Earnest Partners, LLC v. Earnest LLC et al, No. 5:2019cv05489 - Document 54 (N.D. Cal. 2020)
Court Description: ORDER GRANTING 53 AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION. Signed by Judge Susan van Keulen on 07/14/2020. (svklc2S, COURT STAFF) (Filed on 7/14/2020)
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Earnest Partners, LLC v. Earnest LLC et al Doc. 54 Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 1 of 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 EARNEST PARTNERS, LLC, a Delaware limited liability company, Plaintiff, 14 15 16 17 18 19 v. EARNEST LLC, a Delaware limited liability company, EARNEST OPERATIONS LLC, a Delaware limited liability company, and NAVIENT CORPORATION, a Delaware corporation Case No. 5:19-cv-05489-LHK AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND [PROPOSED] ORDER Complaint Filed: August 30, 2019 Defendants. 20 21 22 23 24 25 26 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -1- Dockets.Justia.com Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 2 of 15 The parties hereby stipulate to the following provisions regarding the discovery of 1 2 electronically stored information (“ESI”) in this matter: 3 A. GENERAL PRINCIPLES 1. 4 An attorney’s zealous representation of a client is not compromised by conducting 5 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in 6 facilitating and reasonably limiting discovery requests and responses raises litigation costs and 7 contributes to the risk of sanctions. 2. 8 9 The proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) must be applied in each case when formulating a discovery plan. To further the application of the proportionality 10 standard in discovery, requests for production of ESI and related responses should be reasonably 11 targeted, clear, and as specific as possible. 12 B. PRESERVATION OF ESI The parties acknowledge that they have a common law obligation to take reasonable and 13 14 proportional steps to preserve discoverable information in the party’s possession, custody, or 15 control. With respect to preservation of ESI, the parties agree as follows: 1. 16 Absent a showing of good cause by the requesting party, the parties shall not be 17 required to modify the procedures used by them in the ordinary course of business to backup and 18 archive data; provided, however, that the parties shall preserve discoverable ESI in their possession, 19 custody, or control that is reasonably identifiable, based on facts known at the time, as discoverable 20 ESI. 21 22 2. Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved: 23 a. Deleted, slack, fragmented, or other data only accessible by forensics. 24 b. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system. c. On-line access data such as temporary internet files, history, cache, cookies, and the like. d. Data in metadata fields that are frequently updated automatically, such as last-opened dates. 25 26 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -2- Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 3 of 15 1 e. Back-up data that are substantially duplicative of data that are more accessible elsewhere. f. Server, system or network logs. g. Data remaining from systems no longer in use that is unintelligible on the systems in use. h. Electronic data (e.g., email, calendars, contact data, and notes) sent to or from mobile devices (e.g., iPhone, iPad, Android, and Blackberry devices), provided that a copy of all such electronic data is routinely saved elsewhere (such as on a server, laptop, desktop computer, or “cloud” storage). i. Text messages or other messages sent only between mobile devices and not separately accessible on a centralized server. 2 3 4 5 6 7 8 9 10 C. INFORMATION PROTECTED FROM DISCOVERY 1. Each party will review documents for privileged information (or other information 11 subject to a recognized immunity from discovery) prior to production. Documents that contain both 12 privileged and non-privileged information will be produced with the privileged information 13 redacted in such a way as to show the location of the redaction within the document. 14 2. Pursuant to Fed. R. Evid. 502(d), the production or disclosure of any material subject 15 to work-product protection, the attorney-client privilege, or other legal privilege protecting 16 information from discovery, whether inadvertent or otherwise, is not a waiver of privilege or 17 protection from discovery in this case or in any other federal or state proceeding, so long as the 18 producing party satisfies Fed. R. Evid. 502(b). The proper procedure for the notification and return 19 of privileged or protected information produced in this matter is governed by Fed. R. Civ. P. 20 26(b)(5)(B). This Order shall be interpreted to provide the maximum protection allowed by Federal 21 Rule of Evidence 502(d), subject to the requirements of 502(b). 