Case 1:22-cv-00252-MSG Document 111 Filed 06/12/23 Page 1 of 4 PageID #: 1580
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
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`Plaintiffs,
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`v.
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`MODERNA, INC. and MODERNATX, INC.,
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`Defendants.
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`MODERNA, INC. and MODERNATX, INC.,
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`Counterclaim-Plaintiffs,
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`v.
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
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`Counterclaim-Defendants.
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`) C.A. No. 22-252-MSG
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`ORDER REGARDING DISCOVERY, INCLUDING DISCOVERY OF
`ELECTRONICALLY STORED INFORMATION (“ESI”)
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`Plaintiffs Arbutus Biopharma Corporation (“Arbutus”) and Genevant Sciences GmbH
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`(“Genevant”), and Defendants Moderna, Inc. and ModernaTX, Inc. (collectively, “Moderna,”
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`collectively with Plaintiffs, the “Parties,” and each Plaintiff and each Defendant individually, a
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`“Party”) hereby stipulate that they will adhere to the Court’s Default Standard for Discovery,
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`Including Discovery of Electronically Stored Information (“ESI”) with the following additional
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`protocols:
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`1.
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`The Parties have agreed to the following requirements for the formatting and
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`contents of privilege logs:
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`1
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`Case 1:22-cv-00252-MSG Document 111 Filed 06/12/23 Page 2 of 4 PageID #: 1581
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`(a)
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`(b)
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`(c)
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`(d)
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`(e)
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`2.
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`3.
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`Each entry shall contain control numbers or other unique identifiers that shall
`persist for the same document through any revisions or updates to the log, and
`different redacted versions.
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`Each entry corresponding to privilege redactions in a produced document shall
`identify the Bates number of the redacted document (and if reproduced with
`different Bates numbers, identify all such Bates numbers that it has been produced
`with).
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`Each entry shall identify, if available and not privileged, the date, sender,
`recipients, custodian, type of privilege asserted, as well as a description of the
`contents of the document sufficient to evaluate the assertion of privilege and the
`type of privilege asserted.
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`Each Party shall produce and maintain only one privilege log for withheld and
`redacted documents, with updates, revisions, and supplements causing
`reproduction of the single log in full, with new entries placed consecutively after
`pre-existing entries.
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`Each Party shall produce a copy of the privilege log in Excel format if requested
`by the opposing Party.
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`The Parties will meet and confer to agree on a time for service of privilege logs.
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`With respect to information generated after the date of the complaint in this case,
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`February 28, 2022, the Parties are not required to include any such information in privilege logs
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`reflecting communications with and/or between inside and outside counsel.
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`4.
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`The Parties have stipulated to a procedure for addressing the inadvertent production
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`of privileged or otherwise protected material in the Stipulated Protective Order (D.I. 85).
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`5.
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`(a)
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`(b)
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`Specific E-Discovery Issues.
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`Search methodology. If the producing party elects to use search terms to locate
`potentially responsive ESI, it shall disclose the search terms to the requesting
`party. Absent a showing of good cause, a requesting party may request no more
`than 10 additional terms to be used in connection with the electronic search.
`Focused terms, rather than over-broad terms (e.g., product and company names),
`shall be employed. The parties must negotiate in good faith as to limitations to
`those search terms to avoid an unreasonable number of search hits.
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`Format. ESI and non-ESI shall be produced to the requesting Party as text
`searchable image files (e.g., PDF or TIFF). When a text-searchable image file is
`produced, the producing Party must preserve the integrity of the underlying ESI,
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`2
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`Case 1:22-cv-00252-MSG Document 111 Filed 06/12/23 Page 3 of 4 PageID #: 1582
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`i.e., the original formatting, the metadata (as noted below). The Parties shall
`produce their information in the following format: single-page TIFF images and
`associated multipage text files containing extracted text or OCR with
`Concordance and Opticon load files containing all requisite information including
`relevant metadata. If a receiving Party believes that color or high-resolution
`images are important to understand a particular document, a Party may request
`that the document be produced in color or as high-resolution images.
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`Redactions for Non-Responsiveness. Absent agreement between the Parties, the
`Parties are not permitted to redact responsive or partially responsive documents
`for Non-Responsiveness. Nothing in this sub-paragraph prevents a Party from
`redacting privileged material, patient Personal Identifiable Information, or other
`information to comply with applicable laws.
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`Native files. The only files that may be produced in native format are files not
`easily converted to image format, such as Excel and Access files. PowerPoint
`files shall be produced as text searchable image files (e.g., PDF or TIFF) that
`include speaker notes, if present. A Party may request native versions of any such
`files, and if the Parties are unable to agree to their production after meeting and
`conferring, the requesting Party may move the Court for their production. The
`producing Party shall bear the burden to show why such documents should not be
`re-produced in native format.
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`De-duplication. Documents should be de-duplicated at the family-group level
`provided that the producing Party identifies the additional custodians in the
`Custodian(s) field or All Custodians field and the additional file paths in the All
`File Path(s) field.
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`Metadata fields. Parties are only obligated to provide the following metadata for
`all ESI produced, to the extent such metadata exists and is able to be accurately
`collected (Metadata such as “Email Subject,” “File Path,” “FileName,” and
`“DocText” may be redacted for privilege):
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`(c)
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`(d)
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`(e)
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`(f)
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`ProdBeg
`ProdEnd
`ProdBegAttach
`ProdEndAttach
`Email From
`Email To
`Email CC
`Email BCC
`Email Date Sent
`Email Time Sent
`File Size
`File Extension
`All File Path(s)
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`Email Subject
`Conversation Index
`FileName
`Author
`DateCreated
`DateLastModified
`EmailRecDate
`EmailRecTime
`MD5HASH or SHA Hash
`DocText (File Path to document text file)
`All Custodian(s)
`Protective Order Confidentiality Designation
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`3
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`

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`Case 1:22-cv-00252-MSG Document 111 Filed 06/12/23 Page 4 of 4 PageID #: 1583
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`6.
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`Any Party that produces documents produced to it by a third party, such as in
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`response to a subpoena, shall produce such documents in the format in which they were produced
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`by the third party.
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`
`
`/s/ Nathan R. Hoeschen
`John W. Shaw (No. 3362)
`Karen E. Keller (No. 4489)
`Nathan R. Hoeschen (No. 6232)
`SHAW KELLER LLP
`I.M. Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 298-0700
`jshaw@shawkeller.com
`kkeller@shawkeller.com
`nhoeschen@shawkeller.com
`Attorneys for Plaintiffs
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`Dated: June 9, 2023
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`/s/ Travis J. Murray
`Jack B. Blumenfeld (No. 1014)
`Brian P. Egan (No. 6227)
`Travis J. Murray (No. 6882)
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`began@morrisnichols.com
`tmurray@morrisnichols.com
`Attorneys for Defendants
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`SO ORDERED this 12th day of June, 2023.
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`_________________________________
`/s/ Mitchell S. Goldberg
` UNITED STATES DISTRICT JUDGE
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`4
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