Case 1:22-cv-01331-MSN-JFA Document 59 Filed 04/04/23 Page 1 of 14 PageID# 684
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`GEOSCOPE TECHNOLOGIES PTE. LTD.,
`Plaintiff,
`
`V.
`
`Civil Action No. 1:22-cv-01331-MSN-JFA
`
`GOOGLE LLC,
`
`Defendant.
`
`STIPULATED ORDER FOR ELECTRONICALLY STORED INFORMATION
`
`Plaintiff Geoscope Technologies Pte Ltd. ("Geoscope" or "Plaintiff), and Defendant
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`Google LLC ("Google" or "Defendant") (together with Plaintiff, the "Parties"), submit this
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`Stipulated Order for Electronically Stored Information. The Parties to this action hereby agree and
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`stipulate to the following:
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`1.
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`This Stipulated Order for Electronically Stored Information shall apply to this
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`case as a supplement to the Federal Rules of Civil Procedure and any other applicable orders and
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`rules.
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`2.
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`Electronically stored information ("ESI") will be part of the discoverable material
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`in this case and the Parties agree to cooperatively exchange discoverable material and use
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`reasonable, good faith and proportional efforts to identify, preserve, collect, and produce
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`information relevant to a Party's claim or defense and proportional to the needs of the case
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`considering the importance of the issues at stake in the action, the amount in controversy, the
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`Parties' relative access to relevant information, the Parties' resources, the importance of the
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`discovery in resolving the issues, and whether the burden or expense of the proposed discovery
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`outweighs its likely benefit. This includes identifying appropriate limits on discovery, including
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`limits on custodians, identification of relevant subject matter, time periods for discovery, and
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`other parameters to limit and guide preservation and discovery issues. A Party's meaningful
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`compliance with this order and efforts to promote efficiency and reduce costs will be considered
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`in cost-shifting determinations.
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`3.
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`Costs may be shifted for disproportionate ESI production requests pursuant to
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`Federal Rule of Civil Procedure 26. Likewise, a Party's nonresponsive or dilatory discovery
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`tactics are cost-shifting considerations.
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`4.
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`This Stipulation relates solely to the protocol in this case for identifying,
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`collecting, and producing ESI. Any Party may bring a motion to modify or clarify the
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`application of this Stipulation.
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`Sources of and Limitations on ESI
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`5.
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`The Parties recognize the obligation to take reasonable and proportional steps to
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`identify and preserve discoverable information within the Party's possession, custody and
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`control, and agree to identify and preserve ESI from the following data sources:
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`a.
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`Electronic mail;
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`b.
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`Computer or laptop hard drives and/or storage; and
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`c.
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`Network file servers and archives.
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`6.
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`General ESI production requests under Federal Rules of Civil Procedure 34 and
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`45 shall not include email or other forms of electronic correspondence (collectively "email").
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`Neither party is required to search for or produce email in response to discovery requests. To the
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`extent that any email is found in connection with collecting and producing general (i.e. non-
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`email) ESI, such emails shall not be withheld solely on the basis of this paragraph. Should a
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`party determine in good faith that email discovery is required, the parties agree to meet and
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`confer on whether email production is appropriate and, if so, the procedures for email discovery,
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`including the identification of custodians, search terms, and timeframes for such discovery.
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`7.
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`To reduce the costs and burdens of preservation and to ensure proper ESI is
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`preserved, the Parties agree that:
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`a. The Parties will meet and confer in good faith to reach agreement on the
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`number of custodians per Party for whom ESI will be preserved, searched, reviewed, and
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`produced
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`b.
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`Notwithstanding prior agreement on the custodians and search terms to be used
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`for electronic searches, the Parties agree to meet and confer in good faith on the need for
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`different or additional custodians or search terms;
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`c.
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`The following data sources are not reasonably accessible because of undue
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`burden or cost pursuant to Fed. R. Civ. P. 26(b)(2)(B) and ESI from these sources will be
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`preserved pursuant to normal business retention, but not searched, reviewed, or produced:
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`1. backup systems and/or tapes used for disaster recovery; and
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`2. systems no longer in use that cannot be accessed.
