BGC Partners, Inc. et al v. Avison Young (Canada), Inc. et al

Filing 251

ORDER Granting 250 Stipulation re Discovery Disclosure of Electronically Stored Information. Signed by Magistrate Judge Elayna J. Youchah on 11/4/2019. (Copies have been distributed pursuant to the NEF - JQC)

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1 5 Todd L. Bice, Esq., Jordan T. Smith, Esq. Pisanelli Bice PLLC 400 South 7th Street, Suite 300 Las Vegas, Nevada 89101 Telephone: (702) 214-2100 Facsimile: (702) 214-2101 tlb@pisanellibice.com jts@pisanellibice.com 6 and 7 F. Thomas Hecht, Illinois Bar No. 1168606 Tina B. Solis, Illinois Bar No. 6242461 Seth A. Horvath, Illinois Bar No. 6283110 Nixon Peabody LLP 70 W. Madison Street, Suite 3500 Chicago, Illinois 60602 Telephone: (312) 977-4400 Facsimile: (844) 560-8137 fthecht@nixonpeabody.com tbsolis@nixonpeabody.com sahorvath@nixonpeabody.com 2 3 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorneys for Plaintiffs Newmark Group, Inc., G&E Acquisition Company, LLC, and BGC Real Estate of Nevada LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA NEWMARK GROUP, INC., G&E ACQUISITION COMPANY, LLC, and BGC REAL ESTATE OF NEVADA, LLC, ) ) ) ) ) ) ) ) ) ) AVISON YOUNG (CANADA) INC.; AVISON ) ) YOUNG (USA) INC.; AVISON YOUNG NEVADA, LLC, MARK ROSE, THE NEVADA ) COMMERCIAL GROUP, JOHN PINJUV, and ) JOSEPH KUPIEC; DOES 1 through 5; and ROE ) BUSINESS ENTITIES 6 through 10 CASE NO.: 2:15-cv-00531-RFB-EJY STIPULATION REGARDING DISCLOSURE OF ELECTRONICALLY STORED INFORMATION 1 2 3 4 5 6 7 8 9 10 11 The undersigned parties, through their respective counsel, stipulate and agree to the terms set forth in this stipulation regarding disclosure of electronically stored information (“Order”): 1. DEFINITIONS The following terms in this Order will have the agreed-upon meanings set forth below: (a) Custodian: “Custodian” means a person who has custody and control over electronic information. (b) Source: “Source” means all locally accessible physical devices and cloud-based accounts designed to store, transmit or otherwise interact with electronic information. Examples of “Sources” include, but are not limited to, forensic image files, desktop computers, laptop computers, smartphones, file servers, USB drives, DVDs, third party email accounts, social media 12 13 14 15 accounts, and third party cloud file storage services. (c) Data: “Data” means electronic information. (d) Deduplication (“Deduping”): “Deduplication” means the process of comparing 16 electronic records based on their MD5 Hash Value or equivalent and removing and identifying, to 17 the extent possible, duplicate records within the data set. 18 19 20 21 22 (e) Document Number: “Document Number” means a legible, unique page identifier. Each file must be unique and match the Bates number of the page. The file name should not contain any blank spaces and should be zero padded (for example ABC0000001). (f) Documents of Limited Accessibility: “Documents of Limited Accessibility” are 23 Data that are not reasonably accessible and may include Electronic Information created or used by 24 electronic media no longer in use, maintained in redundant electronic-storage media, or for which 25 retrieval involves substantial cost. 26 27 28 (g) Electronic Information: “Electronic Information” means information stored in electronic media, including network drives and email servers. -2- 1 2 3 4 5 6 7 8 9 10 11 (h) Email: “Email” means an electronic means for communicating information under specified conditions, generally in the form of text, through systems that will send, store, process, and receive information and in which messages are held in storage until the addressee accesses them. (i) Format: “Format” means the internal structure of a file that defines the way the file is stored and used. (j) Keyword Search: “Keyword Search” means a search of the text of Electronic Information for one or more words or sets of characters or numbers that are specified by a user. (k) Load File: “Load File” means a file that relates to a set of scanned images and indicates where individual pages belong together as documents. A load file may also contain data 12 13 14 relevant to the individual documents (e.g., metadata or coded data). (l) Metadata: “Metadata” means information about a particular data set or document 15 that describes, among other things, how, when, and by whom it was created, accessed, modified, 16 sent, and received, and how it is formatted. 