U.S.Bank National Association v. Bank of America, N.A.

Filing 111

STIPULATION FOR THE EXCHANGE OF ELECTRONICALLY STORED INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Judge Paul G. Gardephe on 11/19/2021) (ks)

Case 1:15-cv-08153-PGG Document 108 Filed 11/18/21 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
U.S. BANK NATIONAL ASSOCIATION, as
successor to Wells Fargo Bank, National
Association, as Trustee for the Registered
Holders of Citigroup Commercial Mortgage
Trust 2007-C6, Commercial Mortgage PassThrough Certificates, Series 2007-C6, acting by
and through Its Special Servicer
LNR PARTNERS, LLC,
Plaintiff,

Case No. 15-cv-08153 (PGG)
STIPULATION FOR
THE EXCHANGE OF
ELECTRONICALLY STORED
INFORMATION

v.
BANK OF AMERICA, N.A.,
Defendant.
The following procedures and obligations for the exchange and production of electronically
stored information (“ESI”) are hereby STIPULATED AND AGREED by and between the parties
hereto, through undersigned counsel:
1.

General Applicability and Modification
(a)

If a provision of this agreement (the “ESI Stipulation”) conflicts with the terms of

the Stipulated Confidentiality Agreement and Protective Order (the “Confidentiality Stipulation”)
previously entered in this action, the Confidentiality Stipulation will control absent further order
of the court.
(b)

Should either party determine in good faith that it cannot proceed as required by

this ESI Stipulation, the parties agree to meet and confer to resolve any dispute. Should the Parties
be unable to resolve any such issue, they may then seek the Court’s assistance.

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(c)

This ESI Stipulation shall also govern productions made by any third party who is

subpoenaed in this action, unless otherwise agreed to by the issuing party and the third party.
Accordingly, this ESI Stipulation should be attached to any subpoena issued in this action.
2.

Format of Files for Production
(a)

Digitized Paper Documents:
(i)

Documents originally in paper/physical form will be digitized into single-

page, group IV (G4) format, black and white TIFF files at 300 dpi and be 8 ½ x 11 inch page size,
except for documents requiring higher resolution or different page size.
(ii)

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

a single record, and single documents should not be split into multiple records (i.e., paper
documents should be logically unitized). The Parties will make their best efforts to have their
vendors unitize documents correctly and will commit to address situations where there are
improperly unitized documents.
(iii)

Every filename will match the document’s Bates number, and be zero

padded with no blank spaces; i.e., D000000001 (Defendant’s Bate Stamp Page 1, P000820009
(Plaintiff’s Bate Stamp Page 000820009);
(iv)

The Parties will include with each production delivery an archival image

link file as agreed (i.e., an Opticon (.OPT) file or similar).
(v)

The Parties will include standard Concordance default delimited text files

as agreed in .DAT or similar format, and will include all available fielding data, including but not
limited to: (1) beginning and ending Bates numbers, (2) beginning and ending attachment numbers,
(3) number of pages, and (4) source location/custodian.
(vi)

The parties will apply Optical Character Recognition (OCR) software to all

applicable documents and create document level OCR-searchable files in .TXT format for
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document. The OCR software should be set to the highest quality setting during processing.
The file name of each such .TXT file should correspond to the file name of the first image file of
the document with which it is associated. The text files will not contain the redacted portions of
the documents.
(b)

Documents Originating Electronically:

Standard electronic documents, emails, and presentations will be produced as TIFF images
in the manner described above in Paragraph 2(a); however, all attachments, addendums,
enclosures, and/or exhibits to a parent documents will be produced and identified as they relate to
the respective parent document.
(i)

Digital documents will be produced with corresponding .TXT files as

outlined above in Paragraph 2(a), as well as extracted metadata fields (where available), as agreed
and set forth in the Metadata Table contained in Appendix A below.
(ii)

All TIFF files are to be provided with an accompanying searchable text

(.TXT) file extracted from the native, electronic file (not generated as an OCR file from the
TIFF image(s)), and such text files shall contain the full text extraction. To the extent
reasonably feasible, extracted text shall provide all comments, tracked changes, speaker’s
notes, and text from hidden worksheets, slides, columns and rows. In the case of files with
redacted text, OCR’d text of the redacted documents may be provided in lieu of extracted text.
OCR software should be set to the highest quality setting during processing.
(iii)

Extracted text, as opposed to OCR text, delivered with production and

formatted in .TXT file as above with OCR text files.

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(iv)

The Parties will produce the following ESI types in native file format: (1)

Excel spreadsheets, (2) audio/visual files, and (3) PowerPoint presentations. Any documents
produced in native file format will be produced according to the following specifications:
•

A unique Bates number and confidentiality designation shall be used as the
file name and the original file name and file extension shall be preserved in
the corresponding load file.

•

The native file format documents shall be accompanied by reference
information that sets forth for each document, sufficient information to
allow the Parties to track and authenticate the native format documents
produced, including: (i) the name of the custodian from whose files the
electronic file is produced; (ii) an appropriately calculated "MD-5 Hash
Value"; (iii) the original name of the file; and (iv) a Bates number.

