Case 3:17-cv-00183-CAB-BGS Document 109 Filed 03/24/17 PageID.2370 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`SAN DIEGO DIVISION
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`Case No.: 3:17-cv-00183-CAB-BGS
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`ORDER GRANTING JOINT MOTION
`FOR ENTRY OF STIPULATED
`ORDER REGARDING DISCOVERY
`OF ELECTRONICALLY STORED
`INFORMATION
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`ESET, LLC, and ESET SPOL, S.R.O.,
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`[ECF No. 97]
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`Defendants.
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`Defendants.
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`The parties Joint Motion for Entry of Stipulated Order Regarding Discovery of
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`Electronically Stored Information is GRANTED as follows.
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`17cv183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 109 Filed 03/24/17 PageID.2371 Page 2 of 7
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`Purpose
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`1.
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`This Order will govern discovery of electronically stored information
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`(“ESI”) in this case as a supplement to the Federal Rules of Civil Procedure, the Civil
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`Local Rules, and any other applicable orders and rules. The parties’ agreement to the
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`terms of this Order should not be deemed an acknowledgement that any information
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`hereby excluded from discovery would or would not be discoverable in the absence of
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`this Order. Nothing in this Order shall waive in whole or in part any objection raised by
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`a party in its written responses to specific discovery requests served in this action.
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`Cooperation
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`2.
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`The parties are aware of the importance the Court places on cooperation
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`and commit to cooperate in good faith throughout the matter.
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`Modifications
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`3.
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`This Order may be modified by a Stipulated Order of the parties or by the
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`Court for good cause shown.
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`Liaison
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`4.
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`The parties have identified liaisons to each other who are and will be
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`knowledgeable about and responsible for discussing their respective ESI. Finjan’s
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`liaisons include Cristina Martinez, Aakash Jariwala and Aaron Frankel. ESET’s
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`liaisons include Scott Penner and Justin Gray. Each e-discovery liaison will be, or have
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`access to those who are, knowledgeable about the technical aspects of e-discovery,
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`including the location, nature, accessibility, format, collection, search methodologies,
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`and production of ESI in this matter. The parties will rely on the liaisons, as needed, to
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`confer about ESI and to help resolve disputes without court intervention.
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`Preservation
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`5.
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`The parties have discussed their preservation obligations and needs and
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`agree that preservation of potentially relevant ESI will be reasonable and proportionate.
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`17cv183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 109 Filed 03/24/17 PageID.2372 Page 3 of 7
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`To reduce the costs and burdens of preservation and to ensure proper ESI is preserved,
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`the parties agree that:
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`a) Each party will preserve all ESI that is relevant to the claims and defenses in this
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`litigation that was created or received on or after July 1, 2010;
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`b) Each party will preserve, regardless of date, all ESI concerning the Patents-in-
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`Suit, any products or services related to the conception or reduction to practice of
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`or covered by the Patents-in-Suit, any products or services accused of
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`infringement in this action and any information specifically regarding the other
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`party;
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`c) For the purposes of this litigation, the parties agree that ESI from the following
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`data sources will be considered not reasonably accessible because of undue
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`burden or cost pursuant to Fed. R. Civ. P. 26(b)(2)(B) and the parties agree they
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`need not preserve the following: (i) recorded voice messages; (ii) instant
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`messaging communications that are not ordinarily printed or maintained in a
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`server dedicated to instant messaging; (iii) temporary data stored in a computer’s
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`random access memory (RAM), or other ephemeral data that are difficult to
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`preserve without disabling the operating system; (iv) on-line access data such as
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`temporary Internet files, history, cache, cookies, and the like; (v) device-to-device
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`(pin-to-pin) messages sent to or from mobile devices (e.g., Android, iPhone, and
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`Blackberry devices), provided that a copy of such mail is routinely saved
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`elsewhere; (vi) other electronic data stored on a mobile device, such as calendar
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`or contact data or notes, provided that a copy of such information is routinely
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`saved elsewhere; (vii) logs of calls made from mobile devices; (viii) server,
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`system or network logs; (ix) electronic data temporarily stored by laboratory
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`equipment or attached electronic equipment, provided that such data is not
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`ordinarily preserved as part of a laboratory report.
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`17cv183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 109 Filed 03/24/17 PageID.2373 Page 4 of 7
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`d) For the purposes of this litigation, the parties agree that ESI from the following
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`data sources could contain relevant information and should be preserved, but
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`under the proportionality factors need not be searched, reviewed or produced
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`absent good cause shown by the requesting party: (i) backup tapes intended for
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`disaster-recovery purposes that are not indexed, organized, or susceptible to
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`electronic searching and that are substantially duplicative of data more accessible
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`elsewhere, and (ii) deleted data remaining in fragmented form only accessible by
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`forensics. If a producing party contends that responsive ESI from any sources
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`other than (i)-(ii) above (and other than sources that need not be preserved per
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`paragraph 6(c) above) need not be searched, reviewed or produced, that party
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`shall timely identify such ESI with reasonably particularity and shall provide the
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`receiving party with the basis for declining to produce such ESI. The parties shall
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`negotiate in good faith regarding the production of any such ESI.
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`Production Format
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`6.
