Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`Ironburg Inventions Ltd.,
`
`Plaintiff,
`
`v.
`
`Valve Corporation,
`
`Defendant.
`
`Civil Action No.
`1:15-cv-04219-TWT
`
`[PROPOSED] ORDER REGARDING ELECTRONIC DISCOVERY PLAN
`
`The Court having considered the Joint Stipulation Regarding Electronic
`
`Discovery Plan, agreed upon by and between counsel for Plaintiff and Defendant,
`
`and finding good cause appearing, HEREBY ORDERS that the following
`
`parameters govern the production of electronically stored information (“ESI”) in
`
`the above-captioned action. This Order supplements all other discovery rules and
`
`orders. It streamlines ESI production to promote a “just, speedy, and inexpensive
`
`determination” of this litigation, as required by Federal Rule of Civil Procedure 1.
`
`This Order may be modified for good cause.
`
`1.
`
`In this litigation, except as otherwise limited herein, each party shall
`
`search for electronically-stored information (“ESI”), in accordance with the
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`Ironburg Inventions Ltd.,
`
`Plaintiff,
`
`v.
`
`Valve Corporation,
`
`Defendant.
`
`Civil Action No.
`1:15-cv-04219-TWT
`
`[PROPOSED] ORDER REGARDING ELECTRONIC DISCOVERY PLAN
`
`The Court having considered the Joint Stipulation Regarding Electronic
`
`Discovery Plan, agreed upon by and between counsel for Plaintiff and Defendant,
`
`and finding good cause appearing, HEREBY ORDERS that the following
`
`parameters govern the production of electronically stored information (“ESI”) in
`
`the above-captioned action. This Order supplements all other discovery rules and
`
`orders. It streamlines ESI production to promote a “just, speedy, and inexpensive
`
`determination” of this litigation, as required by Federal Rule of Civil Procedure 1.
`
`This Order may be modified for good cause.
`
`1.
`
`In this litigation, except as otherwise limited herein, each party shall
`
`search for electronically-stored information (“ESI”), in accordance with the
`
`
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 2 of 18
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`requirements of the Federal Rules of Civil Procedure and this Stipulation, to
`
`respond to the other party’s requests for production.
`
`2.
`
`Production of Electronically Stored Information.
`
`a.
`
`Consistent with the Federal Rules of Civil Procedure, unless
`
`negotiated otherwise, the parties shall produce all relevant, responsive, and non-
`
`privileged ESI in the following manner: ESI not produced in its native form shall
`
`be produced as single-page TIFF Group IV images, black and white, at 300 x 300
`
`dpi resolution with a standard delimited Concordance format (DAT file):
`
`Description
`Field Separator
`Quote Character
`Multi Entry delimiter
`Newline
`
`Symbol
`¶
`þ
`;
`®
`
`ASCII Character
`020
`254
`59
`174
`
`Images for individual documents must be contained in a single folder in
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`either IPRO (LFP file) or Opticon (OPT file) format, including document breaks
`
`and page counts; and searchable text shall be provided in document level text files.
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`To the extent possible, if a document is more than one page, the unitization of a
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`produced electronically stored document and any attachments or affixed notes shall
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`be maintained as it existed in the original file or computer. If unitization cannot be
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`maintained, the original unitization shall be documented in the associated load file
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 3 of 18
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`or otherwise electronically tracked. Nothing herein shall require the parties to
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`create metadata for ESI that does not exist for that ESI.
`
`b.
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`Unique IDs. Images shall be produced using a unique,
`
`consistently formatted, identifier that will be the Bates number of that page (e.g.,
`
`ABC000001.TIFF). To the extent possible, the Bates number must be endorsed on
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`the face of the image on the lower right-hand corner; confidentiality language
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`should be endorsed on the bottom left-hand corner; and any other pertinent
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`language may appear at the top or bottom center of the image. Native files shall be
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`produced using a name that will bear the production number followed by the
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`assigned designation (e.g., ABC0000002_Confidential.xls).
`
`c.
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`Parent-Child Relationships. Parent-child relationships
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`(association between an attachment and its parent document) shall be preserved.
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`The attachment(s) shall be produced adjacent to the parent document, in terms of
`
`Bates number, with the first attachment being named with the next sequential
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`number after the parent, and any additional attachment(s) sequentially numbered
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`after that first attachment.
`
`d.
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`Gaps. Documents shall be produced using sequential Bates
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`numbers with no gaps. There shall be no gaps in Bates numbers between
`
`productions. A unique production volume number will be used for each
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`
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 4 of 18
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`production. If any unavoidable gaps occur, the parties will provide advance notice
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`of those gaps within productions and/or between productions and will provide a
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`TIFF placeholder indicating that the gap was intentional.
