Case 2:17-cv-00513-JRG Document 80 Filed 01/08/18 Page 1 of 13 PageID #: 4975
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:17-CV-0513-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`Case No. 2:17-CV-0515-JRG
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`§ § § § § § § § § § §
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`§ § § § § § § § § § §
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., ET AL.,
`
`Defendants.
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`LG ELECTRONICS INC.,
`
`Plaintiff,
`
`Defendant.
`
`E-DISCOVERY ORDER
`
`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.
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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
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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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`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 metadata.
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`Load files should include, where applicable, the information listed in the Table of Metadata
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`Fields, attached as Exhibit A. However, the parties are not obligated to include metadata
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`for any document that does not contain such metadata in the original, if it is not possible to
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`automate the creation of metadata when the document is collected. In addition, the parties
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`are not obligated to include metadata in situations where documents originally were
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`collected for prior litigations without an obligation to maintain metadata, or where the
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`metadata fields may not reflect the original metadata associated with the file as originally
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`created or maintained due to the manner in which the documents originally were collected
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`for such prior litigations. Notwithstanding the foregoing, the parties are obligated to collect
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`documents in their original form, including the associated, pre-existing metadata fields set
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`forth in Exhibit A, where doing so would not be unduly burdensome. The parties reserve
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`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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`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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`1)
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`PDF files shall be produced along with Concordance/Opticon image load
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`files that indicate the beginning and ending of each document.
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`2)
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`For documents which already exist in PDF format prior to production (i.e.,
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`which the producing party receives from a client or third party in PDF format), the
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`producing party may provide them in that same PDF format, whether searchable or
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`non-searchable. For documents converted to PDF format prior to production, the
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`producing party shall make reasonable efforts to convert to searchable PDF.
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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
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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 for
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`use in this litigation, including for use by the producing party’s counsel, then such
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`documents shall be produced in the same text-searchable format at no cost to the
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`receiving party.
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`D. Footer. All images must be assigned a unique Bates number that is sequential
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`within a given document and across the production sets.
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`E. Confidentiality Designation. Responsive documents in TIFF format will be
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`stamped with the appropriate confidentiality designations in accordance with the
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`Protective Order in this matter. Each responsive document produced in native format
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`will have its 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
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`files have been redacted, in which instance such files shall be produced in TIFF with
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`OCR 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
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`set forth in Exhibit A. A TIFF placeholder indicating that the document was provided
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`in native format should accompany the database record. If a file has been redacted,
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`TIFF images and OCR text of the redacted document will suffice in lieu of a native
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`file and extracted text. Documents produced natively shall be represented in the set
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`of imaged documents by a slipsheet indicating the production identification number
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`and 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
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`or allowed processes, including but not limited to backup tapes, disks, SAN, and
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`other forms of media, to comply with its discovery obligations in the present case.
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`H. 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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`I. Culling and Filtering. Each party will use its best efforts to filter out common
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`system files and application executable files by using a commercially reasonable hash
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`identification process. Hash values that may be filtered out during this process are
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`located in the National Software Reference Library (“NSRL”) NIST hash set list.
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`Additional culling of system file types based on file extension may include, but are
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`not limited to: WINNT, LOGS, DRVS, AVI, C++ Program File (c), C++ Builder 6
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`(cpp), Channel Definition Format (cdf), Creatures Object Sources (cos), Dictionary
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`file (dic), Executable (exe), Hypertext Cascading Style Sheet (css), JavaScript Source
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`Code (js), Label Pro Data File (IPD), Office Data File (NICK), Office Profile Settings
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`(ops), Outlook Rules Wizard File (rwz), Scrap Object, System File (dll), Temporary
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`File (tmp), Windows Error Dump (dmp), Windows Media Player Skin Package
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`(wmz), Windows NT/2000 Event View Log file (evt), Python Script files (.py, .pyc,
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`.pud, .pyw), or Program Installers.
