are

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unable to agree upon search terms after conferring in good faith, any Party

9

may raise the issue with the Court by motion. In order to facilitate the

10

good faith negotiation of search terms among the Parties, with respect to

II

any search term requested by Progressive or the Ds & Os but objected to by

12

FDIC-R on the grounds that it is overly broad or unduly burdensome,

13

FDIC-R shall provide search term hit reports to Progressive and the Ds &

14

Os which identify the number of unique documents that hit upon each

is

identified search term requested by Progressive or the Ds & Os and

16

objected to by FDIC-R. This search term process will be iterative and

17

therefore might require several iterations of revised search terms and hit

18

reports. If requested by Progressive or the Ds & Os with respect to any

19

search term to which FDIC-R objects on the grounds that it is overly broad

20

or unduly burdensome, FDIC-R shall also produce statistically random

2i

subsets of search-term-positive, non-privileged data for Progressive and

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the Ds & Os to assess the utility of the search terms prior to final agreement

23

on search terms (“test production”). The Parties shall meet and confer to

24

determine the specific parameters of the test production, including, but not

25

limited to, the sample size and data sources from which the test production

26

will be derived. The Parties reserve the right to seek the Court’s

27

intervention with respect to such issues if they are unable to reach

28

agreement. FDIC-R shall also provide Progressive and the Ds & Os with
Page 14 of 22

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 15 of 22

1

an exception report listing any data that could not be searched or processed

2

(“Exception Documents’ The report shall include, without limitation, the
).
t

3

file extension for each Exception Document contained in the report.

4

23.

After the Parties have agreed upon search terms or

5

established search terms with the assistance of the Court, FDIC-R shall

6

apply the search terms to the documents in databases (1) through (4) and,

7

at its option, may perform an initial review of the documents captured by

8

the search terms for privilege, responsiveness, or relevance pursuant to the

9

Federal Rules of Civil Procedure. FDIC-R shall make the documents

10

available to Progressive and the Ds & Os in an online Relativity database as

11

soon as practicable after the Parties have agreed upon search terms or

12

established search terms with the assistance of the Court. FDIC-R shall

13

advise Progressive and the Ds & Os whether it has reviewed documents for

14

privilege, responsiveness, or relevance prior to making them available in

15

Relativity and, if so, whether there are any documents retrieved by the

16

search terms that FDIC-R is not making available to Progressive and the Ds

17

& Os based on that review. To the extent there is a dispute among the

18

Parties regarding documents retrieved by the agreed-upon search terms

19

that FDIC-R does not make available in Relativity or an issue arises

20

regarding the timeliness of FDIC-R making documents available in

21

Relativity, the Parties shall meet and confer and determine whether there

22

are ways to resolve the dispute without Court intervention. In the event

23

that the Parties are unable to reach agreement regarding this issue, all

24

Parties reserve the right to raise the issue with the Court. The Parties agree

25

that FDIC-R is not required or obligated to conduct a relevancy,

26

responsiveness, or privilege review on the documents captured by the

27

agreed-upon search terms prior to making the documents available on

28

Relativity. The Parties further agree that FDIC-R will not be deemed to
Page 15 of 22

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 16 of 22

1

have waived any privilege by not conducting a privilege review before

2

making documents available on Relativity. Once FDIC-R has made

3

documents available to Progressive and the Ds & Os on Relativity,

4

Progressive and the Ds & Os wifi review the documents made available by

5

FDIC-R and advise FDIC-R which, if any, of those documents they want

6

FDIC-R to produce to them. FDIC-R shall then produce all such non

7

privileged documents identified by Progressive or the Ds & Os in the

8

format specified in Exhibit A. The Parties agree that FDIC-R will, as

9

practicable, produce documents on a rolling basis and will produce

10

documents as soon as practicable after Progressive and/or the Ds & Os

11

have provided notice to FDIC-R as to which documents they want

12

produced. In the event that a dispute arises among the Parties regarding

13

documents identified for production by Progressive and/or the Ds & Os

14

but withheld by FDIC-R, or an issue arises regarding the timeliness of

15

FDIC-R s production, the Parties shall meet and confer and determme

16

whether there are ways to resolve the issue without Court intervention. In

17

the event that the Parties are unable to reach agreement regarding this

18

issue, all Parties reserve the right to raise the issue with the Court.

