Communications Workers of America, AFL-CIO et al v. Nokia of America Corporation
Filing
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AGREED ORDER ESTABLISHING PROTOCOL FOR PRODUCTION OF ELECTRONICALLY STORED INFORMATION. Signed by Magistrate Judge Kimberly A. Jolson on 1/7/2019. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
COMMUNICATIONS WORKERS OF,
AMERICA, AFL-CIO and
COMMUNICATIONS WORKERS OF
AMERICA, LOCAL 4390, AFL-CIO,
Plaintiffs,
v.
NOKIA OF AMERICA CORPORATION,
Defendant.
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CASE NO. 2:18-cv-00305
JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE
KIMBERLY A. JOLSON
AGREED ORDER ESTABLISHING PROTOCOL FOR PRODUCTION OF
ELECTRONICALLY STORED INFORMATION
This matter has been brought before the Court by the parties in the above-captioned
litigation. The parties through counsel have agreed to the form and entry of this Order (“ESI
Order”) establishing a protocol for the production of Electronically Stored Information (“ESI”) in
this matter.
I.
SCOPE
A.
The procedures and protocols outlined herein govern the search for, review and
production of ESI (as defined below) by a party during the pendency of this litigation.
B.
As used in this order, the terms “ESI” or “Electronically Stored Information” means
discoverable documents and data existing in electronic form including e-mail, word processing
documents, spreadsheets, electronic slide presentations, databases, and other reasonably accessible
electronically stored information relevant to the claims or defenses of any party subject to
discovery pursuant to Fed. R. Civ. P. 26.
II.
IDENTIFICATION OF RESPONSIVE ESI
A.
Documents and ESI which are neither privileged nor otherwise protected shall be
timely reviewed and produced in accordance with this ESI Order. After receiving requests for
production of documents, the party making the production (the “Producing Party”) shall conduct
a reasonable and good faith search for responsive ESI.
B.
If a Producing Party identifies particular searches of ESI, or identifies particular
sources of ESI, that are not reasonably accessible because of undue burden or cost in accordance
with Fed. R. Civ. P. 26(b)(2)(B), such Producing Party shall meet and confer with the requesting
parties about whether such searches or sources are necessary to the requesting parties. The
Producing Party must meet and confer with the requesting parties as soon as practicable after the
Producing Party identifies the searches or ESI sources that are not reasonably accessible. If the
parties cannot resolve the dispute within fourteen days, the Producing Party must seek a protective
order with the Court, to alleviate Producing Party’s obligation to perform such searches on
particular sources of ESI.
C.
Search Terms. The parties shall meet and confer and reach agreement as to the
method of searching, and the words, terms, and phrases to be used to locate and identify
potentially responsive ESI. The parties shall also agree on the timing and conditions of any
additional searches that may become necessary in the normal course of discovery.
D.
Custodians and Electronic Systems. The parties shall meet and confer to
identify the custodians whose email and other ESI will be searched using the agreed search terms
from Section II.C. The parties shall also discuss prioritizing or tiering custodians, with the first
priority custodians searched and reviewed first, and any further custodians searched only if the
party requesting the discovery (“Requesting Party”) identifies why searches of additional
custodians are necessary and would not be largely duplicative.
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E.
Technology Assisted Review in Lieu of Search Terms. In lieu of identifying
responsive ESI using the search terms and custodians/electronic systems as described in Sections
II.C & II.D above, a party may use a technology assisted review platform to identify potentially
relevant documents and ESI.
F.
Date Range. The appropriate date range for searching any sources of ESI is
January 1, 2014, to the present.
G.
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. The parties shall
meet and confer on any additional file types that also need not be processed, reviewed, or produced.
III.
PRODUCTION OF ESI
A.
General Document Production Format. The following provisions shall generally
govern the production format and procedure for ESI other than databases or spreadsheets.
1.
