Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 1 of 29 PageID# 1535
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA, INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
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`Defendants and Counterclaim Plaintiffs.
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`
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`Civil No. 1:20-cv-00393-LO-TCB
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`JOINT PROPOSED DISCOVERY PLAN PURSUANT TO RULE 26(f)
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`Pursuant to Federal Rule of Civil Procedure 26(f) and this Court’s Order dated August 10,
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`2020 (Dkt. 79), Plaintiffs RAI Strategic Holdings, Inc. (“RAI”) and R.J. Reynolds Vapor
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`Company (“RJRV”) (collectively, “Reynolds” or “Plaintiffs-Counterclaim Defendants”), and
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`Defendants Altria Client Services LLC (“ACS”), Philip Morris USA, Inc. (“PM USA”), and Philip
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`Morris Products S.A. (“PMP”) (collectively, “Defendants,” or “Defendants-Counterclaim
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`Plaintiffs”), hereby submit this Joint Proposed Discovery Plan Pursuant to Rule 26(f) in advance
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`of the Rule 16(b) Pretrial Conference on Wednesday, September 9, 2020 at 11:00 a.m. The
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`parties conferred on August 19, 2020 and August 31, 2020, where they considered the nature and
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`basis of the claims, defenses, possibility of prompt settlement or resolution of this case, trial before
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`a magistrate judge, disclosures under Rule 26(a)(1), and development of a discovery plan.
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`I.
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`SCHEDULE
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`A.
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`Reynolds’s Position: Plaintiff RJRV has moved to sever and transfer Defendants’
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`infringement counterclaims (Dkt. 65, Counterclaims I-III; Dkt. 66, Counterclaims I-II) (collectively,
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`claims relating to the “Defendants’ Patents”). See Dkt. 67. Should Defendants’ infringement
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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 2 of 29 PageID# 1536
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`counterclaims not be severed and not be transferred, Reynolds plans to move for a separate trial on
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`those claims under Rule 42(b), which provides that “[f]or convenience, to avoid prejudice, or to
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`expedite and economize, the court may order a separate trial of one or more separate issues, claims,
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`crossclaims, counterclaims, or third-party claims.”
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`Reynolds requests that the schedule for trial and pre-trial matters on Defendants’ infringement
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`counterclaims (i.e., claims relating to the Defendants’ Patents) be adjusted to give Reynolds a fair
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`and adequate time to respond to those claims. In particular, due to the difference in time between
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`when Reynolds asserted its patent infringement claims (on April 9, 2020), and when Defendants
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`asserted their five patent infringement counterclaims (on June 29, 2020, about 12 weeks later),
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`Reynolds requests that the schedule for trial and pre-trial matters on Defendants’ infringement
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`counterclaims be adjusted accordingly, with the pre-trial conference and trial set for a time
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`approximately 12 weeks later than the claims relating to the Reynolds Patents (i.e., Reynolds un-
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`stayed claims (Dkt. 52, Counts one and five), and Defendants’ declaratory judgment counterclaims
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`(Dkt. 65, Counterclaims IV-VII; Dkt. 66, Counterclaims III-VI)). Defendants’ arguments below
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`regarding the timing of various amendments of pleadings are confusing, irrelevant, and contrary to
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`the facts. First, the important dates to consider are the dates when each side was first put on notice
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`of the other side’s infringement claims. Those dates are April 9, 2020, when Reynolds first asserted
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`its patents, and June 29, 2020, when Defendants first asserted their counterclaim patents. That is
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`when each side was able to begin its investigation and defense of the other side’s claims. Second,
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`the later amendments to the pleadings by each party (i.e., Reynolds’s amended complaint on July 13,
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`2020 (Dkt. 52) and Defendants’ amended answer and counterclaims on July 27, 2020 (Dkts. 65 and
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`66)), did not assert any new patents, and are irrelevant to the date when each side was first put on
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`notice of the other side’s claims. Finally, Defendants’ argument below regarding when the pleadings
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`on each sides claims “closed” is similarly irrelevant to the fundamental issue of notice of the patent
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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 3 of 29 PageID# 1537
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`infringement claims. But in any event, it is Reynolds’s pleadings that “closed” first. Defendants
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`answered Reynolds’s claims on July 27, 2020 (Dkts. 65 and 66), “closing” the pleadings on
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`Reynolds’s claims. Reynolds answered Defendants’ counterclaims on August 3, 2020 (Dkts. 69 and
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`70), “closing” the pleadings on Defendants’ counterclaims.