`
`e.
`
`Objective Coding and Metadata Fields. The parties shall
`
`provide the objective coding and metadata fields as set forth in Exhibit A. Nothing
`
`herein shall require the parties to (1) create or otherwise supply any metadata that
`
`is not maintained in the usual course of business, or (2) disclose any privileged
`
`information.
`
`f.
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`Ordinary Course. Documents shall be generally produced as
`
`they are maintained in the ordinary course of business, including maintaining, to
`
`the extent possible with reasonable production steps, the documents and
`
`attachments or affixed notes as they existed in the original when creating the image
`
`file. Reasonable efforts shall be used to produce documents at or near their
`
`original size and so that the print or image appears straight, and not skewed.
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`Physically oversized originals, however, will appear reduced. The producing party
`
`may reduce image size to display production numbers without obscuring text.
`
`g.
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`Native Format. The producing party shall produce
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`spreadsheets (e.g., Excel files) and any other materials not readily convertible to
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`TIFF format (e.g., multimedia files, three-dimensional design files) in native
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 5 of 18
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`format. Each party shall have the option to produce data not readily convertible to
`
`TIFF format in native format if they so choose. Financial and sales data shall be
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`produced as Excel files with format, column and row headings as used and/or
`
`maintained in the ordinary course of business by the producing party. Microsoft
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`Word files shall be processed with all headers, footers, comments and track
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`changes included in the TIFF images and Microsoft PowerPoint files shall be
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`processed with all headers, footers, hidden slides, and notes included in the TIFF
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`images. For each natively produced document, the producing party will produce a
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`placeholder TIFF page labeled “Document Produced Natively,” branded with the
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`appropriate confidentiality stamp, and corresponding Bates number. Upon request
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`from the receiving party that any files be produced in native format (identified by
`
`Bates number), the parties agree to meet and confer in good faith concerning such
`
`requests, which will not be unreasonably denied.
`
`h.
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`Encrypted or Password-Protected ESI. For any ESI that
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`exists in encrypted format or is password-protected, the producing party will so
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`notify the requesting party and meet and confer in good faith to identify options to
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`gain access to the affected ESI.
`
`i.
`
`ESI that is Not Reasonably Accessible. Nothing in this
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`agreement waives any party’s right to assert that responsive ESI is not reasonably
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`accessible, and/or production of such ESI would impose an undue burden. Where
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`a party determines that responsive ESI is not reasonable accessible or its
`
`production would impose an undue burden, it must inform the requesting party.
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`j.
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`Text Files. For each produced document, a document-level
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`text file shall be provided in addition to the image files (TIFFs). The text of native
`
`files should be extracted directly from the native file and each text file shall be
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`named using its corresponding beginning Bates number (e.g., ABC000001.TXT).
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`For ESI with redacted text, or for documents originating in hard copy, OCR text
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`files in lieu of natively extracted text files shall be provided.
`
`k.
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`Unique Documents. The producing party need not produce
`
`duplicates of ESI documents across all custodians.
`
`l.
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`Voice and Mobile Devices. Absent a showing of good cause,
`
`voice-mail, PDAs and mobile phones are deemed not reasonably accessible and
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`need not be collected and preserved.
`
`m. On-Site Inspection of Electronic Media. The parties agree
`
`that, in the absence of a showing of specific and reasonable need, there is no
`
`obligation to permit on-site inspection of electronic media.
`
`n.
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`Original Documents. Nothing herein eliminates or alters any
`
`party’s obligation to retain native format copies, including associated metadata, of
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 7 of 18
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`all ESI produced in this litigation, and original hard copy documents for all paper
`
`discovery produced in this litigation.
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`o.
`
`Timing of Production. Documents will be produced on a
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`rolling basis with production to occur promptly after a custodian’s ESI is searched
`
`and reviewed for purposes of this action.
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`p.
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`Duplicates. To the extent duplicate documents (based on
`
`MD5, SHA-1, or similar hash values at the document level, including lesser
`
`included e-mail threads) reside within a party’s data set, each party is only required
`
`to produce a single copy of the responsive document. However, if the “duplicate”
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`is an attachment to a document not already produced together with the document as
`
`an attachment, that “duplicate” attachment should be produced together with the
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`document to which it is attached. To the extent that de-duplication through MD5,
`
`SHA-1, or similar hash values is not possible, the parties agree to meet and confer
`
`as appropriate to discuss any other proposed method of de-duplication.
`
`3.