Ho

19

24.

The Parties may make multiple, reasonable requests for

20

production of ESI utilizing this process. In the event the producing party

21

believes a subsequent request is not reasonably calculated to lead to the

22

discovery of admissible evidence and objects to the subsequent request,

23

then the burden shall be on the requesting party to demonstrate that such

24

subsequent request is reasonable and necessary.

25

25.

With respect to database (5), the database has not been

26

processed or OCRd and is not in a full text searchable form pursuant to

27

this Protocol. Database (5) is searchable by the current limited metadata of

28

file name and file path. FDIC-R, after the Parties have agreed-upon search
Page 16 of 22

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 17 of 22

1

terms or established search terms with the assistance of the Court, shall

2

apply the search terms to the metadata available in database (5) and, at its

3

option, may perform an initial review of the documents captured by the

4

search terms for privilege, responsiveness, or relevance pursuant to the

5

Federal Rules of Civil Procedure. As soon as practicable after the Parties

6

have agreed upon search terms or established search terms with the

7

assistance of the Court, FDIC-R shall make the documents available to

8

Progressive and the Ds & Os in an online Relativity database. To the extent

9

there is a dispute among the Parties regarding documents retrieved by the

10

agreed-upon search terms that FDIC-R does not make available in

11

Relativity or an issue arises regarding the timeliness of FDIC-R making

12

documents available in Relativity, the Parties shall meet and confer and

13

determine whether there are ways to resolve the dispute without court

14

intervention. The Parties agree that FDIC-R is not required nor obligated

15

to conduct a relevancy, responsiveness, or privilege review on the

16

documents captured by the agreed-upon search terms prior to making the

17

documents available on Relativity. The Parties further agree that FDIC-R

18

will not be deemed to have waived any privilege by not conducting a

19

privilege review before making documents available on Relativity. Once

20

FDIC-R has made documents available to Progressive and the Os & Os on

21

Relativity, Progressive and the Ds & Os will review the documents made

22

available by FDIC-R and advise FDIC-R which, if any, of those documents

23

they want FDIC-R to produce to them. FDIC-R shall then produce all such

24

non-privileged documents identified by Progressive or the Ds & Os in the

25

format specified in Exhibit A. The Parties agree that FDIC-R will, as

26

practicable, produce documents on a rolling basis and will produce

27

documents as soon as practicable after Progressive and/or the Ds & Os

28

have provided notice to FDIC-R as to which documents they want
Pagel7of22

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 18 of 22

1

produced. In the event that a dispute arises among the Parties regarding

2

documents identified for production by Progressive and/or the Ds & Os

3

but withheld by FDIC-R, or an issue arises regarding the timeliness of

4

FDIC-R’s production, the Parties shall meet and confer and determine

5

whether there are ways to resolve the issue without Court intervention. In

6

the event that the Parties are unable tO reach agreement regarding this

7

issue, all Parties reserve the right to raise the issue with the Court.

8

Additionally, upon review of the documents produced, if Progressive or

9

the Ds & Os determine that they require OCR searches of this database, the

10

Parties will discuss and attempt to reach an agreement regarding the OCR

11

processing and production of responsive, non-privileged documents in this

12

database and the costs involved in doing so. If the Parties are unable to

13

reach an agreement, the Parties will have the right to address issues

14

relating to this database with the Court. Nothing contained herein shall be

is

deemed to constitute acknowledgement or agreement by Progressive or the

16

Ds & Os that the means of production of documents contained in database

17

(5) described in this paragraph are sufficient or that FDIC-R is not required

18

to OCR the documents contained in database (5) at its expense to facilitate

19

retrieval and production of relevant ESI contained in that database.

20

Nothing contained herein shall be deemed to constitute a waiver by FDIC

21

R of its right to object to any effort by Progressive or the Ds & Os to require

22

it to OCR the documents contained in database (5).

23

26.