17 18 19 20 21 22 (m) Native Format: “Native Format” means the file structure of Electronic Information defined by the original creating application. (n) Online Repository: “Online Repository” means a secure database of documents that makes documents accessible, searchable, and reviewable via the Internet. (o) Parties or Party: “Party” or “Parties” means each Party to this Litigation. The 23 Parties in this action share significant overlap with the parties to the actions listed on Exhibit B to 24 the Protective Order entered on August 31, 2017 (ECF No. 110), as modified on July 18, 2018 25 (ECF No. 163), and nothing in this Order will restrict the Parties to this Litigation from working in 26 27 28 concert to maximize the efficiency of discovery with any or all parties to the actions listed on Exhibit B of the Protective Order. -3- 1 2 (p) Information. 3 4 5 6 (q) external hard drive (with standard PC-compatible interface). (r) 11 Receiving Party: “Receiving Party” means a Party to whom Electronic Information is produced. 9 10 Production Media: “Production Media” means documents on any readily accessible computer or electronic media the Parties may agree upon, including CD-ROM, DVD, or 7 8 Producing Party: “Producing Party” means a Party that produces Electronic (s) Relevant Electronic Information: “Relevant Electronic Information” means Electronic Information that is material and necessary in prosecuting or defending this Litigation, within the meaning of Rules 26, 33, and 34 of the Federal Rules of Civil Procedure. 12 (t) 13 14 15 et al v. Avison Young (Canada) Inc., et al., Case No. 2:15-cv-00531-RFB-EJY, which is currently pending in the United States District Court for the District of Nevada. 16 17 (u) 20 21 22 23 24 25 26 TIFF: “TIFF” (Tagged Image File Format) refers to a particular graphic-file format for storing bit-mapped images, with multiple compression formats and resolutions. 18 19 This Litigation: This “Litigation” means the case captioned Newmark Group, Inc., (v) Paper Discovery: “Paper Discovery” means responsive documents and things under Rule 34 of the Federal Rules of Civil Procedure that were originally created in paper format and that may or may not have been converted into digital format. 2. SCOPE (a) General: The procedures and protocols set forth in this Order will govern the production of Electronic Information in this Litigation. (b) Paper Discovery: Each Producing Party has an independent and separate obligation to produce Paper Discovery responsive to a Receiving Party’s discovery requests and 27 28 agrees to produce Paper Discovery in TIFF format. Upon a request by the Receiving Party and a -4- 1 showing of good cause (e.g., problems with legibility or formatting), the Producing Party must 2 make the original paper documents available for inspection at a mutually agreeable time and place. 3 4 5 6 (c) Limitations: This Order provides a general framework for producing Electronic Information. This Order does not establish any agreement as to either the temporal or subjectmatter scope of discovery. (d) 7 Disputes: The Parties will meet and confer to resolve any procedures or disputes 8 arising under this Order. In the event the Parties cannot reach agreement on a disputed matter, the 9 Parties will submit the matter to the Court in this Litigation. 10 3. 11 COST CONTAINMENT (a) Objective: The procedures in this Order pertaining to producing Electronic 12 13 14 Information are subject to developing reasonable and appropriate strategies to minimize the cost and burden that may be associated with producing Data. (b) 15 Keyword Searches: The Parties will use Keyword Searches using agreed-upon 16 keywords specific to each Party. 17 4. 18 19 20 21 PRODUCTION (a) Document-Production Format: The following provisions will generally govern the production format and procedure for Electronic Information and are subject to the other provisions in the Order: 22 (i) 23 to images, which will be produced as black-and-white, Group IV compression, 24 single-page TIFF images, at not less than 300 dpi resolution. Color images will be 25 produced only if necessary to understand the document, and all Parties reserve the 26 27 28 Hard-Copy Documents. The Producing Party will scan hard-copy documents right to produce the files in Native Format rather than by color images. The Producing Party will produce a delimited text file to accompany the TIFF images, -5- 1 which will indicate document breaks. If a document is more than one page, the 2 unitization of the document and any attachments or affixed notes will be maintained 3 4 5 6 as it existed in the original when creating the image file. Images will be saved into a unique sequentially numbered folder (i.e. 001, 002, 003), and each folder will not consist of more than 5,000 images. When producing TIFF image files, the Producing 7 Party will also produce corresponding Optical Character Recognition (“OCR”) files 8 as multi-page ASCII text (“TXT”) files whose file name is identical to the 9 corresponding first TIFF image file of the corresponding images for a Document. 