`
`Search and Review Protocol. The parties may cooperate to identify
`
`the proper custodians, proper search terms and proper timeframe for production
`
`requests. If a request identifies a custodian by description with reasonable
`
`specificity of the particular matters or data sought, then the party to whom the
`
`request is directed shall, to the fullest extent possible, conduct a search of the ESI
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 8 of 18
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`of that person or persons, despite the failure to identify the custodian by name.
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`However, for the avoidance of any doubt, nothing herein shall impose a burden on
`
`a party beyond the requirements of the Federal Rules of Civil Procedure.
`
`a.
`
`Custodians. Upon receipt of an production request, a party
`
`shall endeavor to identify those custodians most likely to be in possession of
`
`responsive data for each request. The parties acknowledge and agree that it is not
`
`their intent to require each party to search the ESI data of each and every
`
`conceivable person who could have received responsive ESI, but only to search the
`
`ESI data of those custodians most likely to have been in possession of the
`
`responsive data. In this regard, the parties expressly acknowledge that it is their
`
`intent to limit the potentially burdensome costs associated with the collection and
`
`review of ESI that may outweigh its relevance to the case. Each party
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`acknowledges and agrees that it will be held to the normal good faith standard in
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`each identifying and searching the ESI of those custodians most likely to have been
`
`in possession of responsive data.
`
`b.
`
`Search Terms. The parties shall have the ability, but not the
`
`obligation, to work together in a good faith effort to narrow the scope of ESI
`
`discovery by meeting and conferring regarding the search terms to be used. The
`
`parties agree that search terms shall be narrowly tailored to particular issues, and
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 9 of 18
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`indiscriminate terms, such as the producing company’s name or its product name,
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`are inappropriate unless combined with narrowing search criteria that sufficiently
`
`reduce the risk of overproduction. Use of narrowing search criteria (e.g., “AND,”
`
`“BUT NOT,” “w/x [i.e. within x characters]”) may be used to limit the production.
`
`Any party who believes that it cannot create search terms that are appropriate to
`
`ensure an appropriate level of response (i.e., neither too narrow nor too broad) may
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`request the participation of the propounding party in identifying search terms and
`
`custodians. The propounding party may not unreasonably withhold its
`
`participation in formulating appropriate, mutually acceptable search terms to be
`
`searched. The failure to participate in this process upon request, or the insistence
`
`upon overly broad terms, may be considered when determining whether to shift
`
`costs for disproportionate discovery.
`
`c.
`
`Shared Files. Nothing herein shall relieve the parties of any
`
`obligations they may have to search for responsive ESI from files that are shared
`
`by more than one custodian including, but not limited to, shared electronic
`
`workspaces, servers, document and file management systems, databases,
`
`department files, etc., likely to include responsive ESI. Searches of shared drives
`
`or common files may replace the need to search any separately stored data of a
`
`particular custodian (e.g., computer hard drive), if reasonable, good faith measures
`
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 10 of 18
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`are taken to ensure that the custodian has likely stored his or her data on the
`
`searched drive rather than on a personal computer or other device.
`
`d.
`
`In the event that any search term returns a disproportionately
`
`high number of electronic documents, the parties agree to meet and confer in an
`
`effort to reasonably narrow the search term, for example, through the use of
`
`Boolean or proximity operators. To the extent that extracted text is available, each
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`production shall include text files containing extracted text. Nothing in this
`
`agreement shall require a party to convert an electronic file that is not searchable
`
`(i.e., PDF files with no OCR text) to a searchable form.
`
`e.
`
`Confidentiality Designations. To facilitate production of ESI,
`
`the parties may batch designate any ESI produced pursuant to this agreement as
`
`“Confidential” or “Highly Confidential,” as contemplated by the parties under the
`
`applicable protective order. Upon a reasonable request by the receiving party,
`
`however, the producing party will readily cooperate to de-designate, as
`
`appropriate, material previously produced as “Confidential” or “Highly
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`Confidential” that may not warrant such designation under the applicable
`
`protective order.
`
`f.
`
`This agreement does not limit the right of a party to propound
`
`requests for production.
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`4.
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`Costs. Each party shall bear its own costs of producing relevant ESI
`
`in its possession or control. This provision does not prohibit any party from
`
`seeking cost-sharing measures in the event that (1) a particular discovery request is
`
`overly broad or unduly burdensome; (2) a party requests more metadata than
`
`required under this Stipulation; (3) a party requests on-site inspection of electronic
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`media; or (4) a party engages in sanctionable discovery conduct. This provision
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`applies not only to ESI, but to discovery in this action generally.
`
`5.
