Cutting Edge Vision LLC v. HTC Corporation et al, No. 2:2020cv01618 - Document 35 (W.D. Wash. 2021)
Court Description: STIPULATION AND ORDER granting Parties' 34 Stipulated Motion regarding discovery of electronically stored information. Signed by Hon. Michelle L. Peterson.(SR)
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Cutting Edge Vision LLC v. HTC Corporation et al Doc. 35 Case 2:20-cv-01618-RAJ-MLP Document 35 Filed 03/02/21 Page 1 of 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 CUTTING EDGE VISION, LLC, 11 Plaintiff, 12 13 14 15 16 v. CASE NO. 2:20-cv-01618-MLP AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND ORDER HTC CORPORATION and HTC AMERICA, INC., Defendants. 17 18 The parties hereby stipulate to the following provisions regarding the discovery of 19 electronically stored information (“ESI”) in this matter: 20 A. General Principles 21 An attorney’s zealous representation of a client is not compromised by conducting 22 discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate 23 in facilitating and reasonably limiting discovery requests and responses raises litigation costs and 24 contributes to the risk of sanctions. 25 The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) must be applied in 26 each case when formulating a discovery plan. To further the application of the proportionality {DJV2377845.DOCX;1/08289.000001/ } AGREEMENT REGARDING DISCOVERY OF ESI - 1 OGDEN MURPHY WALLACE, PLLC 901 5TH AVE, SUITE 3500 SEATTLE, WA 98164 Dockets.Justia.com Case 2:20-cv-01618-RAJ-MLP Document 35 Filed 03/02/21 Page 2 of 6 1 standard in discovery, requests for production of ESI and related responses should be reasonably 2 targeted, clear, and as specific as possible. 3 B. ESI Disclosures 4 The parties agree to promptly meet and confer to disclose Custodians, Non-custodial data 5 sources, Third Party Data Sources, and Inaccessible Data as defined by the MODEL 6 PROTOCOL. 7 C. Preservation 8 The parties acknowledge that they have a common law obligation to take reasonable and 9 proportional steps to preserve discoverable information in the party’s possession, custody or 10 control. With respect to the preservation of ESI, the parties agree as follows: 11 1. Absent a showing of good cause by the requesting party, the parties shall not be 12 required to modify, on a going-forward basis, the procedures used by them in the ordinary course 13 of business to back up and archive data; provided, however, that the parties shall preserve all 14 discoverable ESI in their possession, custody or control. 15 2. Absent a showing of good cause by the requesting party, the following categories of 16 ESI need not be preserved: 17 a. Deleted, slack, fragmented, or other data only accessible by forensics. 18 b. Random access memory (RAM), temporary files, or other ephemeral data that are 19 20 21 22 23 24 25 26 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 lastopened dates (see also Section (E)(5)). e. Back-up data that are substantially duplicative of data that are more accessible elsewhere. f. Server, system or network logs. {DJV2377845.DOCX;1/08289.000001/ } AGREEMENT REGARDING DISCOVERY OF ESI - 2 OGDEN MURPHY WALLACE, PLLC 901 5TH AVE, SUITE 3500 SEATTLE, WA 98164 Case 2:20-cv-01618-RAJ-MLP Document 35 Filed 03/02/21 Page 3 of 6 1 2 g. Data remaining from systems no longer in use that is unintelligible on the systems in use. 3 h. Electronic data (e.g. email, calendars, contact data, notes, and text messages) 4 stored on mobile devices (e.g., iPhone, iPad, Android, and Blackberry devices), 5 provided that a copy of all email data is routinely saved elsewhere (such as on a 6 server, laptop, desktop computer, or “cloud” storage). 7 4. Only ESI created or received during the period from November 3, 2013 through the 8 filing date of this lawsuit (November 3, 2020) will be preserved under this order. 9 D. Search 10 The parties have agreed to exchange technical documentation. 11 In addition, the parties agreed that they will search reasonably relevant custodial ESI for 12 relevant documents on a targeted basis (for example HTC will search for documents of relevant 13 custodians related to “CEV,” “Cutting Edge Vision,” and “Konicek,”) and to produce responsive, 14 non-privileged documents. The parties’ agreement regarding the production of privilege logs is 15 addressed in the parties’ Joint Status Report and Discovery Plan. (Doc. 30 at 3-4.) At this time, 16 the parties have agreed to postpone more extensive ESI collection and searching protocol. The 17 parties will meet and confer regarding whether additional searching is necessary after service of 18 HTC’s LPR 121 and LPR 122 Non-infringement and Invalidity Contentions and review of 19 technical documents produced by HTC. 20 In the event that the parties agree more extensive ESI collection and searching is 21 required, the Parties shall try to reach agreement on appropriate search terms before any query is 22 performed. In this event it is agreed, 23 1. If requested, a producing party shall disclose what search terms, if any, were used to 24 locate ESI likely to contain discoverable information. If