Nitsch v. Dreamworks Animation SKG Inc. et al, No. 5:2014cv04062 - Document 112 (N.D. Cal. 2015)

Court Description: ORDER GRANTING STIPULATION REGARDING SEARCH TERM PROTOCOL by Magistrate Judge Paul Singh Grewal, granting 109 . Signed by Judge Paul S. Grewal on 4/21/2015. (ofr, COURT STAFF) (Filed on 4/21/2015)
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Nitsch v. Dreamworks Animation SKG Inc. et al 1 2 3 4 5 6 7 8 9 Doc. 112 Steve W. Berman (pro hac vice) Ashley A. Bede (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 steve@hbsslaw.com ashleyb@hbsslaw.com Daniel A. Small (pro hac vice) COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave. NW, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 dsmall@cohenmilstein.com 13 Marc M. Seltzer (54534) SUSMAN GODFREY L.L.P 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 mseltzer@susmangodfrey.com 14 [Additional Counsel on Sig. Page] 15 Interim Co-Lead Plaintiffs’ Counsel 10 11 12 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 SAN JOSE DIVISION 19 20 IN RE ANIMATION WORKERS ANTITRUST LITIGATION 21 22 STIPULATION AND [PROPOSED] ORDER REGARDING SEARCH TERM PROTOCOL THIS DOCUMENT RELATES TO: 23 Master Docket No. 14-CV-4062-LHK ALL ACTIONS 24 25 26 27 28 010473-11 775193V1 Dockets.Justia.com 1 A. General Provisions 1. 2 The Parties agree to meet and confer concerning search methodologies, including 3 without limitation, the use of key word search terms. For any Party1 to this litigation who chooses to 4 use keyword search terms to collect or cull documents for production in this litigation, the following 5 protocol shall be used for the application and testing of search terms. 2. 6 The parties further agree that the Guidelines for the Discovery of Electronically 7 Stored Information (“the ESI Guidelines”) and the Checklist for Rule 26(f) Meet and Confer 8 Regarding Electronically Stored Information (“the ESI Checklist”) adopted by the U.S. District 9 Court for the Northern District of California shall apply as appropriate to ESI discovery, including 10 any meet and confer sessions regarding ESI discovery. 3. 11 The Parties recognize that even though a document contains one or more of the search 12 terms identified in accordance with the procedures listed below, such document may not be 13 responsive to any document request. In such cases, the Responding Party is not required to produce 14 such documents. 15 4. A Responding Party choosing to use search terms to identify potentially responsive 16 documents shall exercise reasonable due diligence in investigating and analyzing its data in 17 providing its proposed list of search terms to the Requesting Party prior to applying the search terms. 18 Examples of such due diligence include, but are not limited to: identification of commonly 19 misspelled words appearing on responsive documents or electronically stored information; 20 identifying idiosyncratic language and terms of art utilized by a party in responsive documents and 21 by interviewing key custodians about the same; utilizing quality control metrics; and using an 22 iterative search approach to identify the terms most likely to locate responsive documents. 23 B. Protocol 24 1. Document Collection: Each Responding Party will collect documents for custodians, 25 within a date range, and from locations agreed to between the parties or pursuant to Court order. 26 Each Responding Party will make a good faith effort to collect documents and information for each 27 28 1 As used herein, a “Requesting Party” is the party who has served Requests for Production and a “Responding Party” is the Party upon whom such Requests for Production were served. STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK 010473-11 775193V1 -1- 1 agreed-upon or court-ordered custodian within twenty-one (21) days of such agreement or court 2 order, or as otherwise agreed as a result of a meet and confer between the relevant parties. Each 3 party will provide, as appropriate, informal discovery consistent with Section III of the ESI Checklist 4 for each electronic source of documents and information. 