Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 1 of 10
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`TEVA PHARMACEUTICALS
`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS
`USA, INC.,
`
`Plaintiffs,
`
`v.
`
`ELI LILLY AND COMPANY,
`
`Defendant.
`
`Civil Action No.
`1:18-cv-12029-ADB
`
`JOINT STIPULATED PROTOCOL GOVERNING
`ELECTRONICALLY STORED INFORMATION
`
`The Parties, through their counsel, hereby stipulate and agree to this Joint Stipulated
`
`Protocol Governing Electronically Stored Information (the “Protocol”). All Parties are bound by
`
`and subject to the terms of this Order. By stipulating to this Protocol, no Party is waiving any
`
`objection that could otherwise be made in response to a discovery request, including any
`
`objections to the production, discoverability, admissibility, or confidentiality of documents. No
`
`Party shall be required to undertake preservation, collection, or search measures beyond the
`
`scope of this Protocol unless the Parties agree in advance and in writing or the Protocol is
`
`modified by the Court. All document productions shall be subject to the Parties’ forthcoming
`
`Stipulated Protective Order (the “Protective Order”), which shall be filed with the Court no later
`
`than May 26, 2020.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`TEVA PHARMACEUTICALS
`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS
`USA, INC.,
`
`Plaintiffs,
`
`v.
`
`ELI LILLY AND COMPANY,
`
`Defendant.
`
`Civil Action No.
`1:18-cv-12029-ADB
`
`JOINT STIPULATED PROTOCOL GOVERNING
`ELECTRONICALLY STORED INFORMATION
`
`The Parties, through their counsel, hereby stipulate and agree to this Joint Stipulated
`
`Protocol Governing Electronically Stored Information (the “Protocol”). All Parties are bound by
`
`and subject to the terms of this Order. By stipulating to this Protocol, no Party is waiving any
`
`objection that could otherwise be made in response to a discovery request, including any
`
`objections to the production, discoverability, admissibility, or confidentiality of documents. No
`
`Party shall be required to undertake preservation, collection, or search measures beyond the
`
`scope of this Protocol unless the Parties agree in advance and in writing or the Protocol is
`
`modified by the Court. All document productions shall be subject to the Parties’ forthcoming
`
`Stipulated Protective Order (the “Protective Order”), which shall be filed with the Court no later
`
`than May 26, 2020.
`
`
`
`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 2 of 10
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`1.
`
`General Provisions
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`a.
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`Definitions. The Parties incorporate by reference the Definitions set forth in Rule
`
`26.5(c) of the Local Rules of the United States District Court for the District of Massachusetts.
`
`b.
`
`Cooperation. The Parties shall conduct discovery in a cooperative manner,
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`including without limitation by reasonably drafting discovery requests and responses in
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`accordance with Fed. R. Civ. P. 1 and 26(g)(1); and producing Electronically Stored Information
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`(“ESI”) in accordance with Fed. R. Civ. P. 34; and by meeting and conferring in good faith on
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`topics such as the identification of custodians, potentially relevant data sources, and search
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`terms, and such other issues as may arise during the course of discovery.
`
`c.
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`Proportionality. The proportionality standard set forth in Fed R. Civ. P. 26(b)(1)
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`shall be applied in all matters related to discovery of ESI, including without limitation the
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`preservation, collection, and production of such information. To further the application of the
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`proportionality standard, requests for production of ESI and related responses shall be stated with
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`reasonable particularity and specificity.
`
`d.
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`Preservation of Discoverable Information. The Parties recognize their
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`obligation to take reasonable and proportional steps to preserve discoverable information in their
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`possession, custody, or control.
`
`i.
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`Absent a showing of good cause by the party requesting information (the
`
`“Requesting Party”), the Parties shall not be required to modify, on a going-forward basis, the
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`procedures used by them in the ordinary course of business to back up and archive data;
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`provided, however, that the Parties shall preserve the non-duplicative discoverable information
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`currently in their possession, custody, or control.
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`2
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`
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`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 3 of 10
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`ii.
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`Absent a showing of good cause by the Requesting Party, the following
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`categories of ESI need not be preserved:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
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`7.
