Case 6:12-cv-00799-JRG Document 42-2 Filed 06/24/13 Page 1 of 7 PageID #: 1461
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`Case 6:12—cv—00799—JRG Document 42-2 Filed 06/24/13 Page 1 of 7 Page|D #: 1461Case 6:12—cv—00799—JRG Document 42-2 Filed 06/24/13 Page 1 of 7 Page|D #: 1461
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`EXHIBIT B
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`EXHIBIT BEXHIBIT B
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`Case 6:12-cv-00799-JRG Document 42-2 Filed 06/24/13 Page 2 of 7 PageID #: 1462
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`INVENSYS SYSTEMS, INC.
`
`
`
`Plaintiff,
`v.
`
`
`
`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
`
`
`
`Defendants.
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`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`C.A. No.: 6:12-cv-00799-LED
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`
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`ORDER REGARDING E-DISCOVERY
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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
`Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
`determination” of this action, as required by Federal Rule of Civil Procedure 1.
`
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`2.
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`3.
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`4.
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`5.
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`This order may be modified in the Court’s discretion or by agreement of the parties.
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`A party’s meaningful compliance with this Order and efforts to promote efficiency and
`reduce costs will be considered in cost-shifting determinations.
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`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, the parties agree to preserve metadata
`associated with relevant ESI to the extent reasonably possible without undue burden or
`undue cost and subject to any pre-existing technological limitations. The parties further
`agree that no metadata will be searched or produced without a specific claim of good
`cause associated with the metadata requested and also subject to the producing party’s
`claim of undue burden or undue cost. The parties shall meet and confer should this issue
`arise.
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`Absent agreement of the parties or further order of this court, the following parameters
`shall apply to ESI production:
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`A. General Document Image Format. Each electronic document shall be produced
`in single-page Tagged Image File Format (“TIFF”) format. TIFF files shall be
`single page and shall be named with a unique production number followed by the
`appropriate file extension. Load files shall be provided to indicate the 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
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`Case 6:12-cv-00799-JRG Document 42-2 Filed 06/24/13 Page 3 of 7 PageID #: 1463
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`they existed in the original document. If a document cannot be produced as a
`TIFF file, the Producing party shall promptly notify the Receiving party and the
`parties shall work in good faith to agree on an appropriate production format for
`the document/information in question. To the extent a document is produced in
`native format, it will be produced with a TIFF placeholder that contains the
`original file extension, the production number range for the document, and any
`confidentiality designation allowed under the Protective Order.
`
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`B. Text-Searchable Documents. Each party has an obligation to make its
`production text searchable by producing OCR and/or extracted text files. Each
`party shall convert all hard copy documents into electronic documents for
`production purposes. The parties shall meet and confer to discuss documents that
`present imaging or formatting problems. To the extent exceptions to the
`foregoing are required, the parties will meet and confer to discuss alternative
`production requirements, concerns or formats. 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 counsel, then such documents shall be produced in the same text-
`searchable format at no cost to the receiving party.
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`C. Footer. Each document image shall contain a footer with a sequentially ascending
`production number.
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`D. 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. All parties receiving documents in native file
`format agree to exercise care when printing native file documents that have a
`confidentiality designation for use at a deposition or for any other purpose related
`to the litigation to ensure that the confidentiality designation remains on all re-
`prints including, for example, labeling the appropriate confidentiality designation
`by either placing a physical sticker on the printed document or otherwise affixing
`the confidentiality designation to the printed document.
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`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. Any party may move the Court for an order compelling any other
`party to produce backup data upon a showing of good cause.
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`F. 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.
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`6.
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`7.
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`8.
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`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.
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`PLAINTIFF’S PROPOSAL: E-mail production requests shall be phased to occur
`timely after the parties have exchanged initial disclosures, a specific listing of likely e-
`mail custodians that contains a specific identification of the fifteen most significant listed
`e-mail custodians in view of the pleaded claims and defenses1, infringement contentions
`and accompanying documents pursuant to P.R. 3-1 and 3-2, invalidity contentions and
`accompanying documents pursuant to P.R. 3-3 and 3-4. The exchange of this 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 written
`discovery requests/interrogatories and take one deposition of no more than 7 hours per
`producing party to identify the proper custodians, proper search terms, and proper time
`frame for e-mail production requests. Such discovery requests/interrogatories and
`deposition shall not count against any of the other discovery limits in the case. The court
`may allow additional discovery upon a showing of good cause.