Format. All ESI, other than databases or spreadsheets, shall be produced
in a single- or multi-page 300 dpi TIFF image with an appropriate load file as agreed to by the
parties. The documents shall also be processed through Optical Character Recognition (OCR)
Software with OCR text files provided along with the production. Extracted Text shall be provided
for all documents unless it cannot be obtained. To the extent a document is redacted, OCR text
files for such document shall not contain text for the redacted portions of the document. Each
TIFF image will be assigned a Bates number that: (1) is unique across the entire document
production; (2) maintains a constant length across the entire production padded to the same number
of characters; (3) contains no special characters or embedded spaces; and (4) is sequential within
a given document. If a Bates number or set of Bates numbers is skipped in a production, the
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Producing Party will so note in a cover letter or production log accompanying the production.
Each TIFF image file shall be named with the Bates Number corresponding to the number assigned
to the document page contained in that image. In the event a party determines that it is unable to
produce in the format specified in this section without incurring unreasonable expense, the parties
shall meet and confer to agree upon an alternative format for production.
2.
Metadata.
To the extent that any of the following metadata fields
associated with all applicable documents are available, the Producing Party will produce those
metadata fields to the Requesting Party: file name, file size, author, application date created, file
system date created, application date last modified, file system date last modified, date last saved,
original file path, subject line, date sent, time sent, sender/author, recipient(s), copyee(s), and blind
copyee(s). For emails with attachments, the Producing Party will indicate when a parent-child
relationship between the message and the attachment exists. A Producing Party shall also produce
a load file with each production with the following fields: Starting Bates; Ending Bates; Begin
Attach; End Attach; and Source (custodian/location from which document was collected). If any
metadata described in this section does not exist, is not reasonably accessible, is not reasonably
available, or would be unduly burdensome to collect or provide, nothing in this ESI Order shall
require any party to extract, capture, collect or produce such metadata.
3.
Appearance. Each document’s electronic image shall convey the same
information and image as the original document except for redactions for any privilege or for the
confidential or identifying information of a borrower other than the named Plaintiff in this case.
Documents shall appear with any revisions and/or comments visible and printed. Documents that
present imaging or formatting problems shall be promptly identified and the parties shall meet and
confer in an attempt to resolve the problems.
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4.
Unitization. If a document is more than one page, the unitization of the
document and any attachments and/or affixed notes shall be maintained as it existed in the original
file of the Producing Party or shall be documented in a load file or otherwise electronically tracked.
5.
Color. Documents containing color need not be produced in color in the
first instance. However, if good cause exists, the Requesting Party may request production of such
documents in color by providing (1) a list of the Bates numbers of documents requested to be
produced in color format; and (2) an explanation of the need for production in color format. The
Producing Party shall not unreasonably deny such requests if the Requesting Party has
demonstrated good cause, but need not make such production until the parties reach agreement
regarding apportionment of any additional costs associated with the production of documents in
color.
6.
Exception Files. Files that cannot be produced or imaged due to technical
difficulties shall be identified as exception files and identified on a log listing the file’s name,
custodian, and reason for the exception. Common exception files include, without limitation,
corruption, password protection, digital rights management, or proprietary software associated to
the file.
B.
Production Format For Information From Databases and Spreadsheets. The
following provisions shall generally govern the production format and procedure for databases and
spreadsheets:
1.
Spreadsheets. Absent special circumstances, Excel files, .csv files and
other similar spreadsheet files will be produced in native format (“Native Files”). Native Files will
be provided in a self-identified “Natives” directory. Each Native File will be produced with a
corresponding single-page TIFF placeholder image, which will contain language indicating that
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the document is being produced as a Native File. Native Files will be named with the beginning
Bates number that is assigned to that specific record in the production. A “NativeLink” entry for
each spreadsheet will be included in the .DAT load file indicating the relative file path to each
native file on the Production Media. Native Files will be produced with extracted text and
applicable metadata fields if possible and consistent with Section III.A.2 above. For documents
that contain redacted text, the parties may either apply the redactions directly on the native file
itself or produce TIFF image files with burned-in redactions in lieu of a Native File and TIFF
placeholder image. Each Producing Party will make reasonable efforts to ensure that Native Files,
prior to conversion to TIFF, reveal hidden data from redacted Native Files that are produced as
TIFF image files and will be formatted so as to be readable. (For example, column widths should
be formatted so that numbers do not appear as “#########”.) Under these circumstances, all
single-page TIFF images shall include row and column headings.