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`8.
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`9.
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`10.
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`11.
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`12.
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`13.
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`Deleted, slack, fragmented, or other data only accessible by
`forensics;
`
`Random access memory (RAM), temporary files, or other
`ephemeral data that are difficult to preserve without disabling the
`operating system;
`
`On-line access data such as temporary internet files, history, cache,
`cookies, and the like;
`
`Data in metadata fields that are frequently updated automatically,
`such as “last opened” dates;
`
`Back-up data that are substantially duplicative of data that are
`more accessible elsewhere;
`
`Voice messages;
`
`Instant messages that are not ordinarily printed or maintained in a
`server dedicated to instant messaging;
`
`Electronic mail or pin-to-pin messages sent to or from mobile
`devices (e.g., iPhone and Blackberry devices), provided that a copy
`of such mail is routinely saved elsewhere;
`
`Other electronic data stored on a mobile device, such as calendar
`or contact data or notes, provided that a copy of such information
`is routinely saved elsewhere;
`
`Logs of calls made from mobile devices;
`
`Server, system, or network logs;
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`Electronic data temporarily stored by laboratory equipment or
`attached electronic equipment, provided that such data is not
`ordinarily preserved as part of a laboratory report; and
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`Data remaining from systems no longer in use that is unintelligible
`on the systems in use.
`
`3
`
`
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`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 4 of 10
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`e.
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`Privilege.
`
`i.
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`The Parties shall confer on the nature and scope of privilege logs for the
`
`case, including whether categories of information may be excluded from any logging
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`requirements and whether alternatives to document-by-document logs can be exchanged.
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`ii.
`
`With respect to information generated after the filing of the Complaint on
`
`Sept. 27, 2018, the Parties are not required to include any such information in privilege logs.
`
`iii.
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`Activities undertaken in compliance with the duty to preserve information
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`are protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
`
`iv.
`
`This Protocol is subject to, and does not modify, the Fed. R. Evid. 502
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`non-waiver provision of the Protective Order.
`
`f.
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`Rolling Productions: The Parties shall produce documents on a rolling basis.
`
`2.
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`Initial ESI Disclosures. No later than thirty (30) days after entry of this Protocol, each
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`Party shall disclose:
`
`a.
`
`Custodians. A list of the 10 custodians most likely to have discoverable
`
`information in their possession, custody, or control. The custodians shall be identified by name,
`
`title, role in the instant dispute, and the subject matter of the information.
`
`b.
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`Non-custodial data sources.1 A list of the non-custodial data sources that are
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`most likely to contain non-duplicative discoverable information for preservation and production
`
`consideration, from the most likely to the least likely.
`
`c.
`
`Notice. The Parties shall identify any issues relating to:
`
`1 As used herein, the term “non-custodial data source” means 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., an enterprise system or database).
`
`4
`
`
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`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 5 of 10
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`i.
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`Any ESI (by type, date, custodian, electronic system, or other criteria) that
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`a Party asserts is not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(C)(i).
`
`ii.
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`Third-party discovery under Fed. R. Civ. P. 45 and otherwise, including
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`the timing and sequencing of such discovery.
`
`iii.
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`Production of information subject to privacy protections, including
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`information that may need to be produced from outside of the United States and subject to
`
`foreign laws.
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`3.
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`Specific E-Discovery Issues.
`
`a.
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`On-site inspection of electronic media. Such an inspection shall not be
`
`permitted absent a demonstration by the Requesting Party of specific need and good cause.
`
`b.
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`Search methodology. No later than thirty (30) days after entry of this Protocol,
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`the Producing Party shall disclose to the Requesting Party the search terms it intends to use to
`
`locate potentially responsive ESI. Absent a showing of good cause, a Requesting Party may
`
`request no more than 10 additional terms to be used in connection with the electronic search.
`
`Focused terms, rather than over-broad terms (e.g., product and company names), shall be
`
`employed. The Producing Party shall search (i) the non-custodial data sources identified in
`
`accordance with paragraph 2(b); and (ii) emails and other ESI maintained by the custodians
`
`identified in accordance with paragraph 2(a).
