IGT v. Aristocrat Technologies Inc.

Filing 79

ORDER Granting 77 Stipulation regarding the Production of Documents and Electronically Stored Information. Signed by Magistrate Judge George Foley, Jr on 11/9/15. (Copies have been distributed pursuant to the NEF - PS)

1
2
3
4

JEFF SILVESTRI, ESQ.
Nevada Bar No. 5779
McDONALD CARANO WILSON LLP
2300 West Sahara Avenue, Suite 1200
Las Vegas, NV 89102
Telephone: [phone]
Facsimile: 702.873.9966
E-mail: [e-mail]

5
6
7

•

•

McDONALD • CARANO • WILSON LLP

8
9
10
11
12
13

ADAM K. MORTARA, ESQ. (pro hac vice)
BRIAN C. SWANSON, ESQ. (pro hac vice)
JASON L. PELTZ, ESQ. (pro hac vice pending)
REID M. BOLTON, ESQ. (pro hac vice pending)
BARTLIT BECK HERMAN
PALENCHAR & SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: 312.494.4440
E-mail: [e-mail]
[e-mail]
[e-mail]
[e-mail]

DANIEL C. TAYLOR, ESQ. (pro hac vice)
BARTLIT BECK HERMAN
PALENCHAR & SCOTT LLP
1899 Wynkoop Street, 8th Floor
Denver, CO 80202
Telephone: [phone]
Facsimile: 303.591.3140
E-mail: [e-mail]

Attorneys for Plaintiff and Counterclaim Defendant IGT

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE DISTRICT OF NEVADA

16

IGT,

CASE NO. 2:15-cv-00473-GMN-GWF

17

Plaintiff,

18

v.

19

ARISTOCRAT TECHNOLOGIES, INC.,

20
21
22
23

Defendant.
ARISTOCRAT TECHNOLOGIES, INC.,
ARISTOCRAT TECHNOLOGIES
AUSTRALIA PTY. LTD., and
ARISTOCRAT INTERNATIONAL PTY. LTD.,

24

Counterclaim Plaintiffs,

25

v.

26
IGT,
27
28

Counterclaim Defendant.

STIPULATION REGARDING THE
PRODUCTION OF DOCUMENTS
AND ELECTRONICALLY STORED
INFORMATION

1

It is hereby stipulated and agreed, by and between Plaintiff/Counterclaim Defendant IGT and

2

Defendant/Counterclaim Plaintiff Aristocrat Technologies, Inc. (“ATI”) and Counterclaim Plaintiffs

3

Aristocrat Technologies Australia Pty. Ltd. and Aristocrat International Pty. Ltd. (together with ATI,

4

“Aristocrat”) (collectively, IGT and Aristocrat are “the Parties,” and each a “Party”), by their

5

respective counsel in the above-captioned action as follows:

6

1.

This Stipulation shall govern the production of documents and electronically stored

•
•

information (“ESI”), as described in Federal Rule of Civil Procedure 34. This stipulation does not

8

McDONALD • CARANO • WILSON LLP

7

govern the production of source code.

9
10
11

2.

The Parties shall produce paper documents and ESI according to the specifications

provided in Exhibit A.
3.

A Party is only required to produce a single copy of a responsive document. A Party

12

may remove exact duplicate ESI only according to the method specified in Exhibit A and shall

13

provide the “CustodianAll” metadata field specified in Exhibit A. However, (i) attachments to e-

14

mails shall not be eliminated from the parent e-mail, and (ii) paper documents shall not be

15

eliminated as duplicates of responsive ESI. To the extent the parties de-duplicate stand-alone

16

electronic documents against an e-mail attachment, the attachment to the e-mail must be the

17

document that is produced. ESI that is not an exact duplicate may not be removed.

18

4.

The Parties will make reasonable efforts to ensure that all documents produced in

19

native form are decrypted, but the Parties have no duty to identify encrypted documents prior to

20

production.

