Ciaramella et al v. Zucker

Filing 181

JOINT ELECTRONIC DISCOVERY SUBMISSION AND ORDER: Plaintiffs Frank Ciaramella, Lillian Velazquez, AnneMarie Walker, Antonio Martin, Christopher Russo, Matthew Adinolfi, Jody Virtuoso, Yvonne Hawkins, Blanca Correas, and Brenda Perry, on behalf of themselves and all others similarly situated (together, "Plaintiffs") and Howard Zucker, in his official capacity as Commissioner of the Department of Health ("Defendant") (together, the "Parties") believe that re levant information may exist or be stored in electronic format and that this content is potentially responsive to current or anticipated discovery requests. This Joint Submission and Order (the "ESI Protocol") shall be the governing d ocument(s) by which the Parties and the Court manage the electronic discovery process in this action. The Parties and the Court recognize that this ESI Protocol is based on facts and circumstances as they are currently known to each party, that t he electronic discovery process is iterative, and that additions and modifications to this Submission may become necessary as more information becomes known to the Parties. (As further set forth herein this Order.) SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 1/6/2021) (va)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRANK CIARAMELLA, LILLIAN VELAZQUEZ,
ANNEMARIE WALKER, ANTONIO MARTIN,
CHRISTOPHER RUSSO, MATTHEW ADINOLFI,
JODY VIRTUOSO, YVONNE HAWKINS,
BLANCA CORREAS, and BRENDA PERRY, on
behalf of themselves and all others similarly situated,
Plaintiffs,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 1/6/2021
No. 18 Civ. 6945
JOINT ELECTRONIC
DISCOVERY SUBMISSION
AND ORDER

- against HOWARD ZUCKER, as Commissioner of the
Department of Health,
Defendant.

Plaintiffs Frank Ciaramella, Lillian Velazquez, AnneMarie Walker, Antonio Martin,
Christopher Russo, Matthew Adinolfi, Jody Virtuoso, Yvonne Hawkins, Blanca Correas, and
Brenda Perry, on behalf of themselves and all others similarly situated (together, “Plaintiffs”)
and Howard Zucker, in his official capacity as Commissioner of the Department of Health
(“Defendant”) (together, the “Parties”) believe that relevant information may exist or be stored in
electronic format and that this content is potentially responsive to current or anticipated
discovery requests. This Joint Submission and Order (the “ESI Protocol”) shall be the governing
document(s) by which the Parties and the Court manage the electronic discovery process in this
action. The Parties and the Court recognize that this ESI Protocol is based on facts and
circumstances as they are currently known to each party, that the electronic discovery process is
iterative, and that additions and modifications to this Submission may become necessary as more
information becomes known to the Parties.

Case 1:18-cv-06945-MKV Document 181 Filed 01/06/21 Page 2 of 23

I.

COMPETENCE
The undersigned counsel certify that they are sufficiently knowledgeable in matters

relating to their clients’ technological systems to discuss competently issues relating to electronic
discovery, or have involved someone competent to address these issues on their behalf.
II.

MEET AND CONFER
Pursuant to Fed. R. Civ. P. 26(f), counsel are required to meet and confer regarding

certain matters relating to electronic discovery before the Initial Pretrial Conference (the Rule 16
Conference). Counsel hereby certify that they have met and conferred to discuss these issues.
III.

PRESERVATION
The Parties have discussed the obligation to preserve potentially relevant electronically

stored information (“ESI”) and agree to the following scope and methods for preservation,
including but not limited to: retention of electronic data and implementation of a data
preservation plan; identification of potentially relevant data; disclosure of the programs and
manner in which the data is maintained; identification of computer system(s) utilized; and
identification of the individual(s) responsible for data preservation, etc.
Plaintiffs’ counsel has advised Plaintiffs as to their obligations to preserve potentiallyrelevant data and directed them specifically to maintain such data in electronic sources, including
but not limited to personal email, text messages, devices (including information stored on
cellular telephone(s) and tablets), social media including but not limited to Facebook, LinkedIn,
Google+, WhatsApp, Instagram, Twitter, and associated instant messaging and direct messaging
applications, and have taken steps to prevent the loss of potentially-relevant information.
Following a reasonably diligent investigation, Defendant has sent preservation notices to
all identified individuals with potentially relevant data at the New York State Department of

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Health (“DOH”) directing retention of all potentially-relevant data maintained in electronic
sources including those specifically identified above, and DOH has taken steps to prevent loss of
potentially relevant data.
IV.

