Case 1:21-cv-01445-JPM Document 38 Filed 04/26/22 Page 1 of 10 PageID #: 1173
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GLOBUS MEDICAL, INC.,
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`Plaintiffs,
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`v.
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`LIFE SPINE, INC.,
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`Defendant.
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`C.A. No. 21-1445 (JPM)
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`STIPULATION AND ORDER REGARDING DISCOVERY, INCLUDING DISCOVERY
`OF ELECTRONICALLY STORED INFORMATION (“ESI”)
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`Plaintiff Globus Medical, Inc. (“Globus” or “Plaintiff”) and Defendant Life Spine, Inc.
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`(“Life Spine”) hereby stipulate to the following conduct, parameters and timing governing
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`production of documents in the Actions:
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`1. General Provisions
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`a. Cooperation. Globus Medical, Inc. (“Globus”) and Life Spine, Inc. (“Life Spine”)
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`(together “the Parties”) have discussed how to conduct discovery under Fed. R. Civ. P. 26-36.
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`The Parties shall continue to meet and confer in good faith on any issue regarding ESI, as
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`necessary, including any issues relating to data preservation, custodians, search terms, and data
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`sources, that arise under this Order or otherwise. In the event the Parties cannot reach an
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`agreement on a disputed matter, the Parties shall submit the matter to the Court.
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`i. By agreeing to the terms of this Order, the parties do not admit that the
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`production of ESI is necessary or appropriate for any given document request. The parties
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`reserve all rights to make objections when responding to document requests.
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`ii. Nothing in this Order creates an obligation by either party to produce ESI on
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`back-up tapes or other long-term storage media that were created strictly for use as a data back-
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`up or disaster recovery medium.
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`iii. On-site inspection shall not be permitted absent a demonstration by the
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`requesting party of specific need and good cause. To the extent that a party does not provide or
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`make available for inspection physical samples of the accused products or practicing products
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`and associated instruments, specific need and good cause shall be presumed for on-site
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`inspection of such materials. For avoidance of doubt, nothing in this paragraph 1(a)(iii) waives
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`any other objections a party might assert with respect to discovery requests concerning physical
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`samples.
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`b. Proportionality. Parties are expected to use reasonable, good faith and proportional
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`efforts to preserve, identify and produce relevant information.1 This includes identifying
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`appropriate limits to discovery, including limits on custodians, identification of relevant subject
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`matter, time periods for discovery and other parameters to limit and guide preservation and
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`discovery issues. The Proposed Protective Order entered by the Court in this matter shall
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`supplement the terms of this Proposed ESI Order.
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`c. Preservation of Discoverable Information.
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`The Parties shall follow the common law obligation to take reasonable and proportional
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`steps to preserve discoverable information in the party’s possession, custody or control.
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`(i) Absent a showing of good cause by the requesting party, the parties shall not
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`be required to modify, on a going-forward basis, the procedures used by them in the ordinary
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`1 Information can originate in any form, including ESI and paper, and is not limited to
`information created or stored electronically. “Document” means information subject to
`production or inspection within the meaning of the Federal Rules of Civil Procedure, including
`without limitation FRCP 34.
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`course of business to back up and archive data; provided, however, that the parties shall preserve
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`the non-duplicative discoverable information currently in their possession, custody or control.
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`(ii) Absent a showing of good cause by the requesting party, the categories of ESI
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`identified in Schedule A attached hereto need not be preserved and may be considered not
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`reasonably accessible.
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`d. Privilege
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`(i) For all documents withheld on the basis of privilege, the Parties agree to
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`furnish logs which comply with the legal requirements under federal law, but at a minimum will
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`include the following information:
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`a. A unique number for each entry on the log.
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`b. The date of document.
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`c. The Author of the document where reasonably ascertainable.
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`d. Recipient(s) of the document where reasonably ascertainable.
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`e. A description of why privilege is being asserted over the document.
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`This description should include information sufficient to identify if the document contained
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`attachments over which privilege is also being asserted.
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`f. The type of privilege being asserted: (a) AC for Attorney/Client, (b)
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`WP for Attorney Work Product, (c) CI for Common Interest, or other appropriate applicable
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`privilege clearly identified on the log.
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`(ii) Privilege logs may be produced on a rolling basis as productions are made, but
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`initial logs shall be exchanged no later than 30 days before the fact discovery cutoff for all
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`document productions made by 90 days before the fact discovery cutoff. The Parties further
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`agree that for any document productions served thereafter, the Producing Party shall provide a
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`privilege log within 60 days after serving the corresponding document production, except that
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`privilege logs corresponding to document productions served within 30 days of the fact
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`discovery cutoff shall be provided no later than the fact discovery cutoff. With respect to
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`partially privileged documents produced in redacted form, such that the sender and recipients of
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`such documents are disclosed on the document as produced, a Party may identify such
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`documents on a privilege log by providing an Excel-format chart that states, for each such
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`document, the beginning Bates number and the basis of the redaction. With respect to privilege
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`logs provided within 30 days of the fact discovery cutoff, the receiving party shall have thirty
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`(30) days from the date of receipt to file a motion to compel with respect to any new information
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`in such final log(s) and, if the fact discovery cutoff has passed, to seek further discovery
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`narrowly tailored to any new information in such final log(s), upon good cause shown.