5 2. Proposed Search Terms: Within twenty-one (21) days of the Parties’ agreement or a 6 Court order regarding a Search Terms Protocol, or as otherwise agreed as a result of a meet and 7 confer between the relevant parties, each Responding Party shall provide to the Requesting Party a 8 list of proposed search terms to run against the custodians and locations as determined in accordance 9 with paragraph (B)(1), above. The Parties acknowledge that developing the final Agreed Terms will 10 be an iterative process including evaluation of search terms proposed by the Responding and 11 Requesting Party. If a search term proposed by a Responding Party pursuant to this paragraph 12 causes issues of privilege, relevance, overbreadth, undue burden or costs, a Responding Party is 13 permitted to propose modifications, provided: (i) the Responding Party explains in writing the 14 issue(s) as to each term and does so separately for each term; and (ii) that the Responding Party 15 provides the Requesting Party with the quantitative metrics outlined in paragraph five below for the 16 initial and proposed modified terms. The parties then shall meet and confer regarding the proposed 17 modifications and, if unable to come to an agreement, shall follow the procedures outlined in 18 paragraph 7 below. 19 3. Additional Terms: If the Requesting Party objects to the sufficiency of the 20 Responding Party’s proposed search terms, within twenty-eight (28) days after service of the 21 Responding Party’s list of proposed search terms, the Requesting Party may propose modifications to 22 the Responding Party’s terms or a list of additional terms, with the combination of modifications and 23 additional terms being no more than 125 in total, subject to the paragraph regarding Additional 24 Terms for Good Cause below. 25 4. Application of Agreed Terms: Each Responding Party will proceed with the 26 application of (i) its own proposed search terms and (ii) the search terms from the Requesting Party’s 27 proposed search term list to which the Responding Party does not object (“Agreed Terms”). The 28 STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK 010473-11 775193V1 -2- 1 Parties shall meet and confer regarding the results of these searches with respect to issues such as, 2 but not limited to privilege, relevance, overbreadth, undue burden and costs. To the extent the 3 parties can agree to search terms without the Court’s assistance, those terms will be considered 4 Agreed Terms and the results of these searches will then be reviewed for responsiveness and 5 privilege, and for necessary redactions. If the parties do not come to agreement regarding any search 6 term, it shall be considered a Disputed Search Term subject to paragraph 5 below. 7 5. Disputed Search Terms: To the extent that a Responding Party believes that any of 8 the remaining search terms (the “Disputed Terms”) proposed by a Requesting Party are unreasonably 9 overbroad and/or will result in the identification of disproportionate numbers of irrelevant 10 11 documents, the Responding Party will identify: (i) 12 13 the aggregate hits for each of the Disputed Terms (i.e. the number of documents returned by a search term); (ii) 14 the number of unique hits for each of the Disputed Terms (the number of documents which contain the a particular search term, but no other); 15 (iii) the total number of documents returned by the Agreed Terms; 16 (iv) the total number of documents being searched for the Disputed Terms; and 17 (v) the nature and type of irrelevant documents that the search term is returning. With 18 respect to any search term for which the Responding Party believes that there exists a modification 19 that will reduce the number of irrelevant documents returned by the search term, the Responding 20 Party will meet and confer with the Requesting Party to discuss in good faith any such modification. 21 For any terms that a Responding Party believes are burdensome, overly broad, and/or objectionable 22 and for which there does not appear to be any modification that would resolve such issues, the 23 Responding Party will meet and confer with the Requesting Party to discuss in good faith its 24 objections to such search terms. As part of that process, the Responding Party will not refuse to 25 provide the Requesting Party with the quantitative information discussed above. 26 27 6. Qualitative Sampling Information Regarding Disputed Terms: In the event that the parties are unable following good faith efforts to resolve any dispute after exhausting the 28 STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK 010473-11 775193V1 -3- 1 Disputed Search Terms procedures set forth in Paragraph 5 above, the Requesting Party may request 2 that random sampling be done. If the parties cannot reach agreement, they will stipulate for the 3 motion to be heard on shortened time under Local Rule 6-2. This agreement is made without 4 prejudice to plaintiffs re-raising the issue of qualitative sampling should defendants’ motion(s) to 5 dismiss the consolidated second amended complaint with prejudice be denied. 