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`8.
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`Absent a showing of good cause the following categories of ESI need not be
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`searched, preserved or collected and are considered inaccessible due to undue burden and/or
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`expense, or because the information is more reasonably available elsewhere:
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`a.
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`Deleted, slack, fragmented, or unallocated data only accessible by
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`forensics;
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`b.
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`Random access memory (RAM), temporary files, or other
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`ephemeral data that are difficult to preserve without disabling the operating
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`system;
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`c.
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`On-line data such as temporary internet files, history, cache,
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`cookies, and the like;
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`d.
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`Data in metadata fields that are frequently updated automatically
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`as part of the usual operation of a software application, operating system, or
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`network, such as last-opened or last modified dates;
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`e.
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`f.
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`Voice messages;
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`Instant messages and chats that are not chronicled to an email
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`archive system;
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`g.
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`Information contained on handsets, mobile devices, personal
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`digital assistants, and tablets that is duplicative of information that resides in a
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`reasonably accessible data source;
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`h.
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`Mobile device activity logs;
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`i.
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`Server, system, or network logs except for those related to or
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`involved in the functionality or operation of any Accused Instrumentalities;
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`j.
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`Dynamic fields in databases or log files not stored or retained in
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`the usual course of business;
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`k.
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`Automatically saved versions of documents and emails;
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`1.
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`Video and audio recordings; and
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`m. Other forms of ESI whose preservation requires unreasonable,
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`disproportionate, non-routine measures that are not utilized in the ordinary
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`course of business.
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`Search
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`9.
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`The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, they
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`will meet and confer about methods to search ESI in order to identify ESI that is subject to
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`production in discovery and filter out ESI that is not subject to discovery.
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`b)
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`Each party will use its best efforts to filter out common system files and
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`application executable files by using a commercially reasonable hash identification process.
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`Hash values that may be filtered out during this process are located in the National Software
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`Reference Library ("NSRL") NIST hash set list. Additional culling of file types based on file
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`header information may include, but are not limited to: Application Package File, Backup
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`Files, Batch Files, Binary Disc Image, C++ File Formats, Cascading Style Sheet, Configuration
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`File, Database File, Dictionary Files, Dynamic Link Library, Event Log Files, Executable
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`Files, Hypertext Cascading Stylesheet, Java Archive Files, JavaScript files, JavaScript Source
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`Code and Class Files, Macintosh Resource Fork Files, MP3 Files, MP4 Files, Package
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`Manager Files, Program Files, Program Installers, Python Script Files, Quicktime Files, Shell
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`Script Files, System or Temporary Files, Thumbnail Cache Files, Troff Files, TrueType Font
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`Files, Video Media Files, Waveform Audio File Format, Windows Cabinet File, Windows
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`Command Files, Windows File Shortcut, Windows Help Files, Windows Metafiles and
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`Enhanced Metafiles, Windows Spool Files, Windows System File. Source code files will be
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`provided according to the Protective Order and not included in custodial data productions.
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`Production Format
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`10.
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`Except as otherwise provided below, ESI and hard copy documents shall be
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`produced in accordance with the specifications set forth in Appendix I to this Order.
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`a. an ASCII delimited data file (.DAT) using standard delimiters;
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`b. an image load file (.OPT) that can be loaded into commercially acceptable
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`production software {e.g.. Relativity);
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`c. TIFF images; and
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`d. Document level .TXT files for all documents containing extracted full text or
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`OCR text.
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`11.
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`Documents that exist as ESI shall be converted and produced as TIFFs, except as
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`provided below. Where the TIFF image is unreadable or has materially degraded the quality of
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`the original, the producing Party shall endeavor to provide a higher quality TIFF image or the
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`native or original file upon request. The Parties reserve their rights to reasonably seek additional
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`electronic documents in their native format.
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`12.
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`Documents originating in paper form will be scanned at 300 DPI and undergo
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`Optical Character Recognition (OCR). These documents will be produced in single-page TIFF
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`image format as indicated below together with document-level text files. Paper documents will
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`be logically unitized to reflect correct document boundaries for each document.
