Case 2:17-cv-00516-JRG Document 52 Filed 10/26/17 Page 1 of 10 PageID #: 466
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:17-CV-0516-JRG
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`§ § § § §
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`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`APPLE INC.
`
`The Court ORDERS as follows:
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`E-DISCOVERY ORDER
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`1.
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`This order supplements all other discovery rules and orders. It streamlines Electronically
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`Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
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`determination” of this action, as required by Federal Rule of Civil Procedure 1.
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`2.
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`This order may be modified in the court’s discretion or by agreement of the parties. The
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`parties shall jointly submit any proposed modifications within 30 days after the Federal
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`Rule of Civil Procedure 16 conference. If the parties cannot resolve their disagreements
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`regarding these modifications, the parties shall submit their competing proposals and a
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`summary of their dispute.
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`3.
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`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
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`metadata. Load files should include, where applicable, the information listed in the Table
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`of Metadata Fields, attached as Exhibit A. However, the parties are not obligated to
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`include metadata for any document that does not contain such metadata in the original, if
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`it is not possible to automate the creation of metadata when the document is collected.
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`The parties reserve their rights to object to any request for the creation of metadata for
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`documents that do not 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.
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`General Document Image Format. Except as otherwise provided for in this
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`Order, all documents existing in electronic format shall be produced in either: (1)
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`single page Tagged Image File Format (“TIFF”) format, with such TIFF files
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`named with a unique production number followed by the appropriate file
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`extension and produced with Load files to indicate the location and unitization of
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`the TIFF files, and which shall maintain the unitization of the documents and any
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`attachments and/or affixed notes as they existed in the original document or (2) as
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`multiple page, searchable PDF format at a resolution of at least 300 dpi in
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`accordance with the following:
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`1.
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`PDF files shall be produced along with Concordance/Opticon
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`image load 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
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`production (i.e., which the producing party receives from a client or third party in
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`PDF format), the producing party may provide them in that same PDF format,
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`whether searchable or non-searchable. For documents converted to PDF format
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`prior to production, the producing party shall make reasonable efforts to convert
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`to searchable PDF.
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`B.
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`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
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`same manner as documents existing in electronic format, above.
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`C.
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`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
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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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`D.
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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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`E.
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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 to receive the document in its native
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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. Documents produced natively shall be represented
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`in the set of imaged documents by a slipsheet indicating the production
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`identification number and confidentiality designation for the native file that is
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`being produced.
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`F.
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`No Backup Restoration Required. Absent a showing of good cause, no party
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`need restore any form of media upon which backup data is maintained in a party’s
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`normal or allowed processes, including but not limited to backup tapes, disks,
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`SAN, and other forms of media, to comply with its discovery obligations in the
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`present case.
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`G.
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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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`H.
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`Production media and encryption of productions. Unless otherwise agreed,
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`the parties shall provide document productions in the following manner: The
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`producing party shall provide the production data on CDs, DVDs, external hard
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`drives, flash drives, or SFTP, as appropriate. 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
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`the CD, DVD, external drive, flash drive, or SFTP to which the production data is
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`saved.
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`I.
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`Source code. This Order does not govern the format for production of source
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`code, which shall be produced pursuant to the relevant provision of the Protective
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`Order.
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`J.
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`Parent and child emails.
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`The parties shall produce email attachments
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`sequentially after the parent email.
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`K.
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`Databases. Certain types of databases are dynamic in nature and will often
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`contain information that is neither relevant nor reasonably calculated to lead to the
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`discovery of admissible evidence. Thus, a party may opt to produce relevant and
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`responsive information from databases in an alternate form, such as a report or
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`data table. These reports or data tables will be produced in a static format. The
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`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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`L.
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`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 an English-language version of that document that it
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`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 all English-language versions.