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`Furthermore, Reynolds does not believe that it is feasible to complete the additional fact and
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`expert discovery necessary for Defendants’ five additional patent infringement claims in the
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`timeframe currently set by the Court (by January 8, 2021), and believes it would be impossible to
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`complete it in the arbitrarily shortened timeframe for fact discovery proposed by Defendants
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`(November 13, 2020). For instance, Reynolds was only able to begin its investigation and search for
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`experts when it learned of the Defendants’ infringement claims on June 29, 2020. That each side’s
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`claims accuse different potentially reduced-risk smoke-free alternatives to smoking does not alleviate
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`the prejudice to Reynolds of having to litigate on a 12 week shorter schedule than Defendants, nor
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`does it prohibit trying such claims on separate schedules. See Samsung Elecs. Co. v. Nvidia Corp.,
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`No. 3:14CV757, 2015 WL 13723075, at *1 (E.D. Va. May 19, 2015) (severing defendant’s
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`infringement counterclaims brought 5 months later than plaintiff’s claims in spite of defendant’s
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`argument that: (i) both sides’ infringement claims “relate to the same type of products” and (ii)
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`plaintiff was on notice of defendant’s asserted patents for over a year (No. 3:14-cv-00757-REP-DJN,
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`Dkt. 135, 5)). For judicial economy, efficient case management, and to achieve justice in these
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`matters, Reynolds’s respectfully requests that this Court ensure that it have the same fair opportunity
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`to defend itself that Defendants seek. See Samsung Elecs. Co., 2015 WL 13723075, at *1 (where
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`Judge R. Payne found that severance of each side’s infringement claims would “serve the interest of
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`justice and judicial efficiency; will avoid the prejudice to the Plaintiff that is almost certain to occur
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`by trying unrelated patent issues to a jury; will make case management more effective, thereby
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`3
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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 4 of 29 PageID# 1538
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`enabling the pretrial and trial process to achieve justice in this complex matter; and finding that
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`severance will work no prejudice to the defendants.”).
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`For the convenience of the Court, Reynolds’s proposed deadlines for the claims relating to
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`the Reynolds Patents and the claims relating to the Defendants’ Patents (to the extent that they are
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`not severed or transferred) are set forth in Exhibit A.
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`B.
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`Defendants’ Position: Defendants’ proposed schedule follows the Court’s order
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`(Dkt. 79) that all discovery, including discovery on Defendants’ counterclaims, is completed by
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`January 8, 2021. Accordingly, Defendants propose one schedule for all claims in the case, as set
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`forth in Exhibit B.
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`Further, a single schedule (per the Court’s order) will serve judicial economy. All of the
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`claims at issue are patent infringement claims, and all involve patents directed to potentially reduced-
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`risk smoke-free alternatives to smoking. A single schedule with a single deadline for fact discovery,
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`expert discovery, and claim construction briefing will (1) facilitate an orderly and streamlined
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`discovery process on these technologically related claims and (2) conserve the Court’s resources
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`because the Court will only need to conduct a single claim construction hearing, a single pretrial
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`conference, and a single trial. Plaintiffs’ proposal will force the parties and Court to contend with
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`arbitrarily staggered deadlines, and participate in two claim construction hearings, two pretrial
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`conferences, and two trials. See Broadcom Corp. v. Sony Corp., No. 16-1052 JVS (JCGx), 2016 WL
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`9108039, at *4 (C.D. Cal. Dec. 20, 2016) (separate case deadlines “hinders judicial economy” and
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`forces court to “spend twice the amount of judicial resources to resolve a dispute between the same
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`parties, who are represented by the same attorneys”).
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`Plaintiffs contend that their patent claims are entitled to proceed first because they purportedly
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`filed their complaint first. But Plaintiffs conceded that their initial complaint was deficient, and
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`voluntarily amended their complaint without opposing Defendants’ motion to dismiss. Plaintiffs
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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 5 of 29 PageID# 1539
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`therefore filed their operative complaint after Defendants’ complaint. See Dkt. 39, 40, 52.
