Marble et al v. HALO Innovations, Inc.

Filing 43

ORDER GRANTING AGREED MOTION FOR ENTRY OF PROTOCOL REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION This Order will govern discovery of electronically stored information ("ESI") in this case as a supplement to the Federal Rules of Civil Procedure, this Court's Local Rules, and any other applicable orders and rules. Nothing contained herein is intended to or shall serve to limit a Party's right to conduct a review of documents, ESI or information (including metada ta) for relevance, responsiveness and/or segregation of privileged and/or protected information before production. SO STIPULATED AND AGREED. (And as further set forth herein.) So Ordered. (Signed by Judge Jessica G. L. Clarke on 6/4/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMANDA MARBLE AND KELSEY
REIMER, individually and on behalf of all
others similarly situated,

Case No. 1:23-cv-11048

Plaintiffs,
v.
HALO INNOVATIONS, INC.,
Defendant.

[PROPOSED] ORDER GRANTING AGREED MOTION FOR ENTRY OF
PROTOCOL REGARDING DISCOVERY OF ELECTRONICALLY
STORED INFORMATION
Plaintiffs Amanda Marble and Kelsey Reimer (“Plaintiffs”) and Defendant Halo,
Innovations, Inc. (“HALO”) (collectively, “Parties”) stipulate and agree, by and through their
respective counsel, subject to the approval of the Court, that the following Agreed Order Regarding
the Discovery of Electronically Stored Information (the “Stipulated ESI Protocol” or the
“Protocol”) be entered by this Court, and shall govern the subject action:
1.

PURPOSE
This Order will govern discovery of electronically stored information (“ESI”) in this case

as a supplement to the Federal Rules of Civil Procedure, this Court’s Local Rules, and any other
applicable orders and rules.
2.

COOPERATION
The Parties are expected to use reasonable, good faith and proportional efforts to

preserve, identify, and produce relevant and discoverable information consistent with Fed. R.
Civ. P. 26(b)(1). “Parties may obtain discovery regarding any nonprivileged matter that is
1

relevant to any party's claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need not be admissible in evidence to
be discoverable.” Fed. R. Civ. P. 26(b)(1).
3.

PROPORTIONALITY
A.

The Parties will consider the proportionality standard set forth in Fed. R. Civ. P.

26(b)(2)(C) in formulating their discovery plan. To further the application of the proportionality
standard in discovery, requests for production of ESI and related responses should be reasonably
targeted, clear, and as specific as practicable.
B.

The Parties will consider the option of prioritizing certain discovery where

appropriate. In order to reduce the costs and burdens of discovery, the Parties have agreed that
this ESI Protocol shall incorporate a non-waiver agreement pursuant to Federal Rule of Evidence
502(d), which states in full: “(d) Controlling Effect of a Court Order. A federal court may order
that the privilege or protection is not waived by disclosure connected with the litigation pending
before the court — in which event the disclosure is also not a waiver in any other federal or state
proceeding.” Fed. R. Evid. 502(d).
4.

PRESERVATION OF ESI
A.

The Parties acknowledge that they have an obligation to take reasonable and

proportional steps to preserve discoverable information in the Party’s possession, custody or
control.
B.

The Parties agree that a significant quantity of relevant information can be yielded
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from reasonably accessible sources and, as necessary and appropriate, supplemented with
deposition discovery. The possibility of additional relevant information existing that is not
reasonably accessible is substantially outweighed by the burden and cost of preservation,
collection, review and production of ESI from such sources. The Parties agree that the following
ESI is not reasonably accessible:
i.

Data maintained or duplicated in any electronic backup system for the
purpose of system recovery or information restoration, including but not
limited to, system recovery backup tapes or other media, continuity of
operations systems, and data or system mirrors or shadows, if such data
are routinely purged, overwritten or otherwise made not reasonably
accessible in accordance with an established routine system maintenance
policy.

ii.

Unallocated, slack space, deleted data, file fragments, or other data not
accessible by use of computer forensics;

iii.

Random access memory (RAM), temporary files, or other ephemeral data
that is difficult to preserve;

iv.