10 11 The OCR files will be produced in a separate folder. Reasonable efforts will be used to scan the pages at or near their original size and to display Bates numbers and 12 13 14 confidentiality designations without obscuring text. Physically oversized originals, however, may appear reduced or may be produced as hard-copy documents. To the 15 extent a physically oversized document cannot be readily deciphered if scanned and 16 reduced into a TIFF image, it will be produced as a hard-copy document, and a 17 placeholder TIFF will be produced indicating the Bates number of the oversized 18 19 20 21 hard-copy document and confidentiality designation if applicable. Hard-copy documents will be produced as maintained in the usual course of business, including maintaining, to the extent reasonably possible, attachments, notes, etc. 22 (ii) Electronic Documents. Electronic documents may be deduplicated across 23 custodians with all custodians of a document included in the All Custodian field as 24 provided in Exhibit A. The Parties agree that, for hard-copy documents, they will 25 populate the field with the term “Hard-Copy Document.” The electronic documents 26 27 28 will be produced as black-and-white, Group IV compression, single-page TIFF images, with not less than 300 dpi resolution. The Producing Party will produce as -6- 1 native files Microsoft Excel spreadsheets, Microsoft PowerPoint files, and other 2 electronic documents that cannot be converted to TIFF format in readily usable and 3 4 5 6 legible format. Color images will be produced only if necessary to understand the Document, and all Parties reserve the right to produce the files in Native Format rather than by color images. The Parties will produce a delimited text file to 7 accompany the TIFF images, which will indicate Document breaks. For any 8 documents produced in a TIFF format that contain track changes, the images must 9 be produced in a manner that displays all track changes and any associated notes or 10 11 comments. A Producing Party will, to the extent the information is reasonably 12 13 14 ascertainable and accessible, identify the Custodians and Sources from which each electronic document was harvested. To the extent email data is stored, or only 15 accessible, in an archive system (e.g., archived email that will not be swept up during 16 a pull of a given custodian’s live email account), the Parties agree to search the 17 archive system as part of any collections and productions. Archives, as that term is 18 19 20 21 used in the preceding sentence, do not include back-up tapes. With each production of Documents, the Parties will produce an ASCII formatted DAT file, delimited as set forth in this Order, containing the extracted 22 Metadata for each document and accompanied by an OPT file (the “Load Files”). 23 The Load Files will include the fields and content set forth in Exhibit A to this Order. 24 The Load Files produced by the Producing Party will contain the standard 25 Concordance delimiters. However, the Parties agree that a Party may request to 26 27 28 receive additional Metadata upon a showing of good cause. The Producing Party will take reasonable steps to produce relevant, nonprivileged attachments to -7- 1 electronic documents contemporaneously and in sequential order. In the harvesting 2 of electronic documents, document relationships will be preserved. Related 3 nonprivileged documents within a family will be produced, and any family 4 documents containing privileged information that are withheld will be identified 5 with a Bates-numbered document placeholder TIFF within the set of family 6 7 documents. All Producing Parties will provide attachment-range information as 8 provided in Exhibit A. 9 For Documents that are redacted, the type of redaction (personal 10 information; privileged information; nonresponsive information; nonrelevant, 11 nonresponsive trade-secret information; or nonrelevant, nonresponsive confidential 12 business information) will be noted in the Load File in the field “Redacted.” The 13 term “Redacted” will be reflected on the images to indicate where a redaction occurs 14 15 as well as in the multipage text file containing OCR for searching purposes. 