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`Accordingly, if anything, Defendants’ claims should proceed first. Indeed, Defendants filed their
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`counterclaims as soon as their response to the complaint was due—before any scheduling order
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`issued, and before discovery began.
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`Plaintiffs also contend that it is not “feasible” to complete fact and expect discovery on
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`Defendants’ counterclaims in the current timeframe provided by the Court’s order. But Plaintiffs
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`filed suit in this Court, and should not be permitted to re-write the Court’s order that discovery be
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`complete by January 8, 2020 because of its complaint that the Court’s timeline is not “feasible.”
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`Moreover, Plaintiffs’ complaint that they had 12 fewer weeks to investigate and search for experts is
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`irrelevant. First, expert reports are months away. Second, Plaintiffs appear to have had no problem
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`finding experts as they have already stated that they will be filing IPRs in the “near future.” Third,
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`Plaintiffs’ assertion is suspect given that the parties have been litigating each other in multiple U.S.
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`and foreign jurisdictions. Finally, discovery began on the same date for all claims and is already
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`proceeding in parallel on all claims. Both Plaintiffs and Defendants have served discovery covering
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`all claims, confirming that a single schedule for discovery is feasible and practical.
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`At bottom, Plaintiffs’ proposal is a request that the Court sever and delay Defendants’
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`counterclaims—even if the Court denies Plaintiffs’ pending motion to sever Defendants’
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`counterclaims. Tellingly, the only case Plaintiffs cite (Samsung) concerns severance, confirming that
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`Plaintiffs’ schedule is nothing more than another request for severance. Regardless, Samsung is
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`easily distinguishable. There, the court severed counterclaims filed more than five months after the
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`complaint was filed, alleging infringement of over 200 accused products, after a scheduling order
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`was already entered.
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` And, unlike here, the technologies between the claimant’s and
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`counterclaimant’s patents were markedly different (semiconductor manufacturing, computer cases
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`and circuit design on the one hand and graphics processing on the other). Samsung Elecs. Co. v.
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`5
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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 6 of 29 PageID# 1540
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`Nvidia Corp., No. 3:14cv757, 2015 WL 13723075, at *1 (E.D. Va. May 19, 2015); see also Dkt. 65,
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`87 in No. 3:14cv757 (E.D. Va.). Defendants’ proposed schedule should be adopted and all claims at
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`issue here should proceed on the same schedule (Exhibit B).
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`A chart with the parties’ competing schedules is shown below.
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`Event
`File Protective Order
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`Rule 26(a)(1) Initial Disclosures
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`Parties to Exchange Claim Terms for
`Construction
`Parties to Exchange Preliminary Claim
`Constructions and Extrinsic Evidence In
`Support Thereof
`Substantially Complete Document
`Production
`Parties File Simultaneous Opening Claim
`Construction Briefs
`Parties File Simultaneous Responsive
`Claim Construction Briefs
`Claim Construction Hearing
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`Close of Fact Discovery
`Opening Expert Reports for Party with
`Burden of Proof
`Responsive Expert Reports for Party
`without Burden of Proof
`Close of Expert Discovery (Defendants)
`Close of Fact/Expert Discovery (Plaintiffs)
`Parties to Electronically File On or Before
`PTC the Rule 26(a)(3) Disclosures; List of
`Exhibits for Trial; List of Witnesses for
`Trial; Written Stipulation of Uncontested
`Facts
`Deadline to File Dispositive Motions
`Final Pretrial Conference (1:30 pm)
`
`
`Plaintiffs’ Proposal*
`September 9, 2020 (or
`move for one to be
`heard September 11,
`2020)
`September 9, 2020
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`Defendants’
`Proposal*
`September 2, 2020
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`September 9, 2020
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`October 2, 2020
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`October 2, 2020
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`October 9, 2020
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`October 9, 2020
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`No date offered
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`October 23, 2020
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`October 23, 2020
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`October 23, 2020
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`November 6, 2020
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`November 6, 2020
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`November 13, 2020
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`January 8, 2021
`November 25, 2020
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`November 10-13,
`2020
`November 13, 2020
`November 20, 2020
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`December 22, 2020
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`December 18, 2020
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`January 8, 2021
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`January 8, 2021
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`January 15, 2021
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`January 15, 2021
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`January 15, 2021
`January 15, 2021
`6
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`January 15, 2021
`January 15, 2021
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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 7 of 29 PageID# 1541
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`Event
`Objections to Exhibits
`Briefing on Daubert Motions and Motions
`In Limine
`Trial
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`Plaintiffs’ Proposal*
`January 25, 2021
`TBD: At least 14 days
`before trial
`TBD: 4-8 weeks after
`the Final Pretrial
`Conference
`* Plaintiffs’ proposed dates apply to claims relating to Reynolds’s asserted patents only.
