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`Case 3:17-cv-05659-WHA Document 51 Filed 04/10/18 Page 1 of 7
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`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`Paul Andre (State Bar No. 196585)
`pandre@kramerlevin.com
`Lisa Kobialka (State Bar No. 191404)
`lkobialka@kramerlevin.com
`James Hannah (State Bar No. 237978)
`jhannah@kramerlevin.com
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`Attorneys for Plaintiff
`FINJAN, INC.
`
`IRELL & MANELLA LLP
`Jonathan Kagan (State Bar No. 166039)
`jkagan@irell.com
`Joshua Glucoft (State Bar No. 301249)
`jglucoft@irell.com
`Casey Curran (State Bar No. 305210)
`ccurran@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Rebecca Carson (State Bar No. 254105)
`rcarson@irell.com
`Kevin Wang (State Bar No. 318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`
`
`
`JUNIPER NETWORKS, INC.,
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ESI
`(Case No. 3:17-cv-05659-WHA)
`
`Case No. 3:17-cv-05659-WHA
`
`STIPULATION AND [PROPOSED] ORDER
`RE: DISCOVERY OF ELECTRONICALLY
`STORED INFORMATION FOR PATENT
`LITIGATION
`
`Hon. William H. Alsup
`
`
`
`
`
`FINJAN, INC.,
`
`
`Plaintiff,
`
`v.
`
`Defendant.
`
`
`
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 51 Filed 04/10/18 Page 2 of 7
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`Upon the stipulation of the parties, the Court ORDERS as follows:
`1.
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`This Order supplements all other discovery rules and orders. It streamlines
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`Electronically Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
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`determination of this action, as required by Federal Rule of Civil Procedure 1.”
`2.
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`This Order may be modified in the Court’s discretion or by stipulation. The parties
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`shall jointly submit any proposed modifications within 30 days after the Federal Rule of Civil
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`Procedure 16 Conference.
`3.
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`As in all cases, costs may be shifted for disproportionate ESI production requests
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`pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory
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`discovery tactics are cost-shifting considerations.
`4.
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`A party’s meaningful compliance with this Order and efforts to promote efficiency
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`and reduce costs will be considered in cost-shifting determinations.
`5.
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`The parties are expected to comply with the District’s E-Discovery Guidelines
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`(“Guidelines”) and are encouraged to employ the District’s Model Stipulated Order Re: the
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`Discovery of Electronically Stored Information and Checklist for Rule 26(f) Meet and Confer
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`regarding Electronically Stored Information.
`6.
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`Information and documents not stored as attachments to an email, or as part of an
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`email archiving system, are subject to the general discovery requirements of Federal Rules of Civil
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`Procedure 26, 34, and 45, including internal documents, PowerPoint presentations, Wikis, and
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`similar information that may or may not be stored electronically. However, general production
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`requests under Federal Rules of Civil Procedure 34 and 45 shall not include email or other forms
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`of electronic correspondence (collectively “email”). Instead, email production requests shall be
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`governed by the search term process outlined below.
`7.
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`Email production requests shall only be propounded for specific search terms (as
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`outlined below), rather than general discovery of a product or business.
`8.
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`Document production responsive to discovery requests pursuant to Fed. R. Civ. P.
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`34 shall be phased to occur after Juniper has served its Invalidity Contentions.
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`
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`- 1 -
`STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ESI
`(Case No. 3:17-cv-05659-WHA)
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`

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`Case 3:17-cv-05659-WHA Document 51 Filed 04/10/18 Page 3 of 7
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`a. Email production requests shall identify the custodian, search terms, and time
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`frame. The parties shall cooperate to identify the proper custodians, proper search
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`terms, and proper timeframe as set forth in the Guidelines.
`b. Each requesting party shall limit its email production requests to a total of eight
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`custodians per producing party for all such requests. The parties may jointly agree
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`to modify this limit without the Court’s leave. The Court shall consider contested
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`requests for additional custodians, upon showing a distinct need based on the size,
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`complexity, and issues of this specific case. Cost-shifting may be considered as
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`part of any such request.