16 (iii) Searchable Text. To the extent a document has extracted text, the Parties will 17 produce a multipage text file for each produced document reflecting the full text that 18 has been electronically extracted from the original, native electronic files 19 (“Extracted Text”). The Extracted Text will be provided at the same time as the 20 Load File and be placed in a separate folder. For redacted documents, instead of 21 22 Extracted Text, OCR will be run on each document post-redaction and provided as 23 a multipage text file. 24 25 26 27 28 (b) Production of Documents in Native Format: After the initial production of electronic documents in TIFF image file format is complete, the Parties reserve the right to request the production of electronic documents in Native Format. A Party must make a showing of good cause (e.g., problems with legibility or formatting or a need for additional metadata) for producing -8- 1 the electronic documents in their Native Format, and the parties’ right to seek cost-sharing for such 2 requests is preserved. In the event a request is made for producing Native Format documents, the 3 4 5 6 Parties will negotiate in good faith about the timing and method of the production. No image file or Native Format document will be intentionally manipulated to change how the source document would have appeared if printed out to a printer attached to a computer viewing the file. Documents 7 produced in Native Format will be produced in the manner the files were maintained electronically 8 in the ordinary course of business. A placeholder TIFF will be produced indicating the Bates 9 number of the file and confidentiality designation if applicable. 10 11 Files will be renamed to incorporate Bates number schema into the file name, followed by original document extension (e.g., “.doc,” “.xls,” etc.). The Parties will produce as part of the Load File the original file name, the 12 13 14 15 16 17 18 19 20 21 corresponding Bates number, and the associated hash value. If the production of databases other than a Microsoft Access database is requested, the Parties will meet and confer as to the propriety of the request and the method of production. (c) Appearance and Content: Subject to any appropriate redaction, each document’s electronic image will convey the same information and image as the original document. Documents that present imaging or formatting problems will be identified, and the Parties will meet and confer in an attempt to resolve any problems. (d) Document Unitization: If a document is more than one page, the unitization of the 22 document and any attachments or affixed notes will be maintained as it existed in the original file 23 or computer of the Producing Party. If unitization cannot be maintained, the original unitization 24 will be noted, documented in a Load File or otherwise electronically tracked. 25 26 27 28 (e) Color: Documents containing color need not be originally produced in color. If an original document contains color necessary to understand the meaning or content of the document, however, the Producing Party will honor reasonable requests for either producing an original -9- 1 document for inspection and copying or producing a color image of the document. The Receiving 2 Party will be responsible for the reasonable cost of color copying. 3 4 5 6 (f) Document Numbering for TIFF Images: Each page of a produced document, produced in TIFF file format will have a legible, unique Document Number electronically endorsed onto the image at a location that does not obliterate, conceal, or interfere with any information from 7 the source document. The Document Number for each document will be created so as to identify 8 the Producing Party and the Document Number. Each Party will have a unique identifying name. 9 Each page of each production will have a unique number of up to seven digits. Any redacted page 10 11 will also include the word “Redacted” endorsed on the TIFF image at the location of the redaction(s). 12 13 14 (g) Production Media: The Producing Party will produce documents on any readily accessible computer or electronic media the Parties may agree upon, including CD-ROM, DVD, 15 external hard drive (with standard PC-compatible interface or access to a secure Online Repository 16 agreed upon by the Parties). Each piece of Production Media will be assigned a production number 17 or other unique identifying label corresponding to the date of the production of documents on the 18 19 20 21 Production Media as well as the sequence of the material in that production. An example of this convention is “Plaintiff Production March 1, 2006 PLTF 0000123–PLTF 0000456.” Production Media will include text referencing the case name and number. Further, any replacement 22 Production Media will cross-reference the original Production Media and clearly identify that it is 23 a replacement and cross-reference the document number range that is being replaced. 