Data relating to online access, such as temporary Internet files, browser
history, file or memory caches and cookies;

v.

Data in metadata fields that are frequently updated automatically as part
of the usual operation of a software application, operating system or
network (e.g., data last opened) provided, however, that such metadata as
it exists at the time of preservation shall be retained, produced, and not
altered by the production process unless it is separately preserved and
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produced with the relevant document;
vi.

Telephone or VOIP voice messages that are not regularly stored or saved,
unless any such messages were otherwise stored or saved;

vii.

Instant messages such as messages sent on Lync Online, Microsoft
Communicator, Google Chat, or any other instant message platform if not
maintained in the ordinary course of business.

viii.

Data stored on cell phones or mobile devices, excluding tablets, that is
more reasonably accessible elsewhere, provided that the alternative
location is identified, the producing Party shall produce such data from
reasonably accessible sources along with documentation of the specific
device on which it is also located, and the producing Party shall do so
without any additional request for production from the receiving Party.
Further, all such devices that were identified and that contain data that
was not preserved shall be identified;

ix.

Call history records maintained on mobile devices, cell phones or
Blackberry devices so long as copies of telephone bills that contain such
records are made available when responsive;

x.

Operating system files, executable files, and log files (including web
server, web services, system, network, application log files and associated
databases, analysis output caches, and archives of such data), unless such
log files may be used to identify putative class members; and

xi.

Other forms of ESI whose preservation requires extraordinary affirmative
measures that are not utilized in the ordinary course of business. If a Party
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identifies such a form of ESI during its efforts to identify responsive
information, that Party shall promptly meet and confer with the other
Parties to discuss the nature of the ESI, its potential relevance to the case,
and the burdens of preservation.
C.

Absent a showing of good cause, no Party need restore any form of media upon

which backup data is maintained in a Party’s normal or allowed processes, including but not
limited to backup tapes, disks, SAN, and other forms of media, to comply with its discovery
obligations in the present case. For the avoidance of doubt, CDs, DVDs or other media that are
used in the ordinary course of business to store original data shall be searched for responsive
material.
5.

SOURCES OF ESI
A.

The Parties agree to limit searches of discoverable ESI as follows. Collections of

ESI shall be initially limited to up to 10 key custodians per Party. Each Party shall designate its
own custodians, and, upon designation, disclose the identities of the custodians to the other Party
along with the custodians’ title, job description, and length of employment. HALO shall also
produce an organizational chart for the years 2021 - 2023, identifying individuals in the design,
manufacturing, marketing, and sales teams and how they fit in the corporate hierarchy, if
reasonably available. This includes individuals HALO intends to identify as a custodian for the
purpose of producing ESI. Should the other Party have a reasonable basis to question the choices
of custodians, the Parties agree to meet and confer about the designated custodians. A Party
seeking collections from additional custodians shall meet and discuss a reasonable resolution
with the other Parties, including outlining the good faith need for the additional collections and
whether the request is proportionate to the needs of the case. Should the Parties be unable to
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agree on whether there is a good faith need for additional custodians or additional collections,
the requesting Party shall seek relief from the court. In the event a Party requests and receives
court approval for collections from more than 10 custodians of another Party’s ESI, the
requesting Party shall reimburse the producing Party for the additional expenses of searching
for, collecting, reviewing, and producing any responsive ESI from those additional custodians.
B.

The Parties further agree to be bound by the Stipulated Protective Order during

the sharing of ESI. Nothing in this Stipulated ESI Protocol precludes any Party from challenging
the admissibility, discoverability, production, relevance, or confidentiality of information
produced under this Protocol or otherwise objecting to its production or use at trial.
C.

No Party may seek relief from the Court concerning compliance with the Protocol

unless it has conferred with other affected Parties.
D.

If necessary, the Stipulated ESI Protocol may be amended by written

modification of all Parties and approval by the court.
6.

ESI DISCOVERY PLAN
A.