22 3. In the interests of efficiency and to reduce the burdens associated with discovery, the 23 parties have reached an agreement on the method and format for asserting claims of attorney-client 24 privilege and work-product protection (collectively, “privilege”) over otherwise discoverable 25 materials withheld or redacted for privilege. Nothing in this agreement or order is intended to alter 26 or limit the producing party’s existing obligations to evaluate the privilege, on an individualized 27 basis, for each document withheld or redacted on the basis of a claim of privilege. Privilege logs 28 should include an identification of the privilege asserted, a brief description of the basis for the STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -3- Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 4 of 15 1 privilege, and the following metadata: author, email from, email to, email cc, email bcc, and date 2 family (date of the parent email). 4. 3 The parties are not required to log privileged communications or attorney work 4 product dated after the filing of the complaint in this matter, or privileged communications 5 occurring solely between the parties’ respective employees and outside counsel or solely between 6 counsel. 7 D. 1. 8 9 10 ESI DISCOVERY PROCEDURES On-site inspection of electronic media. Such an inspection shall not be permitted absent a demonstration by the requesting party of specific need and good cause or by agreement of the parties. 2. 11 Format. The parties agree that ESI will be produced to the requesting party with 12 searchable text, in the format described in Exhibit 1. 13 E. 14 EMAIL SEARCH AND PROCEDURE 1. In responding to production requests under Federal Rules of Civil Procedure 34 and 15 45, the parties agree to limit the searching of email or other forms of electronic correspondence 16 (collectively “email”) as follows, provided that nothing herein shall be construed to limit a party’s 17 obligations under the Federal Rules of Civil Procedure. 18 2. Each party will make a concerted effort to research and identify the most relevant 19 custodians of documents responsive to document requests and will produce responsive documents 20 from them. The producing party will notify the requesting party of the identity of each custodian 21 whose ESI is being searched and from whom documents are being produced, along with a 22 description of their role and the subject matter(s) on which they are knowledgeable. The parties 23 may then meet and confer to modify the list of custodians or identify more or different custodians if 24 necessary. The parties may jointly agree to limit the number of custodians without the Court’s 25 leave. The Court shall consider contested requests for additional custodians, upon showing a 26 distinct need based on the size, complexity, and issues of this specific case. Cost-shifting may be 27 considered as part of any such request. 28 3. If the producing party elects to use search terms to locate potentially responsive ESI, STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -4- Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 5 of 15 1 it shall disclose the search terms and the resulting number of search hits to the requesting party. If 2 necessary, the parties will meet and confer regarding whether (a) the hit-counts are reasonable for 3 each search, such that the producing party should produce the responsive searches, subject to the 4 foregoing requirements, or (b) the hit-counts are unreasonably high, such that the requesting party 5 should revise the search terms and/or time frame to reduce the number of search hits. The Court 6 shall consider contested requests for additional search terms, upon showing a distinct need based on 7 the size, complexity, and issues of this specific case. Cost-shifting may be considered as part of any 8 such request. 9 4. Ultimately, the producing party shall determine what keyword search terms it will 10 use and is not obligated to adopt the edits or additions to its keyword search terms provided by the 11 requesting party. In the event that the requesting party believes that the producing party’s keyword 12 search terms remain insufficient, the requesting party may file a motion to compel pursuant to the 13 applicable Federal Rules of Civil Procedure and Local Rules. 14 5. A “search term” may be defined to include a reasonable number of permutations and 15 abbreviations that mean the same thing and shall count as a single term. The search terms shall be 16 narrowly tailored to particular issues. Indiscriminate terms, such as the producing company’s name 17 or its product name, are inappropriate unless combined with narrowing search criteria that 18 sufficiently reduce the risk of overproduction. 