LITIGATION HOLD COMMUNICATIONS
The dates, contents, and/or recipients of “litigation hold” communications are subject to

the attorney-client communication privilege. Following a reasonably diligent investigation,
Defendant has sent preservation notices to all identified individuals with potentially relevant data
at DOH directing retention of electronic data, and has taken steps necessary to prevent loss of
potentially relevant data. Plaintiffs’ counsel has advised Plaintiffs to retain materials relevant to
this litigation and take any necessary steps to prevent loss of potentially relevant data.
A.

Plaintiffs’ Position

Plaintiffs’ counsel has instructed Plaintiffs in writing to maintain all relevant records, and
has reached out to Plaintiffs’ medical providers for additional relevant records. Plaintiffs’
counsel has provided Plaintiffs with litigation hold memoranda.
B.

Defendant’s Position

Following a reasonably diligent investigation, Defendant has sent preservation notices to
all identified individuals with potentially relevant data at DOH directing retention of electronic
data, and has taken additional steps to prevent loss of potentially relevant data.
V.

SEARCH AND REVIEW
The parties have met and conferred in good faith with respect to the relevant custodians,

search terms, and date restrictions. The Parties have met and conferred in good faith to determine
the appropriate search terms, date ranges, custodians, locations of data, fields or file types to be
searched, whether back-up, archival, or legacy ESI will be included in the search, and ESI in the

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possession, custody or control of Parties and non-Parties. During the course of these
negotiations, the Parties have exchanged hit reports. Based upon their negotiations, the Parties
agree as follows:
A.

Timeframe for ESI Discovery

The Parties shall produce ESI for the time period from August 2, 2015 until March 1,
2020. As outlined in Section V(C), below, Defendant shall engage in reasonable good-faith
efforts to identify and produce relevant ESI for the years 1995, 2010, and 2011.
The Parties continue to meet and confer regarding the appropriate custodians and specific
time period for relevant ESI generated between 2010 and 2011. The Parties agree that
Defendant’s search for ESI from 1995 will be limited to ESI available on Defendant’s current
systems, as identified by Dr. Khalil Alshaer, Dr. Michele Griguts, Dr. George Gostling, and
Gregory Allen.
As noted on Page 1 of this submission, the Parties and the Court recognize that this ESI
Protocol is based on facts and circumstances as they are currently known to each party, that the
electronic discovery process is iterative, and that additions and modifications to this Submission
may become necessary as more information becomes known to the Parties. Accordingly,
Plaintiffs reserve the right to request additional discovery upon good cause shown. Defendant in
turn reserves the right to oppose Plaintiffs’ requests for ESI discovery beyond the protocol
negotiated by the Parties and set forth herein,, and both parties reserve the right to seek extension
of the fact discovery deadline if necessary.
B.

Custodians for ESI Discovery

Discovery of Plaintiffs’ ESI will be limited to the following custodians:
1.
2.

FRANK CIARAMELLA
LILLIAN VELAZQUEZ
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3.
4.
5.
6.
7.
8.
9.
10.

ANNEMARIE WALKER
ANTONIO MARTIN
CHRISTOPHER RUSSO
MATTHEW ADINOLFI
JODY VIRTUOSO
YVONNE HAWKINS
BLANCA CORREAS
BRENDA PERRY

Discovery of Defendant’s ESI will be limited to the following custodians:
1.
2.
3.
4.

KHALIL ALSHAER
MICHELE GRIGUTS
GEORGE GOSTLING
GREGORY ALLEN

The Parties meet their ESI discovery obligations by applying the procedures outlined in
section V(C), below for the custodians listed above, unless the parties jointly agree to modify the
list of custodians upon good cause shown.
Sources of ESI
Discovery of Plaintiffs’ ESI in this case will be limited to the ESI in Plaintiffs’
possession, custody, or control, including, if applicable: medical records, notices from health
plans, and non-privileged correspondence with providers; personal email; personal computer(s),
tablet(s), and other devices; text messages; cloud files including but not limited to those available
on hosted platforms such as Google Documents; social media, including but not limited to
postings and non-privileged messaging on Facebook, Instagram, LinkedIn, SnapChat, Twitter,
Skype, WhatsApp, Google+; and cloud-based instant messaging applications such as Google
Hangouts, Facebook Messenger, WhatsApp, and Twitter Direct Messaging.
Discovery of Defendant’s ESI in this case will be limited to the ESI in Defendant’s
possession, custody, or control, and will occur from the following sources of ESI: email servers,
work desktops, and shared and personal work folders identified by the ESI Custodian in
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consultation with DOH in-house counsel, including any databases identified by the Department
of Health in its March 16, 2020 Responses and Objections to Plaintiffs’ First Set of
Interrogatories.
C.