`Defendants’ proposed dates apply to all claims in the case.
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`Defendants’
`Proposal*
`January 25, 2021
`Set for hearing at least
`14 days before trial
`TBD
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`II.
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`SETTLEMENT
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`The parties will comply with any and all directions by the Court to mediate or pursue
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`settlement discussions.
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`III. TRIAL
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`A.
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`The parties do not consent to the exercise of jurisdiction by a United States Magistrate
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`Judge for trial and entry of final judgment. A jury trial has been demanded.
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`B.
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`At this early stage of the proceedings, the parties’ estimates for trial time are set forth
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`below.
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`C.
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`Reynolds’s Position: Reynolds’s believes that the parties should meet and confer
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`about the length of the trial(s) after this Court rules on the pending motion to sever and transfer and
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`any necessary motion for a separate trial, and prior to the final pre-trial conference(s). At this time,
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`Reynolds estimates that a trial on claims relating to the Reynolds Patents in this action will take
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`approximately five (5) full trial days and a trial on Defendants’ infringement counterclaims will take
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`eight (8) full trial days. To the extent that the motion to sever and transfer is denied and that the
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`motion for separate trials is denied, Reynolds estimates that the total time for trial of each side’s
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`claims will take thirteen (13) full trial days.
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`D.
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`Defendants’ Position: At this time, Defendants-Counterclaim Plaintiffs anticipate
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`that the trial on all claims will take approximately 10 court days to complete.
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`7
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`IV.
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`INITIAL DISCLOSURES
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`The parties agree to exchange Federal Rule 26(a)(1) Initial Disclosures on or before
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`September 9, 2020.
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`V.
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`JOINDER OF PARTIES AND AMENDMENT OF THE PLEADINGS
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`Any amendment of the pleadings or joinder of additional parties shall be governed by the
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`Federal Rules.
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`VI.
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`FACT DISCOVERY
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`A.
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`This Discovery Plan shall not be construed to limit the parties’ rights to initiate or
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`oppose discovery, nor limit their rights to timely supplement or otherwise amend their disclosures
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`consistent with the Federal Rules.
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`B.
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`Preservation and Timing: The parties are taking all reasonable steps necessary to
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`preserve all discoverable material. The parties agree to produce documents on a rolling basis in
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`response to document requests in this case. The parties shall provide or make all materials obtained
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`from third parties pursuant to Rule 45 available to other parties within three (3) business days of
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`receipt.
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`C.
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`Limits on Written Discovery: Neither side shall serve on the other side more than
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`thirty (30) interrogatories, including parts and subparts, without leave of the Court.
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`D.
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`Depositions
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`1.
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`A party may not exceed five (5) non-party, non-expert witness depositions.
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`The deposition of any non-party who is a named inventor on a patent-in-suit
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`will be considered a party deposition. The parties agree that Reynolds may
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`take a maximum of seventy (70) deposition hours of ACS and PM USA,
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`including depositions of named inventors of the patents-in-suit; and a
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`maximum of seventy (70) deposition hours of PMP, including depositions of
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`named inventors of the patents-in-suit. The parties agree that ACS, PM USA,
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`and PMP (i.e., Defendants) may jointly take a maximum of seventy (70)
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`deposition hours of Reynolds, including depositions of named inventors of the
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`asserted patents.
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`2.