19 20 6. Nothing in this Order prevents the parties from using technology assisted review and other techniques insofar as their use improves the efficacy of discovery. 21 22 23 24 25 26 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -5- Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 6 of 15 1 DATED: July 13, 2020 Respectfully submitted, KILPATRICK TOWNSEND & STOCKTON LLP 2 3 By: /s/ Nichole Davis Chollet Judith A. Powell (appearing pro hac vice) jpowell@kilpatricktownsend.com Nichole Davis Chollet (appearing pro hac vice) nchollet@kilpatricktownsend.com Sarah E. Holland (appearing pro hac vice) seholland@kilpatricktownsend.com 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4528 Tel.: (404) 815-6500 Fax: (404) 815-6555 4 5 6 7 8 9 10 Gregory S. Gilchrist (State Bar No. 111536) ggilchrist@kilpatricktownsend.com Two Embarcadero Center, Suite 1900 San Francisco, CA 94111 Telephone: 415 576 0200 Facsimile: 415 576 0300 11 12 13 Attorneys for Plaintiff Earnest Partners, LLC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -6- Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 7 of 15 1 DATED: July 13, 2020 WILMER CUTLER PICKERING HALE AND DORR LLP 2 By: /s/ Anh-Khoa T. Tran Kathryn Zalewski (SBN 263119) kathryn.zalewski@wilmerhale.com Anh-Khoa Tran (SBN 295393) khoa.tran@wilmerhale.com 950 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 3 4 5 6 7 8 MARK G. MATUSCHAK (pro hac vice) mark.matuschak@wilmerhale.com VINITA FERRERA (pro hac vice) vinita.ferrera@wilmerhale.com 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 9 10 11 12 SAMANTHA PICANS (pro hac vice) sam.picans@wilmerhale.com 1225 Seventeenth Street Suite 2600 Denver, CO 80202 Telephone: (720) 598-3477 Facsimile: (720) 274-3133 13 14 15 16 Attorneys for Defendants Earnest LLC, Earnest Operations LLC, Navient Corporation 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -7- Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 8 of 15 1 ORDER 2 Based on the foregoing, IT IS SO ORDERED. 3 July 14, 2020 DATED: _____________________ 4 The Honorable Susan van Keulen UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -8- Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 9 of 15 EXHIBIT 1 - PARTIES’ AGREED PRODUCTION FORMAT 1 2 1. Definitions 3 The following definitions apply: 4 A. 5 litigation. 6 B. 7 8 9 10 11 “Bates Number” means a unique number assigned to a document produced in “Custodian” means a person or resource (e.g., a shared file server) who had custody of information or a document prior to collection for production. C. “Database” means an electronic collection of structured data (often maintained in a non-custodial manner), such as data created and maintained in Oracle, SAP, SQL, or Microsoft Access. D. “ESI” or “Electronic Document” refers to information stored in electronic form 12 including word processing files (e.g., Microsoft Word), computer presentations (e.g., Microsoft 13 PowerPoint), databases, spreadsheets (e.g., Microsoft Excel) and email, together with the metadata 14 associated with each such document. 15 E. “Extracted Text” shall refer to the result of the process by which textual content of 16 an Electronic Document is gleaned and extracted from an original Electronic Document for the 17 purpose of creating a plain-text Electronic Document containing the textual content from that 18 Electronic Document. 19 20 21 F. “Load File” refers to a file or files issued with each production providing a map to the images and metadata or coding associated with the documents in the production. G. “Native Format” as used herein, means the default format of a data file created by 22 its associated software program. For example, Microsoft Excel produces its output as “.xls” files 23 by default, which is the Native Format of Excel. Microsoft Word produces native files with a 24 “.doc” extension, which is the Native Format of Word. 25 H. “Optical Character Recognition” or “OCR” refers to the result of the process by 26 which a hard copy or non-searchable Electronic Document is analyzed by a computer for the 27 purposes of creating a plain-text Electronic Document that contains the textual content gleaned 28 from the document. STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK -9- Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 10 of 15 I. 1 2 “Producing Party” means any Party to this Multidistrict Litigation Proceeding who produces documents or information under this Order. J. 3 “Receiving Party” means any Party to this Multidistrict Litigation Proceeding who 4 receives documents or information under this Order. 