The ESI search period shall be January 1, 2021-December 19, 2023 unless the

time period is otherwise identified in the discovery requests and pre-dates January 1, 2021.
Nothing herein shall restrict a Party from objecting to any discovery requests. The parties will
meet and confer regarding what search terms may be applicable to a time period that pre-dates
January 1, 2021, and promptly bring any dispute to the Court for resolution.
B.

Each Party will be responsible for reviewing and producing its own documents

consistent with Federal Rules of Civil Procedure. To facilitate a cooperative, efficient, and cost
effective discovery process, the Parties agree to meet and confer about methods to search ESI in
order to identify ESI that is subject to production in discovery and to filter out ESI that is not
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subject to discovery. Documents or categories of documents that are easily identifiable and
segregable shall be collected without the use of search terms or other agreed-upon advanced
search methodology (e.g., analytics, predictive coding, Computer Assisted Learning (“CAL”) or
Technology Assisted Review (“TAR”)).
C.

The Parties shall meet and confer promptly following entry of this Order to

discuss proposals to identify key custodians with potentially-responsive information, noncustodial sources of potentially-responsive information (e.g., relevant databases or other
repositories of data or documents), and relevant search terms and limitations.
D.

Each Party may serve its initial written discovery requests in accordance with the

joint case management plans and related scheduling orders.
E.

If a Party employs a methodology other than keyword searching to identify

responsive documents, it will provide the Requesting Party with the identity of its CAL or TAR
tool(s), and will, meet and confer to negotiate the methodology by which such tools will be
applied. Agreement on a search methodology does not relieve a party of its obligation to conduct
a reasonable search and produce all relevant and responsive documents of which a party is aware,
regardless of whether they contain search terms or some other search methodology agreed to by
the parties or ordered by the Court.
7.

GENERAL PRODUCTION FORMAT
A.

The Parties will produce ESI in TIFF image format provided that the documents

do not become illegible or unusable or in any way alter existing metadata when converted to
TIFF image format. Any Party may request production of the native format of any document
produced in any non-native format. If a dispute arises as to the reasonableness of the request, the
Parties agree to meet and confer in an effort to resolve their differences.
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B.

Certain documents that become illegible or unusable when converted to TIFF

image format (Microsoft Excel files, other similar spreadsheet application files, Microsoft
Project, PowerPoint, and audio and video files), must be produced in native format, unless they
contain information that requires redaction.
i.

Excel (or other spreadsheet formats) will be produced in native format.
Native Excel files will be redacted by overwriting the data contained in a
particular cell, row, column or tab with the word “REDACTED.” These
documents will be identified as redacted within the “REDACTED” field
in the .DAT. If the producing Party deems it necessary to produce
redacted Excel (or other spreadsheet formats) in any format other than
Native, the Parties should meet and confer before such a production is
made.

ii.

PowerPoint (or other presentation formats) will be produced in native
format. Native PowerPoint presentations that require redactions shall be
produced as TIFF images, which shall include speaker notes and “hidden”
slides as extracted by the software used to process the documents. Color
PowerPoint presentations requiring redactions shall be converted to color
images, and black and white PowerPoint presentations requiring
redactions shall be converted to black and white TIFF images, provided
that proper grayscale printing is enabled to ensure that any dark colored
text is not hidden by dark objects/drawings around the text. If the
PowerPoint or slide program contains video or audio components, the
video or audio will be produced as native files with the appropriate
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attachment relationships.
iii.

Word processing documents with redactions will be processed to TIFF
format and imaged showing track changes or edits, comments, notes and
other similar information.

The Parties reserve their rights to seek additional electronic documents in their native
format, including natively redacted spreadsheet documents that preserve the searching, sorting,
and filtering characteristics intrinsic to spreadsheet functionality. Electronic documents should
be produced in such fashion as to identify the location (i.e., the network file folder, hard drive,
back-up tape or other location) where the documents are stored and, where applicable, the natural
person in whose possession they were found (or on whose hardware device they reside or are
stored).
C.