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`13.
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`All production documents will be produced with image load files, the data fields
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`provided in the table in Appendix 1, below, and either extracted text or text generated using OCR
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`that render documents searchable. In those instances where redaction is used, OCR text will be
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`provided in lieu of the extracted text to allow for removal of the redacted text from production.
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`For documents produced in native format, in addition to producing extracted text (or OCR text)
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`files and the data fields in the table in Appendix 1 below, the producing Party will provide
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`placeholder TIFF images endorsed with the production number and level of confidentiality
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`pursuant to any applicable protective orders in this case.
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`14.
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`ESI will be processed and produced with all hidden text (e.g., track changes,
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`speaker's notes, hidden rows or columns, comments, markups, notes, etc.) and formulas exposed
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`and extracted in the TIFF image or extracted text file.
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`15.
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`ESI shall be produced as kept in the ordinary course of business.
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`16.
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`Parent-child relationships will be maintained in production. A parent document
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`(/.e., a document with attachments, enclosures, exhibits, or other subordinate documents) and its
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`subordinate documents shall be produced as a group and in the order and form in which they are
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`kept. More specifically, each discrete document in the group will be assigned its own production
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`numbers and will be identified as a separate document in the load files, but the documents within
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`a group will be produced consecutively, and all documents in the group will have the same group
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`range (as indicated by the BEGATTACH and ENDATTACH fields), which will begin with the
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`beginning production number of the first document in the group and will end with the ending
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`production number of the last document in the group.
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`17.
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`If a particular document warrants a different production format, the Parties will
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`cooperate in good faith to arrange for a mutually acceptable production format.
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`18.
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`Documents shall be encrypted and produced through electronic means, such as
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`secure file sharing methods {e.g., FTP), or on flash drive or extemal hard drive ("Production
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`Media"). Each piece of Production Media shall identify a production number corresponding to
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`the production volume {e.g., "VOLOOl"). Each piece of Production Media shall also identify: (a)
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`the producing Party's name; (2) the production date; (3) the Bates number range of the materials
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`contained on the Production Media. Nothing in this Order will preclude or impair any and all
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`protections provided the Parties by any applicable protective order(s). Any data produced by the
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`producing Party must be protected in transit, in use, and at rest by all in receipt of such data.
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`Parties will use best efforts to avoid the unnecessary copying or transmittal of produced
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`documents. Any copies made of produced data must be kept on media or hardware employing
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`whole-disk or folder level encryption or otherwise secured on information systems and networks
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`in a manner consistent with the best practices for data protection.
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`Image Format
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`19.
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`Documents that are converted to TIFF format will be produced in accordance with
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`the following technical specifications:
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`20.
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`Single-page, Group IV TIFF image files with at least 300 dpi;
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`21.
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`Presentations {e.g., PowerPoint slides) and PDF documents in color shall be
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`produced in color. Other documents or ESI need not be produced initially in color. However, if
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`an original document or ESI item contains color markings, the requesting Party may, in good
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`faith, make reasonable requests for the document or ESI item to be produced in its original
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`colors.
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`22.
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`Bates numbers should be endorsed on the lower right comer of all TIFF images
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`(including placeholder TIFF images for native files) with a unique, consistently formatted
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`identifier, i.e. alpha prefix along with a fixed length number (e.g., ABCOOOOOOl). The number
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`of digits in the numeric portion of the Bates number format should not change in subsequent
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`productions;
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`23.
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`Confidentiality designations, if any, will be endorsed on the lower left comer of
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`all TIFF images (including placeholder TIFF images for native files);
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`24.
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`Presentations (e.g., PowerPoint slides) should be rendered to TIFF in full slide
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`image format, with any hidden slides or speaker's notes unhidden, with any speaker's notes
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`shown on the same TIFF image as the corresponding slide or immediately after the
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`corresponding slide;
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`25.