5 2. Production Format 6 In general, documents shall be produced as Bates-stamped tagged image file format 7 (“TIFF”) images accompanied by an image load file, a data load file with fielded metadata, 8 document-level extracted text for ESI, and optical character recognition (“OCR”) text for scanned 9 hard copy documents and ESI that does not contain extractable text. Documents shall be produced 10 as single-page, black and white TIFF or JPEG image files with the associated text and metadata; 11 however, the Parties shall endeavor to produce appropriate documents in color. To the extent that 12 color documents are produced, they should be produced in a single-page JPEG format. Detailed 13 requirements, including files to be delivered in native format, are below. 14 A. De-duplication and Threading. To avoid the production of more than one copy of 15 a unique item, the parties will use industry standard MD5 or SHA-1 hash values to globally de- 16 duplicate all files identified for production. Loose e-files will not be compared to email 17 attachments for de-duplication purposes. Hard copy documents containing handwritten notes will 18 not be considered as duplicative of any other document. To reduce the volume of entirely 19 duplicative content within email threads, the parties may, but are not required to, use email thread 20 suppression. A party that uses email thread suppression must disclose such use to the other parties. 21 B. Document Unitization. Where documents with attachments are produced, they 22 will be attached in the same manner as included in the original file. Where documents are 23 produced and all attachments thereto are not included, the parties will identify the missing 24 attachments by means of a “place holder” file and explain the reason for their non-production. 25 Documents that are segregated or separated from other documents, whether by inclusion of 26 binders, files, dividers, tabs, clips, or any other method, will be produced in a manner that reflects 27 these divisions. If a party converts paper documents into electronic format, distinct documents 28 should not be merged into a single record, and single documents should not be split into multiple STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK - 10 - Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 11 of 15 1 records (i.e., paper documents should be logically unitized). In the case of an organized 2 compilation of separate documents – for example, a binder containing several separate documents 3 behind numbered tabs – the document behind each tab should be scanned separately, but the 4 relationship among the documents in the compilation should be reflected in the proper coding of 5 the beginning and ending document and attachment fields. The Parties will make their best efforts 6 to unitize the documents correctly 7 8 9 10 11 C. via FTP, or via secure data transfer site. D. Encryption. To maximize the security of information in transit, the Parties should encrypt any media on which documents are produced. E. TIFF Image Requirements i. 12 13 Production Delivery. Productions should be delivered on an external hard drive, TIFF images will be produced in black and white, 300x300 dpi Group IV single-page format and should be consecutively Bates-stamped. ii. 14 15 Images will include the following content where present: a. 16 For word processing files (e.g., Microsoft Word): Comments, “tracked changes,” similar in-line editing, and all hidden content. 17 b. 18 For presentation files (e.g., Microsoft PowerPoint): Speaker notes, comments, and all other hidden content. 19 20 c. For spreadsheet files (e.g., Microsoft Excel – if applicable): Hidden 21 columns, rows, and sheets; comments, and “tracked changes,” and any similar in-line 22 editing or hidden content. 23 24 25 F. Native Production Requirements i. Spreadsheet files (e.g., Microsoft Excel and .csv files) should be provided in native format. 26 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK - 11 - Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 12 of 15 a. 1 In lieu of a full TIFF image version of each spreadsheet file, a single 2 placeholder image bearing the relevant Bates number and confidentiality designation 3 should be produced. 4 b. 5 When redaction of a spreadsheet is necessary, a redacted full TIFF version may be produced provided that the spreadsheet is manually formatted for 6 optimal printing. If the spreadsheet requiring redaction is not reasonably useable in 7 TIFF format, the parties will meet-and-confer to determine a suitable production 8 format. 9 c. 10 meet-and-confer to discuss the process and provide a means to identify such 11 documents in the production. 12 13 14 15 16 23 24 25 26 27 28 iii. The parties will meet-and-confer to discuss a suitable production format for iv. The parties will meet-and-confer to discuss a suitable production format for any databases or database reports. v. Any files that cannot be accurately rendered in a reviewable TIFF format should be produced in native format. vi. 21 22 Media files (e.g., .mp3, .wmv, etc.) will be produced in native format. knowledge for review. 