Linear Review Using Search Terms

Plaintiffs meet their obligations to respond to Defendant’s production requests for ESI by
requiring the individuals identified in Section V.B. to perform a self-search of their records,
supervised by Plaintiffs’ counsel. In addition, Plaintiffs’ counsel will review available medical
records for the individuals identified in Section V.B. Plaintiffs’ supervised self-collection of
their medical records does not limit Defendant’s right to subpoena Plaintiffs’ medical records
related to the services in issue in this proceeding or depose any medical providers in the course
of discovery.
Defendant meets its obligations to respond to Plaintiffs’ production requests for email
ESI, including any attachments which shall be subjected to optical character recognition
(“OCR”) if not already containing extracted text, by applying the terms set forth in Exhibit A
attached hereto to each Custodian’s Outlook folder for the Relevant Time Period, unless the
parties jointly agree to modify the search terms upon good cause shown.
Defendant shall meet its obligations to respond to Plaintiffs’ production requests for nonemail ESI through the following process: (1) counsel for DOH shall interview each Custodian to
identify the likely sources and locations of non-Outlook ESI maintained by that Custodian
regarding the provision of dental implants, replacement dentures, molar root canals, and crowns
by the New York State Medicaid program during the Relevant Time Period (the “Custodial
Interview”); (2) following the Custodial Interview, counsel shall collect the documents or
categories of documents identified by each Custodian during the Custodial Interview and in a

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manner that preserves the metadata for such documents; (3) counsel shall conduct a reasonable
search and review of the collected documents and produce all non-privileged documents
responsive to Plaintiffs’ Requests for Production of Documents. During the Custodial
Interview, Defendant shall ask each Custodian as to: (1) the existence and likely location(s) of
potentially relevant ESI from 1995, 2010, and 2011; and (2) the identities of likely Outlook
custodians for the time period of 2010 to 2011.
VI.

SCOPE OF PRODUCTION
Subject to any specific objection, the Parties agree to produce all non-privileged,

responsive documents and their families, consistent with Fed. R. Civ. P. 26(b), that have been
located after a reasonably diligent search. In the course of review, the absence of a “hit” on one
of the search terms set forth in Exhibit A shall not be grounds for withholding a relevant, nonprivileged document.
VII.

FORM OF PRODUCTION
The Parties have reached the following agreements regarding the form(s) of production:
A.

ESI Production Format

The parties will produce ESI in LexisNexis® Concordance® format in accordance with
the following instructions:
1.

Concordance Production Components. A Concordance production consists of

the following component files, which must be produced in accordance with the specifications
set forth below.
A.

Native Files. Native format versions of produced, non-redacted
documents, which are not coherently or legibly renderable in page
images, named by their first Bates number.

B.

Single-Page Image Files. Individual petrified page images of the
produced documents in tagged image format (“TIF”), or, in the case of
documents with color information, JPEG format (“JPG”), with page-level
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Bates number endorsements.
C.

Extracted or OCR Text Files. Document-level extracted text for each
produced document or document-level OCR text where extracted text is not
available.

D.

Metadata Load File. A delimited text file that lists in columnar format
the required metadata for each produced document.

E.

Opticon Load File. A delimited text file that lists the single-page TIF or JPG
files for each produced document and defines (i) the relative location of the
TIF files on the production media and (ii) each document break.

2.
Production Folder Structure. The production shall be organized
according to the following standard folder structure:
data\ (contains production load files)
images\ (contains single-page TIF or JPG files, with subfolder organization)
\0001, \0002, \0003…
natives\ (contains native files, with subfolder organization)
\0001, \0002, \0003…
text\ (contains text files, with subfolder organization)
\0001, \0002, \0003…
3.