`c. Each requesting party shall limit its email production requests to a total of seven
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`search terms per custodian per party as set forth below, and also the other party’s
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`name (i.e., Finjan shall search for “Juniper” and Juniper shall search for “Finjan”
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`for the identified custodians). The parties may jointly agree to modify this limit
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`without the Court’s leave. The Court shall consider contested requests for
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`additional search terms per custodian, upon showing a distinct need based on the
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`size, complexity, and issues of this specific case. The Court encourages the parties
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`to confer on a process to test the efficacy of the search terms. The search terms
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`shall be narrowly tailored to particular issues. Indiscriminate terms, such as the
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`producing company’s name or its product name, are inappropriate unless combined
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`with narrowing search criteria that sufficiently reduce the risk of overproduction.
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`A conjunctive combination of multiple words or phrases (e.g., “computer” and
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`“system”) narrows the search and shall count as a single search term. A disjunctive
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`combination of multiple words or phrases (e.g., “computer” or “system”) broadens
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`the search, and thus each word or phrase shall count as a separate search term
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`unless they are variants, abbreviations, or acronyms of the same word. Use of
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`narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the
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`production and shall be considered when determining whether to shift costs for
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`disproportionate discovery. Should a party serve email production requests with
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`- 2 -
`STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ESI
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 51 Filed 04/10/18 Page 4 of 7
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`search terms beyond the limits agreed to by the parties or granted by the Court
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`pursuant to this paragraph, this shall be considered in determining whether any
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`party shall bear all reasonable costs caused by such additional discovery.
`d. No later than 17 days after receiving an initial list of search terms for a custodian,
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`the producing party shall provide a hit count identifying the number of documents
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`each search term identified during the search. The requesting party may then
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`provide a modified list of search terms but may not change the identified custodian,
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`unless the hitcount for a particular custodian produces fewer than 100 total hits
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`across all terms, in which case the requesting party may change that particular
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`custodian not more than once and may not change more than 2 custodians total.
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`The producing party shall provide a hit count identifying the number of documents
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`that each modified search term identified during the search within 7 business days
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`after receiving the modified list of search terms. The receiving party shall thereafter
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`identify the final list of search terms for the custodian. The producing party shall
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`produce the identified emails in a reasonably diligent manner, but no later than 21
`days after the requesting party provides the final list of search terms.1
`The parties have discussed their preservation obligations and needs and agree that
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`9.
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`preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs
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`and burdens of preservation and to ensure proper ESI is preserved, the parties agree that:
`a. Each party will take reasonable steps to preserve all ESI that is relevant to the
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`claims and defenses in this litigation that was created or received on or after June
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`2014;
`b. Each party will take reasonable steps to preserve, regardless of date, all ESI
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`concerning the Patents-in-Suit, any products or services related to the conception or
`
`
`1 Notwithstanding this or any other provision, the parties reserve the right to object to and
`withhold discovery on the grounds of, inter alia, relevance and privilege. See FlowRider Surf,
`Ltd. v. Pacific Surf Designs, Inc., 15cv1879-BEN (BLM), 2016 WL 65228071, at *7-8 (S.D. Cal.
`Nov. 3, 2016).
`
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`- 3 -
`STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ESI
`(Case No. 3:17-cv-05659-WHA)
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`

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`Case 3:17-cv-05659-WHA Document 51 Filed 04/10/18 Page 5 of 7
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`reduction to practice of or covered by the Patents-in-Suit, and any products or
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`services accused of infringement in this action;
`c. The parties will preserve ESI for a reasonable number of custodians per party; and
`d. Among the sources of data the parties agree are not reasonably accessible, the
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`parties agree not to preserve the following: backup media not reasonably accessible
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`(including disaster recovery systems), digital voicemail, instant messaging, systems
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`no longer in use, and automatically saved versions of documents.
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`10.
