Moshell v. Sasol Limited et al
PROTOCOL GOVERNING THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION ("ESI"). This Order governs the collection and production of documents (hard copy or electronic) and ESI by the Parties in this Action. Nothing in this Order is intended to be an exhaustive list of discovery obligations or rights of any Party or Non-Party. To the extent additional obligations or rights not addressed in this Order arise under the Federal Rules of Civil Procedure, local rules, applicable state and fed eral statutes, or subsequent Orders in this litigation, those obligations or rights will control, and as further specified and set forth regarding this Protocol Governing the Production of Electronically Stored Information ("ESI"). So ordered. (Signed by Judge John P. Cronan on 10/13/2020). (rjm)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHAD LINDSEY MOSHELL, Individually
and On Behalf of All Others Similarly
Case No. 1:20-cv-01008-JPC
Hon. John Peter Cronan
-vSASOL LIMITED, DAVID EDWARD
CONSTABLE, BONGANI NQWABABA,
STEPHEN CORNELL, PAUL VICTOR,
and STEPHAN SCHOEMAN,
PROTOCOL GOVERNING THE PRODUCTION OF
ELECTRONICALLY STORED INFORMATION (“ESI”)
1. Purpose and Scope. This Order governs the collection and production of documents (hard
copy or electronic) and ESI by the Parties in this Action. Nothing in this Order is intended
to be an exhaustive list of discovery obligations or rights of any Party or Non-Party. To
the extent additional obligations or rights not addressed in this Order arise under the
Federal Rules of Civil Procedure, local rules, applicable state and federal statutes, or
subsequent Orders in this litigation, those obligations or rights will control.
2. Definitions. The following definitions shall apply to this Protocol:
“Document” is defined consistent with Fed. R. Civ. P. 34 and Local Civil Rule
26.3 (c)(2), and includes ESI and hard copy/paper material. A draft or nonidentical copy is a separate Document within the meaning of this term.
“ESI” means electronically stored information, and is defined consistent with Fed.
R. Civ. P. 34(a).
“Extracted Text” means the text extracted from a Native File, and includes all
header, footer, and document body information.
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“Load File” means a load utilization file, which is an electronic file containing
information identifying a set of paper-scanned images or processed ESI, and
containing: (i) an indication of which individual pages or files constitute each
Document, including attachments, and links to the Static Images associated with
each Document; (ii) links to any Native Files, where native files are being
produced, including attachments, associated with each Document; and (iii) data
relevant to each individual Document, including extracted and user-created
Metadata and coded data.
“Metadata” means: (i) information associated with or embedded in a Native File
that does not constitute the primary content region of the file; and (ii) information
generated automatically by the operation of a computer or other information
technology system when a Native File is created, modified, transmitted, deleted,
or otherwise manipulated by a user of such system.
“Native File” or “Native Format” refers to ESI that is produced in the format in
which it was maintained (e.g., an Excel document in .xls format would be
produced in .xls format).
“OCR” means the optical character recognition file that is created by software
used in conjunction with a scanner that is capable of reading text-based
documents, and making such documents searchable using appropriate software.
“Producing Party” means the party producing Documents in response to any
request for production of documents pursuant to Fed. R. Civ. P. 34(a) or for any
“Receiving Party” means the party receiving production of Documents in
response to any request for production of document(s) pursuant to Fed. R. Civ. P.
34(a) or for any other reason.
“Static Image(s)” means a representation of ESI produced by converting a Native
File into a standard image format capable of being viewed and printed on standard
document review systems. Tagged Image File Format (TIFF) and Portable
Document Format (PDF) images are examples of Static Images.
3. File Structure. The Producing Party shall produce the following sets of files with each
a. Index File.
(1) Each production has one index file, in “Concordance” style .DAT format.
(2) Values must be enclosed by þ (ASCII Decimal 254).
(3) Values must be separated by the “Device Control 4” character, ASCII decimal 20.
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(4) First line must contain the column/field names (set forth in Section IV, below).
(5) The fields Begin Bates and End Bates must be present. The field NativePath must
be present when native files are included in the document production.
(6) Each subsequent row must contain the Metadata for one Document.
(7) Every row must have the same number of columns/fields (empty values are
(8) Text must be encoded in UTF-16.
(9) File should be placed in the root directory or a directory labeled “DATA.”
b. OCR and Extracted Text Files (.TXT Files).
(1) A single text file for each Document containing all the Document’s pages, in text.
(2) Pages separated by form feed character (decimal 12, hex 0xC).
(3) Filenames should be of the form: .txt, where is the Bates
number of the first page of the Document.
(4) Text must be encoded in UTF-16.
Files should be placed in a directory labeled “TEXT.”
c. Image Files.