24 (i) Load Files. With each production, the Producing Party will provide a standard 25 Concordance (.opt and .dat) delimiter Load File indicating the beginning and ending 26 27 28 Bates Numbers of all Document families. The production material should be produced in the following folder structure: - 10 - 1 2 3 4 5 6 7 8 9 (h) Decryption and Passwords: To the extent that decryption or access passwords are 10 necessary to unlock any Data in its Native Format, including but not limited to email passwords 11 and file decryption passwords, the Parties will meet and confer to develop appropriate steps to allow 12 access to the Data without compromising confidentiality, security, or proprietary interests. 13 14 15 16 17 (i) Redaction: For any file produced in Native Format that is redacted, the Parties will meet and confer with respect to suitable techniques and methods of redaction to preserve the integrity of the Data while protecting information subject to redaction. (j) Documents of Limited Accessibility: If a Producing Party contends that any 18 Electronic Information is of limited accessibility, that Party will identify the Data with reasonable 19 particularity and will provide the requesting Party with its basis for declining to produce the 20 21 Electronic Information. The Parties will negotiate in good faith concerning producing any Documents of Limited Accessibility. 22 23 24 If the Parties are unable to reach agreement, the Parties will submit any dispute to the Court and the Court will determine what burdens may be imposed upon the Producing or Receiving 25 Parties in order to resolve the dispute and whether or to what extent the costs of the production will 26 be borne by the Producing or Receiving Parties. 27 28 - 11 - 1 5. 2 3 4 5 6 7 (a) 10 Metadata: The Parties’ intent is that when a request for Metadata from a file in Native Format is made in addition to what is required under Section 4(a)(ii) and Exhibit A, and production is agreed to or ordered, to the extent it exists and is available, all additional Metadata from that file in Native Format will be produced. The Parties reserve the right to challenge the reasonableness of a producing party’s efforts to preserve and/or locate any missing Metadata. (b) 8 9 METADATA, REDACTION, LANGUAGE, AND COOPERATION English Language: To the extent any Data exists in more than one language, the Data will be produced in English, if available. If no English version of a document is available, the Producing Party does not have an obligation to produce an English translation of a document. 11 (c) Cooperation: The Parties will, as necessary, meet and confer to exchange 12 13 information regarding issues associated with any electronic production of Electronic Information. (d) 14 Variance: Any practice or procedure set forth in this Order may be varied by 15 written agreement of the Parties when the variance is deemed appropriate to facilitate the timely 16 and economical exchange of Electronic Information. 17 18 19 20 (e) Duplicate Production Not Required: A Party producing Electronic Information in electronic form need not produce the same document in paper format. 6. TIMING OF ELECTRONIC DISCOVERY Any Party under an obligation to produce Electronic Information will commence producing 21 22 the Electronic Information and proceed with producing the Electronic Information in a timely manner 23 consistent with time considerations to be developed by the Parties. 24 7. 25 26 27 28 CONFIDENTIAL INFORMATION & PRIVILEGE The Parties have entered into a separate Protective Order dated August 31, 2017, as modified on July 18, 2018 that governs the treatment of confidential material, including submitting confidential material to the Court and recourse for inadvertently producing - 12 - 1 confidential or privileged information. The Parties will enter into a separate agreement regarding 2 the identification (including logging) and redaction of privileged documents. 