Progressive shall pay a monthly fee of $10 per gigabyte of

24

ESI hosted on the Relativity database until such time as Progressive

25

determines that such ESI need no longer be hosted on the Relativity

26

database and provides written notification of this to FDIC-R and the Ds &

27

Os. Progressive will pay the monthly fee for the entire month in which it

28

provides such notification to FDIC-R and the Ds & Os. In no event shall
Page 18 of 22

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 19 of 22

1

Progressive be required to pay the monthly fee for any period of time after

2

the month of notification. If one or more of the Ds & Os wish for such ESI

3

to be hosted on the Relativity database after Progressive has provided such

4

notification, the Ds & Os shall pay the monthly fee of $10 per gigabyte

5

beginning the month after that in which Progressive provides notice to

6

FDIC-R and the Ds & Os that such ESI need no longer be hosted in

7

Relativity and continuing until such time as the Ds & Os notify FDIC-R that

8

such ESI need no longer be hosted on the Relativity database. The Ds & Os

9

will pay the monthly fee for the entire month in which they provide such

10

notification to FDIC-R. In no event shall the Ds & Os be required to pay

11

the monthly fee for any period of time after the month of notification.

12

27.

FDIC-R has converted, or will convert, to electronic

13

format, ESI, relevant documents that exist solely in physical, hard-copy

14

format. With respect to hard-copy documents FDIC-R converted to ESI

is

prior to the execution of this Protocol in this matter, such documents were

16

subject to an Optical Character Recognition (“OCR”) process when they

17

were collected. To the extent not previously produced by FDIC-R prior to

18

execution of this Protocol, FDIC-R shall produce such relevant, non

19

privileged ESI in the format specified in Exhibit A along with metadata

20

created when the hard-copy documents were converted to ESI, if any. For

21

purposes of this paragraph, metadata means the following: (1) Custodian

22

(Name of Custodian from whom the document was collected); (2) Author;

23

(3) Doc Title (Title of file or email subject); (4) Doc Date (Visible data on

24

loose files or Sent Date on emails); (5) Doc Type; (6) Page Count; (7) Bates

25

Begin (Beginning Production Number); and (8) Bates End (Ending

26

Production Number). FDIC-R shall not be required to create metadata

27

with respect to such hard-copy documents that does not presently exist.

28

The load file shall indicate document breaks. With respect to relevant,
Page 19 of 22

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 20 of 22

1

hard-copy documents FDIC-R has not yet converted to ESI, FDIC-R will

2

convert such documents to ESI and shall subject them to an OCR process.

3

FDIC-R shall produce such relevant, non-privileged ESI in the format

4

specified in Exhibit A. The load file shall indicate document breaks, and,

5

where readily available, the metadata created when the hard-copy

6

documents were converted to ESI. Nothing in this paragraph shall be

7

deemed to require FDIC-R to produce again any hard-copy documents it

8

produced prior to execution of this Protocol, regardless whether its prior

9

production(s) conformed to the requirements of this Protocol.

10

28.

Documents withheld by FDIC-R on the basis of privilege,

11

work product, or similar exemption shall be logged, and the log shall be

12

provided to Progressive and the Ds & Os together with FDIC-R’s ESI

13

production or within 30 days after its production of the ESI material the

14

privileged documents relate to.
Ds’&Os’ESI

15
16

29.

if the Ds & Os are in possession of any ESI that is

17

responsive to document requests issued to them by Progressive or FDIC-R,

18

including, without limitation, email and documents of various types,

19

subject to this Protocol and the Confidentiality Agreement and Stipulated

20

Protective Order in this matter (Docket. No. 63), and pursuant to an Order

21

of this Court which shall be deemed made by approval of this Protocol, the

22

Ds & Os shall produce to FDIC-R and Progressive any such non-privileged

23

ESI. With respect to any such ESI that the Ds & Os contend is protected

24

from disclosure by the attorney-client privilege, the work-product doctrine,

25

or any other applicable privileges or protections, the Ds & Os shall produce

26

to Progressive and FDIC-R a log identifying any such documents together

27

with their production of ESI or within 30 days after the production of the

28

ESI material the privileged documents relate to.
Page 20 of 22

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 21 of 22

1
2
3
4

5
6
7

C

HOWARD & HOWARD

MORRIS LAW GROUP

By Is! Matthew J. Dendinger
Lewis K. Loss
Richard W. Boone, Jr.
Matthew J. Dendinger
Loss, Judge & Ward, LLP
Two Lafayette Centre
1133 21st Street, NW
Washington, DC 20036