All production documents will be produced with extracted text and load files

including the data fields provided in Exhibit A. In those instances where redaction is used, OCR
text will be provided in lieu of the extracted text to allow for removal of the redacted text from
production. For documents produced in native format, in addition to producing extracted text
and the data fields in the table below, the producing Party will provide slip sheets endorsed with
the production number and level of confidentiality pursuant to any applicable protective orders
in this case.
D.

Non-electronic documents shall be scanned into a static-image format. Copies of

file folders and identification of file custodians shall be produced.
E.

For documents that have originated in paper format, the following specifications

should be used for their production.
i.

Each unique document must be produced as a separate document. To the
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extent there are hard copy emails with attachments those documents must
be produced separately with the BEGATT and ENDATT metadata fields
populated to connect the family members.
ii.

Each filename must be unique and match the Bates number of the page.
The filename should not contain any blank spaces and should be zero
padded (for example ABC00000001).

iii.

Media may be delivered via secure FTP or hard drive due to size. Each
media volume should have its own unique name and a consistent naming
convention (for example ZZZ001 or SMITH001).

iv.

Each delivery should be accompanied by an image cross reference file
that contains document breaks.

v.

Each of the metadata and coding fields set forth below that can be
extracted shall be produced for each document. The Parties are not
obligated to populate manually any of the fields below if such fields
cannot be extracted from a document, with the exception of the following:
(a) PRODBEG, (b) PRODEND, (c) BEGATT, (d) ENDATT, (e)
CUSTODIAN, (f) ALL CUSTODIAN, (g) NATIVEFILEPATH, (h)
TEXTFILEPATH,

(i)

HASHVALUE;

(j)

DOCTYPE,

(k)

CONFIDENTIALITY and (l) PGCOUNT which should be populated by
the Party or the Party’s vendor. The Parties will make reasonable efforts
to ensure that metadata fields automatically extracted from the documents
correspond directly to the information that exists in the original
documents.
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vi.

The standard delimiters for the metadata load file should be: Field
Separator, ASCII character 020: “ ” Quote Character, ASCII character
254 “þ” Multi-Entry Delimiter, ASCII character 059: “;”

vii.

When subjecting physical documents to an OCR process, the settings of
the OCR software shall maximize text quality over process speed. Any
settings such as “auto-skewing,” “auto- rotation,” and the like should be
turned on when documents are run through the process. In scanning paper
documents, distinct documents shall not be merged into a single record,
and single documents shall not be split into multiple records (i.e., paper
documents should be logically unitized). Parent-child relationships (the
association between attachments and their parent documents) shall be
preserved. In the case of an organized compilation of separate documents
-- for example, a binder containing several separate documents behind
numbered tabs -- the document behind each tab should be scanned
separately, but the relationship among the documents in the binder should
be reflected in proper coding of the beginning and ending document and
attachment fields. Original Document orientation shall be maintained
(i.e., portrait to portrait and landscape to landscape). The Parties agree to
meet and confer as to any dispute before the issue is submitted to the
court.”

8.

IMAGE FORMAT
A.

Documents that are converted to TIFF image format will be produced in

accordance with the following technical specifications:
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i.

Images will be single-page, Group IV TIFF image files at 300 dpi;

ii.

TIFF file names cannot contain embedded spaces;

iii.

Bates numbers should be endorsed on the lower right corner of all TIFF
images and will be a unique, consistently formatted identifier, i.e. alpha
prefix along with a fixed length number (e.g., ABC0000001). The number
of digits in the numeric portion of the Bates number format should not
change in subsequent productions.

iv.

Confidentiality designations, if any, will be endorsed on the lower left
corner of all TIFF images;

v.

For replacement documents, append “-R” to the Bates number.

B.

Images will be delivered with an image load file in the Opticon (.OPT) file

C.

Images, native files, and text files should be stored and delivered in separate

format.

folders named “IMAGES,” “TEXT” and “NATIVE.” Folders should be segmented into
directories not to exceed 5,000 files.
D.

A transmittal cover letter should accompany each production that includes the

production volume name(s), bate(s) ranges, custodians and associated document count, total
number of records included in the production(s), total number of image, text and native files as
well as the encryption method/software (do not include password in transmittal letter). If one or
more production numbers is skipped in a production, the producing Party will so note in a cover
letter accompanying the production or in a privilege log.
9.