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`Spreadsheets (e.g.. Excel) will only be rendered to TIFF image format if (1) the
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`file can be fully viewed, meaning that all hidden information in the Excel file (e.g., rows,
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`columns and comments) will be rendered to TIFF; or (2) the Excel file has undergone redaction.
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`Otherwise such documents will be produced natively, as described below;
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`26.
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`The Parties agree to respond to reasonable and specific requests for the production
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`of higher resolution images. Nothing in this Stipulation shall preclude a producing Party from
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`objecting to such requests as unreasonable in number, timing or scope, provided that a producing
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`Party shall not object if the document as originally produced is illegible or difficult to read. The
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`producing Party shall have the option of responding by producing a native-file version of the
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`document. If a dispute arises with regard to requests for higher resolution images, the Parties will
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`meet and confer in good faith to try and resolve it.
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`27.
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`The Parties are not obligated to include populate manually any of the metadata
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`fields in Appendix 1 if such fields do not exist or cannot be extracted from a document, with the
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`exception of the following: (a) BEGBATES (or PRODBEG), (b) ENDBATES (or PRODEND),
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`(c) BEGATTACH, (d) ENDATTACH, (e) CONFIDENTIALITY, (f) CUSTODIAN, (g) TEXT,
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`and (h) NATIVEFILE (if applicable).
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`28.
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`If particular documents warrant a different production format, the Parties will
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`cooperate in good faith to arrange for a mutually acceptable production format.
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`29.
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`Notwithstanding the foregoing, all documents that the producing Party received
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`from third parties should be produced in the same manner and form, including native files and all
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`metadata, as the producing Party received from the producing third party.
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`Searchable Text
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`30.
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`Searchable text of entire documents will be produced either as extracted text for
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`all documents that originate in electronic format, or, for paper documents and any document
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`from which text cannot be extracted, as text generated using Optical Character Recognition
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`(OCR) technology. For redacted documents, the full text of the redacted version of the
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`document will be produced.
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`31.
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`Searchable text will be produced as a document-level multi-page ASCII text file
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`with the text file named the same as the PRODBEG field, placed in a separate folder. The full
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`path of the text file must be provided in the .DAT file for the TEXT field.
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`Native Files
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`32. To the extent that they are produced in this action, audio, video, and multi-media
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`files will be produced in native format.
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`33.
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`Native file documents may be included with the electronic production using the
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`below criteria:
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`34.
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`Native file documents must be named the same as the PRODBEG number;
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`35.
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`The full path of the native file must be provided in the .DAT file for the
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`NATIVE_FILE field;
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`36. When native files are produced, a TIFF image placeholder will be produced
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`endorsed with the file name. Bates number, confidentiality designation, and the legend
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`"Document Produced in Native Format" (or something similar);
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`37.
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`Native files will be produced applicable metadata fields as set forth in the table in
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`Appendix 1.
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`38.
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`If documents produced in native format are printed for use in depositions, motions
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`or hearings, the Party printing the document must label the front page of the file that is printed
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`with the corresponding production number and a sequencing page number and, if applicable, the
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`confidentiality designation assigned by the producing Party to that file under an applicable
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`protective order to be entered in this action.
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`De-Duplication
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`39. A Party is required to produce only a single copy of a responsive document, and a
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`Party may de-duplicate responsive ESI across Custodians. A Party may also de-duplicate email
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`threads and attachments as follows: In an email thread, only the most evolved responsive email
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`in a thread will be produced. Where an earlier-in-thread email has a responsive attachment not
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`contained within the most evolved responsive email, the most evolved earlier-in-thread email
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`containing the attachment will also be produced along with its attachment. An attachment is a
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`file associated with an email for retention and storage as a single message unit.
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`40.
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`Should a producing Party de-duplicate any documents in accordance with the
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`procedure outlined above, the producing Party agrees to produce in the CUSTODIAN data field
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`listed in the table in Appendix 1 the name of each custodian who possessed a duplicate copy of
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`any such documents.
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`41.
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`If applicable, no provision of this Order affects the inspection or production of
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`source code which will be collected and made available consistent with the Protective Order
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`governing this case.