By /s/ Andrew M. Reidy
Robert McCoy, No. 9121
Toni A. Jamison, No. 11614
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101

C’

co

8
9
10
11

!I1
(ID D
I: 0

C

12
13

15

16
17

1

Counsel for Plaint ff Progressive Casualty
Insurance Company

14

0
<C
D

Thomas W. Davis, II
Howard & Howard
Wells Fargo Tower, Suite 1400
3800 Howard Hughes Parkway
Las Vegas, NV 89169

18
19
20

ARMSTRONG & TEASDALE
By:

/s/ Kevin R. Stoiworthy
Kevin R Stoiworthy, No. 2798
Conor P. Flynn, No. 11569
Armstrong Teasdale
3770 Howard Hughes Parkway
Suite 200
Las Vegas, NV 89169

LEE, HONG, DEGERMAN,
KANG, WAIMEY
Eric D. Olson (pro hac vice)
1920 Main Street, Suite 900
Irvine, CA 92614
DICKSTEIN SHAPIRO LLP
Andrew M. Reidy (pro hac vice)
Catherine J. Serafin (pro hac vice)
Joseph M. Saka (pro hac vice)
1825 Eye Street NW
Washington, DC 20006
Attorneys for Federal Deposit
Insurance Corporation as Receiver
of Sun West Bank

21
22
23
24
25

Counsel for Jackie K. Delaney, Larry E.
Carter, Mark A. Stout, Kenneth Templeton,
John Shively, Steven C. Kalb, Jerome F.
Snyder, Hugh Templeton, and Rick
Dreschler

26
27
28

Page 21 of 22

Case 2:11-cv-00678-LRH-PAL Document 65 Filed 10/22/13 Page 22 of 22

1
2

ORDER
IT IS SO ORDERED that each of the parties and their respective

3

counsel shall be governed by the terms and conditions of the above

4

agreement concerning the production of ESI documents.

5
6

7

UNITED STATES MAGISTRATE JUDGE

8

DATED:

October 24, 2013

9
10
11
12
13

14

ox
15
jDo

16
17
18

I
Page

22

of

22

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 1 of 10

EXHIBIT A

EXHIBIT A

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 2 of 10

EXHIBIT A TO ESI PROTOCOL
Form of Production for Email

All electronic email from Windows-Based ESI (“WEST”) shall be
produced as Static Images.’ Static Images shall be produced by FDIC-R
complete with full text extracts and the following fields of Metadata, to the
extent the Metadata is available:
1.

Custodian (Natural person or device in possession of the

record at the time of collection)
2.

Group_Custodian (Name(s) of custodian(s) with exact

copy of file before de-duplication)
3.
4.

Author Meta (Last editor of attachment/e-doc)

5.

CC

6.

BCC

7.

Sent To

8.

MD5 Hash Value or Equivalent

9.

Sent Date (Date e-mail was sent from sender)

10.

Sent Time (Time e-mail was sent from sender)

11.

1

From (Name)

COMPPATH (Complete Filename and path)

“Static Image(s)” means a representation of ESI produced by converting a
Native File, including but not limited to the files identified in Exhibit A,
into a standard image format capable of being viewed and printed on
standard computer systems. In the absence of agreement of the Parties or
order of Court, a Static Image, when provided, should be provided in 300
dpi resolution, single-page black and white CCIH Group IV Tagged Image
File Format (TIFF or .TIF files). If a TIFF or .TIF file cannot be created, then
the Static Image should be provided in Portable Document Format (PDF).

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 3 of 10

Document Type (Field in Relativity describing the family

12.

relationship (parent or attachment) of a record
13.

Application (Program commonly used to access the

14.

Extracted Text (Text of c-mails, nested e-mail body, or

record)
raw text from images, edocs, or attachments)
15.

Bates Begin

16.

Bates End

17.

Bates Attach Begin

18.

Bates Attach End

19.

Relativity ID (Unique Relativity identifier

—

Document

Control Number)
20.

Subject (e-mail subject line)

21.

Group Identifier (Full range of Relativity records

between beginning parent document and ending child document)
22.

Title

23.

Last Modified Date (Full date edoc was modified before

Meta

(Title

of

attachment/standalone

edoc

metadata)
saving/sending)
Static Images shall be produced by Progressive complete with
full text extracts and the following fields of Metadata, to the extent the
Metadata is available:
1.