(1) Single-page Group IV TIFF images for each Document, containing all images for
(2) Filenames should be of the form: ., where is the
BATES number of the first page of the document (i.e., the “Begin Bates” number),
and is the appropriate extension for the image format (.tiff).
(3) Files should be placed in the “IMAGES” directory.
4. Variations. If any Party identifies a circumstance where application of this Order is not
technologically feasible, the Party will disclose to all other Parties the reason(s) for, and
circumstances surrounding, the need to vary from this Order, and the Parties will meet and
confer in an effort to reach agreement on an appropriate deviation from this Order. In the
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event the Parties cannot reach agreement, the matter may be submitted to the Court for
5. Custodians. The Parties shall meet and confer in an effort to agree upon the following:
(a) the identity and role of custodians from which documents and ESI will be obtained for
production; and (b) the identity, scope and format of custodial and non-custodial sources
from which documents and ESI will be obtained for production. The parties shall promptly
meet and confer to allow the Parties to identify whether a ruling by the Court is needed on
any of the issues (a)-(f) above.
6. Key Word Searching: If a Party intends to use “key word” searching of ESI to identify
ESI for production, it must notify the Parties of such intent and the Parties will confer
regarding search methodologies, search terms, date restrictions, and custodian restrictions.
The Parties shall participate in an iterative and cooperative approach in which the Parties
will meet and confer regarding reasonable and appropriate methods to increase the relative
precision or proportion of relevant and responsive documents within the search results and
production sets, including conferring about exchanging “hit count” reports, with the goal
of avoiding placing an unnecessary burden on the Producing Party.
7. File Types. File types containing text data, such as email stores and individual messages,
word processing documents, spreadsheets, hypertext documents and data saved in portable
document format (“PDF”) with extractable text will be processed and their text shall be
extracted prior to searching. Image files and PDFs containing images of potentially relevant
text shall be submitted to Optical Character Recognition (“OCR”) processing before search
terms are applied. Documents containing foreign language text must be OCR’d using the
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appropriate settings for that language (e.g., OCR of German documents must use settings
that properly capture umlauts).
8. Format. Documents shall be produced in 300 DPI Group IV Black & White Tagged Image
File Format (.TIFF or .TIF) files (“TIFF files”). TIFF files shall be produced in single-page
format along with corresponding image load files (.OPT file). For electronically stored
information (“ESI”), the TIFF files shall be, where possible, created directly from the
original native documents. If an original document contains color, the document should be
produced in color as single-page, 300 DPI JPG images with JPG compression and a high
quality setting as to not degrade the original image. Parties are under no obligation to
enhance an image beyond how it was kept in the usual course of business. The Producing
Party may not create TIFF files of electronic documents by printing out paper copies of the
electronic documents and scanning those paper copies. For paper documents, the TIFF files
shall be created by scanning either the original paper documents or first-generation
photocopies of the original paper documents and properly unitizing documents before
production. Embedded files shall be produced as a child to the parent document to which
it is embedded to the extent responsive to the parties’ requests for documents (“Requests”)
and not protected by a claim of privilege. In-line images and OLE objects such as signature
blocks from emails shall not be extracted as standalone documents. Notwithstanding the
foregoing, all electronically stored spreadsheets, presentation files (e.g. PowerPoint), and
multimedia files shall be produced in native electronic format with embedded data and
metadata intact and a TIFF placeholder, to the extent responsive to the parties’ Requests
and not protected by a claim of privilege. The Parties agree to meet and confer in good
faith with respect to the production of data, if any, in the scheduling, cost, contract
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management and accounting software platforms used for the Lake Charles Chemical
Project (LCCP) megaproject (e.g., Primavera aka “P6” or Sasol’s Contract Management
System aka CMSi). Any documents that cannot be converted to TIFF format shall be
represented in the production with a placeholder TIFF image which bears the legend “This
document cannot be converted to TIFF.” The parties agree to meet and confer regarding
such documents if requested by the Receiving Party and to take reasonable actions to
remedy such conversion problems.
9. Request for Native Format. The Receiving Party may request that the Producing Party
provide specific documents or categories of documents in native format after the
production of the document in TIFF format. Upon receipt of the request, the Producing
Party shall produce the documents in native format, provided that the request is reasonably
directed toward the production of a limited number of documents in a usable format. In the
event that the Receiving Party requests that a significant volume of documents be produced
in native format, the parties shall meet and confer concerning the request for native
10. Extracted Text. For all documents, the Producing Party shall provide full extracted text.
Where extracted text is unavailable, such as image files and non-searchable PDFs, OCR
text shall be provided. Such text files shall be produced as document-level text files and
be named consistently with their corresponding TIFF files.
