Case 2:19-cv-00118-JRG Document 57 Filed 12/12/19 Page 1 of 6 PageID #: 766
`
`
`
`QUEST NETTECH CORPORATION,
`
`
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`Case No. 2:19-cv-00118-JRG
`§
`
`§
`JURY TRIAL DEMANDED
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Defendant.
`
`v.
`
`
`
`
`APPLE INC.,
`
`
`
`
`E-DISCOVERY ORDER
`
`The Court ORDERS as follows:
`
`1.
`
`This order supplements all other discovery rules and orders. It streamlines Electronically
`
`Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
`
`determination” of this action, as required by Federal Rule of Civil Procedure 1. The terms
`
`of this order are subject to the provisions of Fed. R. Civ. P. 26(b)(1) as amended effective
`
`December 1, 2015 regarding proportionality of discovery, i.e., that the scope of
`
`e-discovery will be proportional to the needs of the case, considering the importance of the
`
`issues at stake in the action, the amount in controversy, the parties’ relative access to
`
`relevant information, the parties’ resources, the importance of discovery in resolving the
`
`issues, and whether the burden or expense of the proposed discovery outweighs its likely
`
`benefit.
`
`2.
`
`3.
`
`This order may be modified in the court’s discretion or by agreement of the parties.
`
`A party’s meaningful compliance with this Order and efforts to promote efficiency and
`
`reduce costs will be considered in cost-shifting determinations.
`
`
`
`
`
`
`
`QUEST NETTECH CORPORATION,
`
`
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`Case No. 2:19-cv-00118-JRG
`§
`
`§
`JURY TRIAL DEMANDED
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Defendant.
`
`v.
`
`
`
`
`APPLE INC.,
`
`
`
`
`E-DISCOVERY ORDER
`
`The Court ORDERS as follows:
`
`1.
`
`This order supplements all other discovery rules and orders. It streamlines Electronically
`
`Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
`
`determination” of this action, as required by Federal Rule of Civil Procedure 1. The terms
`
`of this order are subject to the provisions of Fed. R. Civ. P. 26(b)(1) as amended effective
`
`December 1, 2015 regarding proportionality of discovery, i.e., that the scope of
`
`e-discovery will be proportional to the needs of the case, considering the importance of the
`
`issues at stake in the action, the amount in controversy, the parties’ relative access to
`
`relevant information, the parties’ resources, the importance of discovery in resolving the
`
`issues, and whether the burden or expense of the proposed discovery outweighs its likely
`
`benefit.
`
`2.
`
`3.
`
`This order may be modified in the court’s discretion or by agreement of the parties.
`
`A party’s meaningful compliance with this Order and efforts to promote efficiency and
`
`reduce costs will be considered in cost-shifting determinations.
`
`
`
`
`
`Case 2:19-cv-00118-JRG Document 57 Filed 12/12/19 Page 2 of 6 PageID #: 767
`
`
`4.
`
`Absent a showing of good cause, general ESI production requests under Federal Rules of
`
`Civil Procedure 34 and 45, or compliance with a mandatory disclosure requirement of this
`
`Court, shall not include metadata. However, fields showing the date and time that the
`
`document was sent and received, as well as the complete distribution list, shall generally
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`be included in the production if such fields exist.
`
`5.
`
`Absent agreement of the parties or further order of this court, the following parameters
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`shall apply to ESI production:
`
`A.
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`General Document Image Format. Each electronic document shall be
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`produced in single-page Tagged Image File Format (“TIFF”) format or
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`multiple page, searchable PDF format (“PDF”). TIFF files shall be single
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`page and shall be named with a unique production number followed by the
`
`appropriate file extension. Load files shall be provided to indicate the
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`location and unitization of the TIFF files. If a document is more than one
`
`page, the unitization of the document and any attachments and/or affixed
`
`notes shall be maintained as they existed in the original document. PDF
`
`files shall be multiple page and shall be named with a unique production
`
`number. PDF files shall be produced along with load files that indicate the
`
`beginning and ending of each document.
`
`B.