3 4 5 Dated: November 4, 2019 IT IS SO ORDERED: 6 U.S. MAGISTRATE JUDGE ELAYNA J. YOUCHAH 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Order agreed to by: By: /s/ Tina B. Solis By: /s/ Nathaniel J. Kritzer Todd L. Bice, Esq., Jordan T. Smith, Esq. Pisanelli Bice PLLC 400 South 7th Street, Suite 300 Las Vegas, Nevada 89101 Telephone: (702) 214-2100 Facsimile: (702) 214-2101 tlb@pisanellibice.com jts@pisanellibice.com Robert S. Larsen Wing Y. Wong Gordon Rees Scully Mansukhani, LLP 300 S. 4th St., Suite 1550 Las Vegas, Nevada 89101 Tel. (702) 577-9301 Fax. (702) 255-2858 rlarsen@gordonrees.com wwong@grsm.com and and F. Thomas Hecht Tina B. Solis Seth A. Horvath Nixon Peabody LLP 70 W. Madison Street, Suite 3500 Chicago, Illinois 60602 Telephone: (312) 977-4400 Facsimile: (844) 560-8137 fthecht@nixonpeabody.com tbsolis@nixonpeabody.com sahorvath@nixonpeabody.com Nathaniel J. Kritzer Steptoe & Johnson LLP 1114 Avenue of the Americas New York, New York 10036 Tel. (212) 378-7535 Fax (212) 506-3950 nkritzer@steptoe.com Attorneys for Plaintiffs Newmark Group, Inc., G&E Acquisition Company, LLC, and BGC Real Estate of Nevada LLC Attorneys for Defendants Avison Young (Canada) Inc., Avison Young (USA) Inc., Avison YoungNevada LLC, Mark Rose, Joseph Kupiec, The Nevada Commercial Group, and John Pinjuv 25 26 27 28 - 13 - 1 EXHIBIT A 2 Production Load File Fields 3 4 5 6 FIELD DESCRIPTION BEGBATES Beginning Bates number assigned to each document. Format XXXXX00000001. Y Y ENDBATES Ending Bates number assigned to each document. Format XXXXX00000001. Y Y BEGATTACH Beginning Bates number assigned to the group of documents to which the parent document and any attachment documents are associated. Format XXXXX00000001. Y Y ENDATTACH Ending Bates number assigned to the group of documents to which the parent document and any attachment documents are associated. Format XXXXX00000001. Y Y PARENT ID Beginning Bates number of any parent document. Y Y ATTACHMENT IDS Beginning Bates number(s) of any attached document. Y Y PAGE COUNT Number of pages per document. Y Y Y N Y N 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ESI Non-ESI (converted to Load Files) The date extracted from a field that DATE CREATED contains the date a file was created. Formatted as MM/DD/YYYY. 25 26 27 DATE LAST MODIFIED The date extracted from a field that contains the date a file was last modified. Formatted as MM/DD/YYYY. 28 - 14 - 1 2 3 FIELD DESCRIPTION DATE SENT The date an email was sent. Formatted as MM/DD/YYYY. Y N TIME SENT The time an email was sent. Formatted as HH:MM:SS in Eastern military time. Y N DATE RECEIVED The date an email was received. Formatted as MM/DD/YYYY. Y N was received. Formatted TIME RECEIVED The time an emailEastern military time. as HH:MM:SS in Y N RECORDTYPE The type of document—Scan Paper; Email; Email Attachment; Loose Edoc. Y Y FILENAME The original filename of the electronic file. Y N DOCTITLE The title of an electronic document. Y N DOCAUTHOR The author of an electronic file. Y N SUBJECT The subject line of the email. Y N FROM The originator of the email message. Y N RECIPIENT The recipient(s) of an email. Y N CC Names of copied recipients of an email. Y N BCC Names of blind copied recipients of an email. Y N 4 5 ESI Non-ESI (converted to Load Files) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 - 1 2 3 ESI Non-ESI (converted to Load Files) FIELD DESCRIPTION ALL Name of any individual, department, or server where the file was stored or kept (delimited with semicolon). Y Y Name of the individual(s), department, or server where the file was stored or kept. Y Y Y N Y Y Y Y Y Y Email sent date propagated to its attachments. Y N MD5 HASH VALUE An algorithm that is used to verify data integrity and uniqueness. Y N DOCUMENT LAST PRINTED DATE The date that the document was last printed. Y N 4 5 6 CUSTODIAN 7 8 CUSTODIAN 9 10 11 NATIVE Link to Native File. 12 13 TEXTPATH Link to Extracted Text or OCR Text File. REDACTION If a document has been redacted, indicates the type of redaction—Personal Information, Privilege, Nonresponsive. CONFIDENTIAL Confidentiality Designation. 14 15 16 17 18 19 20 PARENT DATE 21 22 23 24 25 26 27 28 - 16 - 1 2 3 ESI Non-ESI (converted to Load Files) FIELD DESCRIPTION DOCUMENT LAST PRINTED TIME The time that the document was last printed. Y N The amount of time spent editing the document. Y N The company to which the software used to create the document was licensed. Y N The version number of the document. Y N MS AUTHOR The Microsoft embedded “MS Author” value. Y N 17 MS COMPANY The Microsoft embedded “MS Company” value. Y N 18 The Microsoft embedded person value LAST MODIFIED who last modified a document. BY Y N The Microsoft embedded person value who last printed a document. Y N The Microsoft embedded person value LAST SAVED BY who last saved a document. Y N 4 5 6 7 8 DOCUMENT EDITING TIME 9 10 DOCUMENT COMPANY 11 12 13 DOCUMENT REVISION NUMBER 14 15 16 19 20 21 22 23 LAST PRINTED BY 24 25 26 27 28 - 17 -

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