Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 1 of 5
`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`REALTIME DATA LLC dibla ISO,
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`Plaintiff,
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`Civil Action No. No. 1:1T-cv-11279-IT
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`JURY TRIAL DEMANDED
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`ACRONIS, INCL,
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`Defendant.
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`The Court ORDERS as follows:
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`E—DISCOVERY ORDER
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`I.
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`This order suppiements 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 ofthe parties. lfthe
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`parties cannot resolve their disagreements regarding any modifications, the parties shall
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`submit their competing proposals and a summary ol’their dispute.
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`3.
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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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`4.
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`Absent a Showing ofgood cause, general ESI production requests under Federal Rules of
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`Civil Procedure 34 and 45, or compliance with a mandatory disclosure requirement of
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`this Court, shall not include metadata. However, fields showing the date and time that the
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`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 2 of 5
`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 2 of 5
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`document was sent and received, as well as the complete distribution list, shall generally
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`be included in the production if such fields exist.
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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 ES] production:
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`A.
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`General Document Image Format. Each electronic document shall be produced
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`either in portable document format (PDF) or in a single-page Tagged Image File
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`Format (“'I‘iFF”) format. TIFF files shall be single page and shall be named with a
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`unique production number followed by the appropriate file extension. Load files
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`shall be produced in standard Concordance, .DAT, or OFF file format and shall
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`indicate the location and unitization of the TIFF files. If a document is more than
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`one page,
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`the unitization of the document and any attachments andfor affixed
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`notes shall be maintained as they existed in the original document.
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`Text—Scarchable Documents. No party has an obligation to make its production
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`text-searchable; however, if a party’s documents already exist in text-searchable
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`format independent of this litigation, or are converted to text-searchable format
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`for use in this litigation, including for use by the producing party’s counsel, then
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`such documents shall be produced in the same text—searchable format at no cost to
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`the receiving party.
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`Footer. Each document image shall contain a footer with a sequentially ascending
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`production number.
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`Native Files. A party that receives a document produced in a format specified
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`above may make a reasonable request
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`to receive the document
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`in its native
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`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 3 of 5
`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 3 of 5
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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.
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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,
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`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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`6.
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`General 1381 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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`'5’.
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`E-mail production requests shall be phased to occur timely after the parties have
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`exchanged initial disclosures, a specific listing of likely e-inail custodians, a specific
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`identification of the fifteen most significant
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`listed e-maii custodians in view of the
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`pleaded claims and defenses,1 infringement contentions and accompanying documents,
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`invalidity contentions and accompanying documents, and preliminary information
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`relevant to damages. The exchange of this information shall occur at the time required
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`'A “specific identification" requires a short description ofwhy the custodian is believed to be
`significant.
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`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 4 of 5
`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 4 of 5
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`under the Federal Rules of Civil Procedure, Local Rules, or by order ofthc court. Each
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`requesting party may also pr0pound up to five written discovery requests and take one
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`deposition per producing party to identify the proper custodians, proper search terms, and
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`proper time frame for e-mail production requests. The court may allow additional
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`discovery upon a showing of good cause.
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`E-maii production requests shall identify the custodian, search terms, and time frame.
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`The parties shall cooperate to identify the preper custodians, proper search terms, and
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`preper time frame. Each requesting party shall limit its e—mail production requests to a
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`total of five custodians per producing party for all such requests. The parties may jointly
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`agree to modify this limit without the court‘s leave. The court shall consider contested
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`requests for additional or fewer custodians per producing party, upon showing a distinct
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`need based on the size, complexity, and issues of this specific case.
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`Each requesting party shall limit its c-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.
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`lndiscriminate 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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`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 5 of 5
`Case 1:17-cv-11279-IT Document 44 Filed 11/28/17 Page 5 of 5
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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,” “wrx”) 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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`The parties agree that ESI will be produced with the following ntetadata fields, where
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`such metadata exists:
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`To,
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`from, cc. bcc, subject/title, date sentfdate created,
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`time
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`sentt’tirne created, hash valuer’M D5, original folder path, parent date, message iD, number
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`of attachments, Parent ID, Child ID, Custodian, OCR Path and Native File Path.
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`11.
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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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`12.
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`The mere production of E5] in a litigation as part ofa mass production shall not itself
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`constitute a waiver for any purpose. See, e.g., Protective Order atfil 12.4
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`13.
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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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`4 Any party that inadvertently or unintentionally produces Protected Material without designating
`it as DESIGNATED MATERIAL may request destruction ofthat Protected Material by
`notifying the recipient(s), as soon as reasonably possible after the producing Party becomes
`aware of the inadvertent or unintentional disclosure, and providing replacement Protected
`Material that is properly designated. The recipient(s) shall then destroy all copies of the
`inadvertently or unintentionally produced Protected Materials and any documents, information or
`material derived from or based thereon.
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