De-Duplication and Email Threading. The Parties shall de-duplicate documents

within custodians (vertical de- duplication) prior to production. Vertical de-duplication means
that exact duplicates of documents held by a particular custodian, as identified by the MD5hash
or SHA value of the parent document, will not be produced. The Parties will also de-duplicate
across custodians (global/horizontal de-duplication) prior to production. Horizontal deduplication means that exact duplicates of documents held by multiple custodians, as identified
by the MD5hash or SHA value of the parent, will not be produced. In instances where several
email documents exist in a common thread, only the most inclusive version of those
conversations need be produced (these are referred to as “Inclusive” documents). The
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identification of Inclusive documents for production shall be done in a manner which ensures
that all unique responsive content is produced at least once. Inclusive documents which are
identified by the system as “Duplicate Spares” need not be produced.
4.

Paper or Scanned Documents. Documents that exist only in paper format must

be scanned to single-page TIF, or, in the case of color content, JPG files, and OCR’d. The
resulting electronic files should be pursued in Concordance format.
5.

Structured Data. Structured data includes but is not limited to relational

databases, transactional data, and xml pages. Spreadsheets are not considered structured data.
A.

Relational Databases
1.

2.

Dates and numbers must be clearly and consistently formatted
and, where relevant, units of measure should be explained in the
data dictionary.

3.

6.

Database tables should be provided in comma-separated or
other machine-readable, non-proprietary format, with each
table in a separate data file. Each data file must have an
accompanying data dictionary that explains the meaning of
each column name and explains the values of any codes used.

Records must contain clear, unique identifiers, and the data
dictionary must include explanations of how the files and
records relate to one another.

Media and Encryption. In light of the COVID-19 pandemic, all document sets

must be produced via secure file transfer protocols (e.g., FTP). To the extent a Party believes it is
unable to deliver a document production via electronic transmission, the Parties shall confer to
determine an alternative means of production. All productions must be encrypted with a strong
password, which must be delivered independently from the production media.
7.
A.

Production File Requirements.
Native Files
Documents that are not legibly or coherently renderable in an image
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format must be produced in their original native format; however,
original native format documents will not be produced for documents
containing privileged or personally identifying information regardless of
their renderability. Instead, documents containing privileged or
personally identifying information will be produced in a non-native,
redacted image or ‘near-native’ format (with the appropriate information
removed).
The filename of each native file must match the document’s beginning
Bates number (BEGDOC) in the metadata load file and retain the original
file extension.
For documents produced only in native format, and not additionally as
single-page image files, the Parties assign a single document-level Bates
number and optionally provide an image file placeholder that states
“Document produced only in native format.”
The relative paths to all native files on the production media must be
listed in the NATIVEFILE field of the metadata load file.
Native files that are password-protected must wherever possible be
decrypted prior to conversion and produced in decrypted form.
B.

Single-Page Image Files (Petrified Page Images)
Where possible, all produced documents must be converted into singlepage tagged image format (“TIF”) or, in the case of documents with color
content, JPEG (“JPG”) files.
Image documents that exist only in non-TIF or JPG formats must be
converted into TIF, or in the case of documents with color content, JPG
files.
For documents produced only in native format, a Party may provide a single,
TIF placeholder that states “Document produced only in native format.”
Each single-page TIF or JPG file must be endorsed with a unique Bates
number.
The filename for each single-page TIF or JPG file must match the unique
page-level Bates number (or document-level Bates number for documents
produced only in native format).
Required image file format for TIF files:
o CCITT Group 4 compression
o 2-Bit black and white
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o 300 dpi
o Either .tif or .tiff file extension.
TIF or JPG files must be divided into subfolders containing no more than
5000 files. Documents should not span multiple subfolders, a document
with more than 5000 pages should be kept in a single folder.
C.

Extracted or OCR Text Files
The Parties shall produce individual document-level text files containing
the full extracted text for each produced document.
When extracted text is not available (for instance, for image-only documents)
the Parties must provide individual document-level text files containing the
document’s full OCR text.
The filename for each text file must match the document’s beginning
Bates number (BEGDOC) listed in the metadata load file.
Text files must be divided into subfolders containing no more than 5000 files.

D.