`
`c.
`
`De-Duplication. The Parties shall make reasonable efforts to de-duplicate ESI.
`
`ESI may be de-duplicated vertically within each custodian or horizontally across custodians. To
`
`the extent a party deduplicates horizontally across all custodians, the party shall identify all
`
`custodians of the document in the metadata field “Duplicate Custodian.” All ESI will be de-
`
`duplicated using MD5 or SHA1 Hash values. All files bearing an identical MD5 or SHA1 Hash
`
`5
`
`
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`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 6 of 10
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`value are a duplicate group. For purposes of this paragraph, only email messages in which the
`
`parent document and all attachments are exactly the same will be considered duplicates. The
`
`parties may produce one document image for duplicate ESI documents within the duplicate
`
`group.
`
`d.
`
`Email Threading. In order to reduce the volume of entirely duplicative content
`
`within email threads, the Parties may utilize “email thread suppression.” As used in this Order,
`
`email thread suppression means reducing duplicative production of email threads by producing
`
`the most recent email containing the thread of emails, as well as all attachments within the
`
`thread, and excluding emails constituting exact duplicates of emails within the produced string.
`
`e.
`
`Format. ESI and non-ESI shall be produced to the Requesting Party as text
`
`searchable image files (e.g., .PDF or .TIFF). When a text-searchable image file is produced, the
`
`Producing Party must preserve the integrity of the underlying ESI, i.e., the original formatting,
`
`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 images and associated
`
`multi-page text files containing extracted text or OCR with Concordance and Opticon load files
`
`containing all requisite information including relevant metadata. In addition, the below
`
`formatting protocols will be followed:
`
`i. Parent-Child Relationships. Parent-child relationships (the association
`
`between emails and attachments) will be preserved. Email attachments
`
`will be consecutively produced with the parent email record. If an email
`
`attachment is privileged, not responsive, or has a technical issue, a slip
`
`sheet may be inserted in the production.
`
`6
`
`
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`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 7 of 10
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`ii. Dynamic Fields. Documents with dynamic fields for file names, dates,
`
`and times will be processed to show the field code (e.g., “[FILENAME]”
`
`or “[AUTODATE]”) or other placeholder text to indicate any dynamic
`
`field, rather than the values for such fields existing at the time the file is
`
`processed.
`
`iii. Time Zone. Unless otherwise agreed, all dynamic date and time fields,
`
`where such fields are processed to contain a value, and all metadata
`
`pertaining to dates and times will be standardized to Eastern Time. The
`
`Parties understand and acknowledge that such standardization affects only
`
`dynamic fields and metadata values and does not affect, among other
`
`things, dates and times that are hardcoded text within a file. Dates and
`
`times that are hard-coded text within a file (for example, in an email
`
`thread, dates and times of earlier messages that were converted to body
`
`text when subsequently replied to or forwarded; and in any file type, dates
`
`and times that are types as such by users) will be produced as part of the
`
`document text in accordance with the load file formats, below.
`
`iv. Native files. Documents maintained in Microsoft Excel and Microsoft
`
`PowerPoint need not be produced in the native form. A party that receives
`
`a document produced in .TIFF format may make a reasonable request in
`
`writing to receive the document in its native form. Upon a showing of
`
`good cause by the party requesting production in native format, the
`
`producing party shall produce the document in its native format.
`
`7
`
`
`
`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 8 of 10
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`v. Database Records. To the extent that any Party requests information that
`
`is stored in a database or database management system, the Parties will
`
`meet and confer regarding the accessibility of such information and the
`
`format of production.
`
`vi. Non-Traditional Data Sources or Files. Non-traditional data sources or
`
`files include, but are not limited to, transactional data, structured
`
`databases, database files, audio and video files, and proprietary
`
`applications not publicly available. Upon request and demonstration of
`
`need, the Parties will meet and confer as to a reasonable production format
`
`for such files.
`
`vii. Bates numbering. All produced documents must be assigned a unique
`
`Bates number that is sequential within a given document and across the
`
`production sets. Each page of each document shall be stamped with the
`
`Bates number and any appropriate confidentiality designation pursuant to
`
`the Protective Order.