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`Documents Protected from Discovery
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`42. As set forth in the Protective Order, pursuant to Fed. R. Evid. 502(d), the
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`production of a privileged or work-product-protected document is not a waiver of privilege or
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`protection from discovery in this case or in any other federal or state proceeding. Disclosures
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`among Defendant's attorneys and attorneys for the Defendant in Geoscope Technologies Pte.
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`Ltd. V. Apple Inc., No. 1:22-cv-01373-MSN-JFA (E.D. Va.), of work product or other
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`communications relating to issues of common interest shall not affect or be deemed a waiver of
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`any applicable privilege or protection from disclosure.
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`b)
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`Activities undertaken in compliance with the duty to preserve information are
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`protected from discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
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`c)
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`Nothing in this Agreement shall be interpreted to require disclosure of irrelevant
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`11
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`infomiation or relevant information protected by the attorney-client privilege, work-product
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`doctrine, or any other applicable privilege or immunity. The parties do not waive any
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`objections to the production, discoverability, admissibility, or confidentiality of documents and
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`ESI.
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`IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
`
`DATED: April 3. 2023
`
`/s/ Christopher W. Bascom
`
`Attorneys for Plaintiff
`
`DATED: April 3. 2023
`
`/s/ Stephen E. Noona
`
`Attorneys for Defendant
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`PURSUANT TO STIPULATION, IT IS SO ORDERED.
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`DATED:
`
`./S/
`John F, Anderson
`United States Magistrate Judge
`
`John F. Anderson
`
`United States Biitiitt/Magistrate Judge
`
`12
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`Appendix 1
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`A. Production Components. Productions shall include, in addition to single page TIFFs
`and Text Files, (a) an ASCII delimited metadata file (.txt, .dat, or .csv), and (b) an image
`load file that can be loaded into commercially acceptable production software (e.g..
`Concordance).
`
`B. Image Load File shall contain the following comma-delimited fields:
`BEGBATES, VOLUME, IMAGE FILE PATH, DOCUMENT BREAK, FOLDER
`BREAK, BOX BREAK, PAGE COUNT
`
`C. Metadata Load File shall be delimited according to the following characters:
`0 Delimiter = D (ASCII:0020)
`0 Text-Qualifier = (ASCI1:00254)
`
`D. The following Metadata Fields shall appear in the metadata load file:
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`Field Name
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`BEGBATES (or
`PRODBEG)
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`Field Description
`
`Beginning Bates number as stamped on the production image
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`ENDBATES (or ENDBEG) Ending Bates number as stamped on the production image
`
`BEGATTACH
`
`ENDATTACH
`
`CUSTODIAN
`
`First production Bates number of the first document in a family
`
`Last production Bates number of the last document in a family
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`Includes the Individual (Custodian) from whom the documents
`originated and all Individual(s) whose documents de-duplicated
`out (De-Duped Custodian).
`
`SUBJECT
`
`TITLE
`
`Subject line of email
`
`Title from properties of document
`
`DATESENT
`
`Date email was sent (format: MMfDD/YYYY)
`
`TO
`
`FROM
`
`CC
`
`BCC
`
`AUTHOR
`
`All recipients that were included on the "To" line of the email
`
`The name and email address of the sender of the email
`
`All recipients that were included on the "CC" line of the email
`
`All recipients that were included on the "BCC" line of the email
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`Any value populated in the Author field of the document
`properties
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`FILENAME
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`Filename of an electronic document (Edoc only)
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`DATEMOD
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`DATECREATED
`
`Date an electronic document was last modified (format:
`MM/DD/YYYY) (Edoc only)
`
`Date the document was created (format: MM/DD/YYYY)
`(Edoc only)
`
`NATIVELINK
`
`Native File Link (Native Files only)
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`TEXT
`
`PAGES
`
`The extracted text or OCR text of the document
`
`The number of pages of each individual document
`
`FILESIZE
`
`Size of the document in KB
`
`FILEEXTENSION
`
`The file extension
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`CONFIDENTIALITY
`
`The confidentiality designation assigned
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`14
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