21

5.

If a Party objects to production of a specific document in the format described in

22

Exhibit A as impracticable or unduly burdensome or expensive, the Parties shall meet and confer in

23

good faith regarding an alternative method of production, such as in native format, and, absent

24

agreement, the Producing Party may move for a protective order.

25

6.

Each Party reserves the right to request native files for documents that are difficult to

26

understand when produced in the format specified in Exhibit A or that contain potentially relevant

27

embedded information, and such requests will not be unreasonably denied. Such a request shall be

28

made according to the following protocol.

2

1
2
3

(a)

The requesting Party shall provide a list of Bates numbers of the documents

that it is requesting to be produced in native file format.

4

(b)

Within fourteen (14) days of receiving this request, the producing Party will

5

either (i) produce the requested native files to the extent reasonably practicable or (ii) respond

6

in writing, setting forth its position on the production of the requested documents.

7

•

•

McDONALD • CARANO • WILSON LLP

8
9

(c)

If the Parties are unable to agree as to the production of the requested

documents in native format, the parties may submit the matter to the Court.
7.

In scanning paper documents, distinct documents should not be merged into a single

10

record, and single documents should not be split into multiple records (i.e., paper documents should

11

be logically unitized). In the case of an organized compilation of separate documents – for example,

12

a binder containing several separate documents behind numbered tabs – the document behind each

13

tab should be scanned separately, but the relationship among the documents in the compilation

14

should be reflected in the proper coding of the beginning and ending document and attachment

15

fields. The Parties will make their best efforts to unitize the documents correctly.

16
17
18

8.

This Stipulation shall have no effect on any producing Party’s right to seek

reimbursement for costs associated with collection, review, or production of documents or ESI.
9.

Each Party shall be responsible for generating a searching protocol that it believes in

19

good faith will return a reasonably high proportion of responsive documents. For e-mails and other

20

ESI collected from individual custodians, the Parties agree to use search terms to identify the

21

documents that it will review for responsiveness.

22

(a)

The Parties will exchange lists of proposed custodians and the proposed

23

search terms that each Producing Party proposes to use to for each custodian. If a Producing

24

Party has reason to believe that responsive documents are in a language other than English, the

25

Party will include in its proposed search terms any translated search terms it proposes to use.

26

(b)

The Parties agree to limit the number of custodians whose email will be

27

searched to up to nine (9) custodians per side, unless otherwise agreed to by the parties or for

28

good cause shown. Each side shall choose seven (7) internal document custodians by selecting

3

1

in good faith those custodians most likely to have created or received responsive documents.

2

As indicated below (in paragraph 9(d)(ii)), each side also will be allowed to identify up to two

3

(2) additional document custodians from the opposing side from whom documents will be

4

collected.

5

(c)

The parties agree that search terms must be narrowly tailored to specific issues

•

be found in documents collected from shared sources or other non-email sources.

8

•

that are most likely to be found in the ESI of the identified custodians and that are unlikely to

7

McDONALD • CARANO • WILSON LLP

6

Indiscriminate terms, such as the Producing Party’s name or the names of its products, are

9

inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk

10

of overproduction. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is

11

encouraged. A Producing Party shall not be required to use the Requesting Party’s search

12

terms if the entire set of terms, when applied to the nine document custodians, return more than

13

60,000 documents. However, the parties further agree that the mere fact that the requested

14

search terms return 60,000 or fewer documents does not establish that the search terms are

15

appropriate or otherwise comply with the parties’ obligation to avoid the use of search terms

16

that are not narrowly tailored to the specific issues that are most likely to be found in ESI of

17

individual custodians as opposed to other sources. For example, a particular search term that

18

returns a disproportionate amount of non-responsive documents would be objectionable. To

19

the extent that search terms proposed by the parties return more than 60,000 documents, the

20

parties agree to work together to revise or eliminate search terms until the search terms return

21

fewer than 60,000 documents.