Custodian (Name of Custodian from which file is being

2.

Other Custodians (Name(s) of custodian(s) who had

produced);
exact copy of message before dc-duplication);
3.

Author (FROM field);

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 4 of 10

4.

CC;

5.

BCC;

6.

Recipient (TO field);

7.

MD5 Hash Value or Equivalent;

8.

Time Sent (Time the email was sent);

9.

Time Received (Time the email was received);

10.

File Type (Application used to create the file);

11.

Page Count;

12.

PST Name;

13.

Body Text (Extracted text);

14.

Bates Begin (Beginning Production Number);

15.

Bates End (Ending Production Number);

16.

Attach Begin (Beginning Attachment Range Number);

17.

Attach End (Ending Attachment Range Number);

18.

Control Number or DodD Number;

19.

Subject (subject line of the e-mail).

With respect to productions by both FDIC-R and Progressive,
electronic mail shall be produced along with attachments to the extent the
message and/or any attachment is responsive, relevant and not privileged.
As a general matter, subject to specific review, a message and its
attachments(s) shall not be withheld from production based on the fact that
one or more attachments are privileged, irrelevant, or non-responsive. To
the extent the message and/or one or more attachments is privileged or
non-responsive, the responsive, non-privileged documents shall be
produced along with placeholders indicating whether the accompanying
record was withheld as non-responsive or privileged. All Parties should

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 5 of 10

confirm that their ESI is Windows-based or, if not, identify the other forms
of ESI within their possession, custody and control.
Form of Production for Other WESI
All other WEST (including attachments to electronic mail) shall
be produced as Static Images. Static Images shall be produced by FDIC-R
complete with full text extracts and the following fields of Metadata, to the
extent the Metadata is available:
1.

Custodian (Natural person or device in possession of the

record at the time of collection)
2.

Group_Custodian (Name(s) of custodian(s) with exact

copy of file before de-duplication)
3.

Author Meta (Last editor of attachment/e-doc)

4.

Title

5.

Created Date (Contains the date the edoc was created)

6.

Created Time (Contains the time the edoc was created)

7.

Last Modified Date (Full date the edoc was modified

Meta

(Title

of

attachment/standalone

edoc

metadata)

before saving/sending)
8.

Application (Program commonly used to access the

9.

Document Type (Field in Relativity describing the family

record)
relationship (parent or attachment) of a record
10.

Group Identifier (Full range of Relativity records

between beginning parent document and ending child document)
11.

COMPPATH (Complete Filename and path)

12.

MD5 Hash

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 6 of 10

Extracted Text (Text of e-mails, nested e-mail body, or

13.

raw text from images, edocs, or attachments)
14.

Bates Begin

15.

Bates End

16.

Bates Attach Begin

17.

Bates Attach End

18.

Relativity ID (Unique Relativity identifier

—

Document

Control Number)
Static Images shall be produced by Progressive complete with
full text extracts and the following fields of Metadata, to the extent the
Metadata is available:
1.

Custodian (Name of Custodian from which file is being

2.

Other Custodians (Name(s) of custodian(s) who had

produced);
exact copy of message before de-duplication);
3.

Author;

4.

Doc Title (Title of file from properties);

5.

Doc Subject (Subject of file from properties);

6.

Created Date (Date the file was created);

7.

Created Time (Time the file was created);

8.

Last Modified Date and Time (Date and Time the file

was last modified);
9.

Last Saved By (Name of user who last saved the file);

10.

File Type (Application used to create the file);

11.

Doc Type;

12.

Page Count;

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 7 of 10

13.

Path (Full path of the original location where the file was

14.

MD5 Hash (MD5 hash value of the original native file);

15.

Body Text (OCR for paper data or Extracted text for all

16.

Bates Begin (Beginning Production Number);

17.

Bates End (Ending Production Number);

18.

Attach Begin (Beginning Attachment Range Number);

19.

Attach End (Ending Attachment Range Number);

20.

