Ollila v. Babcock & Wilcox Enterprises, Inc. et al

Filing 72

Protocol Governing Discovery Matters And The Production Of Electronically Stored Information ("ESI"). Signed by Magistrate Judge David Keesler on 7/11/18. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO.: 3:17-CV-109

ERIC OLLILA, Individually and on Behalf of
All Others Similarly Situated,
Plaintiff,
vs.
BABCOCK & WILCOX ENTERPRISES, INC.,
E. JAMES FERLAND and JENNY L. APKER,
Defendants

PROTOCOL GOVERNING DISCOVERY MATTERS AND THE
PRODUCTION OF ELECTRONICALLY STORED INFORMATION (“ESI”)

The parties, by their undersigned counsel, hereby agree to the following regarding the
review and production of documents and Electronically Stored Information (“ESI”) in discovery:
I.

PROCEDURES FOR REVIEW OF ESI:
The parties agree to confer in good faith regarding the possibility of utilizing common

document review methodologies, including: (i) forms of targeted assisted review (“TAR”) such as
simple active- or passive-learning, continuous active- or multi-model-learning, or some
combination thereof; (ii) date filtering; and (iii) keyword search queries (e.g., single term or
Boolean strings). No party shall use predictive coding/technology-assisted-review for the purpose
of culling the documents to be reviewed or produced without notifying the opposing party prior to
use and with ample time to meet and confer in good faith regarding the use of such technologies.

II.

PRODUCTION OF DOCUMENTS COLLECTED IN HARD COPY FORM:
All hard copy documents should be scanned and produced as single-page, Group IV, 300

DPI TIFF images with an image load file (.OPT file and/or .LFP file) and a delimited
database/metadata load file (.DAT). The database/metadata load file should contain the metadata
fields listed in EXHIBIT A to the extent such metadata already exists at the time of collection.
Nothing in this Order shall be interpreted as requiring any party to create and produce any metadata
that does not already exist. The parties also agree to supply in the load file the vendor-created
fields specifically identified in EXHIBIT A.
All documents are to be provided with per document searchable text (.TXT) files that
contain full text extraction. In the event a document is scanned into TIFF format, the text file
should contain that document’s OCR text. The OCR software should maximize text quality over
process speed. Settings such as “auto-skewing” and “auto-rotation” should be turned on during
the OCR process. Where hard copy documents are scanned for the first time for purposes of review
and production in this litigation, the documents should be logically unitized (i.e., distinct
documents should not be merged into a single record, and a single document should not be split
into multiple records) and should be produced in the order in which they are kept in the usual
course of business.
If an original document contains color, is not produced in color, and color is necessary to
understand the meaning or content of the document, then reasonable requests for the production
of specific documents as single-page, 300 DPI, color JPG images with the quality setting 75% or
higher will not be unreasonably denied.
III.

PRODUCTION OF ESI:
ESI is to be produced as 300 DPI Group IV black and white Tagged Image File Format

(.TIFF or .TIF) files. The TIFF files shall be produced in single-page format along with image
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load files (.OPT file and .LFP file) with a delimited database/metadata load file (.DAT). The
database/metadata load file should contain the metadata fields listed in EXHIBIT A to the extent
such metadata already exists at the time of collection. Nothing in this Order shall be interpreted
as requiring any party to create and produce any metadata that does not already exist. The parties
also agree to supply in the load file the vendor-created fields specifically identified in EXHIBIT A.
If an original document contains color, is not produced in color, and color is necessary to
understand the meaning or content of the document, reasonable requests for the production of
specific documents as single-page, 300 DPI, color JPG images will not be unreasonably denied.
If the original document contains hidden data (e.g., a Word document containing track changes
and/or comments), it shall be processed to TIFF format with that hidden data revealed or showing
or it will be produced natively at the producing party’s election.
IV.

SYSTEM FILES:
Common system and program files as defined by the NIST library (which is commonly

used by discovery vendors to exclude system and program files from document review and
production) need not be processed, reviewed, or produced.
V.

FAMILIES OF DOCUMENTS:
For any documents that contain an attachment (for example, email), the vendor-created

fields set forth in EXHIBIT A reflecting the parent/child or parent/sibling relationship will be
produced as part of the load file.
With respect to files embedded within other files (e.g., copies of e-mails embedded in a
Word document), the producing party shall use best efforts, where technologically feasible, to
collect and process such files in such a manner as to ensure that the embedded file is produced in
a format that complies with this Protocol. Such embedded files shall be considered “child”
attachments of the “parent” document in which they are embedded.
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VI.