SEARCHABLE TEXT
A.

Searchable text of entire documents will be produced either as extracted text for
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all documents that originate in electronic format, or, for any document from which text cannot
be extracted, as text generated using Optical Character Recognition (OCR) technology. OCR
text will be provided for all documents that originate from hard copy or paper format. For
redacted documents, the full text of the redacted version of the document will be produced.
B.

Searchable text will be produced as a document-level multi-page ASCII text file

with the text file named the same as the PRODBEG field, placed in a separate folder. The full
path of the text file must be provided in the .DAT file for the TEXT field.
10.

NATIVE FILES
A.

Native file documents, emails and/or attachments may be included with the

electronic production using the below criteria:
i.

Documents produced in native format shall be re-named to reflect the
production number.

ii.

The full path of the native file must be provided in the .DAT file for the
NATIVE FILE field;

iii.

The confidentiality designation under the Stipulated Protective Order to
be entered in this action will be produced in the load file in the
CONFIDENTIALITY field.

iv.

The producing Party will produce a placeholder (a single-page TIFF slip
sheet indicating that the native item was produced). The placeholder will
be branded with the production number in the lower right-hand corner,
the original filename of the native file, and the phrase “PRODUCED IN
NATIVE” branded in the center of the page. The producing Party will
also brand any confidentiality or similar endorsements in the lower left13

hand corner of the placeholder.
B.

If documents produced in native format are printed for use in deposition, motion

or hearing, the Party printing the document must label the front page of the file that is printed
with the corresponding production number and, if applicable, the confidentiality designation
assigned by the producing Party to that file under an applicable protective order to be entered in
this action.
C.

Excel spreadsheets should be produced in native format with lock/protect features

and password protection disabled.
11.

EMBEDDED OBJECTS
A.

The Parties may exclude embedded objects from the production, so long as the

relevant portion of the embedded object is maintained in the document produced. A Party
seeking the full production of an embedded object shall meet and discuss with the other Parties
the relevance of the full embedded object and the burden of reviewing and producing the full
embedded object.
B.

Following production of the files containing embedded objects, a receiving Party

may make reasonable requests, with respect to specific embedded objects particularly identified
in the requests, for production of these embedded objects as stand-alone files. The producing
Party shall cooperate reasonably in responding to any such requests.
12.

STRUCTURED DATA
To the extent a response to discovery requires production of electronic information stored

in a database, the Parties will meet and confer to discuss format of production including whether
relevant information may be provided by querying the database and generating a report in a
reasonably usable and exportable electronic file. A document reference sheet shall be provided
14

to describe the purpose of the database and the meaning of relevant tables and column headers
contained therein.
13.

DE-DUPLICATION
A.

Documents shall be de-duplicated across custodians prior to production. The

Parties agree to use a verifiable, de-duplication process to ensure that one copy of a document is
produced when feasible. A producing Party shall identify all custodians who were in possession
of a de-duplicated documents in the “ALL CUSTODIAN” and “ALL FOLDER PATH” fields,
listed in Exhibit A.
B.

For the avoidance of doubt, a document is not considered to be a duplicate in the

case where email headers or attachments differ in any regard or where the same document is
both attached to an email and exists in a form that is separate from such email (e.g., as an
attachment to another email, as a standalone document saved to some electronic media, etc.).
C.

For good cause shown, the receiving Party shall have the right to request all

duplicates of a produced document.
D.

Attachments will include files sent via hyperlinks in the possession, custody or

control of the producing Party. For example, files attached via the “Share link” option in M365
will be treated the same as if they were attached as a copy.
14.

EMAIL THREADS
A.

Email threads are email communications that contain prior or lesser-inclusive

email communications that also may exist separately in the Party’s electronic files. A most
inclusive email thread is one that contains all of the prior or lesser-inclusive emails, including
attachments, for that branch of the email thread. Email thread suppression may not eliminate (a)
the ability of a requesting Party to identify every custodian who had a copy of a produced
15

document or email, or (b) remove from a production any unique branches and/or attachments
contained within an email thread.
B.