22
23
24

(d)

The Parties agree to the following schedule for exchanging and agreeing upon

the lists of proposed custodians and search terms.
i. With thirty (30) days of execution of the Stipulation, the Parties will

25

exchange lists of their seven proposed custodians and search terms for

26

each of the proposed custodians. The Parties must disclose the name and

27

current job title of each of the seven proposed custodians. In addition,

28

each Party shall provide its most recent organization charts to the

4

1

opposing Party.

2

ii. Within seven (7) days of the Parties’ exchange of proposed custodians and

good faith. In addition, each Party may request up to two (2) additional

6

document custodians from the opposing side from whom documents will

7

be collected. A Party requesting additional document custodians shall also

8

•

modifications to the search terms, and such requests will be considered in

5

•

search terms, each Party shall have the right to request reasonable

4

McDONALD • CARANO • WILSON LLP

3

suggest up to eight (8) search terms to be used for each additional

9

custodian in accordance with subparagraph (c).

10

iii. Within twenty-one (21) days of the Parties’ exchange of proposed

11

custodians and search terms, the Parties will meet and confer to agree on

12

final search terms and custodians for each Party. Once the Parties have

13

agreed on final search terms, no search terms shall be added thereafter in

14

the absence of a further agreement between the Parties or unless good

15

cause is shown to the Court.

16

iv. In the event that any Party issues additional requests for production after

17

the Parties have agreed on final search terms, the Parties will, at the

18

request of a Party, meet and confer in good faith within fourteen (14) days

19

after the date that the objections to any such requests are due to discuss the

20

need for supplemental search terms and custodians and a schedule for

21

conducting additional searches.

22

10.

Each Party shall in good faith collect documents from sources shared by more than

23

one custodian (e.g., folders on shared drives or central repositories) likely to contain responsive

24

documents. The presumption is that collection from these shared repositories and seven to nine

25

custodians will be sufficient to comply with a Party’s obligations under Federal Rule of Civil

26

Procedure 34. Absent agreement between the Parties, any Party must seek leave of Court and

27

establish good cause to request searches of any additional document custodians.

28

5

1

11.

No Party shall be required to collect, search, produce or log any email created on or

2

after March 16, 2015, the date the original complaint was filed in this action. This provision is not

3

intended to impact the Parties’ obligations with respect to the collection, production or logging of

4

hard copy documents or non-email ESI created on or after March 16, 2015.

5

12.

Absent a particularized and reasonable need, it shall not be necessary for the Parties

•

voicemail systems, instant messaging, legacy computer systems, backup tapes and other discovery

8

•

to search for information from the following sources: cellular phones, smart phones, tablets,

7

McDONALD • CARANO • WILSON LLP

6

recovery systems, and slack data.

9
10

13.

The following protocol shall apply to the processing of third-party documents:
(a)

A Party that issues a non-party subpoena (the “Issuing Party”) shall include a

11

copy of Exhibit A to this Stipulation with the subpoena and state that the Parties to the

12

litigation have requested that third-parties produce documents in accordance with the

13

specifications set forth therein.

14
15
16

(b)

The Issuing Party is responsible for producing any documents obtained under

a subpoena to all other Parties.
(c)

If the Issuing Party receives any hard-copy documents or native files, the

17

Issuing Party will process the documents in accordance with the provisions of this Stipulation,

18

and then produce the processed documents to all other Parties. However, any documents the

19

Issuing Party does not intend to process for its own use may be disseminated to all other Parties

20

in the format in which such documents are received by the Issuing Party. If the Issuing Party

21

subsequently processes any such documents, the Issuing Party will produce those processed

22

documents to all other Parties.

23

(d)

If the non-party production is not Bates-stamped, the Issuing Party will

24

endorse the non-party production with unique prefixes and Bates numbers prior to producing

25

them to all other Parties.

