Case 3:16-cv-02787-WHO Document 107 Filed 12/02/16 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`HUAWEI TECHNOLOGIES CO., LTD.,
`HUAWEI DEVICE USA, INC., and
`HUAWEI TECHNOLOGIES USA, INC.,
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`Plaintiff(s)/Counterclaim
`Defendants,
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`vs.
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`Case Number: 3:16-cv-2787-WHO
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`STIPULATION & ORDER RE:
`DISCOVERY OF ELECTRONICALLY
`STORED INFORMATION FOR PATENT
`LITIGATION
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`SAMSUNG ELECTRONICS CO., LTD,
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`Defendants / Counterclaim-
`Plaintiffs
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`and
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`SAMSUNG RESEARCH AMERICA,
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`Defendant,
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`v.
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`HISILICON TECHNOLOGIES CO., LTD.,
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`Counterclaim-Defendant.
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`Upon the stipulation of the parties, the Court ORDERS as follows:
`1.
`This Order supplements all other discovery rules and orders. It streamlines
`Electronically Stored Information (“ESI”) production to promote a “just, speedy, and
`inexpensive determination of this action, as required by Federal Rule of Civil Procedure 1.”
`2.
`This Order may be modified in the Court’s discretion or by stipulation. The
`parties shall jointly submit any proposed modifications within 30 days after the Federal Rule of
`Civil Procedure 16 Conference.
`As in all cases, costs may be shifted for disproportionate ESI production
`3.
`requests pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or
`dilatory discovery tactics are cost-shifting considerations.
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`Case 3:16-cv-02787-WHO Document 107 Filed 12/02/16 Page 2 of 5
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`A party’s meaningful compliance with this Order and efforts to promote
`4.
`efficiency and reduce costs will be considered in cost-shifting determinations.
`5.
`The parties are expected to comply with the District’s E-Discovery Guidelines
`(“Guidelines”) and are encouraged to employ the District’s Model Stipulated Order Re: the
`Discovery of Electronically Stored Information and Checklist for Rule 26(f) Meet and Confer
`regarding Electronically Stored Information.
`6.
`General ESI production requests under Federal Rules of Civil Procedure 34 and
`45 shall not include email or other forms of electronic correspondence (collectively “email”).
`To obtain email parties must propound specific email production requests.
`7.
`Email production requests shall only be propounded for specific issues, rather
`than general discovery of a product or business.
`8.
`Email production requests shall be phased to occur after the parties have
`exchanged initial disclosures and basic documentation about the patents, the prior art, the
`accused instrumentalities, and the relevant sales, marketing, finances, and license agreements.
`While this provision does not require the production of such information, the Court encourages
`prompt and early production of this information to promote efficient and economical
`streamlining of the case.
`9.
`Email production requests shall identify the custodian, search terms, and time
`frame. The parties shall meet and confer upon receiving any email production requests to
`identify and agree upon the proper custodians, proper search terms and proper timeframe as set
`forth in the Guidelines.
`Each requesting party1 shall limit its email production requests to a total of ten
`10.
`custodians per producing party for all such requests. The parties may jointly agree to modify
`this limit without the Court’s leave. The Court shall consider contested requests for additional
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`1 For purposes of this order, Huawei Technologies Co., Ltd, Huawei Device USA, Inc.,
`Huawei Technologies USA Inc., and HiSilicon Technologies Co., Ltd., collectively, shall be a
`single “requesting party” and “producing party.” Likewise, Samsung Electronics Co., Ltd.,
`Samsung Electronics America, Inc., and Samsung Research America, collectively, shall be a
`single “requesting party” and “producing party.”
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`Case 3:16-cv-02787-WHO Document 107 Filed 12/02/16 Page 3 of 5
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`custodians, upon showing a distinct need based on the size, complexity, and issues of this
`specific case. Cost-shifting may be considered as part of any such request.
`11.
