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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case Number: 5:20-CV-09341-EJD
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`STIPULATION & ORDER RE:
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`DISCOVERY OF ELECTRONICALLY
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`STORED INFORMATION FOR PATENT
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`LITIGATION
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`APPLIED MATERIALS, INC.
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`Plaintiff,
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`vs.
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`DEMARAY LLC,
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`Defendant.
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`Upon the stipulation of the parties, the Court ORDERS as follows:
`1. This Order supplements all other discovery rules and orders. It streamlines
`Electronically Stored Information (“ESI”) production to promote a “just, speedy, and
`inexpensive determination of this action, as required by Federal Rule of Civil Procedure 1.”
`2. This Order may be modified in the Court’s discretion or by stipulation. The parties
`shall jointly submit any proposed modifications within 30 days after the Federal Rule of Civil
`Procedure 16 Conference.
`3. As in all cases, costs may be shifted for disproportionate ESI production requests
`pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory
`discovery tactics are cost-shifting considerations.
`4. A party’s meaningful compliance with this Order and efforts to promote efficiency and
`reduce costs will be considered in cost-shifting determinations.
`5. The parties are expected to comply with the District’s E-Discovery Guidelines
`(“Guidelines”) and are encouraged to employ the District’s Model Stipulated Order Re: the
`Discovery of Electronically Stored Information and Checklist for Rule 26(f) Meet and Confer
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`Case 5:20-cv-09341-EJD Document 121 Filed 01/26/22 Page 2 of 3
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`regarding Electronically Stored Information.
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`6. General ESI production requests under Federal Rules of Civil Procedure 34 and 45
`shall not include email or other forms of electronic correspondence (collectively “email”). To
`obtain email parties must propound specific email production requests.
`7. Email production requests shall only be propounded for specific issues, rather than
`general discovery of a product or business.
`8. Email production requests shall be phased to occur after the parties have exchanged
`initial disclosures and basic documentation about the patents, the prior art, the accused
`instrumentalities, and the relevant finances. While this provision does not require the production
`of such information, the Court encourages prompt and early production of this information to
`promote efficient and economical streamlining of the case.
`9. Email production requests shall identify the custodian, search terms, and time frame.
`The parties shall cooperate to identify the proper custodians, proper search terms and proper
`timeframe as set forth in the Guidelines.
`10. Each requesting party shall limit its email production requests to a total of five
`custodians per producing party for all such requests. The parties may jointly agree to modify this
`limit without the Court’s leave. The Court shall consider contested requests for additional
`custodians, upon showing a distinct need based on the size, complexity, and issues of this
`specific case. Cost-shifting may be considered as part of any such request.
`11. Each requesting party shall limit its email production requests to a total of five search
`terms per custodian per party. The parties may jointly agree to modify this limit without the
`Court’s leave. The Court shall consider contested requests for additional search terms per
`custodian, upon showing a distinct need based on the size, complexity, and issues of this specific
`case. The Court encourages the parties to confer on a process to test the efficacy of the search
`terms. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such
`as the producing company’s name or its product name, are inappropriate unless combined with
`narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive
`combination of multiple words or phrases (e.g., “computer” and “system”) narrows the search
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`Case 5:20-cv-09341-EJD Document 121 Filed 01/26/22 Page 3 of 3
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`and shall count as a single search term. A disjunctive combination of multiple words or phrases
`(e.g., “computer” or “system”) broadens the search, and thus each word or phrase shall count as a
`separate search term unless they are variants of the same word. Use of narrowing search criteria
`(e.g., “and,” “but not,” “w/x”) is encouraged to limit the production and shall be considered
`when determining whether to shift costs for disproportionate discovery. Should a party serve
`email production requests with search terms beyond the limits agreed to by the parties or granted
`by the Court pursuant to this paragraph, this shall be considered in determining whether any
`party shall bear all reasonable costs caused by such additional discovery.
`12. Nothing in this Order prevents the parties from agreeing to use technology assisted
`review and other techniques insofar as their use improves the efficacy of discovery. Such topics
`should be discussed pursuant to the District’s E-Discovery Guidelines.
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`IT IS SO STIPULATED, through Counsel of Record.
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`Dated: January 26, 2022
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`/s/ Philip Ou
`Counsel for Plaintiff
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`Dated: January 26, 2022
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`/s/ C. Maclain Wells
`Counsel for Defendant
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`IT IS ORDERED that the forgoing Agreement is approved.
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`Dated:
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`UNITED STATES DISTRICT/MAGISTRATE JUDGE
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