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`DEFENDANTS’ PROPOSAL: The parties shall meet and confer in good faith to
`identify the proper custodians, proper search terms, and proper time frame for e-mail
`production requests. To the extent that the meet and confer process is not productive,
`each requesting party may take one deposition of no more than 7 hours per producing
`party to identify the proper custodians, proper search terms, and proper time frame for e-
`mail production requests. Such a deposition shall not count against any of the other
`discovery limits in the case. The court may allow additional discovery upon a showing of
`good cause.
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`E-mail production requests shall identify the custodian, search terms, and time frame.
`The parties shall cooperate to identify the proper custodians, proper search terms, and
`proper time frame. Each requesting party shall limit its e-mail production requests to a
`total of eight custodians per producing party for all such requests. The parties may jointly
`agree to modify this limit without the court’s leave. The court shall consider contested
`requests for additional or fewer custodians per producing party, upon showing 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
`terms per custodian per party. The parties may jointly agree to modify this limit without
`the court’s leave. The court shall consider contested requests for additional or fewer
`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,
`are inappropriate unless combined with narrowing search criteria that sufficiently reduce
`the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g.,
`“computer” and “system”) narrows the search and shall count as a single search term. A
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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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`Case 6:12-cv-00799-JRG Document 42-2 Filed 06/24/13 Page 5 of 7 PageID #: 1465
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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.
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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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`The mere production of ESI in a litigation as part of a mass production shall not itself
`constitute a waiver for any purpose.
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`PLAINTIFF’S PROPOSAL: All discovery and document production requirements
`contained in this order shall be subject to the applicable laws of the country in which the
`information is located, without further order of this Court.
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`DEFENDANTS’ PROPOSAL: This additional provision is unnecessary.
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`Except as expressly stated, nothing in this order affects the parties’ discovery obligations
`under the Federal or Local Rules
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`
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`PLAINTIFF’S PROPOSAL: This additional provision is unnecessary. Alternatively,
`Plaintiff Proposes: The parties agree to accept summary financial information as an
`initial production, but are entitled to all relevant financial information. Relevant financial
`information beyond the summaries shall be produced if requested. No showing of good
`cause is needed for discovery that a party was otherwise entitled to under the Federal
`Rules or any Order of this Court.
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`DEFENDANTS’ PROPOSAL: To the extent financial information is sought, only
`summary financial information will be produced absent a showing of good cause that
`production of underlying documentation or information is necessary. The parties shall
`meet and confer to discuss the parameters of the production of any underlying financial
`documentation or information should the issue arise.
`
`PLAINTIFF’S PROPOSAL: This additional provision is unnecessary. Alternatively,
`Plaintiff Proposes: No showing of good cause is needed for discovery that a party was
`otherwise entitled to under the Federal Rules or any Order of this Court.
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`DEFENDANTS’ PROPOSAL: To the extent relevant documents are located on a
`centralized server or network, the producing party shall not be required to search for
`additional identical copies of such documents that may be located on the personal
`computer or otherwise in the possession of individual employees absent a showing of
`good cause that the production of such additional copies is necessary.
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`10.
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`11.
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`12.
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`13.
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`14.
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`15.
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`16.
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`PLAINTIFF’S PROPOSAL: This additional provision is unnecessary. Alternatively,
`Plaintiff Proposes: No showing of good cause is needed for discovery that a party was
`otherwise entitled to under the Federal Rules or any Order of this Court.
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`DEFENDANTS’ PROPOSAL: The appropriate level of deduplication is across all
`custodians, however, upon good cause shown, the parties will provide information
`regarding each custodian in possession of a particular document. The parties shall meet
`and
`confer
`on
`this
`issue
`should
`it
`arise.
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`Case 6:12-cv-00799-JRG Document 42-2 Filed 06/24/13 Page 7 of 7 PageID #: 1467
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`Case 6:12—cv—00799—JRG Document 42-2 Filed 06/24/13 Page 7 of 7 Page|D #: 1467
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`Case 6:12—cv—00799—JRG Document 42-2 Filed 06/24/13 Page 7 of 7 Page|D #: 1467
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