`
`Text-Searchable Documents. No party has an obligation to make its
`
`production text-searchable unless the production is produced in PDF
`
`format; however, if a party’s documents already exist in text-searchable
`
`format independent of this litigation, or are converted to text-searchable
`
`format for use in this litigation, including for use by the producing party’s
`
`2
`
`
`
`Case 2:19-cv-00118-JRG Document 57 Filed 12/12/19 Page 3 of 6 PageID #: 768
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`counsel, then such documents shall be produced in the same text-searchable
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`format at no cost to the receiving party.
`
`C.
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`Footer. Each document image shall contain a footer with a sequentially
`
`ascending production number.
`
`D.
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`Native Files. A party that receives a document produced in a format
`
`specified above may make a reasonable request to receive the document in
`
`its native format, and upon receipt of such a request, the producing party
`
`shall produce the document in its native format.
`
`E.
`
`No Backup Restoration Required. Absent a showing of good cause, no
`
`party need restore any form of media upon which backup data is maintained
`
`in a party’s normal or allowed processes, including but not limited to
`
`backup tapes, disks, SAN, and other forms of media, to comply with its
`
`discovery obligations in the present case.
`
`F.
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`Voicemail and Mobile Devices. Absent a showing of good cause,
`
`voicemails, PDAs and mobile phones are deemed not reasonably accessible
`
`and need not be collected and preserved.
`
`6.
`
`General ESI production requests under Federal Rules of Civil Procedure 34 and 45, or
`
`compliance with a mandatory disclosure order of this court, shall not include e-mail or
`
`other forms of electronic correspondence (collectively “e-mail”). To obtain e-mail parties
`
`must propound specific e-mail production requests.
`
`7.
`
`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
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`schedule for the production of such information. In connection with the meet and confer
`
`3
`
`
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`Case 2:19-cv-00118-JRG Document 57 Filed 12/12/19 Page 4 of 6 PageID #: 769
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`process, each party shall provide a proposed list of individual custodians who are
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`knowledgeable about and were involved with the core issues or subject in this case (e.g.,
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`the asserted patents, the development, design and operation of the accused products, and
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`sales, marketing, and other damages-related information for the accused products). The
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`parties shall make good faith efforts to identify appropriate email custodians and produce
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`e-mail on the agreed upon schedule, but reserve the right to seek e-mail from additional e-
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`mail custodians identified through discovery.
`
`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, a specific
`
`identification of the twelve most significant listed e-mail custodians in view of the pleaded
`
`claims and defenses,1 infringement contentions and accompanying documents pursuant to
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`P.R. 3-1 and 3-2, invalidity contentions and accompanying documents pursuant to P.R. 3-3
`
`and 3-4, and preliminary information relevant to damages. The exchange of this
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`information shall occur at the time required under the Federal Rules of Civil Procedure,
`
`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
`
`proper custodians, proper search terms, and proper time frame for email production
`
`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. The
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`parties shall cooperate to identify the proper custodians, proper search terms, and proper
`
`
`
` A “specific identification” requires a short description of why the custodian is believed to be significant.
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` 1
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`4
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`Case 2:19-cv-00118-JRG Document 57 Filed 12/12/19 Page 5 of 6 PageID #: 770
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`time frame. Each requesting party shall limit its e-mail production requests to a total of
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`five custodians per producing party for all such requests. The parties may jointly agree to
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`modify this limit without the court’s leave. The court shall consider contested requests for
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`additional or fewer custodians per producing party, upon showing a distinct need based on
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`the size, complexity, and issues of this 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
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`the court’s leave. The court shall consider contested requests for additional or fewer
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`search terms per custodian, upon showing a distinct need based on the size, complexity,
`
`and issues of this specific case. The search terms shall be narrowly tailored to particular
`
`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”)
`
`broadens the search, and thus each word or phrase shall count as a separate search term
`
`unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,”
`
`“but not,” “w/x”) is encouraged to limit the production and shall be considered when
`
`determining whether to shift costs for disproportionate discovery.
`
`11.
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`Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a privileged or
`
`work product protected ESI is not a waiver in the pending case or in any other federal or
`
`state proceeding.
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`5
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`Case 2:19-cv-00118-JRG Document 57 Filed 12/12/19 Page 6 of 6 PageID #: 771
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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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`6
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 12th day of December, 2019.
`
`
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