•

Any file produced in native format need not be imaged. Instead, a single
page placeholder image shall be provided that indicates the file was
produced in native format and contains the Bates number and
Confidentiality designation of the corresponding file.

(v)

The Parties agree to meet and confer regarding the production format for

any databases or other structured data that are not easily convertible to TIFF images and/or require
specialized software to view and/or process the responsive data.
3.

Deduplication (Global)
(a)

Each Party will de-duplicate ESI globally for exact duplicate documents (based on

MD5 or SHA-1 hash values at the parent document level). This will result in the Producing Party
producing only a single copy of responsive Duplicate ESI, provided that all other custodians of the

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Duplicate ESI are listed in the "Duplicate Custodians" (or similar name) field. The Parties shall
de-duplicate stand-alone documents against stand-alone documents and shall de-duplicate toplevel email documents against top-level email documents. De-duplication shall not break apart
families. Common system and program files as defined by the NIST library need not be processed,
reviewed or produced.
(b)

The Parties will retain all de-duplicated documents for the duration of the action or

as agreed.
4.

Confidentiality Designations and ESI From Other Individuals/Entities:
The Parties will designate documents as confidential or otherwise according to the terms

of the Confidentiality Stipulation.
5.

Proprietary or Third Party Software
To the extent that information produced pursuant to this Protocol cannot be rendered or

viewed without the use of proprietary or third-party software, the Parties shall meet and confer to
minimize any expense or burden associated with the production of such information in an
acceptable format.
6.

Production Media
The Parties shall produce documents electronically via a secure File Transfer Protocol

(“FTP”) rather than through physical media (e.g., CD, DVD, or hard drive), unless such electronic
transmission is impracticable, or the otherwise Parties agree on a different method of transmission.
The produced documents shall be password protected and/or encrypted.

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Case 1:15-cv-08153-PGG Document 108 Filed 11/18/21 Page 6 of 8

Dated: November 18, 2021
VENABLE LLP

WINSTON & STRAWN LLP

/s/ Gregory A. Cross
Gregory A. Cross
Colleen Mallon Casse (pro hac vice)
750 East Pratt Street, Suite 900
Baltimore, Maryland 21202
Telephone: [phone]

/s/ Luke A. Connelly
Luke A. Connelly
200 Park Avenue
New York, NY 10166
Telephone: [phone]

Attorneys for Plaintiff

Attorney for Defendant

November 19, 2021
Dated: __________________
New York, New York
SO ORDERED.

_________________________
Paul G. Gardephe
United States District Judge

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Case 1:15-cv-08153-PGG Document 108 Filed 11/18/21 Page 7 of 8

APPENDIX A

Field Name
PRODBEG

Sample Data
P000000222

PRODEND

P000000222

BEGATTACH

P000000222

ENDATTACH

P000000229

CUSTODIAN

Adams, John;
[e-mail]

DUPLICATE
CUSTODIAN

Franklin, Ben; Hancock, John,
Whipple, William

FROM
AUTHOR

Adams, John
Jefferson, Thomas

TO

BCC

Hancock, John[mailto:
HANCOCK@JOHNHANCOC
K.com]
Franklin, Ben
[mailto: [e-mail]]
NA

SUBJECT

Declaration w/ edits

CC

FILENAME
FILE_PATH
FILE_EXTEN

i.e., MSG, DOCX, PDF, etc.

FILE_SIZE
DATE_SENT

7/3/1776

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Description
First Bates number of native file
document/email
Last Bates Number of native file
document/email (single-page
documents will list beginning and
ending Bates number)
Beginning Bates number of the
first document in an attachment
range (e-mail only)
Ending Bates number of the last
document in an attachment range.
Email: mailbox in which the file
was located Native: Individual
who originated the document
When global deduplicating has
been employed, the custodians
who had duplicates of the
identical document
Email author/sender
Author of native document (MS
Word, etc.)
Recipient(s) of email separated by
semicolon
Carbon copy recipient(s) of email
Blind carbon copy recipient(s) of
email
Email: subject line Native:
document title
File name — Original name of
file as appeared in original`
location
File path of the original storage
location of the document or email
File extension of email or native
document
Size or volume of individual file
Email: date the email was sent

Case 1:15-cv-08153-PGG Document 108 Filed 11/18/21 Page 8 of 8

DATE_RECEIVED

7/4/1776

TIME_SENT

12:59 AM

TIME_RECEIVED

1:05 AM

DATE_CREATED
DATE_MOD

6/1/2009
10/12/2010

PGCOUNT

1

NATIVE_LINK

D:\1969\ P000000222.MSG

Full Text Path

D:\1969\ P000000222.txt

MD5/SHA1

E4d909c290d0fb1ca068ffaddf22
cbd0

CONFIDENTIALITY
REDACTION

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Email: date the email was
received
Email: time at which email was
sent on date in date field
Email: time at which email was
received
Date native document was created
Date native document was last
modified
Total pages of each original
document/email
Hyperlink to web address, named
uniformly with first bates of
parent document
UNC path to text files of
extracted/OCR text (unless
redacted)
Hash code created for file in
connection with deduplication
Confidentiality designation for
produced documents
Identifies if a document has been
redacted.