19 20 ii. any proprietary or non-standard file types that require special software or technical 17 18 If redactions within a native spreadsheet are necessary, the parties will The parties may request native or color copies of any documents that cannot be accurately reviewed in black and white TIFF format. Reasonable requests for native or color documents should not be refused. G. Load File Requirements i. A Relativity- and Concordance-compatible data load file should be provided with each production volume and contain a header row listing all of the metadata fields included in the production volume. ii. Image load files should be produced in Concordance/Opticon compatible STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK - 12 - Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 13 of 15 1 format. 2 H. Extracted Text/OCR Requirements i. 3 Electronically extracted text should be provided for documents collected 4 from electronic sources. Text generated via OCR should be provided for all documents that 5 do not contain electronically extractable text (e.g., non-searchable PDF files or JPG 6 images) and for redacted and hard copy documents. The parties agree not to degrade the 7 searchability of documents as part of the document production process. ii. 8 9 not be embedded in the metadata load file. iii. 10 11 iv. If a document is provided in native format, the text file should contain the extracted text of the native file. v. 14 15 Text files should be named according to the beginning Bates number of the document to which they correspond. 12 13 Document text should be provided as separate, document-level text files and A path to each extracted text file on the delivery media should be included in a load file field or in a separate cross-reference file. vi. 16 A text file should be produced for all records even if the underlying records 17 do not contain text. 18 I. Metadata. The parties agree to produce the following metadata fields where 19 applicable. A Party is not obligated to produce metadata from a document if metadata does not 20 exist in the document, or if the metadata is not machine-extractable (except for Custodian and 21 MD5 or SHA-1 hash, which should be provided for all ESI). For redacted Electronic Documents, 22 OCR of the viewable text will be produced. 23 METADATA FIELDS 24 25 Field Comments 26 BegBates Beginning Bates number 27 EndBates Ending Bates number 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK - 13 - Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 14 of 15 1 BegAttach Bates number of the first page of a family range 2 EndAttach Bates number of the last page of a family range 3 AttachRange Bates number of the first page of the parent document to the Bates number of the last page of the last attachment “child” document. 5 PageCount Number of pages in a document. 6 FileExtension Original file extension as the document was maintained in the ordinary course DocTitle Document title as stored in file metadata Document Subject Any value populated in the Subject field of the document properties 10 Custodian Custodian full name 11 Duplicate Custodian Custodian(s) containing duplicate versions of original record; Last, First Confidentiality Confidentiality designation of a document Author Document author information for non-email Last Modified By The last person to modify the document as indicated in metadata 16 From Email From 17 To Email TO 18 Cc Email CC 19 BCC Email BCC 20 Subject Email Subject 21 AttachmentCount Number of attachments an email has 22 DateCreated File date and time created MM/DD/YYYY HH:MM AM/PM 23 DateModified File date and time modified MM/DD/YYYY HH:MM AM/PM 24 DateSent Email date and time sent MM/DD/YYYY HH:MM AM/PM 25 DateReceived Email date received. MM/DD/YYYY HH:MM AM/PM 26 DateFamily DateSent (for emails), DateReceived (for emails), DateCreated (for non-emails), or DateLastModified (for non-emails) of parent document. MM/DD/YYYY HH:MM AM/PM 4 7 8 9 12 13 14 15 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK - 14 - Case 5:19-cv-05489-LHK Document 54 Filed 07/14/20 Page 15 of 15 1 FileName Name of the file as maintained in the ordinary course of business with extension. MD5Hash The computer-generated MD5 Hash value for each document. ParentID Document ID of the parent document; this field will only be available on child items ChildID Attachment document IDs of all child items in family group delimited by semicolon; this field will only be present on parent items; aka AttachmentDocID TextPath The path to the corresponding text file for each record on the delivery media, including filename. NativePath The path to the native-format file corresponding to each record on the delivery media, including the file name (if a native-format file is provided). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED ESI ORDER CASE NO. 5:19-CV-05489-LHK - 15 -
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