2.
Databases. If responding to a discovery request requires production of ESI
contained in a database, the Producing Party at its option may provide the database as a Native
File pursuant to Section III.B.1 above, or may comply with the discovery request by querying the
database for discoverable information and generating a report in a reasonably usable and
exportable electronic format (for example, in Excel or .csv format). The first line of each such file
will, to the extent possible, show the column headers for each field of data included. The parties
shall meet and confer as needed to finalize the appropriate data extraction and production format
for specific information contained in particular databases.
3.
Requests for Other Native Files. Other than as specifically set forth
above, a Producing Party need not produce documents in native format. If good cause exists for
the requesting party to request production of certain ESI in native format, the Requesting Party
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may request production in native format by providing (1) a list of the Bates numbers of documents
it requests to be produced in native format; and (2) an explanation of the need for reviewing such
documents in native format. The Producing Party shall not unreasonably deny such requests if the
Requesting Party has demonstrated good cause for receiving the ESI in native format. Each file
produced in response to such requests will be produced to the extent possible consistent with
Section III.B.1 above.
C.
Production Media. The Producing Party shall produce documents on CD-ROM,
DVD, external hard drive (with standard PC compatible interface), or such other readily accessible
computer or electronic media as the parties may hereafter agree upon (the “Production Media”).
Each piece of Production Media shall be labeled with (1) the party making the production, (2) the
date of the production, (3) text referencing that it was produced in CWA v. Nokia of America, Inc.;
(4) the Bates Number range of the materials contained on the Production Media; and (5) any
confidentiality designation(s) consistent with the terms of the Protective Order entered in this
matter. To maximize the security of information in transit, any Production Media may be
encrypted by the Producing Party. In such cases, the Producing Party shall transmit the encryption
key or password to the Requesting Party, under separate cover, contemporaneously with sending
the encrypted media.
D.
Duplicate Production Not Required. ESI files need only be produced once. The
Producing Party will apply global deduplication to responsive ESI based on MD5 Hash values or
an equivalent deduplication key. Email will be deduplicated by family, not on an individual basis.
Additionally, to the extent reasonably accessible, all custodians of removed duplicates will be
listed in an “All Custodians” field and identified by full name of the individual or departmental
custodian. Stand-alone documents may be deduplicated against email attachments provided that
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the email attachment is the duplicate that is produced and the custodian(s) of the removed
duplicate(s) are entered into the All Custodian field. All natives, even deduplicated versions, will
be retained in a format readily accessible to be produced upon request.
E.
Privilege Logs. A party withholding documents based on one or more claims of
privilege will produce a privilege log. There will be no obligation to produce privilege logs
identifying attorney-client communications concerning case strategy or the course of litigation that
occur following the commencement of this lawsuit, including the efforts to locate and collect
documents and ESI in response to a discovery request in this matter.
IV.
RULE 502(D) CLAWBACK AGREEMENT
A.
No Waiver of Disclosure. Section IV is agreed to pursuant to Fed. R. Evid. 502(d).
Any Producing Party that discloses or produces a document or information that it thereafter claims
to be privileged or otherwise protected from discovery (“Protected Information”), in whole or in
part, shall not be deemed to have waived any applicable privilege or protection by reason of such
disclosure or production in this or any other action.
B.
Notification Requirements. A Producing Party must promptly notify all parties
receiving the Protected Information (“Receiving Party”) in writing that it has disclosed the
Protected Information without intending to waive the privilege or protection. Upon receipt of such
notification, each Receiving Party must within seven days (1) return the Protected Information,
including all copies, to the Producing Party, or (2) notify the Producing Party in writing that it has
destroyed the Protected Information including all copies. Each Receiving Party must also cease
any use and dissemination of the Protected Information until further order of the Court ruling that
such information is not privileged or otherwise protected. Moreover, any party that receives any
document or information during the course of discovery in this action that it knows or reasonably
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should know is likely to be subject to a claim of privilege or other protection from discovery shall
so inform the Producing Party and all other parties in writing within seven days of becoming aware
of the potentially privileged document or information.