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`A party shall not be liable for the loss of electronically stored information that
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`should have been preserved in the anticipation or conduct of litigation, unless it is lost because the
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`party failed to take reasonable steps to preserve it and it cannot be restored or replaced through
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`additional discovery. Should the Court find prejudice to another party from the loss, the Court
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`may order measures no greater than necessary to cure the prejudice. Only where a party has acted
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`with the intent to deprive another party of the information’s use in litigation may the Court
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`presume that the lost information was unfavorable to the party, instruct the jury that it may or must
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`presume that the information was unfavorable to the party, or dismiss the action or enter a default
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`judgment. No other remedies are available.
`11.
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`Documents will be produced in single-page TIFF format with full-text extraction
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`and database load files, with the exception that spreadsheets shall be produced in native format. If
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`there is no extractable text, the producing party shall perform Optical Character Recognition
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`(“OCR”) on the document and provide the associated text file. All text files should be produced
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`as document level text files with a path to the text file included in the database load file; extracted
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`text/OCR should not be embedded in the load file itself. A party may make a reasonable request
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`to receive the document in its native format. Additionally, in the event that production of a
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`document in TIFF image file format would be impracticable, the producing party shall have the
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`option of producing such document in native format.
`12.
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`For emails, the following metadata shall be provided to the extent it exists and is
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`reasonably accessible: To, From, CC, BCC, Date Sent, Time Sent, Subject, Parent-child
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`relationships, Custodian.
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`- 4 -
`STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ESI
`(Case No. 3:17-cv-05659-WHA)
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`
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`

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`Case 3:17-cv-05659-WHA Document 51 Filed 04/10/18 Page 6 of 7
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`13.
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`The receiving party shall not use ESI that the producing party asserts is attorney-
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`client privileged or work product protected except to challenge the privilege or protection.
`14.
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`Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of
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`privileged or work product protected ESI is not a waiver in the pending case or in any other
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`federal or state proceeding. To the extent there is any conflict between this provision and Section
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`13 of the parties’ Stipulated Protective Order, the terms in the parties’ Stipulated Protective Order
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`shall govern.
`15.
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`The mere production of ESI in a litigation as part of a mass production shall not
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`itself constitute a waiver for any purpose.
`16.
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`Neither party will produce nor list on any privilege log any item protected by any
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`privilege, immunity, or protection that occurred or was/is created on or after the filing date of the
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`initial Complaint in this litigation except as required by Patent L.R. 3-7.
`17.
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`Nothing in this Order prevents the parties from agreeing to use technology assisted
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`review and other techniques insofar as their use improves the efficacy of discovery. Such topics
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`should be discussed pursuant to the District’s E-Discovery Guidelines.
`18.
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`Pursuant to the parties’ agreement set forth in Section 22(1) of the Joint Case
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`Management Statement (Dkt. No. 31 at p. 15), paragraphs 15, 16, 18, and 20 of the Supplemental
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`Order To Order Setting Initial Case Management Conference In Civil Case Before Judge William
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`Alsup shall not apply in this matter.
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`- 5 -
`STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ESI
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 51 Filed 04/10/18 Page 7 of 7
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`IT IS SO STIPULATED, through counsel of record.
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`Dated: April 10, 2018
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`Dated: April 10, 2018
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`Respectully submitted,
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`By: /s/ Paul Andre
`Paul Andre
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`Respectully submitted,
`
`
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`
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`By: /s/ Joshua Glucoft
`Joshua Glucoft
`IRELL & MANELLA LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067-4276
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`In accordance with the Civil Local Rule 5-1(i)(3), I attest that the concurrence of the filing
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`ATTESTATION
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`of this document has been obtained from any other signatory to this document.
` /s/ Paul Andre
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`Paul Andre
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`PURSUANT TO STIPULATION, IT IS SO ORDERED.
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`Dated: ___________________________
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`
`
`Hon. William H. Alsup
`Judge, United States District Court
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`- 6 -
`STIPULATION AND [PROPOSED] ORDER RE: DISCOVERY OF ESI
`(Case No. 3:17-cv-05659-WHA)
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