26

(e)

Nothing in this Stipulation is intended or should be interpreted as narrowing,

27

expanding, or otherwise affecting the rights of the Parties or third parties to object to a

28

subpoena.

6

1

14.

This Stipulation is subject to the provisions of the Protective Order (Dkt. No. 65),

2

Federal Rule of Civil Procedure 26(b)(5), and Federal Rule of Evidence 502, governing the

3

inadvertent production of privileged or protected documents. Nothing in this Stipulation shall

4

supersede the provisions of any Protective Order governing this case.

5

15.

Nothing in this Stipulation shall be interpreted to require disclosure of (a) irrelevant

•

any other applicable privilege or immunity. The Parties do not waive any objections as to the

8

•

information or (b) information protected by the attorney-client privilege, work-product doctrine, or

7

McDONALD • CARANO • WILSON LLP

6

production, discoverability, admissibility, or confidentiality of documents and ESI.

9

16.

Nothing in this Stipulation precludes a Party from making documents, things, or ESI

10

available for inspection in accordance with Rule 34. However, any documents or ESI selected by a

11

Receiving Party during an inspection must be produced by the Producing Party in accordance with

12

this Stipulation, including Exhibit A hereto.

13

17.

The Parties consent to service of all papers by email pursuant to Rule 5(b)(2)(E).

14

18.

Counsel executing this Stipulation warrant and represent that they are authorized to

15

do so on behalf of themselves and their respective clients.

16
17
18
19
20
21
22
23
24
25
26
27
28

7

1

Respectfully submitted this 28th day of October, 2015.

2

/s/ Brian C. Swanson
JEFF SILVESTRI, ESQ.
Nevada Bar No. 5779
McDONALD CARANO WILSON LLP
2300 West Sahara Avenue, Suite 1200
Las Vegas, NV 89102
Telephone: [phone]
Facsimile: 702.873.9966
E-mail: [e-mail]

/s/ Gary M. Rubman
NICHOLAS J. SANTORO
SANTORO WHITMIRE, LTD.
10100 W. Charleston Blvd., Suite 250
Las Vegas, Nevada 89135
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

ADAM K. MORTARA, ESQ. (pro hac
vice)
BRIAN C. SWANSON, ESQ. (pro hac
vice)
JASON L. PELTZ, ESQ. (pro hac vice
pending)
REID M. BOLTON, ESQ. (pro hac vice
pending)
BARTLIT BECK HERMAN
PALENCHAR & SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: 312.494.4440
E-mail: [e-mail]
[e-mail]
[e-mail]
[e-mail]

ROBERT T. HASLAM (pro hac vice)
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

3
4
5
6
7

•

•

McDONALD • CARANO • WILSON LLP

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

DANIEL C. TAYLOR, ESQ. (pro hac vice)
BARTLIT BECK HERMAN
PALENCHAR & SCOTT LLP
1899 Wynkoop Street, 8th Floor
Denver, CO 80202
Telephone: [phone]
Facsimile: 303.591.3140
E-mail: [e-mail]

GARY M. RUBMAN (pro hac vice)
PETER A. SWANSON (pro hac vice)
COVINGTON & BURLING LLP
One CityCenter, 850 Tenth Street, NW
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Defendant/Counterclaim Plaintiff
Aristocrat Technologies Inc., and Counterclaim
Plaintiffs Aristocrat Technologies Australia Pty.
Ltd. and Aristocrat International Pty. Ltd.

Attorneys for Plaintiff/Counterclaim
Defendant IGT
IT IS SO ORDERED

24
25
26

___________________________________
Honorable George Foley
United States Magistrate Judge

27
28

November 9, 2015
Dated: _____________________________

8

1
2

CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of October, 2015, a true and correct copy of this

3

STIPULATION REGARDING THE PRODUCTION OF DOCUMENTS AND

4

ELECTRONICALLY STORED INFORMATION was electronically filed with the Clerk of the

5

Court by using the CM/ECF service which will provide copies to all counsel of record registered to

6

receive CM/ECF notifications in this case.

