Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 1 of 10 PageID #: 5371
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT, LLC,
`
`
`
`Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD. AND HUAWEI
`DEVICE (DONGGUAN) CO., LTD.,
`
`Defendants.
`
`CASE NO. 2:17-CV-0513-JRG
`LEAD CASE
`
`JURY TRIAL DEMANDED
`
`AGIS SOFTWARE DEVELOPMENT, LLC,
`
`
`
`Plaintiff,
`
`v.
`
`HTC CORPORATION,
`
`Defendant.
`
`CASE NO. 2:17-CV-0514-JRG
`
`JURY TRIAL DEMANDED
`
`AGIS SOFTWARE DEVELOPMENT, LLC,
`
`
`
`Plaintiff,
`
`v.
`
`
`ZTE CORPORATION, ZTE (USA), INC., AND
`ZTE (TX), INC.,
`
`
`Defendants.
`
`C.A. NO. 2:17-cv-517-JRG
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`
`
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`
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`E-DISCOVERY ORDER
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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 2 of 10 PageID #: 5372
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`The Court ORDERS as follows:
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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 1.1,2
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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 60 days after the Federal Rule of
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`Civil Procedure 16 conference. If the parties cannot resolve their disagreements regarding these
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`modifications, the parties shall submit their competing proposals and a summary of 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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`General ESI production requests under Federal Rules of Civil Procedure 34 and 45, or
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`compliance with a mandatory disclosure requirement of this Court, shall include limited
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`metadata. Load files should include, where applicable, the information listed in the Table of
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`Metadata Fields, attached as Exhibit A. However, the parties are not obligated to include
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`metadata for any document that does not contain such metadata in the original, if it is not
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`possible to automate the creation of metadata when the document is collected. The parties
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`reserve their rights to object to any request for the creation of metadata for documents that do not
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`contain metadata in the original.
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`1 HTC Corp. states that it submits this E-Discovery order for the Court’s consideration and entry
`subject to its motion to dismiss and without waiver of its objection to personal jurisdiction in this
`case.
`2 Defendant ZTE Corporation has not yet been served or appeared in this matter; thus, but all
`discovery limits will apply, if Defendant ZTE Corporation is served. Further, ZTE (USA), Inc.
`and ZTE (TX), Inc. state that they enter into this E-Discovery order subject to their motion to
`dismiss, or in the alternative transfer, and without waiver of its objection to venue in this case.
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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 3 of 10 PageID #: 5373
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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. General Document Image Format. Except as otherwise provided for in this Order,
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`all documents existing in electronic format shall be produced in either: (1) single page
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`Tagged Image File Format (“TIFF”) format, with such TIFF files named with a unique
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`production number followed by the appropriate file extension and produced with Load
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`files to indicate the location and unitization of the TIFF files, and which shall maintain
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`the unitization of the documents and any attachments and/or affixed notes as they
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`existed in the original document or (2) as multiple page, searchable PDF format at a
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`resolution of at least 300 dpi in accordance with the following:
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`PDF files shall be produced along with Concordance/Opticon image load files that
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`indicate the beginning and ending of each document and includes all of the metadata
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`listed in Exhibit A as well as the OCR Text for the PDF as a separate text file.
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`B. Format for production of documents - hardcopy or paper documents. All
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`documents that are hardcopy or paper files shall be scanned and produced in the same
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`manner as documents existing in electronic format, above.
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`C. Text-Searchable Documents. No party has an obligation to make its production text-
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`searchable; however, if a party’s documents already exist in text-searchable format
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`independent of this litigation, or are converted to text-searchable format for use in this
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`litigation, including for use by the producing party’s counsel, then such documents shall
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`be produced in the same text-searchable format at no cost to the receiving party.
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`D. Footer. Each document image shall contain a footer with a sequentially ascending
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`unique Bates number.
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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 4 of 10 PageID #: 5374
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`E. Confidentiality Designation. Responsive documents in TIFF format will be stamped
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`with the appropriate confidentiality designations in accordance with the Protective
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`Order in this matter. Each responsive document produced in native format will have its
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`confidentiality designation identified in the filename of the native file.
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`F. Native Files. Spreadsheets (e.g., MS Excel, Google Sheets) and delimited text files
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`(e.g. comma-separated value (.csv) files and tab-separated value (.tsv) files) shall be
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`produced in their native file format. TIFF images need not be produced unless the files
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`have been redacted, in which instance such files shall be produced in TIFF with OCR
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`Text Files. If good cause exists to request production of files, other than those
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`specifically set forth above, in native format, the party may request such production
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`and provide an explanation of the need for native file review, which request shall not
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`unreasonably be denied. Any native files that are produced shall be produced with a
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`link in the NativeLink field, along with extracted text and applicable metadata fields set
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`forth in Exhibit A. A TIFF placeholder indicating that the document was provided in
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`native format should accompany the database record. If a file has been redacted, TIFF
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`images and OCR text of the redacted document will suffice in lieu of a native file and
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`extracted text. Documents produced natively shall be represented in the set of imaged
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`documents by a slipsheet indicating the production identification number and
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`confidentiality designation for the native file that is being produced.