Control Number or DodD Number.

located);

ESI);

Native Production
The Parties shall have the right to request that ESI be produced
as Native Files in addition to the format set forth above when a party has a
reasonable belief that a Native File contains additional information not
otherwise viewable from the production format set forth above and such
additional information is relevant and reasonably calculated to lead to the
discovery of admissible evidence. These documents will be accompanied
with the appropriate load files indicating a cross reference to the Bates
numbered Static Image.
Additionally, in the event a Party wishes to produce WEST e
mail and non-email in native form rather than as Static Images, the Parties
shall meet and confer to discuss the feasibility of, and guidelines for, any
such production.
Each WEST document produced as a Native File will have a
unique document identification number (i.e., “Relativity ID”) generated and
included within the production as a separate metadata field within the

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 8 of 10

DAT or DII load file.

The Relativity ID shall be the default unique

document identification number.
Form of Production for Spreadsheets
ESI in the form of spreadsheets shall be produced as Native
Files along with a placeholder Static Image listing the spreadsheet
document that is being produced. These documents will be accompanied
by the appropriate load files indicating a cross reference to the Bates
numbered Static Image.
Microsoft Access Databases
With respect to non-privileged Microsoft Access Database files,
each Party shall provide a list of all such files, along with a description of
each database sufficient to allow the other Parties to determine whether
they wish the database(s) to be produced. In the event that they do, the
Parties shall meet and confer to discuss the production of such database(s).
2
Load Files
All WEST shall be produced along with an IPRO, Opticon, or
Summation DII load file indicating Bates numbers and document breaks as
applicable. Metadata shall be produced in Concordance DAT file format,
DII format, and summary text file for Summation, or XML format, and
extracted full text shall be provided in TXT file format at the document
level. Non-Windows-Based Applications and Data shall be subject to the
same production requirements to the extent technically and legally feasible.
2

A litigation support “load file,” as that term is used herein, refers to the
file necessary to reference images of documents and corresponding load
file data into a reviewable database. A load file can, for example, specify
what individual pages belong together as a document, what attachments
are included with a document, where a document begins and ends, and
what metadata is associated with a document.

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 9 of 10

Duplicates
To avoid the production of more than one copy of a particular
unique item, the Parties shall use industry standard MD5 (or SHA-1) hash
values within (1) all emails identified for production, and (2) all loose
electronic files identified for production. The Parties will not de-duplicate
attachments to emails against loose electronic files. The Parties shall also
produce a field listing all custodians of any de-duplicated copies of an
email or other electronic document.
Other Methods to Streamline Discovery
The Parties agree to meet and confer in good faith about any
other technology or process that a producing party proposes to use to
streamline the culling, review and production of ESI (e.g., email threading,
near de-duplication, technology assisted review). The Parties shall make
reasonable good faith efforts to resolve any objections to the use of such
technology or process before seeking relief from the Court.
Production Media
Documents shall be produced on external hard drives or
readily accessible computer or electronic media, e.g., CDs, DVDs, or flash
or thumb drives (“Production Media”). All Production Media should have
the following five directories: (1) IMAGES for the images; (2) DATA for the
.dat and .opt files; (3) TEXT for the extracted text/OCR files; (4) NATIVES
for any native Excel files or Exception Documents; and (5) Load Files. The
Production Media shall identify: (a) the producing Party’s name; (b) the
production date; and (c) the Bates Number range of the materials contained
on the Production Media.

Case 2:11-cv-00678-LRH-PAL Document 65-1 Filed 10/22/13 Page 10 of 10

Color
Where the original of a produced docament is in color, and
color is material to the interpretation of the document, the receiving party
may request that the document be produced in color (whether electronic or
paper). Otherwise, production will be in 300 dpi resolution, single-page
black and white CCITT Group IV Tagged Image File Format.

Case 2:11-cv-00678-LRH-PAL Document 65-2 Filed 10/22/13 Page 1 of 2

EXHIBIT B

EXHIBIT B

Case 2:11-cv-00678-LRH-PAL Document 65-2 Filed 10/22/13 Page 2 of 2

EXHIBIT B TO ESI PROTOCOL
Sun West Bank ESI Databases

S5 Director All Reports
S5 Director Deposit Reports
S5 Director Loan Reports
S5 Fileshares
S5 Forensic Data
S5 Forensic Data Email
S5 Laserpro Customer Information
S5 Laserpro Loan Origination Information
S5 OMS Deposit Info
S5 OMS GL Info
S5 OMS Loan Info
S5 Scanned Documents