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`Individually-noticed depositions that are conducted entirely in English will
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`presumptively be limited to one day of seven (7) hours on the record;
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`individually noticed depositions that are conducted at least partially through a
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`translator will presumptively be limited to a total of ten (10) hours on the
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`record. Whether the length of an on-the-record deposition time on a single
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`day will exceed seven (7) hours is subject to the preferences and discretion of
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`the witness. The parties agree to negotiate in good faith if it appears that a
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`particular deposition warrants terms, conditions and/or time limits different
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`than those specified above, and nothing in this section shall be interpreted to
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`prevent the parties from agreeing to such different terms, conditions and/or
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`time limits for a particular deposition.
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`3.
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`For fact witnesses located within or outside the U.S., the parties agree to
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`conduct the deposition in a city convenient to the witness. The requesting
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`party is responsible for arranging the location of the deposition in the city
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`specified by the producing party. The parties will endeavor to schedule
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`depositions in blocks in the same location to lessen the costs and burden of
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`travel.
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`4.
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`For expert witnesses, the parties agree to make reasonable efforts to conduct
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`depositions near Alexandria, VA and to avoid conducting simultaneous
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`depositions. For a non-party witness, the parties agree to conduct the
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`deposition in a city reasonably agreeable to the non-party witness. The
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`requesting party is responsible for arranging the location of the deposition in
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`the agreed-upon city. Nothing in this subsection restricts a party’s ability to
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`seek compliance with applicable discovery rules and any ruling(s) by the Court
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`with regard to third-party witnesses.
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`5.
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`For both fact and expert witnesses, the parties will work together to reach an
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`agreed resolution should the global pandemic prevent or make impossible in-
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`person depositions. It shall be each witness’ choice whether to conduct his/her
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`deposition in person or by remote means.
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`6.
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`The parties agree that, notwithstanding Local Civil Rule 30(D)-(E), each party
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`shall bear its own costs and fees for transporting its counsel of record to any
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`deposition taken beyond a division of this Court.
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`E.
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`Production of Samples: The parties agree to work cooperatively in good faith to
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`exchange product samples, and specifically requested components thereof, in a timely manner so that
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`counsel and/or experts have sufficient time to analyze them under the applicable schedule. Samples
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`will be sent to the address(es) designated by the receiving party.
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`F.
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`Documents Received in Response to a Subpoena: Any party who receives
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`documents from a third party pursuant to a subpoena shall reproduce those documents to the other
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`parties within three (3) business days of receipt. The parties agree that they shall make reasonable
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`efforts to reproduce such third-party materials in fewer than three (3) business days when necessary
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`such as, for example, in the event such documents may be used in a deposition. Where reproduction
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`of the documents within three (3) business days is not feasible, the party who received the documents
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`shall provide prompt notice to the other parties and the issue will be resolved on a case-by-case basis.
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`10
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`VII. ELECTRONICALLY STORED INFORMATION
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`A.
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`Email
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`1.
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`The parties agree that no electronic mail (including attachments) need be
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`searched or produced unless good cause for the search and production can be
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`shown after a meet-and-confer. The parties agree that, in the event email is
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`sought, the request for email shall be as specific and narrow as possible,
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`including limiting the request to a small number of custodians and limiting the
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`number of search terms. Email attachments maintained separately as
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`independent documents or files may not be withheld from discovery on the
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`basis of having been transmitted or obtained by email.
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`2.
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`Email production requests shall identify the custodian, search terms, and time
`
`frame. The parties shall cooperate to identify the proper custodians, proper
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`search terms, and proper timeframe.
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`3.
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`Each requesting party shall limit its email production requests to a total of five
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`custodians per producing party for all such requests. The parties may jointly
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`agree to modify this limit without the Court’s leave.
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`4.
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`Each requesting party shall limit its email production requests to a total of five
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`search terms per custodian per party. The parties may jointly agree to modify
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`this limit without the Court’s leave. The search terms shall be narrowly
`
`tailored to particular issues. Indiscriminate terms, such as the producing
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`company’s name or its product name, are inappropriate unless combined with
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`narrowing search criteria that sufficiently reduce the risk of overproduction.
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`A conjunctive combination of multiple words or phrases (e.g., “computer” and
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`“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
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`narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit
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`the production and shall be considered when determining whether to shift costs
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`for disproportionate discovery.
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`B.