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`G. No Backup Restoration Required. Absent a showing of good cause, no party need
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`restore any form of media upon which backup data is maintained in a party’s normal or
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`allowed processes, including but not limited to backup tapes, disks, SAN, and other
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`forms of media, to comply with its discovery obligations in the present case.
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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 5 of 10 PageID #: 5375
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`H. Voicemail and Mobile Devices. Absent a showing of good cause, voicemails, PDAs and
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`mobile phones are deemed not reasonably accessible and need not be collected and
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`preserved.
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`I. Social Media and Messengers: Text messages and electronic chat files (e.g., OCS,
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`Line, WeChat, Facebook, Facebook Messenger, etc.) are deemed not reasonably
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`accessible and need not be collected and produced.3
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`J. Source code. This Order does not govern the format for production of source code,
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`which shall be produced pursuant to the relevant provision of the Protective Order.
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`K. Parent and child emails. The parties shall produce email attachments sequentially
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`after the parent email.
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`L. Databases. Certain types of databases are dynamic in nature and will often contain
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`information that is neither relevant nor reasonably calculated to lead to the discovery of
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`admissible evidence. Thus, a party may opt to produce relevant and responsive
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`information from databases in an alternate form, such as a report or data table. These
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`reports or data tables will be produced in a static format, and may be used by the
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`proponent of the reports or data tables to prove the content of the underlying databases
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`without the need to make such databases available for examination or copying, or both.
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`The parties agree to identify the specific databases, by name, that contain the relevant
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`and responsive information that parties produce.
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`M. Foreign language documents. All documents shall be produced in their original
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`language. Where a requested document exists in a foreign language and the producing
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`party also has an English-language version of that document that it prepared for non-
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`3 The parties reserve the right to make reasonable requests for these messages on a case by case
`basis.
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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 6 of 10 PageID #: 5376
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`litigation purposes prior to filing of the lawsuit, the producing party shall produce both
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`the original document and all English-language versions. In addition, if the producing
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`party has a certified translation of a foreign-language document that is being produced,
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`(whether or not the translation is prepared for purposes of litigation) the producing
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`party shall produce both the original document and the certified translation. Nothing in
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`this agreement shall require a producing party to prepare a translation, certified or
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`otherwise, for foreign language documents that are produced in discovery.
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`6.
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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 other forms
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`of electronic correspondence (collectively “e-mail”). To obtain e-mail parties must propound
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`specific e-mail production requests.
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`7.
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`The parties shall meet and confer to reach agreement on a reasonable list of e-Mail
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`custodians for purposes of collection, review, and production of e-Mail, as well as a schedule for
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`the production of such information. In connection with the meet and confer process, each party
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`shall provide a proposed list of individual custodians who are knowledgeable about and were
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`involved with the core issues or subjects in this case (e.g., the asserted patents, the development,
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`design and operation of the accused products, and sales, marketing, and other damages-related
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`information for the accused products). The parties shall make good faith efforts to identify
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`appropriate email custodians and produce email on the agreed upon schedule, but reserve the
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`right to seek email from additional email custodians identified through discovery.
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`8.
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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-mail custodians, infringement
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`contentions and accompanying documents pursuant to P.R. 3-1 and 3-2, and invalidity
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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 7 of 10 PageID #: 5377
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`contentions and accompanying documents pursuant to P.R. 3-3 and 3-4, and preliminary
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`information relevant to damages. The exchange of this information shall occur at the time
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`agreed upon by the Parties and/or required under the Federal Rules of Civil Procedure, Local
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`Rules, or by order of the court. Each requesting party may also propound up to five written
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`discovery requests and take one deposition per producing party to identify the proper custodians,
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`proper search terms, and proper time frame for e-mail production requests. The court may allow
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`additional discovery upon a showing of good cause.
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`9.
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`E-mail production requests shall identify the custodian, search terms, and time frame.
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`The parties shall cooperate to identify the proper custodians, proper search terms, and proper
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`time frame. The court shall consider contested requests for additional or fewer custodians per
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`producing party, upon showing a distinct need based on the size, complexity, and issues of this
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`specific case.
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`10.