Metadata Load File
Required file format:
o UTF-8
o .dat file extension
o Field delimiter: I(ASCII decimal character 20)
o Text Qualifier: þ (ASCII decimal character 254). Multiple value field
delimiter: ; (ASCII decimal character 59)
The first line of the metadata load file must list all included fields.
All required fields are listed in Section 9(B).
Fields with no values must be represented by empty columns
maintaining delimiters and qualifiers.
Note: All documents must have page-level Bates numbering (except
documents produced only in native format, which must be assigned a
document-level Bates number). The metadata load file must list the
beginning and ending Bates numbers (BEGDOC and ENDDOC) for each
document.
Accepted date formats:
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o mm/dd/yyyy
o yyyy/mm/dd
o yyyymmdd
Accepted time formats:
o hh:mm:ss (if not in 24-hour format, indicate am/pm)
o hh:mm:ss:mmm
E.

Opticon Load File
Required file format:
o Field delimiter: (ASCII decimal character 44)
o No Text Qualifier
o .opt file extension
The comma-delimited Opticon load file must contain the following
seven fields (as indicated below, values for certain fields may be left
blank):
o ALIAS or IMAGEKEY – the unique Bates number assigned to each
page of the production.
o VOLUME – this value is optional and may be left blank.
o RELATIVE PATH – the file path to each single-page image file on the
production media.
o DOCUMENT BREAK – defines the first page of a document. The
only possible values for this field are “Y” or blank.
o FOLDER BREAK – defines the first page of a folder. The only
possible values for this field are “Y” or blank.
o BOX BREAK – defines the first page of a box. The only possible
values for this field are “Y” or blank.
o PAGE COUNT – this value is optional and may be left blank.
Example:
ABC00001,,IMAGES\0001\ABC00001.tif,Y,,,
2
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ABC00002,,IMAGES\0001\ABC00002.tif,,,,
ABC00003,,IMAGES\0002\ABC00003.tif,Y,,,
1
ABC00004,,IMAGES\0002\ABC00004.tif,Y,,,
1
F.

Metadata and Associated Delimited Database Load Files

The Producing Party shall provide delimited database load files, with “.dat” or “.txt” file
extensions. For the Concordance .dat, the Producing Party shall use Concordance standard
delimiters (ASCII 020 corresponding to a comma, ASCII 254 corresponding to a double quote,
ASCII 174 corresponding to a new line, and a semicolon used to separate values). All .dat or .txt
files must be encoded in ASCII or ANSI:UTF codings.
The metadata fields listed below shall be included in the delimited database load files,
except, to the extent that metadata relating to any ESI contains information subject to a claim of
privilege or any other applicable protection, that metadata may be redacted or withheld, as
appropriate.
FIELD NAME

FIELD DESCRIPTION

FIELD VALUE
EXAMPLE1

BEGDOC

Bates number assigned to the first page of
the document.

ABC0001

ENDDOC

Bates number assigned to the last page of
the document.

ABC0002

Bates number assigned to the first page of
the parent document in a document family
(i.e., should be the same as BEGDOC of
the parent document, or PARENTDOC).
Bates number assigned to the last page of the
last child document in a family (i.e., should
be the same as ENDDOC of the last child
document).
Additional document comments,
such as passwords for encrypted
files.

ABC0001

BEGATTACH

ENDATTACH

COMMENTS

1

Examples represent possible values and not required format.
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ABC0008

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FIELD NAME
NATIVEFILE
TEXTFILE

FIELD DESCRIPTION

FIELD VALUE
EXAMPLE1

Relative file path of the native file on
the production media.

.\Native_File\Folder\...\BE
GDOC.ext

Relative file path of the plain text file on
the production media.

.\Text_Folder\Folder\...\BE
GDOC.txt

CUSTODIAN

Owner of the document or file.

ALL
CUSTODIANS

Names of all custodians for whom the
document was processed whether or not the
file was removed upon deduplication

FROM

Sender of the email.

TO

All to: members or recipients, delimited by ";"
when field has multiple values.

CC

All cc: members, delimited by ";" when field
has multiple values.

BCC

All bcc: members, delimited by ";" when field
has multiple values

SUBJECT

Subject line of the email.

DATERCVD

Date that an email was received.

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Firstname
Lastname,
Lastname,
Firstname, User
Name; Company
Name, Department
Name...