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`J. Deduplication. A party is required to produce only a single copy of a responsive
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`document and a party may de-duplicate responsive ESI (based on MD5 or SHA-1
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`hash values at the document level) across Custodians. For emails with attachments,
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`the hash value is generated based on the parent/child document grouping. A party
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`may also de-duplicate “near-duplicate” email threads as follows: In an email thread,
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`only the final-in-time document need be produced, assuming that all previous emails
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`in the thread are contained within the final message. Where a prior email contains an
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`attachment, that email and attachment shall not be removed as a “near-duplicate.” To
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`the extent that de-duplication through MD5 or SHA-1 hash values is not possible, the
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`parties shall meet and confer to discuss any other proposed method of de-duplication.
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`K. Production media and encryption of productions. Unless otherwise agreed, the
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`parties shall provide document productions in the following manner: the producing
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`party shall provide the production data on CDs, DVDs, external hard drives, flash
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`drives, or SFTP, as appropriate. Both parties will make reasonable efforts to ensure
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`that any productions made are free from viruses. The producing party shall encrypt
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`the production data using WinRAR or other similar encryption, and the producing
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`party shall forward the password to decrypt the production data separately from the
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`CD, DVD, external drive, flash drive, or SFTP to which the production data is saved.
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`L. 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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`M. Parent and child emails. The parties shall produce email attachments sequentially
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`after the parent email.
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`N. 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
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`of 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
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`databases without the need to make such databases available for examination or
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`copying, or both. The parties agree to identify the specific databases, by name, that
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`contain the relevant and responsive information that parties produce.
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`O. 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
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`producing party also has a full or partial English-language version of that document
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`that it prepared for non-litigation purposes prior to filing of the lawsuit, the producing
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`party shall produce both the original document and the full or partial English-
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`language versions. In addition, if the producing party has a certified translation of a
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`foreign-language document that is being produced, (whether or not the translation is
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`prepared for purposes of litigation) the producing party shall produce both the
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`original document and the certified translation. Nothing in this agreement shall
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`require a producing party to prepare a translation, certified or otherwise, for foreign
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`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
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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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`7.
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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, a specific
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`identification of the fifteen of the most significant listed e-mail custodians in view of the
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`pleaded claims and defenses,1 infringement contentions and accompanying documents
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`pursuant to P.R. 3-1 and 3-2, and invalidity contentions and accompanying documents
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`1 A “specific identification” requires a short description of why the custodian is believed to be significant.
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`pursuant to P.R. 3-3 and 3-4, and preliminary information relevant to damages. The
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`exchange of this information shall occur at the time agreed upon by the Parties and/or
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`required under the Federal Rules of Civil Procedure, Local Rules, or by order of the
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`court. Each requesting party may also propound up to five written discovery requests and
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`take one deposition per producing party to identify the proper custodians, proper search
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`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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`8.
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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
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`proper time frame. Each requesting party shall limit its e-mail production requests to a
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`total of up to eight custodians per producing party for all such requests.2 The parties may
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`jointly agree to modify this limit without the court’s leave. The court shall consider
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`contested requests for additional or fewer custodians per producing party, upon showing
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`a distinct need based on the size, complexity, and issues of this specific case.
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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 requests for additional or fewer search terms
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`per custodian, upon showing a distinct need based on the size, complexity, and issues for
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`this specific case. The search terms shall be narrowly tailored to particular issues.
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`Indiscriminate terms, such as the producing company’s name or its product name, are
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`inappropriate unless combined with narrowing search criteria that sufficiently reduce the
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`risk of overproduction. A conjunctive combination of multiple words or phrases (e.g.,
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`2 For purposes of this Order, the Huawei defendants collectively shall be considered a single Producing
`Party.
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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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`The parties agree that search terms will not be applied to source code.
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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. For example, the mere production of privilege or work-product
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`protected documents in this case as part of a mass production is not itself a waiver in this
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`case or any other federal or state proceeding. A producing party may assert privilege or
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`protection over produced documents within a reasonable time after becoming aware of
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`the inadvertent production by notifying the receiving party in writing of the assertion of
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`privilege or protection in writing. In case of inadvertent production, at the producing
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`party’s request, the receiving party shall immediately return or destroy the inadvertently
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`produced materials.
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`12.
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`Nothing in this Agreement shall be interpreted to require disclosure of information
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`protected by the attorney-client privilege, work-product doctrine, or any other applicable
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`privilege or immunity. The parties do not waive any objections as to the production,
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`discoverability, admissibility, or confidentiality of documents and ESI. Disclosures
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`among defendants’ attorneys of work product or other communications relating to issues
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`of common interest shall not affect or be deemed a waiver of any applicable privilege or
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`protection from disclosure.