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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 the
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`court’s leave. The court shall consider requests for additional or fewer search terms per
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`custodian, upon showing a distinct need based on the size, complexity, and issues for this
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`specific case. Notwithstanding prior agreement on the search terms to be used for electronic
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`searches, should a search produce an unreasonably large number of non-responsive or irrelevant
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`results, the parties shall (at the producing party’s request) meet and confer to discuss application
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`of further negative search restrictions (e.g., if a single search was for “card” and ninety percent
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`of the resulting documents came from the irrelevant term “credit card,” a negative limitation to
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`ignore documents only returned as a result of “credit card” may be applied to remove these
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`documents). The party receiving production shall not unreasonably oppose such further
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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 8 of 10 PageID #: 5378
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`restrictions designed to filter immaterial search results. The search terms shall be narrowly
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`tailored to particular issues. Indiscriminate terms, such as the producing company’s name or its
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`product name, are inappropriate unless combined with narrowing search criteria that sufficiently
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`reduce 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”) broadens the
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`search, and thus each word or phrase shall count as a separate search term unless they are variants
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`of the same word. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged
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`to limit the production and shall be considered when determining whether to shift costs for
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`disproportionate discovery.
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`11.
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`Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a privileged or
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`work product protected ESI is not a waiver in the pending case or in any other federal or state
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`proceeding.
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`12.
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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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`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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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 9 of 10 PageID #: 5379
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`
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`Field Name
`
`BegDoc
`
`EXHIBIT A
`
`
`
`TABLE OF METADATA FIELDS
`
`
`Specifications
`Field Name
`
`Unique ID (Bates
`number)
`
`Field Type
`
`Paragraph
`
`Description
`(Email)
`
`Description (E-
`Files/Attachments)
`
`The Document ID
`number associated with
`the first page of a
`document
`
`The Document ID
`number associated with
`the last page of a
`document.
`
`The Document ID
`number associated with
`the first page of a
`parent document.
`
`The Document ID
`number associated with
`the last page of the last
`attachment to a parent
`document.
`
`The number of pages
`for a document.
`
`For email attachments,
`the date the parent
`email was sent.
`
`The name of the author
`as identified by the
`metadata of the
`document.
`The display name of the
`recipient(s) of a
`document (e.g., fax
`recipients).
`
`
`
`
`The Document ID
`number associated
`with the first page
`of an email.
`
`The Document ID
`number associated
`with the last page
`of an email.
`
`The Document ID
`number associated
`with the first page
`of a parent email.
`
`The Document ID
`number associated
`with the last page
`of the last
`attachment to a
`parent email.
`
`The number of
`pages for an email.
`
`The date the email
`was sent.
`
`The display name
`of the author or
`sender of an email.
`
`The display name
`of the recipient(s)
`of an email.
`
`The display name
`of the copyee(s) of
`an email.
`
`The display name
`of the blind
`copyee(s) of an
`email.
`
`EndDoc
`
`Unique ID (Bates
`number)
`
`Paragraph
`
`BegAttach
`
`EndAttach
`
`Unique ID (Bates
`number) Parent-
`Child Relationships
`
`Paragraph
`
`Unique ID (Bates
`number) Parent-
`Child Relationship
`
`Paragraph
`
`Pages
`
`Pages
`
`Number
`
`DateSent
`
`
`
`Date
`(MM/DD/YYYY
`format)
`
`Paragraph
`
`Author Display
`Name (e-mail)
`
`Recipient
`
`Paragraph
`
`CC
`
`BCC
`
`Paragraph
`
`Paragraph
`
`
`
`Author
`
`To
`
`CC
`
`BCC
`
`
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`Case 2:17-cv-00513-JRG Document 138 Filed 05/01/18 Page 10 of 10 PageID #: 5380
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`The subject line of
`an email.
`
`The custodian of
`an email.
`
`The unique
`identifier of the
`file.
`The volume
`number of the
`production
`The title of the
`native file being
`processed.
`Relative path to the
`native file being
`produced
`Relative path to the
`text file in the
`production
`
`The subject of a
`document from entered
`metadata.
`
`The custodian of a
`document.
`
`The unique identifier of
`the file.
`
`The volume number of
`the production
`
`The title of the native
`file being processed.
`
`Relative path to the
`native file being
`produced
`Relative path to the text
`file in the production
`
`Subject
`
`Subject (e-mail)
`
`Paragraph
`
`Custodian
`
`Custodian
`
`Paragraph
`
`MD5 Hash
`
`MD5 Hash
`
`Number
`
`CD Vol
`
`CD Vol
`
`Paragraph
`
`Filename
`
`Filename
`
`Paragraph
`
`Native Path
`
`Native Path
`
`Paragraph
`
`Text Path
`
`Text Path
`
`Paragraph
`
`
`
`
`
`
`
`