C.
Contesting Claim of Privilege of Work Product. If a Receiving Party contests
the claim of privilege or other protection made under Section IV.B above, the Receiving Party
must within 7 days of receipt of the notice move the Court for an Order compelling disclosure.
Any Protected Information disclosed or filed with the motion shall be filed under seal with the
Court as governed by Local Rule of Court 5.2.1. Pending a resolution of the motion, the Receiving
Party shall not use or otherwise disseminate the Protected Information. The burden of proof for
any such motion remains with the party asserting that the Protected Information is privileged or
otherwise protected from disclosure.
D.
Stipulated Time Periods. The parties may stipulate to extend the time periods set
forth in Sections IV.B and IV.C above.
E.
Effect. The provisions in Section IV of this ESI Order are intended to protect all
parties to this action, to the fullest extent permissible by law, against any unintended waiver of the
attorney-client privilege and/or the attorney work product doctrine that might otherwise arise from
the inadvertent disclosure of privileged or protected documents or information. These provisions
are intended to override any contrary law or presumptions, if and as applicable and permissible.
The parties’ execution of this ESI Order, and compliance with its terms, shall be understood, for
all purposes within and outside this action, to constitute reasonable and prompt efforts to preserve
privileges and protections from discovery in respect to any inadvertently disclosed document or
information.
V.
MISCELLANEOUS PROVISIONS
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A.
If the forms of production allowed by this protocol present an undue burden or cost
for a Producing Party, the parties shall meet and confer to agree on a reasonable, alternative form
of production. Any party may file a motion with the Court to seek individual relief from this ESI
Order.
B.
Each party will presumptively bear its own costs of production.
However, the
parties reserve the right to seek cost shifting as appropriate.
C.
Nothing in this ESI Order shall be construed to affect the discoverability or
admissibility of any document or data. All objections to the discoverability or admissibility of any
document or data are preserved and may be asserted at the appropriate time.
D.
The parties may agree to modify or waive the terms of this ESI Order in writing
signed by counsel for the affected parties.
AGREED TO AND TENDERED BY:
Attorneys for Plaintiffs:
Attorneys for Defendant:
/s/ James Petroff
Counsel for Plaintiffs
Bar ID: 0067674
/s/ Kirk M. Wall
Counsel for Defendant
Bar ID: 61642
/s/ K. Alexander Roe
Counsel for Plaintiffs
Pro hac vice
/s/ James F. Glunt
Counsel for Defendant
Pro hac vice
/s/ Claire E. Throckmorton
Counsel for Defendant
Pro hac vice
Date: January 4, 2019
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IT IS SO ORDERED.
DATE: January 7, 2019
/s/ Kimberly A. Jolson
UNITED STATES MAGISTRATE JUDGE
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
COMMUNICATIONS WORKERS OF,
AMERICA, AFL-CIO and
COMMUNICATIONS WORKERS OF
AMERICA, LOCAL 4390, AFL-CIO,
Plaintiffs,
v.
NOKIA OF AMERICA CORPORATION,
Defendant.
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CASE NO. 2:18-cv-00305
JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE
KIMBERLY A. JOLSON
STIPULATED PROTECTIVE ORDER
The undersigned hereby acknowledges that he/she has read the Stipulated Protective
Order dated ________________ in the above-captioned action and attached hereto, understands
the terms thereof, and agrees to be bound by its terms. The undersigned submits to the
jurisdiction of the United States District Court for the Southern District of Ohio (Eastern
Division) in matters relating to the Order. Further, the undersigned understands that the terms of
the Order obligate him/her to use documents designated Confidential in accordance with the
Order solely for the purposes of the above-captioned action, and not to disclose any such
documents or information derived directly therefrom to any other person, firm or concern.
The undersigned acknowledges that violation of the Order may result in penalties for
contempt of court.
Name:
Address:
Date:
Signature:
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