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`Completion of Production. Absent a showing of good cause, the
`
`producing party’s obligation to conduct a reasonable search for ESI in response to
`
`a requesting party’s discovery requests shall be deemed to be satisfied by
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`producing non-privileged ESI by utilizing the protocols described herein. A
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`party’s other discovery obligations (e.g., providing responses to Interrogatories,
`
`Requests for Admission, corporate depositions) are not satisfied merely be
`
`completing the ESI search required under this Stipulation.
`
`6.
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`Color. Documents in color need not be produced in color. A party
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`may request that a reasonable number of specifically-identified documents that
`
`were originally in color be produced in a color .PDF or .JPG format. The parties
`
`reserve their respective rights to object to any such request.
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`7.
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`Production Media. The producing party will use the appropriate
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`electronic media (CD, DVD or hard drive) or electronic production method (secure
`
`FTP) for its ESI production, and will cooperate in good faith to use the highest
`
`capacity available media to minimize associated overhead. Should a producing
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`party utilize electronic media, it will label the physical media with the producing
`
`party, production date, media volume name, and Bates range. Should a producing
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`party utilize a secure FTP, the production volume file will be password-protected
`
`and posted in a secure password-protected FTP server.
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`8.
`
`No Waiver. The receiving party shall not use ESI that the producing
`
`party asserts is attorney-client privileged or work product protected to challenge
`
`the privilege or protection. Pursuant to Federal Rule of Evidence 502(d), the
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`inadvertent production of a privileged or work product protected ESI is not a
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`waiver in the pending case or in any other federal or state proceeding. The mere
`
`production of ESI in a litigation as part of a mass production shall not itself
`
`constitute a waiver for any purpose. Further, performing keyword searches before
`
`production of documents constitutes “reasonable steps to prevent disclosure” as
`
`that term is used in Federal Rule of Evidence 502(b).
`
`9.
`
`Production of Documents Previously Produced. This agreement
`
`governs the future collection and production of documents. Assuming the
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 13 of 18
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`information is available for previously collected processed documents and files the
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`parties agree to make good faith efforts to comply with this agreement with respect
`
`to all productions that occur while final execution of this agreement is pending,
`
`and to comply with this agreement with respect to previously produced documents
`
`upon reasonable request identifying specific documents and the need for the
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`information that would be produced under this agreement.
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`IT IS SO ORDERED.
`
`Dated:
`
`September 19
`
`, 2016
`
`/s/Thomas W. Thrash
`Thomas W. Thrash, Jr.
`United States District Judge
`
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`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 14 of 18
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`EXHIBIT A
`
`In accordance with paragraph 2(e) of this General Order on ESI Discovery,
`
`the Parties will provide the following metadata field information to the extent
`
`available:
`
`Field Name
`
`Description (E-Mail)
`
`Description (Non E-mail)
`
`Beginning Document
`Number (BEGBATES)
`
`Bates Number on first page
`of document.
`
`Bates Number on first page
`of document.
`
`End Document
`Number (ENDBATES)
`
`Bates Number on last page
`of document.
`
`Bates Number on last page
`of document.
`
`Beginning Attachment
`Number
`(BEGPRODATTACH)
`
`Bates Number on first page
`of first document in a
`family (i.e., documents and
`all attachments thereto).
`
`Bates Number on first page
`of first document in a
`family (i.e., documents and
`all attachments thereto).
`
`Ending Attachment
`Number
`(ENDPRODATTACH)
`
`Bates Number on last page
`of last document in a
`family (i.e., documents and
`all attachments thereto).
`
`Bates Number on last page
`of last document in a
`family (i.e., documents and
`all attachments thereto).
`
`Page Count
`(PGCOUNT)
`
`Custodian
`(CUSTODIAN)
`
`Total number of pages in
`document.
`
`Total number of pages in
`document.
`
`Name of person from
`whose files the document is
`collected.
`
`Name of person(s) from
`whose files the document is
`collected.
`
`
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`Field Name
`
`Description (E-Mail)
`
`Description (Non E-mail)
`
`Duplicate Custodian
`(DUPCUSTODIAN)
`
`Identifies the other
`custodian(s) who had a
`duplicate of the e-mail
`withheld from processing
`and/or production using de-
`duplicating technology.
`
`Identifies the other
`custodian(s) who had a
`duplicate of the document
`withheld from processing
`and/or production using de-
`duplicating technology.
`
`Doc Type (DOCTYPE) Describes the type of
`document (e.g., Lotus
`Notes E-mail).
`
`Describes the type of
`document (e.g., Microsoft
`Word Document). It will
`not be manually coded if
`absent in the metadata.
`
`Author (AUTHOR)
`
`The person(s) who created,
`wrote, reviewed, signed, or
`approved the document. If
`no author information is
`present, a default value of
`“None” will be coded or
`the field will be blank.