DE-DUPLICATION:
Removal of duplicate documents must be done for exact duplicate documents (based on

MD5 or SHA-1 hash values at the parent document level) and must be done across custodians and
sources. Near-duplicate documents shall be produced rather than removed. The custodian
associated with the first copy of a document processed will be considered the primary custodian
for that document (the custodian who will be used as the basis for determining which other
collected documents are duplicates). To accommodate rolling productions, the producing party
should provide an overlay file during the course of its production efforts that includes the
additional custodian names for individuals who possessed duplicate documents and will provide
another supplemental overlay file with any additional names once its production is complete.
If there are any handwritten notes or any other markings on a document, it shall not be
considered a duplicate. Any document that contains an alteration, marking on, or addition to the
original document shall be treated as a distinct version, and shall be produced as such unless
privileged in nature. These alterations include, but are not limited to, handwritten notes, electronic
notes/tabs, edits, highlighting, or redlining.
VII.

PRODUCTION OF EXCEL, OTHER SPREADSHEETS, AND POWERPOINTS:
MS-Excel spreadsheets, other spreadsheets, and PowerPoint documents shall be produced

in native format with a TIFF placeholder bearing the legend “Produced in Native File Format.”
The TIFF image shall be endorsed with a sequential Bates number and the produced native file
named to match this Bates number. The metadata load file shall contain a link to the produced
native file via data values called “Native Link.” The Native Link values should contain the full
directory path and file name of the native file as contained in the produced media.

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VIII. BATES NUMBERING:
Bates number and any confidentiality designation should be electronically branded on each
produced TIFF image of ESI but should not be included in the extracted text of ESI. For documents
produced in native format, the Bates ranges or beginning Bates number of the TIFF images of
those documents shall be provided.
IX.

REDACTIONS:
Each redaction on a document shall be endorsed with the word “Redacted” or “Redaction,”

with that word being included in the text provided for the document. Alternatively, the producing
party may produce a field in the DAT file denoting which documents contain redactions.
X.

MISCELLANEOUS PROVISIONS:
The parties agree to promptly alert each other concerning any technical problems

associated with complying with this Order or if, upon further investigation, they should determine
that compliance with any aspect of this Order presents undue burden or expense with respect to a
specific category of data or documents. Under such circumstances, the parties shall promptly
confer in an effort to resolve these issues. Any party may file a motion with the Court to seek
individual relief from this Order.
Nothing in this Order shall be construed to affect the discoverability or admissibility of any
document or data. All objections to the discoverability or admissibility of any documents or data
are preserved and may be asserted at the appropriate time. The parties may agree to modify or
waive the terms of this Order in writing signed by counsel for the affected parties.
Nothing in this Order shall be deemed to limit, modify or override any provision of the
Protective Order. In the event of any conflict between this Order and the Protective Order, the
provisions of the Protective Order shall govern. Also, nothing in this Order is intended to or shall
serve to limit a party’s right to conduct a review of documents or ESI (including metadata) for
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relevance, responsiveness or privilege.

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EXHIBIT A
METADATA FIELDS
Field Name
PRODBEG

Description
The Document ID number of
first page of the document.
The Document ID number of the
PRODEND
last page of a document.
The Document ID number of the
BEGATTACH
first page of the parent
document.
The Document ID number of the
ENDATTACH
last page of the last attachment.
The level of confidentiality
CONFIDENTIALITY
assigned to the document by
DESIGNATION
Counsel
The number of pages in a
PGCOUNT
document. (image records)
CUSTODIAN/SOURCE All of the custodians / sources of
a document from which the
document originated.
The name of the CD or Hard
VOLUME
Drive for ESI, or collection,
binder, cabinet for hard copy
docs.

Example / Format
ABC0000001
ABC0000003
ABC0000001

ABC0000008
Confidential, AEO

Numeric
Smith, Joe; Doe, Jane

VOL0001

RECORD TYPE

The type of document / record.

EMAIL SUBJECT
EMAIL AUTHOR /
FROM
EMAIL RECIPIENTS /
TO

The subject line of the e-mail.
The display name and e-mail of
the author of an e-mail.
The display name and e-mail of
the recipient(s) of an e-mail.

EMAIL CC

The display name and e-mail of
the copyee(s) of an e-mail.

EMAIL BCC

The display name and e-mail of
the blind copyee(s) of an e-mail.

EMAIL
ATTACHMENT
COUNT

The number of attachments to a
parent.

EMAIL ATTACHMENT
NAME

The original file name of attached
record.

Attach1.doc

RECEIVED DATE

The date the document was
received.