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`(iii) Parties are not required to include information generated after the filing of the
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`complaint in privilege logs.
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`(iv) Activities undertaken in compliance with the duty to preserve information are
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`protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
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`(v) Nothing in this Order shall require production of documents, information or
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`other material that a party contends is protected from disclosure by the attorney-client privilege,
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`the work product doctrine, or any other privilege, doctrine, or immunity. If documents,
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`information or other material subject to a claim of attorney-client privilege, work product
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`doctrine, or any other privilege, doctrine, or immunity is inadvertently or unintentionally
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`produced, such production shall in no way prejudice or otherwise constitute a waiver of, or
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`estoppel as to, any such privilege, doctrine, or immunity. Any party that inadvertently or
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`unintentionally produces documents, information or other material it reasonably believes are
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`protected under the attorney-client privilege, work product doctrine, or other privilege, doctrine,
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`or immunity may obtain the return or destruction of such documents, information or other
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`material by promptly notifying the recipient(s) and, within three (3) business days, providing a
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`privilege log for the inadvertently or unintentionally produced documents, information or other
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`material. The recipient(s) shall gather and sequester, return or destroy all copies of such
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`documents, information or other material to the producing party. No use shall be made of such
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`documents or information during depositions, through motion practice, or at trial, except for the
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`sole purpose of a motion to compel the production of said document. The recipient(s) may move
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`the Court for an Order compelling production of any such documents or information in
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`accordance with the Federal Rules of Civil Procedure.
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`2. Initial Discovery Conference.
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`a. Timing. The parties had an initial discovery conference (the “Initial Discovery
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`Conference”) pursuant to Fed. R. Civ. P. 26(f)
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`b. Content. The parties have discussed and shall continue to discuss the following:
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`(i) The issues, claims and defenses asserted in the case that define the scope of discovery.
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`(ii) The likely sources of potentially relevant information (i.e., the “discoverable
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`information”), including witnesses, custodians and other data sources (e.g., paper files, email,
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`databases, servers, etc.).
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`(iii) Technical information, including the exchange of production formats.
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`(iv) The existence and handling of privileged information.
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`(v) The categories of ESI that should be preserved.
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`(vi) The reasonableness of collection, review and production.
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`3. Initial Disclosures. The parties shall furnish initial disclosures in accordance with the
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`Court’s Scheduling Order (Dkt. 27). The initial disclosures shall include:
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`a. Custodians. The parties shall identify up to 10 custodians most likely to have
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`discoverable information in their possession, custody or control, from the most likely to the least
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`likely. The custodians shall be identified by name, title, role in the instant dispute, and the
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`subject matter of the information, and may include current and former employees whose
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`information is in the possession of a party.
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`b. Non-custodial data sources.2 The parties shall disclose a list of the non-custodial
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`data sources that are most likely to contain non-duplicative discoverable information for
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`preservation and production consideration, from the most likely to the least likely.
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`c. Document production.3 The parties shall produce documents with their initial
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`disclosures in accordance with the Court’s Scheduling Order (Dkt. 27) and instructions at the
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`March 17, 2022 scheduling conference.
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`4. Specific E-Discovery Issues.
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`a. On-site inspection of electronic media. Such an inspection shall not be permitted
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`absent a demonstration by the requesting party of specific need and good cause.
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`b. Search methodology. If the producing party elects to use search terms to locate
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`potentially responsive ESI, it shall disclose the search terms to the requesting party and reach
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`agreement with the requesting party on the search terms to be used. The parties will meet and
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`confer to determine if the requested search terms are appropriate and reasonable. Absent a
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`showing of good cause, a requesting party may request no more than 10 additional terms to be
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`2 That is, a system or container that stores ESI, but over which an individual custodian does not
`organize, manage or maintain the ESI in the system or container (e.g., enterprise system or
`database).
`3 As these document productions are “initial,” each party shall be permitted to supplement.
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`used in connection with the electronic search. Focused terms, rather than over-broad terms (e.g.,
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`product and company names), shall be employed. A conjunctive combination of multiple words
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`or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single search
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`term. A disjunctive combination of multiple words or phrases (e.g., “computer” or “system”)
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`broadens the search, and thus each word or phrase shall count as a separate search term unless
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`they are variants or synonyms of the same word (e.g., “U.S. Patent No. 6,303,661” or “’661
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`patent”). With respect to ESI, the producing party shall only search (i) the non-custodial data
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`sources identified in accordance with paragraph 3(b); and (ii) emails and other ESI maintained
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`by the custodians identified in accordance with paragraph 3(a).4
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`c. Format. ESI and non-ESI shall be produced to the requesting party, via secure
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`electronic delivery (e.g., FTP) or separate external storage media, as text searchable image files
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`(e.g., TIFF) with appropriate load files. When a text-searchable image file is produced, the
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`producing party must preserve the integrity of the underlying ESI, i.e., the original formatting,
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`the metadata (as noted below) and, where applicable, the revision history. The parties shall
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`produce their information in the following format: single page TIFF imaged and associated
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`multi-page text files containing extracted text or OCR with Concordance and Opticon load files
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`containing all requisite information including relevant metadata. Such ESI shall be produced in
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`a manner that preserves, to the maximum extent possible, the integrity of multi-page groups of
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`documents, including parent-child relationships (the association between an attachment and its
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`parent document). PowerPoint files shall be produced in color, and to the extent such files
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`contain presenter notes, a party will also produce such files in native format, notwithstanding
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`4 This provision is not intended to exclude searches for potential non-electronically stored
`information, including but not limited to hard copies of documents.