7

•

•

McDONALD • CARANO • WILSON LLP

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

/s/ Daniel C. Taylor
Daniel C. Taylor

EXHIBIT A
1.

IMAGES:
Produce documents in Single Page Group IV TIFF files
Image Resolution at least 300 DPI
Black and White unless color is necessary to understand the meaning
File Naming Convention: Match Bates Number
Insert Placeholder image for files produced in Native form (see Section 2)
Original document orientation shall be retained

2.

SPECIAL FILE TYPE INSTRUCTIONS:
Produce database, spreadsheet and presentation file types in Native Form (If
redactions are required, files will be produced in TIFF Form)
Produce Audio/Video Media File Types in Native Form

3.

FULL TEXT EXTRACTION / OCR:
Produce full extracted text for all file types (Redacted text will not be produced)
Produce OCR text for imaged document (such as JPG, JPEG, GIF, BMP, PCX, PNG,
TIF, TIFF etc.) using industry standard OCR technology where extracted text cannot
be provided (Redacted text will not be produced)
Production format: Single text file for each document, not one text file per page
File Naming Convention: Match Beg Bates Number

4.

LOAD FILE SPECIFICATIONS:
Images Load File: Opticon OPT file
Metadata Load File: Concordance DAT file with field header information added as
the first line of the file. Export using Concordance default delimiters.
Extracted TEXT (see section 3): Reference File Path to TEXT file in DAT file
Native Files Produced (see Section 2): Reference File Path to Native file in DAT
file

5.

ESI PRODUCTION METADATA FIELDS:
BegBates: Beginning Bates Number
EndBates: Ending Bates Number
BegAttach: Beginning Bates number of the first document in an attachment range
EndAttach: Ending Bates number of the last document in attachment range
PgCount: Page Count
Custodian: Name of the Custodian of the File(s) Produced – Last Name, First Name
format
CustodianAll: Custodian information for documents that were not processed because
of duplicate status
FileName: Filename of the original digital file name
NativeLink: Path and filename to produced Native file (see section 2)
EmailSubject: Subject line extracted from an email message
Title: Title field extracted from the metadata of a non-email document

Author: Author field extracted from the metadata of a non-email document
From: From field extracted from an email message
To: To or Recipient field extracted from an email message
Cc: CC or Carbon Copy field extracted from an email message
BCC: BCC or Blind Carbon Copy field extracted from an email message
DateRcvd: Received date of an email message (mm/dd/yyyy format)
TimeRcvd: Received time of an email message
DateSent: Sent date of an email message (mm/dd/yyyy format)
TimeSent: Sent time of an email message
DateCreated: Date that a file was created (mm/dd/yyyy format)
DateModified: Modification date(s) of a non-email document
Fingerprint: MD5 or SHA-1 has value generated by creating a binary stream of the
file
FileType: File type description of the file
ProdVolume: Identifies production media deliverable
ExtractedText: File path to Extracted Text/OCR File
Redacted: “X,” “Y,” “Yes,” for redacted documents; otherwise, blank
Confidentiality: Indicates if a document has been designated under the Protective
Order
6.

PAPER DOCUMENTS METADATA FIELDS:
BegBates: Beginning Bates Number
EndBates: Ending Bates Number
BegAttach: Beginning Bates number of the first document in an attachment range
EndAttach: Ending Bates number of the last document in attachment range
Custodian: Name of the Custodian of the File(s) Produced – Last Name, First Name
format
ProdVolume: Identifies production media deliverable

7.

DE-DUPLICATION
De-duplication method: Parties may de-duplicate stand-alone documents or entire
document families globally using MD5 or SHA-1 Has value matching
Common system files defined by the NIST library (http://www.nsrl.nist.gov/) need
not be produced