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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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`EXHIBIT A
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`A. Production Components. Productions shall include, in addition to single page TIFFs
`and Text Files, (a) an ASCII delimited metadata file (.txt, .dat, or .csv), and (b) an image
`load file that can be loaded into commercially acceptable production software (e.g.,
`Concordance).
`
`B. Image Load File shall contain the following comma-delimited fields:
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`BEGBATES, VOLUME, IMAGE FILE PATH, DOCUMENT BREAK, FOLDER
`BREAK, BOX BREAK, PAGE COUNT
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`C. Metadata Load File shall be delimited according to the following characters:
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`o Delimiter = D (ASCII:0020)
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`o Text-Qualifier = þ (ASCII:00254)
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`D. The following Metadata Fields shall appear in the metadata load file:
`
`Field Name
`
`Specifications
`Field Name
`
`Field Type
`
`Description
`(Email)
`
`Description (E-
`Files/Attachments)
`
`BegDoc or
`BegBates
`
`Unique ID
`(Bates number)
`
`Paragraph
`
`EndDoc or
`EndBates
`
`Unique ID
`(Bates number)
`
`Paragraph
`
`BegAttach
`
`EndAttach
`
`Paragraph
`
`Unique ID
`(Bates number)
`Parent-Child
`Relationships
`
`Paragraph
`
`Unique ID
`(Bates number)
`Parent-Child
`Relationship
`
`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 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 email.
`
`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 email.
`
`The Document ID
`number associated
`with the last page
`of the last
`attachment to a
`parent document.
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`
`
`Field Name
`
`Specifications
`Field Name
`
`Field Type
`
`Description
`(Email)
`
`Description (E-
`Files/Attachments)
`
`Pages
`
`Pages
`
`Number
`
`The number of
`pages for an
`email.
`
`The number of
`pages for a
`document.
`
`Date Sent
`
`Date
`(MM/DD/YYYY
`format)
`
`The date the
`email was sent.
`
`For email
`attachments, the
`date the parent
`email was sent.
`
`Author
`
`Author Display
`Name (e-mail)
`
`Paragraph
`
`To
`
`Recipient
`
`Paragraph
`
`CC
`
`CC
`
`Paragraph
`
`BCC
`
`BCC
`
`Paragraph
`
`The display
`name of the
`author or sender
`of an email.
`
`The name of the
`author as identified
`by the metadata of
`the document.
`
`The display
`name of the
`recipient(s) of
`an email.
`
`The display name
`of the recipient(s)
`of a document (e.g.,
`fax recipients).
`
`The display
`name of the
`copyee(s) of a
`email.
`
`The display
`name of the
`blind copyee(s)
`of an email.
`
`Subject
`
`Subject (e-mail)
`
`Paragraph
`
`The subject line
`of an email.
`
`The subject of a
`document from
`entered metadata.
`
`Custodian
`
`Custodian
`
`Paragraph
`
`The custodian of a
`document.
`
`The custodian
`of an email and
`all individual(s)
`whose
`documents de-
`duplicated out
`(De-Duped
`Custodian).
`
`MD5 Hash
`
`MD5 Hash
`
`Number
`
`The unique
`
`The unique
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`
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`Field Name
`
`Specifications
`Field Name
`
`Field Type
`
`Description
`(Email)
`
`Description (E-
`Files/Attachments)
`
`File Name
`
`File Name
`
`Paragraph
`
`Date Mod
`
`Date Mod
`
`Date Created
`
`Date Created
`
`Date
`(MM/DD/YYYY
`format)
`
`Date
`(MM/DD/YYYY
`format)
`
`Native Link
`
`Native Link
`
`
`
`identifier of the
`file.
`File Name of an
`electronic
`document.
`Date an
`electronic
`document was
`last modified.
`Date an
`electronic
`document was
`created.
`Native File
`Link
`
`identifier of the file.
`
`File Name of an
`electronic
`document
`Date an electronic
`document was last
`modified.
`
`Date an electronic
`document was
`created.
`
`Native File Link
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