Each Party may produce only the most inclusive email threads.

C.

Similarly, a Party may list the most inclusive email thread on any required

privilege log. However, if the most inclusive email thread contains privileged portions and would
otherwise be logged in its entirety as privileged, then the thread must be produced with privileged
material redacted and the redacted portion logged.
D.

Should there be a unique attachment connected to a prior or lesser-inclusive email

communication, that prior or lesser-inclusive communication with the attachment must be
produced.
E.

Following production of the most-inclusive email threads, a receiving Party may

make reasonable requests, with respect to most-inclusive email threads particularly identified in
the requests, for production of individual lesser-inclusive emails. The producing Party shall
cooperate reasonably in responding to any such requests.
15.

ARCHIVE FILE TYPES
Archive file types (e.g., .zip, .rar) shall be uncompressed for processing. Each file

contained within an archive file that hits on a search term shall be analyzed for relevance. If the
archive file is itself an attachment, that parent/child relationship shall also be preserved.
16.

MICROSOFT “AUTO” FEATURE
To the extent reasonably practicable and technologically possible for a producing Party’s

vendor, Microsoft Excel (.xls) and Microsoft PowerPoint (.ppt) documents should be analyzed
for the “auto” features, where documents have an automatically updated date and time in the
document, file names, file paths, or similar information that when processed would be inaccurate
16

for how the document was used in the ordinary course of business. If “auto date,” “auto file
name,” “auto file path,” or similar features are identified, the produced document shall be
branded with the words “Auto Date,” “Auto File Name,” or “Auto File Path” formula used or
similar words that describe the “auto” feature.
17.

COLOR
Documents or records containing color (for example, graphs, pictures, color marketing

materials, and text messages) will be produced as color images for each such document or record,
to the extent possible. This provision does not apply to hard copy documents or electronic records
containing color logos, signatures, watermarks, or letterhead.
18.

SYSTEM FILES
Electronic file collection will be “De-NISTed,” removing commercially available

operating system and application files contained on the National Institute of Standards and
Technology (“NIST”) file list. Identification of NIST list matches will be through MD5 Hash
values.
19. TIME ZONE.
When processing ESI, Coordinated Universal Time (UTC) should be selected as the time
zone.
20.

TEXT MESSAGES
To the extent Producing Party determines that there is responsive information within text

messages, and that such information is subject to production in accordance with the Federal
Rules of Civil Procedure, the Parties will meet and confer to discuss the search parameters and
format of production of text messages. The Parties recognize that there is a wide variety of
capabilities available, and it is difficult to assert a standard into a protocol without information
17

as to each Party’s capabilities.
21.

MOBILE APPLICATION DATA
To the extent Producing Party determines that there is responsive information within

mobile application data, and that such information is subject to production in accordance with
the Federal Rules of Civil Procedure, the Parties will meet and confer to discuss the search
parameters and format of production of mobile application data. The Parties recognize that there
is a wide variety of capabilities available, and it is difficult to assert a standard into a protocol
without information as to each Party’s capabilities.
22.

COLLABORATION SOFTWARE PROGRAMS
To the extent Producing Party determines that there is responsive information within

collaboration software programs, and that such information is subject to production in
accordance with the Federal Rules of Civil Procedure, the Parties will meet and confer to discuss
the search parameters and format of production of collaboration program data such as Microsoft
TEAMS, Google Chat, or Slack. The Parties recognize that there is a wide variety of capabilities
available, and it is difficult to assert a standard into a protocol without information as to each
Party’s capabilities.
23.

PRIVILEGE, PRIVILEGE LOGS AND REDACTIONS
A.

The parties may withhold documents subject to a valid assertion of privilege from

production, in whole or in part, by designating the documents privileged pursuant to a claim of
attorney-client privilege, work product protection, or other applicable privilege or immunity.
Within a reasonable time after the conclusion of document production, the producing party will
produce a privilege log in computer searchable form setting out information sufficient to satisfy
the requirements of Federal Rule of Civil Procedure 26(b)(5), identifying, at a minimum:
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i.

