`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`SIPCO, LLC, and IP CO, LLC
`(d/b/a INTUS IQ),
`
`Plaintiffs,
`
` v.
`
` Civil Action No. 6:15-cv-907
`
`EMERSON ELECTRIC CO., EMERSON PROCESS
`MANAGEMENT LLLP, FISHER-ROSEMOUNT
`SYSTEMS, INC., ROSEMOUNT INC., BP, p.l.c., BP
`AMERICA, INC., and BP AMERICA PRODUCTION
`COMPANY,
`
`Defendants.
`
`The Court ORDERS as follows:
`
`E-DISCOVERY ORDER
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`1.
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`This order supplements all other discovery rules and orders. It streamlines Electronically
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`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.
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`2.
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`This order may be modified in the court’s discretion or by agreement of the parties. The
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`parties shall jointly submit any proposed modifications within 30 days after the Federal
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`Rule of Civil Procedure 16 conference. If the parties cannot resolve their disagreements
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`regarding these modifications, the parties shall submit their competing proposals and a
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`summary of their dispute.
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`3.
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`4.
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`A party’s meaningful compliance with this Order and efforts to promote efficiency and
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`reduce costs will be considered in cost-shifting determinations.
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`The parties have discussed the format for the production of ESI, the method of
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`production, and the inclusion or exclusion and use of metadata, and have agreed as
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`follows:
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`Case 1:16-cv-02690-AT Document 67 Filed 03/15/16 Page 2 of 5
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`a.
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`b.
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`The parties will produce metadata where available; and,
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`The parties shall use Generic Concordance and Summation formatted load files
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`(Concordance: DAT file for metadata and OPT or LFP wherein available and
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`necessary; Summation: DII file).
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`5.
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`Absent agreement of the parties or further order of this court, the following parameters
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`shall apply to ESI production:
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`A.
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`General Document Image Format. Each electronic document shall be produced
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`in single-page Tagged Image File Format (“TIFF”) format. TIFF files shall be
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`single page and shall be named with a unique production number followed by the
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`appropriate file extension. Load files, in Concordance or Summation format as
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`described in paragraph 4, shall be provided to indicate the location and unitization
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`of the TIFF files. If a document is more than one page, the unitization of the
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`document and any attachments and/or affixed notes shall be maintained as they
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`existed in the original document.
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`
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`
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`B.
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`Text-Searchable Documents. The parties shall produce ESI with document-level
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`OCR text using beginning Bates Number naming convention.
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`C.
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`Footer. Each document image shall contain a footer with a sequentially ascending
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`production number. The parties shall use a Bates Number naming convention.
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`D.
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`Native Files. The parties agree that the production of financial/sales data will be
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`in Excel spreadsheet files in native format, with the files named with the Bates
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`Number range for the corresponding TIFF version of the document (if any). For
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`all other documents, 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
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`Case 1:16-cv-02690-AT Document 67 Filed 03/15/16 Page 3 of 5
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`
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`native format, and upon receipt of such a request, the producing party shall
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`produce the document in its native format.
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`E.
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`No Backup Restoration Required. Absent a showing of good cause, no party
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`need restore any form of media upon which backup data is maintained in a party’s
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`normal or allowed processes, including but not limited to backup tapes, disks,
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`SAN, and other forms of media, to comply with its discovery obligations in the
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`present case.
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`F.
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`Voicemail and Mobile Devices. Absent a showing of good cause, voice-mails,
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`PDAs and mobile phones are deemed not reasonably accessible and need not be
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`collected and preserved.
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`G.
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`Encryption. The parties may encrypt confidential and/or sensitive information
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`provided that the software needed to fully decrypt the information is provided or
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`available to the receiving party, and the decryption key is provided at the same
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`time that the encrypted information is produced. Example encryption software
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`applications include VeraCrypt and AxCrypt.
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`6.
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`The parties agree that the collection of ESI will be conducted based on targeted searches
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`of relevant directories, folders, and storage locations. The parties will not be required to
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`image entire server or computer drives, or to conduct key word searches on entire servers
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`or computer drives.
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`7.
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`General ESI production requests under Federal Rules of Civil Procedure 34 and 45, or
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`compliance with a mandatory disclosure order of this court, shall not include e-mail or
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`other forms of electronic correspondence (collectively “e-mail”). To obtain e-mail,
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`parties must propound specific e-mail production requests.
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`.
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`8.
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`E-mail production requests shall identify the custodian, search terms, and time frame, and
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`shall be made in writing as part of a request for production pursuant to Rule 34. The
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`parties shall cooperate to identify the proper custodians, proper search terms, and proper
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`time frame. Each side, as that term is defined in paragraph 5 of the Discovery Order, shall
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`limit its e-mail production requests to a total of five (5) custodians per producing party
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`for all such requests. The parties may jointly agree to modify this limit without the
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`court’s leave. The court shall consider contested requests for additional or fewer
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`custodians per producing side, upon showing a distinct need based on the size,
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`complexity, and issues of this specific case. The party requesting the additional email
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`discovery bears the burden of proving that such discovery is needed.
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`9.
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`Each requesting party shall limit its e-mail production requests to a total of ten search
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`terms per custodian per party. The parties may jointly agree to modify this limit without
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`the court’s leave. The court shall consider contested requests for additional or fewer
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`search terms per custodian, upon showing a distinct need based on the size, complexity,
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`and issues of this specific case. 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 name,
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`are inappropriate unless combined with narrowing search criteria that sufficiently reduce
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`the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g.,
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`“computer” and “system”) narrows the search and shall count as a single search term. A
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`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
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`unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,”
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`“but not,” “w/x”) is encouraged to limit the production and shall be considered when
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`determining whether to shift costs for disproportionate discovery.
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`10.
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`Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a privileged
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`or work product protected ESI is not a waiver in the pending case or in any other federal
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`or state proceeding.
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`11.
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`The mere production of ESI in a litigation as part of a mass production shall not itself
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`constitute a waiver for any purpose.
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`12.
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`Except as expressly stated, nothing in this order affects the parties’ discovery obligations
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`under the Federal or Local Rules.
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`Page 5 of 5
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`So ORDERED and SIGNED this 15th day of March, 2016.
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