Firstname Lastname <
FLastname
@domain >
Firstname Lastname <
FLastname
@domain >; Firstname
Lastname < FLastname
@domain >; …
Firstname Lastname <
FLastname
@domain >; Firstname
Lastname < FLastname
@domain >; …
Firstname Lastname <
FLastname
@domain >; Firstname
Lastname < FLastname
@domain >; …

mm/dd/yyyy, yyyy/mm/dd,
or yyyymmdd

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FIELD NAME

FIELD DESCRIPTION

FIELD VALUE
EXAMPLE1

TIMERCVD

Time that an email was received.

hh:mm:ss AM/PM or
hh:mm:ss

DATESENT

Date that an email was sent.

mm/dd/yyyy, yyyy/mm/dd,
or yyyymmdd

TIMESENT

Time that an email was sent.

hh:mm:ss AM/PM or
hh:mm:ss

CALBEGDATE

Date that a meeting begins.

mm/dd/yyyy, yyyy/mm/dd,
or yyyymmdd; hh:mm:ss
AM/PM or hh:mm:ss

CALENDDATE

Date that a meeting ends.

mm/dd/yyyy, yyyy/mm/dd,
or yyyymmdd; hh:mm:ss
AM/PM or hh:mm:ss

ATTACHMENTS List of filenames of all attachments, delimited
AttachmentFileName.;
by ";" when field has multiple values.
AttachmentFileName.docx
;
AttachmentFileName.pdf;…
NUMATTACH

Number of attachments.

RECORDTYPE

General type of record.

IMAGE; LOOSE E-MAIL;
E-MAIL; E-DOC; IMAGE
ATTACHMENT; LOOSE
E-MAIL ATTACHMENT;
E- MAIL
ATTACHMENT; E-DOC
ATTACHMENT

FOLDERLOC

Original folder path of the produced
document.

Drive:\Folder\...\...\

FILENAME

Original filename of the produced document.

Filename.ext

DOCEXT

Original file extension.

html, xls, pdf

TITLE

Document title (if entered).

AUTHOR

Name of the document author.

DATECREATED

Date and time that a document was created.

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mm/dd/yyyy, yyyy/mm/dd,
or yyyymmdd

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FIELD NAME

FIELD DESCRIPTION

FIELD VALUE
EXAMPLE1

TIMECREATED

Time that a document was created.

hh:mm:ss AM/PM or
hh:mm:ss

DATEMOD

Date that a document was last modified.

mm/dd/yyyy, yyyy/mm/dd,
or yyyymmdd

TIMEMOD

Time that a document was last modified.

hh:mm:ss AM/PM or
hh:mm:ss

FILESIZE

Original file size in bytes.

MD5HASH

MD5 hash value computed from native file
(a/k/a file fingerprint).

SHA1HASH

SHA1 hash value

CONVERSATIO
NINDEX

Email Conversation Index or other similar
email thread identification value

G.

Hard-Copy Production Format

Documents that exist only in hard-copy format (“Hard-Copy Materials”) and are
therefore unavailable in native ESI format (e.g., handwritten notes, including alterations to
documents that are otherwise kept and producible as ESI in their unaltered form, or materials that
were generated as ESI but where ESI files are inaccessible because they are not in the possession
or control of the Parties), shall be scanned and produced in accordance with the specifications
delineated in Section VII.A.4, above, except that only the metadata fields listed below, or
substantially similar metadata fields, shall be included in the delimited database load files.
FIELD NAME

FIELD DESCRIPTION
Beginning production number for a
given document

BEGBATES

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ENDBATES

Ending production number for a given
document

BEGBATESATTACH

If available (typically only available if
documents have been unitized)

ENDBATESATTACH

If available (typically only available if
documents have been unitized)
Person, shared file or other source from
whom files were collected

CUSTODIAN
TEXTPATH

H.

Relative path to document level OCR or
extracted text file

Media Used for Production

In light of the COVID-19 pandemic, documents shall be exchanged through secure file
transfer protocols (e.g., FTP) or similar secure electronic transmission, unless and until the
parties agree to an alternative method based on changed circumstances. To the extent a Party
believes it is unable to deliver a document production via electronic transmission, the Parties
shall confer to determine an alternative means of production.
All productions must be encrypted with a strong password (a password containing letters,
numbers, and special characters), which must be delivered independently from the production
media.
VIII. PRIVILEGED MATERIAL
A.