Bates number or other identifier;

ii.

Name(s) of the Document author(s), to the extent available in the
metadata;

iii.

Name(s) of the Document recipient(s);

iv.

The date the Document was created, sent, and received, to the extent
available in the metadata;

v.

The type or format of the Document (e.g. email, spreadsheet,
PowerPoint, etc.);

vi.

The Document custodian(s);

vii.

The Document title or (for emails) subject; and

viii.

The basis for the assertion of privilege, including a general description
of the privileged information.

B.

The producing party shall indicate, on the privilege log or otherwise in a list

delivered with the privilege log, which individuals listed on the log are attorneys, and
any persons working at the direction of attorneys, including, but not limited to, paralegals and
support staff.
C.

A single Document containing multiple email messages (i.e., in an email chain)

may be logged as a single entry. A Document family (e.g., email and attachments) may be logged
as a single entry so long as the log entry accurately describes both the email and its attachment(s).
D.

Communications seeking legal advice, discussing legal strategy, or discussing

work-product and involving inside or outside counsel for the Parties related to this case need not
be placed on a privilege log, unless such communications include third parties to whom the work
product privilege does not apply.
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E.

The Parties agree to furnish logs that comply with Fed. R. Civ. P. 26(b)(5) and

any other legal requirements for all documents withheld or redacted on the basis of privilege,
attorney work product, or similar doctrines. Privilege logs may be produced on a rolling basis or
after all productions are complete, but prior to the close of discovery.
F.

Upon any party’s challenge to a claim of privilege, or to challenge a failure to

provide a complete privilege log, the parties shall promptly meet and confer to attempt to resolve
the issue(s) prior to the challenging party raising any unresolved issue(s) with the Court.
G.

Nothing in this Order shall be interpreted to require disclosure of irrelevant

information or relevant information protected by the attorney-client privilege, work-product
doctrine, or any other applicable privilege or immunity. The Parties do not waive any objections
to the production, discoverability, admissibility, or confidentiality of documents and ESI.
24.

EFFECT OF PROTOCOL AND RESERVATION OF RIGHTS
A.

The Parties agree to be bound by this Order during the sharing of ESI. Nothing

in this Protocol precludes any Party from challenging the admissibility, discoverability,
production, or confidentiality of information produced under this Protocol or otherwise objecting
to its production or use during the merits hearing or during any other hearing.
B.

No Party may seek relief from the Court concerning compliance with the Protocol

unless it has first conferred with the other Parties.
C.

The Protocol may be amended by the written agreement of the Parties, without

the approval of the Court.
D.

Nothing in this Protocol shall be interpreted to require disclosure of irrelevant

information or relevant information protected by the attorney-client privilege, work-product
doctrine, or any other applicable privilege or immunity.
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E.

Nothing contained herein is intended to or shall serve to limit a Party’s right to

conduct a review of documents, ESI or information (including metadata) for relevance,
responsiveness and/or segregation of privileged and/or protected information before production.
SO STIPULATED AND AGREED.
/s/ Rachel Soffin
Rachel Soffin
Counsel for Plaintiffs

/s/ Nilda M. Isidro
Nilda M. Isidro
Counsel for Defendants

Dated: June 3, 2024

Dated: June 3, 2024
So Ordered.
June 4, 2024
DATED: ____________

_______________________________
Judge Jessica G. L. Clarke
U.S. District Judge

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EXHIBIT A
Field

Definition

1

CUSTODIAN

2

PRODBEG

3

PRODEND

4

BEGATT

5

ENDATT

6

PGCOUNT

7

ATTACHCOUNT

8

FILENAME

9

DOCEXT

10

MSGID

11
12
13
14
15
16

EMAILFROM
EMAILTO
EMAILCC
EMAILBCC
EMAILSUBJECT
DATE-TIME SENT
(mm/dd/yyyy hh:mm:ss)