11. Production Media. The Producing Party will endeavor to produce documents
electronically by way of a secure FTP. To the extent a production by a secure FTP is not
possible, the Producing Party shall produce documents on a readily accessible computer
or electronic media, including without limitation CD-ROM, DVD, external hard drive
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(with standard PC-compatible interface), or such other media as the parties may agree on
(“Production Media”). The Producing Party shall affix a unique identifying label to each
piece of Production Media, which shall identify the date of the production and the
numbered sequence of the material in that production. The Producing Party shall properly
package all Production Media to ensure safe shipping and handling. The Producing Party
shall encrypt all Production Media prior to shipping.
12. De-Duplication. The Producing Party shall de-duplicate identical files based on hash
values, at a family level, within and among custodians, using commercially acceptable
methods of de-duplication (e.g., MD5 or SHA-1 hash values). If there is any handwriting
or other alteration to a document, it shall not be considered a duplicate pursuant to this
Paragraph. If the Producing Party becomes aware of any file that was incorrectly filtered
during the de-duplication process, the Producing Party shall promptly notify the
Requesting Party and produce the file pursuant to the terms of this Agreement. Removal
of documents from production using near-deduplication or e-mail thread suppression is not
acceptable. Family groups, e.g., an e-mail and its attachments, must be de-duplicated only
against other family groups as entities, e.g., using hash values calculated on concatenations
of the hash values of all family members, and no document which is not part of a family
group shall be de-duplicated against a member of a family group. To the extent documents
are de-duplicated and there are duplicate custodians or file paths, the duplicate custodians
will be identified in a metadata field titled “Duplicate Custodian(s)” and the duplicate file
paths will be identified in a metadata field titled “Duplicate File Path(s).”
13. Time Zone. All documents shall be processed in the UTC time zone setting. All metadata
pertaining to dates and times will be standard to UTC. The Parties understand and
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acknowledge that such standardization affects only dynamic date fields and metadata
values and does not affect, among other things, dates and times that are hard-coded text
within a file.
14. Translations. The parties will meet and confer regarding the translation and production of
any documents containing text in a foreign language, including the use of machine
translations. A Producing Party must produce any existing English translations of nonEnglish documents that are responsive to the search protocol developed in accordance with
the above-captioned action.
15. Technology Assisted Review. Predictive coding/technology-assisted review shall not be
used for the purpose of culling the documents to be reviewed or produced without notifying
the requesting party prior to use and with ample time to meet and confer in good faith
regarding a mutually agreeable protocol for the use of such technologies.
16. Document Numbering. Each page of each document shall contain a unique prefix which
identifies the Producing Party and shall be Bates numbered. For documents produced in
TIFF format, the Producing Party shall electronically “burn” a legible, unique Bates
number onto each page at a location that does not obliterate, conceal or interfere with any
information from the source document. For documents that the Producing Party produces
in native format, the beginning Bates number of the TIFF images of those documents shall
serve as the file name of the native file. For example, an Excel document produced natively
with bates range ABC0001-0005 shall be produced as ABC0001.xls.
17. Claims of Confidentiality. All documents shall be produced subject to the Confidentiality
Stipulation and Protective Order to be agreed to by the parties and, ultimately, ordered by
the Court in the Action (the “Protective Order”). For documents that the Producing Party
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produces in TIFF format, if the Producing Party is producing documents subject to a claim
that it is protected from disclosure under the Protective Order, the Producing Party shall
electronically “burn” the appropriate confidentiality designation onto each page of the
document and provide the designation in the metadata load file. If there is a conflict
between the provisions of this Agreement and the Protective Order, the Protective Order
18. Metadata. During the process of converting electronic documents from the electronic
format of the application in which the document is created, viewed and/or modified to
TIFF, metadata values shall be extracted and produced in a metadata load file (.DAT file
using concordance standard delimiters). The metadata load file shall contain a link to
natively produced documents via data values called “Native Link.” The Native Link values
should contain the full directory path and file name of the documents as contained in the
produced media. The Native Link field should be included in the .DAT file. The following
metadata fields shall be produced if available or where practicable through each party's
usual method of data extraction and if they do not reveal privileged information:
The first page of the document
The last page of the document
The first page/doc of the first parent of an attachment
family (e.g., ABC000001)
The last page/doc of the last attachment (e.g., ABC000019)
Number of document attachments.
Total number of pages in the document.
Identifies a document has a placeholder image (y/n).
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Duplicate custodians of a globally de-duplicated document
separated by semicolons (e.g., Doe, John; Roe, Robert)
Tag – Confidentiality
The text demonstrating the confidential level of the
document (e.g., Confidential, Highly Confidential, etc.)
The time zone in which the emails were standardized
Author field extracted from the metadata of a Document or
other creator identified for the Document.
EM – Subject
EM – To
The values in the original “To” field for emails
EM – From
The values in the original “From” field for emails
EM – CC
The values in the original “CC” field for emails
EM – BCC
The values in the original “BCC” field for emails
EM – Time Sent
Time the e-mail was sent in UTC.