search terms were not used, a 25 party shall disclose the search methodology used to locate ESI likely to contain 26 discoverable information. {DJV2377845.DOCX;1/08289.000001/ } AGREEMENT REGARDING DISCOVERY OF ESI - 3 OGDEN MURPHY WALLACE, PLLC 901 5TH AVE, SUITE 3500 SEATTLE, WA 98164 Case 2:20-cv-01618-RAJ-MLP Document 35 Filed 03/02/21 Page 4 of 6 1 2. If search terms were used to locate ESI likely to contain discoverable information, a 2 requesting party is entitled to no more than 5 additional terms or queries to be used in 3 connection with further electronic searches absent a showing of good cause or 4 agreement of the parties. The parties shall confer in good faith on the 5 additional 5 terms or queries. Focused terms and queries, rather than overbroad ones, shall be 6 employed. 7 3. Absent a showing of good cause, search terms returning more than 250 megabytes of 8 data are presumed to be overbroad. The producing party shall search non-custodial 9 data sources and other ESI maintained by the identified Custodians. Defendants 10 contend that email production should not be necessary in this case. Plaintiff disagrees, 11 but has agreed to meet and confer regarding the appropriate scope of the parties’ 12 email productions. (Doc. 30 at 3.) 13 E. Production Formats 14 The parties agree generally to conform their productions with the standard production 15 specifications attached as Exhibit A. The parties agree to produce documents in either native or 16 300 dpi single page searchable TIFF images, with appropriate accompanying Concordance load 17 files. The Concordance load files will contain extracted or OCR text, the custodian of the 18 document, the Bates number of the document, an indication of whether the document is redacted, 19 and an indication of confidentiality designation. The creation date, author, last modified date, 20 and filename with extension shall generally be included. If particular documents warrant a 21 different format, such as for voluminous spreadsheets, the parties will cooperate to arrange for 22 the mutually acceptable production of such documents. The parties agree not to degrade the 23 searchability of documents as part of the document production process. 24 F. Privilege 25 1. Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product 26 protected document, whether inadvertent or otherwise, is not a waiver of privilege or {DJV2377845.DOCX;1/08289.000001/ } AGREEMENT REGARDING DISCOVERY OF ESI - 4 OGDEN MURPHY WALLACE, PLLC 901 5TH AVE, SUITE 3500 SEATTLE, WA 98164 Case 2:20-cv-01618-RAJ-MLP Document 35 Filed 03/02/21 Page 5 of 6 1 protection from discovery, including the attorney-client privilege, attorney work- 2 product protection, or any other privilege or protection recognized by law, in this case 3 or in any other federal or state proceeding. For example, the mere production of 4 privileged or work-product protected documents in this case as part of a mass 5 production is not itself a waiver in this case or in any other federal or state 6 proceeding. Information produced in discovery that is protected as privileged or work 7 product shall be immediately destroyed or returned to the producing party. 8 2. Communications involving trial counsel need not be placed on a privilege log. 9 3. Activities undertaken in compliance with the duty to preserve information are 10 protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B). 11 G. Modification 12 This Stipulated Order may be modified by a Stipulated Order of the parties or by the 13 Court for good cause shown. 14 15 RESPECTFULLY SUBMITTED, this 1st day of March, 2021. 16 OGDEN MURPHY WALLACE, PLLC GORDON REES SCULLY MANSUKHANI, LLP. 17 18 By:______________________ 19 Daniel J. Vecchio, WSBA # 44632 20 901 Fifth Avenue, Suite 3500 21 Seattle, WA 98164 Tel: (206) 447-7000 22 dvecchio@omwlaw.com Attorneys for Plaintiff 23 By: /s/ Lara S. Garner Lara S. Garner, Pro Hac Vice Ross Kirkbaumer WSBA # 56310 701 Fifth Avenue, Suite 2100 Seattle, WA 98104 Tel: (206) 695-5100 rkirkbaumer@grsm.com Attorney for Defendants 24 SPERLING & SLATER, PC 25 By: /s/Eamon Kelly 26 Eamon Kelly, Pro Hac Vice {DJV2377845.DOCX;1/08289.000001/ } AGREEMENT REGARDING DISCOVERY OF ESI - 5 OGDEN MURPHY WALLACE, PLLC 901 5TH AVE, SUITE 3500 SEATTLE, WA 98164 Case 2:20-cv-01618-RAJ-MLP Document 35 Filed 03/02/21 Page 6 of 6 1 55 West Monroe Street, 32nd Floor Chicago, IL 60603 2 Tel.: (312) 641-3200 3 Fax: (312) 641-6492 4 ekelly@sperling-law.com Attorneys for Plaintiff 5 6 THE LAW OFFICES OF LISA & LESKO, LLC 7 By: /s/Justin J. Lesko 8 Justin J. Lesko, Pro Hac Vice Steven G. Lisa, Pro Hac Vice 9 55 East Monroe Street, Suite 3800 10 Chicago, IL 60603 Tel.: (480) 442-0297 11 JustinLesko@patentit.com 12 SteveLisa@patentit.com 13 Attorneys for Plaintiff 14 15 16 ORDER 17 18 Based on the foregoing, IT IS SO ORDERED. 19 DATED: March 2, 2021. 20 21 A 22 MICHELLE L. PETERSON United States Magistrate Judge 23 24 25 26 {DJV2377845.DOCX;1/08289.000001/ } AGREEMENT REGARDING DISCOVERY OF ESI - 6 OGDEN MURPHY WALLACE, PLLC 901 5TH AVE, SUITE 3500 SEATTLE, WA 98164
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