MM/DD/YYYY

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Email, hard copy, loose eFile

Joe Smith
<[e-mail]>
Joe Smith
<[e-mail]>;
[e-mail]
Joe Smith
<[e-mail]>;
[e-mail]
Joe Smith
<[e-mail]>;
[e-mail]
Numeric

Field Name
RECEIVED TIME

Description
The time the document was
received.
The date the document was sent.
The time the document was sent.
E-mail Importance Flag.

Example / Format
HH:MM

The time zone that the data is set
to when processed.
The file name of a native
document.
The author of a document from
extracted metadata.
The extracted title of the
document.

PST, CST, EST, etc.

FILE MANAGER /
APPLICATION
DESCRIPTION

Native file application.

Microsoft Excel, Word, etc.

FILE EXTENSION

The file extension of a
document.
Whether hidden data exists in the
document. For example, hidden
Excel cells or PowerPoint slides.
The date the document was
created.
The time the document was
created.
The date the document was last
modified.

XLS

The name of the last person to
edit the document from extracted
metadata.
Date of calendar appointment
entry.

jsmith

Start time of calendar
appointment entry.
End date of calendar
appointment entry
End time of calendar
appointment entry.
The file size of a document
(including embedded
attachments).

HH:MM

SENT DATE
SENT TIME
EMAIL
IMPORTANCE
TIMEZONE
PROCESSED
FILE NAME
FILE AUTHOR
DOC TITLE

HIDDEN DATA

FILE CREATE DATE
FILE CREATE TIME
FILE LAST
MODIFICATION
DATE
FILE LAST EDITED
BY
DATE
APPOINTMENT
START
TIME APPOINTMENT
START
DATE
APPOINTMENT END
TIME APPOINTMENT
END
FILESIZE

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MM/DD/YYYY
HH:MM
Normal, Low, High

Document Name.xls
jsmith
Table of Contents

Y, N, Blank

MM/DD/YYYY
HH:MM
MM/DD/YYYY

MM/DD/YYYY

MM/DD/YYYY
HH:MM
Numeric

Field Name
MD5HASH

NATIVELINK

FULLTEXT

Description
The MD5 Hash value or deduplication key assigned to a
document.
The full path to a native copy of
a document.

Example / Format

D:\NATIVES\ABC000001.xls

The path to the full extracted text D:\TEXT\ABC000001.txt
of the document. There should
be a folder on the deliverable,
containing a separate text file per
document. These text files
should be named with their
corresponding bates numbers.
Note: E-mails should include
header information: author,
recipient, cc, bcc, date, subject,
etc. If the attachment or e-file
does not extract any text, then
OCR for the document should be
provided.

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Dated: July 11, 2018

SUBMITTED BY:

KAPLAN FOX & KILSHEIMER LLP

ALSTON & BIRD LLP

/s/ Frederic S. Fox
Frederic S. Fox (pro hac vice)
Donald R. Hall (pro hac vice)
Melinda Campbell (pro hac vice)
Ralph E. Labaton (pro hac vice)
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

/s/ Thomas G. Walker
THOMAS G. WALKER
(N.C. State Bar No. 17635)
555 Fayetteville St., Suite 600
Raleigh, North Carolina, 27601
Tel: [phone]
Fax: [phone]
[e-mail]
JOHN L. LATHAM (pro hac vice)
SUSAN E. HURD (pro hac vice)
JASON R. OUTLAW (pro hac vice)
ALSTON & BIRD LLP
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Lead Counsel for Lead Plaintiff and the Class
BLUE LLP
Dhamian Blue
205 Fayetteville Street
Raleigh, North Carolina 27601
Telephone: [phone]
Facsimile: [phone]
N.C. Bar No. 31405
Liaison Counsel

Counsel for Defendants
Additional Counsel for Named Plaintiff and
Lead Plaintiff:
LABATON SUCHAROW LLP
Jonathan Gardner (pro hac vice)
Christine M. Fox (pro hac vice)
Marisa N. DeMato
140 Broadway
New York, New York 10005
Telephone: [phone]
Facsimile: 212-818-0477
Additional Counsel for Lead Plaintiff:
KESSLER TOPAZ MELTZER &
CHECK, LLP
Andrew L. Zivitz (pro hac vice)
Geoffrey C. Jarvis
Matthew L. Mustokoff (pro hac vice)

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Margaret E. Mazzeo
280 King of Prussia Road
Radnor, Pennsylvania 19087
Telephone: [phone]
Facsimile: 610-667-7056
-andJennifer L. Joost
One Sansome Street, Suite 1850
San Francisco, CA 94104
Telephone: [phone]
Facsimile: 415-400-3001

SO ORDERED:

Signed: July 11, 2018

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