EM – Date Sent
Date the email was sent
EM – Date Received
Date the email was received
EM – Time Received
Time the email was received in UTC.
File – Title
Title field value extracted from the metadata of the native
File – Document Type
A reference to the application that created the file, for
example “Word Document” or “Excel Spreadsheet”
File – File Name
Original file name
File – File Path
The path of the original native file (excluding name and
File – Duplicate File Path The path of the original duplicate native file (excluding
name and file extension)
File – File Size
File size of the native file in bytes
File – Date Created
Date the file was created (not applicable to emails that
were sent or received)
File – Date Modified
Date the file was last modified (not applicable to emails
that were sent or received)
Last Modified By
Identification of person(s) who last modified a document.
File extension of the document (e.g., xls)
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File path to the extracted text/OCR file, or the
extracted/OCR file link (e.g.,
Shows if there are:
Excel Hidden Rows
Excel Hidden Worksheets
Excel Very Hidden Worksheets
PDF Crop Box
Power Point Hidden Slides
Power Point Speaker Notes
Word Hidden Text
Native File Path
File path to the native file, or the native file link (e.g.,
Unique “fingerprint” that exists for every document and
will be used for identification of exact duplicate documents
The SHA1 hash value of a document
Yes/No indicator of whether a file is embedded in another
If a document contains a redaction, this field will display
Production volume number (e.g., V001, V002, etc.).
Name of party producing the document.
Document has track changes (Y/N).
Indicates there are comments in the document.
All date fields will be formatted MM/DD/YYYY and all time fields will be formatted
HH:MM:SS and converted to UTC. To the extent reasonably available, the “Custodian” or
“File Path” field with respect to ESI gathered from an individual’s hard drive will provide
metadata sufficient to identify the individual custodian or non-custodial source from whose
hard drive such ESI has been gathered.
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19. Native File Production. For documents produced in their native file format, a placeholder
TIFF image shall be produced for these records bearing the legend “Produced in Native
File Format Only.” The TIFF image shall be endorsed with a sequential Bates number and
the produced native file named to match this Bates number.
20. Decryption and Passwords. The Producing Party may employ reasonably available
electronic measures to break the encryption of, or unlock, any encrypted or password
protected document and may clean any document infected by a virus before making a
production of such a document, notwithstanding the fact that such measures may alter
metadata fields listed in Paragraph 11 and alter the native format of the document.
21. Privilege Log. The parties will provide a privilege log for any documents withheld in full
based upon a claim of privilege in accordance with Local Civil Rule 26.2, including that
“[e]fficient means of providing information regarding claims of privilege are encouraged .
. . [f]or example, when asserting privilege on the same basis with respect to multiple
documents, it is presumptively proper to provide the information required by this rule by
group or category. A party receiving a privilege log that groups documents or otherwise
departs from a document-by-document or communication-by-communication listing may
not object solely on that basis, but may object if the substantive information required by
this rule has not been provided in a comprehensible form.”
22. Redacted Documents. Documents may only be redacted on the basis of attorney-client
privilege, work-product doctrine, or other legally recognized privilege, protection, or
immunity. Documents redacted on the basis of privilege shall not be listed on the privilege
log. Instead, the parties will apply redactions so as to preserve as much context as possible
so that the information traditionally available from a privilege log will appear on the face
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of the document, including the sender, recipient, the date of the document, and a stamp
designating the basis of the privilege assertion, including: (a) AC for Attorney/Client, (b)
WP for Attorney Work Product, (c) CI for Common Interest; and/or (d) OT for Other.
Moreover, to the extent the metadata fields are not privileged, all redacted documents will
be produced with standard metadata fields intact, preserving all custodial data, document
dates, and file names. The Parties shall also produce an auto-generated chart for redacted
documents, which will contain the following fields: BatesBegin, BatesEnd, EM – To, EM
- From, EM – CC, EM – BCC, EM – Date Sent, and File – Document Type. No party shall
make any redactions based on unresponsiveness, except to the extent necessary to preserve
Personally Identifying Information (“PII”), sensitive health information, or other similar
information. If the Producing Party seeks to make redactions based on unresponsiveness
for any other reason, the Receiving Party agrees to consider the request in good faith and
meet and confer with the Producing Party concerning the request.
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SO STIPULATED AND AGREED.
Dated: October 8, 2020
/s/ Steve. W. Berman
Steve W. Berman
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
/s/ Caroline H. Zalka
Caroline H. Zalka
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Tel: (212) 310-8000
Counsel for Lead Plaintiff David Cohn and
Additional Plaintiff Representative Chad
Counsel for Defendants Sasol Limited,
David Edward Constable, Bongani
Nqwababa, Stephen Cornell, Paul Victor,
and Stephan Schoeman
Dated: New York, New York
October 13, 2020
John Peter Cronan, U.S.D.J.
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