`Each requesting party shall limit its email production requests to a total of five
`search terms per custodian per party. The parties may jointly agree to modify this limit without
`the Court’s leave. The Court shall consider contested requests for additional search terms per
`custodian, upon showing a distinct need based on the size, complexity, and issues of this
`specific case. The Court encourages the parties to confer on a process to test the efficacy of the
`search terms. The search terms shall be narrowly tailored to particular issues. Indiscriminate
`terms, such as the producing company’s name or its product name, are inappropriate unless
`combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A
`conjunctive combination of multiple words or phrases (e.g., “computer” and “system”) narrows
`the search and shall count as a single search term. A disjunctive combination of multiple words
`or phrases (e.g., “computer” or “system”) broadens the search, and thus each word or phrase
`shall count as a separate search term unless they are variants of the same word (e.g., a
`translation). Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to
`limit the production and shall be considered when determining whether to shift costs for
`disproportionate discovery. If requested by the producing party, the parties shall work
`cooperatively to revise search terms and other search restrictions (such as date ranges) to limit
`the resulting email “hits” to no more than 1000 per custodian. The parties agree that they will
`work together in good faith to resolve disputes arising when search terms yield more than 1000
`hits with the goal of minimizing the burden on the producing party. Should a party serve email
`production requests with search terms beyond the limits agreed to by the parties or granted by
`the Court pursuant to this paragraph, this shall be considered in determining whether any party
`shall bear all reasonable costs caused by such additional discovery.
`12.
`Nothing in this Order prevents the parties from agreeing to use technology
`assisted review and other techniques insofar as their use improves the efficacy of discovery.
`Such topics should be discussed pursuant to the District’s E-Discovery Guidelines.
`13.
`If, after review of the produced email documents commences, a party believes
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`Case 3:16-cv-02787-WHO Document 107 Filed 12/02/16 Page 4 of 5
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`that additional search terms are necessary, the parties shall meet and confer in good faith to
`determine what, if any, additional searches should be run. Similarly, if after reviewing
`produced email documents a party has good reason to believe that additional production of
`non-email documents is necessary, the parties shall meet and confer in good faith to determine
`what, if any, additional searches should be run. Such additional searches and production shall
`be performed with the consent of the other party or upon a showing of good cause, provided
`that the request for additional discovery shall be limited to the extent necessary to supplement
`the email ESI production.
`14.
`The parties will produce documents as searchable pdfs or single-page TIFF files
`with load file, or as native files if production in pdf or TIFF format is impractical. The parties
`will produce the following metadata for email: BegBates, EndBates, BegAttach, EndAttach,
`Custodian, DateSent, Language, To, From, CC, BCC, Email Subject, and Attachments. The
`parties will produce the following metadata for non-email ESI: BegBates, EndBates,
`Custodian, Filename, Language, and Date Last Modified (to the extent available).
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`IT IS SO STIPULATED, through Counsel of Record.
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`Dated: December 1, 2016
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`/s/ Michael J. Bettinger
`Counsel for Plaintiffs/Counterclaim-Defendants
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`Dated: December 1, 2016
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`/s/ Marissa Ducca
`Counsel for Defendants/Counterclaim-Plaintiffs
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`IT IS ORDERED that the forgoing Agreement is approved.
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`The Honorable William H. Orrick
`UNITED STATES DISTRICT JUDGE
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`4
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`Dated: December 2, 2016
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`Case 3:16-cv-02787-WHO Document 107 Filed 12/02/16 Page 5 of 5
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`LOCAL RULE 5-1 ATTESTATION
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`I, Michael J. Bettigner, am the ECF User whose ID and password was used to file this
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`STIPULATION RE DISCOVERY OF ELECTRONICALLY STORED INFORMATION FOR
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`PATENT LITIGATION. In compliance with Local Rule 5-1(i)(3), I hereby attest that, counsel
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`for Defendants/Counterclaim-Plaintiffs, concurred in this filing.
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`Dated: December 2, 2016
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`By:
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`/s/ Michael J. Bettinger
`Michael J. Bettinger
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