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`paragraph 4(d).
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`d. Native files. The only files that should be produced in native format are files not
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`easily converted to image format, such as Excel and Access files. A party may request
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`production of specific additional files in native format when there is a good faith reason for such
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`a request. The parties will make best efforts to include in the production a placeholder image
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`bearing the Bates number of the native file.
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`e. Metadata fields. The parties are only obligated to provide the following metadata for
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`all ESI produced, to the extent such metadata exists: Custodian (and the name of any custodian
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`for any de-duplicated files), File Path, Email Subject, Conversation Index, From, To, CC, BCC,
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`Date Sent, Time Sent, Date Received, Time Received, Filename, Author, Date Created, Date
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`Modified, MD5 Hash, File Size, File Extension, Control Number Begin, Control Number End,
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`Attachment Range, Attachment Begin, and Attachment End (or the equivalent thereof).
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`f. Deduplication. The parties agree that global de-duplication of ESI before production
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`is acceptable, provided that the relevant metadata for such de-duped information is preserved.
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`5. Expert Discovery. In addition to the protections from disclosure of expert materials
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`contained in Federal Rule of Civil Procedure 26(b)(4) and any other applicable case law or rule,
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`with respect to any testifying, non-testifying, or consulting expert witnesses, the parties agree
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`that the following materials need not be disclosed or preserved:
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`a. Drafts of materials, studies, charts, illustrative documents, exhibits or any other work
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`product prepared by the expert or persons working under the expert’s supervision;
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`b. Notes or other documents prepared by the expert, or persons working under the
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`expert’s supervision, unless relied upon by a testifying expert as a basis for that testifying
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`expert’s opinions;
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`c. Documents, information, or other work product constituting or reflecting oral or
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`written communications between the expert and persons working under the expert’s supervision,
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`unless relied upon by a testifying expert as a basis for that testifying expert’s opinions; and
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`d. Documents, information, or other work product constituting or reflecting oral or
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`written communications between or among (1) the expert or persons working under the expert’s
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`supervision and (2) in-house or outside counsel, employees, or consultants for the party who has
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`retained such expert, unless relied upon by a testifying expert as a basis for that testifying
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`expert’s opinions.
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`6. Modification. This Stipulated Order may be modified by a Stipulated Order of the
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`parties or by the Court.
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`Dated: April 26, 2022
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`WEIR GREENBLATT PIERCE LLP
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/s/ Jeffrey S. Cianciulli
`Jeffrey S. Cianciulli, Esq. (No. 4369)
`824 Market Street, Suite 800
`Wilmington, DE 19801
`(302) 652-8181
`jcianciulli@wgpllp.com
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`Attorney for Plaintiff
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`/s/ Jennifer Ying
`Jack B. Blumenfeld (#1014)
`Jennifer Ying (#5550)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`jying@morrisnichols.com
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`Attorneys for Defendant
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`26th
`April
`SO ORDERED, this ________ day of ________________________, 2022.
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`/s/ Jon P. McCalla
`HONORABLE JON P. McCALLA
`UNITED STATES DISTRICT COURT JUDGE
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`Schedule A
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`1. Deleted, slack, fragmented, or other data only accessible by forensics.
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`2. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to
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`preserve without disabling the operating system.
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`3. On-line access data such as temporary internet files, history, cache, cookies, and the like.
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`4. Data in metadata fields that are frequently updated automatically, such as last opened dates.
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`5. Back-up data or disaster recovery systems that are substantially duplicative of data that are
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`more accessible elsewhere.
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`6. Voice messages.
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`7. Instant messages that are not ordinarily printed or maintained in a server dedicated to instant
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`messaging.
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`8. Electronic mail or pin-to-pin messages sent to or from mobile devices (e.g., iPhone and
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`Blackberry devices), provided that a copy of such mail is routinely saved elsewhere.
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`9. Other electronic data stored on a mobile device, such as calendar or contact data or notes,
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`provided that a copy of such information is routinely saved elsewhere.
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`10. Logs of calls made from mobile devices.
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`11. Server, system or network logs.
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`12. Electronic data temporarily stored by laboratory equipment or attached electronic equipment,
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`provided that such data is not ordinarily preserved as part of a laboratory report.
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`13. Data remaining from systems no longer in use that is unintelligible on the systems
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`in use.
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