6 7. Presentation to the Court: If, after engaging in the process described above, there 7 still remain search terms about which the Parties cannot reach agreement, the Parties agree to submit 8 a joint discovery letter to the Court explaining their respective positions with respect to such search 9 terms. 10 8. Additional Terms for Good Cause: Once a search term list is finalized (either 11 though agreement of the parties or Order of the Magistrate Judge) and all iterative searches for a 12 custodian are complete, the Requesting Party may propose additional search terms for a Responding 13 Party to consider, but the Responding Party will have no obligation to re-search the custodian’s 14 electronic data using different or additional search terms without agreement or a court order. The 15 Requesting Party must show good cause for any additional proposed search terms. If a Responding 16 Party cannot meet any applicable deadlines for the production of documents as a result of this 17 provision, the parties will negotiate in good faith a reasonable timeline for production or seek an 18 order from the Court. 19 IT IS HEREBY STIPULATED: 20 21 DATED: April 17, 2015 HAGENS BERMAN SOBOL SHAPIRO LLP 22 By /s/ Jeff D. Friedman JEFF D. FRIEDMAN 23 24 Shana E. Scarlett (217895) 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 jefff@hbsslaw.com shanas@hbsslaw.com 25 26 27 28 STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK 010473-11 775193V1 -4- 1 Steve W. Berman (Pro Hac Vice) Ashley A. Bede (Pro Hac Vice) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 steve@hbsslaw.com ashleyb@hbsslaw.com 2 3 4 5 6 DATED: April 17, 2015 SUSMAN GODFREY L.L.P 7 8 By /s/ Steven G. Sklaver STEVEN G. SKLAVER 9 Marc M. Seltzer (54534) Matthew R. Berry (237612) 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 mseltzer@susmangodfrey.com ssklaver@susmangodfrey.com ksrinivasan@susmangodfrey.com 10 11 12 13 14 15 Julian Ari Hammond (268489) HAMMONDLAW, PC 1180 S Beverly Dr., Ste. 610 Los Angeles, CA 90035 Phone: (310) 601-6766 Fax: (310) 295-2385 hammond.julian@gmail.com 16 17 18 19 Craig Ackermann (229832) ACKERMANN & TILAJEF PC 1180 S Beverly Dr., Ste. 610 Los Angeles, CA 90035 Phone: (310) 277-0614 Fax: (310) 277-0635 cja@ackermanntilajef.com 20 21 22 23 24 25 DATED: April 17, 2015 26 COHEN MILSTEIN SELLERS & TOLL PLLC By /s/ Daniel A. Small DANIEL A. SMALL 27 Brent W. Johnson 28 STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK 010473-11 775193V1 -5- 1 Jeffrey B. Dubner 1100 New York Ave. NW, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 dsmall@cohenmilstein.com bjohnson@cohenmilstein.com jdubner@cohenmilstein.com 2 3 4 5 Interim Co-Lead Plaintiffs’ Counsel 6 7 DATED: April 17, 2015 8 COVINGTON & BURLING LLP By /s/ Emily Johnson Henn EMILY JOHNSON HENN 9 333 Twin Dolphin Drive, Suite 700 Redwood Shores, CA 94061 Telephone: (650) 632-4700 Facsimile: (650) 632-4800 ehenn@cov.com 10 11 12 Attorneys for Defendants The Walt Disney Company, Lucasfilm Ltd., LLC, Pixar, and Two Pic MC LLC 13 14 15 DATED: April 17, 2015 16 GIBSON DUNN & CRUTCHER LLP By /s/ Rod J. Stone ROD J. STONE 17 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 rstone@gibsondunn.com 18 19 20 21 Counsel for Defendant DreamWorks Animation SKG, Inc. 22 23 DATED: April 17, 2015 24 ORRICK HERRINGTON & SUTCLIFFE LLP By /s/ David M. Goldstein DAVID M. GOLDSTEIN 25 405 Howard Street San Francisco, CA 94105-2669 Telephone: (415) 773-5700 Facsimile: (415) 773-5759 26 27 28 STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK 010473-11 775193V1 -6- sbomse@orrick.com dgoldstein@orrick.com 1 2 Counsel for Defendants Sony Pictures Animation Inc. and Sony Pictures Imageworks Inc. 3 4 5 DATED: April 17, 2015 WILLIAMS & CONNOLLY LLP By 6 7 /s/ Jonathan Bradley Pitt JONATHAN BRADLEY PITT 725 Twelfth Street, NW Washington, DC 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 jpitt@wc.com 8 9 10 Counsel for Defendant Blue Sky Studios, Inc. 11 12 13 Pursuant to Civil Local Rule 5-1(i)(3), the filer attests that concurrence in the filing of this document has been obtained from each of the signatories. 14 * * * 15 16 17 [PROPOSED] ORDER The parties’ stipulation is adopted and IT IS SO ORDERED. The parties’ stipulation is modified as follows, and IT IS SO ORDERED. 18 19 DATED: 4/21/2015 HONORABLE PAUL S. GREWAL UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 STIP. SEARCH TERM PROTOCOL– No: 14-cv-4062-LHK 010473-11 775193V1 -7-