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`In addition, if the producing party has a certified translation of a foreign-language
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`document that is being produced, (whether or not the translation is prepared for
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`purposes of litigation) the producing party shall produce both the original
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`document and the certified translation. Nothing in this agreement shall require a
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`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 parties
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`must propound 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 custodians
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`for purposes of collection, review, and production of electronically stored information as
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`well as a schedule for the production of such information. In connection with the meet
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`and confer process, each party shall provide a proposed list of individual custodians who
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`are knowledgeable about and were involved with the core issues or subjects in this case
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`(e.g., the asserted patents, the development, design and operation of the accused products,
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`and sales, marketing, and other damages-related information for the accused products).
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`The parties shall make good faith efforts to identify appropriate email custodians and
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`produce email on the agreed upon schedule, but reserve the right to seek email from
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`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, 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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`pursuant to P.R. 3-3 and 3-4. 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,
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`Local Rules, or by order of the court. Each requesting party may also propound up to five
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`written discovery requests and take one deposition per producing party to identify the
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`proper custodians, proper search terms, and proper time frame for e-mail production
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`requests. The court may allow 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 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
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`of this specific case.
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`10.
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`The parties shall meet and confer to reach agreement on search terms to be used for
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`electronic searches of the files from custodians. ESI, including, but not limited to
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`electronic files and email, shall be collected for each individual custodian from the
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`personal computers, network resources, and other electronic devices that those
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`individuals use for work purposes. Notwithstanding prior agreement on the search terms
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`to be used for electronic searches, should a search produce an unreasonably large number
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`of non-responsive or irrelevant results, the parties shall (at the producing party’s request)
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`meet and confer to discuss application of further negative search restrictions (e.g., if a
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`single search was for “card” and ninety percent of the resulting documents came from the
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`irrelevant term “credit card,” a negative limitation to ignore documents only returned as a
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`result of “credit card” may be applied to remove these documents). The party receiving
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`production shall not unreasonably oppose such further restrictions designed to filter
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`immaterial search results. The search terms shall be narrowly tailored to particular
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`issues. Indiscriminate terms, such as the producing company’s name or its product name,
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`are inappropriate unless combined with narrowing search criteria that sufficiently reduce
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`the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g.,
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`“computer” and “system”) narrows the search and shall count as a single search term. A
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`disjunctive combination of multiple words or phrases (e.g., “computer” or “system”)
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`broadens the search, and thus each word or phrase shall count as a separate search term
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`unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,”
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`“but not,” “w/x”) is encouraged to limit the production and shall be considered when
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`determining whether to shift costs for disproportionate discovery.
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`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 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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`EXHIBIT A
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`TABLE OF METADATA FIELDS
`
`Specifications
`Field Name
`
`Field Type
`
`Description
`(Email)
`
`Description (E-
`Files/Attachments)
`
`Field Name
`
`BegDoc
`
`Unique ID (Bates
`number)
`
`Paragraph
`
`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
`
`The Document ID
`number associated
`with the first 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 an email.
`
`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.
`
`The number of
`pages for an email.
`
`The number of pages
`for a document.
`
`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 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
`a email.
`
`The display name
`of the blind
`copyee(s) of an
`email.
`
`Date
`(MM/DD/YYYY
`format)
`
`The date the email
`was sent.
`
`For email attachments,
`the date the parent
`email was sent.
`
`DateSent
`
`Author
`
`To
`
`CC
`
`Author Display
`Name (e-mail)
`
`Paragraph
`
`Recipient
`
`Paragraph
`
`CC
`
`Paragraph
`
`BCC
`
`BCC
`
`Paragraph
`
`Subject
`
`Subject (e-mail)
`
`Paragraph
`
`The subject line of
`an email.
`
`The subject of a
`document from entered
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`Case 2:17-cv-00516-JRG Document 52 Filed 10/26/17 Page 10 of 10 PageID #: 475
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`Custodian
`
`Custodian
`
`Paragraph
`
`MD5 Hash
`
`MD5 Hash
`
`Number
`
`62897198 v1
`
`metadata.
`
`The custodian of
`an email.
`
`The custodian of a
`document.
`
`The unique
`identifier of the
`file.
`
`The unique identifier of
`the file.
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