Name of person or data
source from where
documents/files are
produced. Where redundant
names occur, individuals
should be distinguished by
an initial which is kept
constant throughout
productions (e.g., Smith,
John A. and Smith, John B.).
Beginning Bates number
(production number)
Ending Bates number
(production number)
First Bates number of family
range (i.e. Bates number of
the first page of the parent
email)
Last Bates number of family
range (i.e. Bates number of
the last page of the last
attachment)
Number of pages in the
document
Number of attachments to an
email
Name of original file name
of an E-Doc or attachment to
an email
File extension of the
document
Value extracted from parent
message during processing
Sender
Recipient
Additional recipients
Blind additional recipients
Subject line of email
Date and time sent
22

Applicable Doc
Type
All

All
All
All

All

All
All
E-docs
All
Email
Email
Email
Email
Email
Email
Email

17
18
19
20
21

Field

Definition

DATE-TIME
RCVD (mm/dd/yyyy
hh:mm:ss)
HASHVALUE
TITLE

Date and time received

23

AUTHOR
DATECRTD
(mm/dd/yyyy)
DATELASTMOD
(mm/dd/yyyy)
DOCTYPE

24

REDACTED

25

PRODVOL

26

CONFIDENTIALITY

27

TEXTPATH

22

Applicable Doc
Type
Email

MD5 Hash Value
Title provided by user within
the document
Creator of a document
Creation date

Email, Edocs
Edocs

Last modified date

Edocs

Descriptor of the type of
document:
“E-document” for
electronic documents not
attached to emails;
“Emails” for all emails;
“E-attachments” for files
that are attachments to
emails; and
“Paper” for hard copy
physical documents that have
been scanned and
converted to an electronic
image
Descriptor for documents
that have been redacted.
“Yes” for redacted
documents; “No” for
unredacted documents.
Name of media that data was
produced on.
Indicates if the document has
been designated as
“Confidential” or “Highly
Confidential” pursuant to
any applicable Protective
Order. “No” indicates those
documents that are not so
designated.
Full path for OCR or
Extracted Text files on
producing media
23

All

Edocs
Edocs

All

All
All

All

Field
28
29

30

31

32
33
34
35
36
37

38
39
40
41
42

NATIVEFILELINK

Definition

Full path for documents
provided in native format on
producing media
ALL CUSTODIAN
Name(s) of all custodian(s)
that possessed the document;
includes any custodian(s)
whose duplicate file(s) was
removed during processing.
FOLDERPATH
File source path for all
electronically collected
documents and emails, which
includes location, folder
name and file extension.
ALL FOLDERPATH
This field will include data
for all custodians identified
as duplicates. This field will
be updated regularly to
account for rolling
productions.
EMAIL IMPORTANCE (Low, Normal or High)
EMAIL SENSITIVITY Normal, Personal, Private or
Confidential
REPLACEMENT
Flag Yes or No
TITLE
Title field value extracted from
the native file metadata.
CATEGORIES
Category value pulled from
native file metadata
SUBJECT
Subject field value extracted
from native file metadata.
Subject field is for e-docs only.
Email subject field is for email messages
COMMENTS
Comments value pulled from
the native file metadata
KEYWORDS/TAGS
From document metadata
HIDDENTEXT
Document has hidden text
(Y/N)
SUSPECTOLE
Document contains
embedded files. (Y/N)
HASCOMMENTS
Microsoft Word, Excel, or
PowerPoint
document contains
comments
24

Applicable Doc
Type
Edocs
Email

Edocs

Email
Email
All
E-docs
E-docs
E-docs

E-docs
E-docs
All
All
Microsoft E-docs

Field

Definition

43

HASTRACKCHANGE
S

44

APPLICATION NAME

45

CAL START

Microsoft Word or Excel
document
contains tracked changes.
Application value pulled
from native file metadata.
Start date and time of
calendar or appointment

46

CONVERSATION_IN
DEX
CONVERSATION

47

E-mail thread identification.
Normalized subject of emails.

25

Applicable Doc
Type
Microsoft E-docs
E-docs
E-mails, Eattachments and
Electronic
documents
E-mail
E-mail