`
`viii. Metadata fields. The Parties are only obligated to provide the following
`
`metadata for all ESI produced, to the extent such metadata exists at the
`
`time of collection and processing: Source, File Path, Email Subject,
`
`Conversation Index, From, To, CC, BCC, Date Sent, Time Sent, Date
`
`received, Time Received, Filename, Author, Date Created, Date Modified,
`
`MD5 Hash, File Size, File Extension, Control Number Begin, Control
`
`Number End, Bates Begin, Bates End, Attachment Range, Attachment
`
`Begin, Attachment End (or the equivalent thereof), IND/BLA No.,
`
`8
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`
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`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 9 of 10
`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 9 of 10
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`IND/BLA Sequence No., IND/BLA Supplement No. lND/BLA
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`Submission date; and Duplicate Custodians (for documents that have been
`
`horizontally de-duplicated). The Source and Duplicate Custodian fields
`
`for email collected from an archive will list the name of the archive if
`
`Source or Duplicate Custodian metadata is not otherwise available.
`
`ix. Production Media. The Producing Party may produce documents via a
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`secure file transfer mechanism and/or on readily accessible computer or
`
`electronic media. Each piece of Production Media will be assigned a
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`production number or other unique identifying label corresponding to the
`
`date of the production as well as the sequence of the material in that
`
`production.
`
`I.
`
`Encryption. To maximize the security of information in transit, any media on
`
`which documents are produced may be encrypted by the producing Party. In such cases, the
`
`producing Party shall transmit the encryption key or password to the requesting Party, under
`
`separate cover, contemporaneously with sending the encrypted media.
`
`g.
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`Protected Information. For the avoidance of doubt, nothing herein shall
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`contradict the Parties’ rights and obligations with respect to any material designated as protected
`
`information under the Parties’ forthcoming Stipulated Protective Order.
`
`SO ORDERED.
`
`July 15, 2020
`
`/s/ Allison D. Burroughs
`ALLISON D. BURROUGHS
`
`U.S. DISTRICT JUDGE
`
`
`
`Case 1:18-cv-12029-ADB Document 57 Filed 07/15/20 Page 10 of 10
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`STIPULATED AND AGREED:
`
`Dated: May 19, 2020
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`Respectfully submitted,
`
`/s/ Andrea L. Martin (with permission)
`Andrea L. Martin (BBO 666117)
`BURNS & LEVINSON LLP
`125 High Street
`Boston, MA 02110-1624
`(617) 345-3000
`
`Charles E. Lipsey
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Square
`Reston, VA 20190-5675
`
`William B. Raich
`Danielle A. Duszczyszyn
`Emily R. Gabranski
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`
`Attorneys for Defendant
`
`/s/ Elaine Herrmann Blais
`
`Douglas J. Kline (BBO# 556680)
`Elaine Herrmann Blais (BBO# 656142)
`Robert Frederickson III (BBO# 670111)
`Alexandra Lu (BBO# 691114)
`Eric Romeo (BBO# 691591)
`Martin C. Topol (BBO# 696020)
`Goodwin Procter LLP
`100 Northern Avenue
`Boston, MA 02210
`Tel.: (617) 570-1000
`Fax: (617) 523-1231
`dkline@goodwinlaw.com
`eblais@goodwinlaw.com
`rfrederickson@goodwinlaw.com
`alu@goodwinlaw.com
`eromeo@goodwinlaw.com
`mtopol@goodwinlaw.com
`
`I. Neel Chatterjee (pro hac vice)
`Goodwin Procter LLP
`601 Marshall St.
`Redwood City, CA 94063
`Tel.: (650) 752-3100
`Fax: (650) 853-1038
`nchatterjee@goodwinlaw.com
`
`Natasha Daughtrey (pro hac vice)
`Goodwin Procter LLP
`601 S. Figueroa St.
`Los Angeles, CA 90017
`Tel.: (213) 426-2500
`Fax: (213) 623-1673
`ndaughtrey@goodwinlaw.com
`
`Attorneys for Plaintiffs
`
`10
`
`
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