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`Form of Production and Electronically Stored Information: Unless otherwise
`
`agreed between the parties, all documents, including any electronically stored information (“ESI”),
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`shall be produced in native-file format or as TIFF images as follows, subject to the technical
`
`capabilities of the producing party or its vendor:
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`1.
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`If ESI (or non-ESI) is produced as TIFF images, it shall be produced as single-
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`page TIFF images, black and white, at 300 x 300 dpi resolution with a standard
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`delimited concordance format (DAT file) and either IPRO (LFP file) or
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`Opticon (OPT file) format, including document breaks and page counts. The
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`producing party may reproduce any document in color in JPG format or at a
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`higher resolution. Documents reproduced in color or at a higher resolution
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`shall bear the same production number(s) as the originally produced document
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`where practicable. The receiving party may reasonably request the
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`reproduction of any document in color in JPG format or at a higher resolution.
`
`2.
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`Document level extracted text files with a .txt extension will be provided for
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`all produced documents. The text file name will correspond to the beginning
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`production number of the image or native file. A field will be included in the
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`DAT with the path to the corresponding text file. Where extracted text is
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`unavailable, Optical character recognition (“OCR”) data shall be included as
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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 13 of 29 PageID# 1547
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`part of the document-level TXT file. Such OCR data shall match the
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`pagination of the corresponding TIFF images. To the extent a producing party
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`provides OCR data, the receiving party accepts the data “as is,” and the
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`producing party accepts no liability as to the accuracy of searches conducted
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`using the OCR data.
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`3.
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`Images shall be produced using a unique file name that will be the production
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`number of that page (e.g., ABC000001.TIFF). The production number shall
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`appear on the face of the image. For documents that are produced as native
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`files, the producing party will include in the set of TIFF images a one-page
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`slipsheet that reads “FILE PRODUCED NATIVELY” where the native file
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`would otherwise have been produced. The one-page slipsheet will include the
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`production number of the corresponding native file and the confidentiality
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`designation. In addition, native files shall be produced using a name that bears
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`the production number, for example: ABC000002.xls. The producing party
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`shall also include any confidentiality designation in the produced filename
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`where
`
`possible
`
`and
`
`reasonable,
`
`for
`
`example:
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`ABC000002_CONFIDENTIAL.xls. The DAT file shall also include a path
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`to the native file.
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`4.
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`Parent-child relationships (association between an attachment and its parent
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`document) shall be preserved to the extent such relationships are maintained
`
`in the normal course of business in the source repository. The attachment(s)
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`shall be produced adjacent to the parent document in terms of production
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`numbers, with the first attachment being named with the next sequential
`
`number after the parent, and any additional attachment(s) sequentially
`
`
`
`13
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`

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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 14 of 29 PageID# 1548
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`5.
`
`6.
`
`numbered after that first attachment. Any parent-child relationship will be
`
`reflected in the DAT file.
`
`Productions that contain foreign language documents shall be Unicode
`
`compliant.
`
`To the extent possible, the unitization of a produced electronically stored
`
`document and any attachments or affixed notes shall be maintained as it
`
`existed in the original file or computer. Scanned/paper documents should be
`
`logically unitized (i.e., to preserve page breaks between documents and
`
`otherwise allow separate documents to be identified).
`
`7.
`
`If unitization cannot be maintained, the original unitization shall be
`
`documented in the associated load file or otherwise electronically tracked if
`
`possible.
`
`8.
`
`9.
`
`Each party will use reasonable efforts to filter out common system files and
`
`application executable files.
`
`A party is required to produce only a single copy of a responsive document
`
`and a party may de-duplicate responsive ESI (based on MD5 or SHA-1 hash
`
`values at the document level) across custodians. Metadata for any de-
`
`duplicated files shall reflect each custodian from whom the document was
`
`collected and processed. To the extent that de- duplication through MD5 or
`
`SHA-1 hash values is not possible, the parties shall meet and confer to discuss
`
`any other proposed method of de-duplication.
`
`10.
`
`The parties are not required to preserve metadata fields that are frequently
`
`updated in the ordinary course of business, such as last-opened dates.
`
`
`
`14
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`

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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 15 of 29 PageID# 1549
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`11.