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`Documents will be produced in single-page TIFF format with full-text
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`extraction and database load files, with the exception that spreadsheets shall be
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`produced in native format. If there is no extractable text, the producing party shall
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`perform Optical Character Recognition (“OCR”) on the document and provide the
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`associated text file. All text files should be produced as document level text files with a
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`path to the text file included in the database load file; extracted text/OCR should not be
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`embedded in the load file itself. A party that receives a document produced in a format
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`specified above may make a reasonable request to receive the document in its native
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`format, and upon receipt of such a request, the producing party shall produce the
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`document in its native format to the extent reasonably accessible. Additionally, in the
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`event that production of a document in TIFF image file format would be impracticable,
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`the producing party shall have the option of producing such document in native format.
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`17cv183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 109 Filed 03/24/17 PageID.2374 Page 5 of 7
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`Metadata
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`7.
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`The following metadata shall be provided within the delimited file
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`described above for each document to the extent reasonably accessible: Extracted text,
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`Parent-Child relationships.
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`Additionally, for emails, the following additional metadata shall be
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`provided to the extent it exists and is reasonably accessible: To, From, CC, BCC, Date
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`Sent, Time Sent, Subject and Parent-child relationships.
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`Should additional metadata exist that if provided would significantly aid a
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`receiving party in understanding or using a particular document(s), if requested, the
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`producing party shall not unreasonably withhold such metadata if such metadata is
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`reasonably accessible.
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`Email
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`10. General ESI production requests under Federal Rules of Civil Procedure 34
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`and 45 shall not include email or other forms of electronic correspondence (collectively
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`“email”). Email production requests shall be governed by the search term process
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`outlined below.
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`11. A requesting party shall limit its email production requests to a total of five
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`custodians per producing party for all such requests. The parties may jointly agree to
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`modify this limit without the Court’s leave. The parties shall meet and confer as soon as
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`possible to identify the custodians who are most likely to have responsive or relevant
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`emails.
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`12. Each requesting party shall limit its email production requests to a total of
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`five search terms per custodian. The parties may jointly agree to modify this limit
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`without the Court’s leave. The search terms shall be narrowly tailored to particular
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`issues. Indiscriminate terms, such as the producing company’s name or its product
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`name, are inappropriate unless combined with narrowing search criteria that sufficiently
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`reduce the risk of overproduction. A conjunctive combination of multiple words or
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`Case 3:17-cv-00183-CAB-BGS Document 109 Filed 03/24/17 PageID.2375 Page 6 of 7
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`phrases (e.g., “computer” and “system”) narrows the search and shall count as a single
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`search term. A disjunctive combination of multiple words or phrases (e.g., “computer”
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`or “system”) broadens the search, and thus each word or phrase shall count as a separate
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`search term unless they are variants of the same word. A disjunctive string of patent
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`numbers that are asserted in this litigation shall only count as a single search term. Use
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`of 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. If the producing party is aware that the requesting party’s
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`search parameters would fail to locate a substantial amount of responsive emails, the
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`producing party shall promptly notify the requesting party of such fact and the parties
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`shall meet and confer to identify appropriate search parameters.
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`14.
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`If a party determines that additional custodians or search terms are required
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`and the parties are unable to reach agreement regarding the request following good faith
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`meet and confer efforts, the party requesting additional custodians and/or search terms
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`may seek relief from the Court based on a showing of good cause pursuant to the
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`procedures set forth in the Civil Local Rules and Chambers’ Rules governing discovery
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`disputes.
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`15. Nothing in this Order or the parties’ agreement to limit email using the
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`foregoing search parameters shall relieve the parties of any obligations they may have to
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`produce responsive ESI that they know about but that may not fall within the parties’
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`agreed-upon search parameters. To the extent a party is aware or made aware of a
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`substantial amount of responsive ESI that has not fallen within the parties’ agreed-upon
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`search parameters, it agrees to promptly notify the requesting party and to meet and
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`confer with the requesting party to modify the parties’ agreed-upon search parameters in
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`order to encompass such ESI.
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`17cv183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 109 Filed 03/24/17 PageID.2376 Page 7 of 7
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`Other ESI
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`16. For all other ESI that must be preserved and searched, reviewed and
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`produced, and which does not qualify as email ESI as set forth above, a producing party
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`shall be subject to its general obligation to conduct a reasonable search to locate and
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`produce any responsive information (subject to its objections) pursuant to Federal Rule
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`of Civil Procedure 34. Such search may include using search terms (such as those
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`identified above and/or any other search terms necessary to retrieve documents
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`responsive to the requesting party’s requests for production of documents) to search ESI
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`on central databases, servers, or individual hard drives, or producing all ESI from
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`particular electronic folders or files likely to contain responsive information, and/or any
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`other appropriate method to capture the responsive information.
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`Privilege and Lack of Waiver
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`17. The receiving party shall not use ESI that the producing party asserts is
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`attorney-client privileged or work product protected except to challenge the privilege or
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`protection.
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`18. 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
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`other federal or state proceeding.
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`19. The mere production of ESI in a litigation as part of a mass production
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`shall not itself constitute a waiver for any purpose.
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`17cv183 CAB (BGS)
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`IT IS SO ORDERED.
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`Dated: March 24, 2017
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