`Where possible, the Author
`should be extracted from
`the metadata.
`
`The person(s) who created,
`wrote, reviewed, signed, or
`approved the document. If
`no author information is
`present, a default value of
`“None” will be coded or the
`field will be blank. Where
`possible, the Author should
`be extracted from the
`metadata.
`
`From (FROM)
`
`To (TO)
`
`All information contained
`in the “From” field of the
`e-mail.
`
`All information contained
`in the “To” field of the e-
`mail as well as all other
`discernible recipients.
`
`N/A
`
`N/A
`
`
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`Field Name
`
`CC (CC)
`
`BCC (BCC)
`
`Description (E-Mail)
`
`Description (Non E-mail)
`
`All information contained
`in the “CC” field of the e-
`mail, as well as all other
`discernible copies.
`
`All information contained
`in the “BCC” field of the e-
`mail, as well as all other
`discernible blind copies.
`
`N/A
`
`N/A
`
`Subject/Title (TITLE) Verbatim subject or re:
`line, as stated in the e-mail.
`
`Filename
`(FILENAME)
`
`Original file name,
`including file extension
`(e.g., EXAMPLE.MSG).
`
`If available, verbatim
`subject or re: line, or
`discernible document title
`appearing on the
`document’s first page, as
`extracted from the metadata
`of the file if present. It will
`not be manually coded if
`absent in the metadata.
`
`Original file name,
`including file extension
`(e.g., EXAMPLE.XLS,
`EXAMPLE.DOC).
`
`Date Sent (DATE_
`SENT)
`
`Date Received (DATE
`RCVD)
`
`Date the E-mail was sent,
`expressed in
`MM/DD/YYYY format.
`All Time Zone Settings:
`Valve - PST; Ironburg -
`EST.
`
`Date the E-mail was
`received, expressed in
`MM/DD/YYYY format.
`
`N/A
`
`N/A
`
`
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`Field Name
`
`Description (E-Mail)
`
`Description (Non E-mail)
`
`Parent Date
`(PARENTDATE)
`
`The sent date of the parent
`e-mail, propagated to any
`of its attachments and/or
`embedded objects.
`
`Date Last Modified
`(DATELASTMOD)
`
`N/A
`
`Time Last Modified
`(TIMELASTMOD)
`
`N/A
`
`Date Created
`(CREATEDATE)
`
`N/A
`
`The date last modified (or if
`not available, date created)
`of a file, propagated to any
`of its attachments and/or
`embedded objects.
`
`Date the document was last
`modified in
`MM/DD/YYYY format.
`
`The time the document was
`last changed, and then
`saved.
`
`Creation date of document.
`It will not be manually
`coded if absent in the
`metadata.
`
`Time Created
`(CREATETIME)
`
`The time the e-mail was
`saved
`
`The time the document was
`saved
`
`Directory Path (PATH) Original path to the source
`folder, files and/or mail
`stores
`
`Original path to the source
`folder, files and/or mail
`stores
`
`Extension (DOCEXT) File Extension
`
`File Extension
`
`MessageID
`(MESSAGEID)
`
`Thread ID
`(THREADID)
`
`N/A
`
`N/A
`
`Begdoc# of Parent e-mail
`file; this should be coded
`for all Attachment files.
`
`Delimited list of the
`BegDoc#s of all
`attachments; this should be
`coded for all Parent e-mail
`files.
`
`
`
`17
`
`
`
`Case 1:15-cv-04219-TWT Document 54 Filed 09/19/16 Page 18 of 18
`
`Field Name
`
`Redactions
`(REDACTED)
`
`HashCode (HASH)
`
`Description (E-Mail)
`
`Description (Non E-mail)
`
`Indicates that the e-mail
`includes one or more
`redactions
`
`Indicates that the document
`includes one or more
`redactions
`
`The MD5 (Message Digest
`algorithm 5) or SHA
`(Secure Hash Algorithm)
`hash value assigned to the
`document during
`processing.
`
`The MD5 (Message Digest
`algorithm 5) or SHA
`(Secure Hash Algorithm)
`hash value assigned to the
`document during
`processing.
`
`Text Path (OCRPATH) Full path location of each
`produced record’s
`extracted (or OCR) text file
`within the production
`deliverable.
`
`Full path location of each
`produced record’s extracted
`(or OCR) text file within
`the production deliverable.
`
`Native Link
`(NATIVEPATH)
`
`Full path location of each
`natively-produced record
`within the production
`deliverable.
`
`Full path location of each
`natively-produced record
`within the production
`deliverable.
`
`
`
`18
`
`
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