`
`No party shall be required to create any metadata for production (e.g., hash
`
`value or other metadata not associated with ESI in the ordinary course of
`
`business) except that the parties will create a field to indicate whether or not a
`
`document has been marked confidential pursuant to the protective order (see
`
`below list of metadata fields). However, a receiving party may not rely solely
`
`on this field to identify information and documents that it is required to treat
`
`as confidential. Any document produced with a confidentiality banner on the
`
`produced image is to be afforded confidential treatment under the Protective
`
`Order regardless of whether there is an entry in this field.
`
`12.
`
`A party producing documents pursuant to this paragraph will provide an
`
`ASCII- delimited load file (DAT) with at least the following metadata fields:
`
`Field Name
`
`Field Description
`
`Sample Value
`
`BegBates
`
`EndBates
`
`File Name
`BegAttach
`
`EndAttach
`
`Pgcount
`
`Beginning production number for
`a given file/document
`Ending production number for a
`given file/document
`Name of the file
`Bates number for the first
`page of first attachment
`Bates number for the last page of
`last attachment
`Total number of pages in the
`document
`
`ABC00000001
`
`ABC00000025
`
`Contract.docx
`ABC00000002
`
`ABC00000005
`
`13
`
`Title
`
`The Title property of a file
`
`All Custodians
`
`All Filepaths
`
`Identify all custodians where
`document was de-duped
`Identify all filepaths where
`documented was de-duped
`
`Author
`
`The Author property of an efile
`document
`15
`
`
`
`Title (subject line
`for emails, file
`name for non-
`email)
`Doe, John; Doe,
`Jane
`C:\temp;
`f:\DepartmentSha
`re
`John Doe
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 16 of 29 PageID# 1550
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`Field Name
`
`Field Description
`
`Sample Value
`
`FileExtension
`FileSize
`Hash
`
`Doc
`The file extension
`64590
`Filesize in bytes
`De4532af543509
`Unique identifier of the file (MD5
`kd
`or SHA)
`mm/dd/yyyy
`Document date created
`DateCreated
`Date Document was last modified mm/dd/yyyy
`Last Modified
`Confidentiality Confidentiality designation
`CONFIDENTIAL
`TextLink
`Contains path to .TXT files
`\FullText\001\AB
`C00002.txt
`\Natives\001\AB
`C000002.xls
`
`NativeLink
`
`Contains path to native files
`
`
`
`C.
`
`Natives: The producing party has the option of producing as native files any
`
`spreadsheet, presentation, or database file, and other documents that cannot be converted to a TIFF
`
`image format in a readily-usable and legible format. In addition, a producing party shall not be
`
`required to produce in TIFF format when the conversion to image TIFF format would impose
`
`unreasonable cost on the producing party and/or would result in unintelligible documents. If
`
`documents are produced in native format, the producing party shall also provide extracted text files.
`
`A producing party shall reasonably comply with reasonable requests that spreadsheets and other
`
`documents produced in TIFF format that are unintelligible or not readily usable be produced in
`
`another format, such as native format. The parties also shall reasonably comply with reasonable
`
`requests for the production of higher-resolution or color images. The producing party shall have the
`
`option of producing the native-file version of the documents in response to such requests.
`
`D.
`
`Sources Not To Be Searched: Absent a showing of good cause by the requesting
`
`party, the parties agree that the following sources need not be searched and therefore need not be
`
`preserved: automated disaster recovery backup systems and/or disaster recovery backup tapes;
`
`RAM or temporary files; temporary internet files, history, cache, cookies, and other on-line access
`
`data; data in metadata fields that are updated automatically such as last-opened dates; data
`
`remaining from systems no longer in use that is unintelligible on the systems in use; residual,
`
`
`
`16
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`

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`Case 1:20-cv-00393-LO-TCB Document 97 Filed 09/02/20 Page 17 of 29 PageID# 1551
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`fragmented, damaged, permanently deleted, slack, and unallocated data; voicemail systems; text
`
`messages; mobile devices; personal home computers; instant messaging logs; and social media or
`
`other web-based communications. The parties agree to meet and confer if relevant unique hard
`
`copy documents or physical materials are discovered during the document collection process.
`
`VIII. CROSS-USE
`
`The parties have produced and continue to produce documents in the case captioned: In The
`
`Matter Of Certain Tobacco Heating A