Identification

Each document withheld on account of an asserted privilege or claim of work product
protection shall be identified in a privilege log pursuant to Local Civil Rule 26.2 of the Local
Rules of the United States District Courts for the Southern and Eastern Districts of New York.
For all documents withheld on the basis of privilege, the Producing Party shall produce a list of
the following:
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i.

A description of the categories of documents and of how the privilege
applies to the logged entries with enough detail to allow opposing counsel to
evaluate the applicability of the asserted privilege;

ii.

The types of documents in each category;

iii.

The number of documents in each category;

iv.

The name listed in the “author/from” metadata field;

v.

All recipient(s) listed in the recipient/to, cc and bcc metadata fields;

vi.

The date range associated with the documents in each category; and

vii.

The privilege(s) asserted.

The Producing Party need not include privileged information that is redacted from a
document on a privilege log. However, the privilege(s) asserted shall appear on the face of the
redacted document. To the extent that it is not apparent how the privilege(s) applies to redacted
information, the privilege(s) asserted and a description of how that privilege(s) applies to
redacted information shall appear on the face of the redacted document.
The Parties agree that these formats comply with the Parties’ obligations under Federal
Rule of Civil Procedure and the Local Rules of the United States District Courts for the Southern
and Eastern Districts of New York. Nothing herein shall be construed as an agreement as to the
availability of the deliberative process privilege, or any other privilege doctrine, under the
circumstances of this litigation. A Receiving Party’s determination not to challenge the format of
a Producing Party’s privilege log shall not be deemed an admission that the log’s format
complies with the requirements of Part VIII.A of this ESI Protocol, the Federal Rules of Civil
Procedure, or the Local Rules of the United States District Courts for the Southern and Eastern
Districts of New York; and it shall not be deemed a waiver of the right to challenge future
privilege logs produced in the same format.

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B.

Inadvertent Production/Claw-Back Agreement

The terms of the Stipulated Order Regarding the Disclosure of Privileged Information
(the “Rule 502(d) Order”) and Protective Order, which contain the Parties’ agreements regarding
the treatment of inadvertently produced Confidential Discovery Material and/or privileged
materials, govern any issues regarding inadvertent production and potential claw-backs of
materials.
IX.

COST OF PRODUCTION
The Parties have agreed that all costs of search, review and production shall be borne by

the party making that production, without prejudice to any application for costs permitted under
applicable law.
X.

OTHER ISSUES
The Parties reiterate that the forthcoming stipulated discovery confidentiality order, as

supplemented or modified, shall govern their rights and obligations with respect to the
production of Confidential Discovery Material.
The preceding constitutes the agreement(s) reached, and disputes existing, (if any)
between the Parties to certain matters concerning electronic discovery as of this date. To
the extent additional agreements are reached, modifications are necessary, or disputes are
identified, they will be outlined in subsequent submissions or agreements and promptly
presented to the Court.

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Case 1:18-cv-06945-MKV Document 181 Filed 01/06/21 Page 20 of 23

SO STIPULATED AND AGREED.
Dated:

November ___, 2020
New York, New York

WILLKIE FARR & GALLAGHER LLP
Wesley R. Powell, Esq.
Timothy G. Fleming, Esq.
787 Seventh Avenue
New York, New York 10019
tel. [phone]
fax. [phone]
e-mail: [e-mail]
e-mail: [e-mail]
THE LEGAL AID SOCIETY
Judith Goldiner, Esq.
Belkys Garcia, Esq.
199 Water Street, 3rd Floor
New York, New York 10038
tel. [phone]
e-mail: [e-mail]
e-mail: [e-mail]

Dated:

November 24, 2020
New York, New York

LETITIA JAMES
Attorney General of the State of New York
Attorney for Defendant
y:
By:
__________________
_
__
______
______________________________
ara B Chomski
m
Cara B. Chomski
Assistant Attorney General
28 Liberty Street, 17th Floor
New York, New York 10005
tel: [phone]
fax: [phone]
email: [e-mail]

Attorneys for Plaintiffs
By:
______________________________
Wesley R. Powell

SO ORDERED.
Dated: New York, New York
January ___, 2021
6
_____________________________________
HON. MARY KAY VYSKOCIL
United States District Judge

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