Case 4:18-cv-00670-HSG Document 81 Filed 06/19/18 Page 1 of 8
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`
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`Jonathan J. Lamberson (CA SBN 239107)
`lamberson@fr.com
`Meghana RaoRane (CA SBN 253531)
`raorane@fr.com
`FISH & RICHARDSON P.C.
`500 Arguello Street, Suite 500
`Redwood City, CA 94063
`Telephone: (650) 839-5070
`Facsimile: (650) 839-5071
`
`Indranil Mukerji (pro hac vice)
`mukerji@fr.com
`FISH & RICHARDSON P.C.
`1000 Maine Avenue SW
`Washington, D.C. 20024
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
`
`Ricardo Bonilla (pro hac vice)
`rbonilla@fr.com
`FISH & RICHARDSON P.C.
`1717 Main Street, Suite 5000
`Dallas, TX 75201
`Telephone: (214) 747-5070
`Facsimile: (214) 747-2091
`
`Attorneys for Defendant
`MICROSOFT CORPORATION
`
`M. ELIZABETH DAY (TX SBN 177125)
`eday@feinday.com
`DAVID ALBERTI (TX SBN 220265)
`dalberti@feinday.com
`MARC BELLOLI (TX SBN 244290)
`mbelloli@feinday.com
`FEINBERG DAY ALBERTI LIM &
` BELLOLI LLP
`1600 El Camino Real, Suite 280
`Menlo Park, CA 94025
`Telephone: (650) 618-4360
`Facsimile: (650) 618-4368
`
`Hao Ni (pro hac vice)
`hni@nilawfirm.com
`NI, WANG & MASSAND, PLLC
`8140 Walnut Hill Lane, Suite 500
`Dallas, TX 75231
`Telephone: (972) 331-4600
`Facsimile: (972) 314-0900
`
`Attorneys for Plaintiff
`HYPERMEDIA NAVIGATION, LLC
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`OAKLAND DIVISION
`
`
`Case No. 4:18-cv-00670-HSG
`
`STIPULATION AND ORDER RE
`DISCOVERY OF ELECTRONICALLY
`STORED INFORMATION FOR PATENT
`LITIGATION
`
`
`
`HYPERMEDIA NAVIGATION LLC,
`
` Plaintiff,
`
`
`v.
`
`
`MICROSOFT CORPORATION,
`
` Defendant.
`
`
`
`Upon the stipulation of the parties, the Court ORDERS as follows:
`1.
`
`This Order supplements all other discovery rules and orders. It streamlines
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`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.”
`1 STIP AND ORDER RE DISCOVERY OF ELECTRONICALLY STORED
`INFORMATION
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`Case 4:18-cv-00670-HSG Document 81 Filed 06/19/18 Page 2 of 8
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`2.
`3.
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`This Order may be modified in the Court’s discretion or by stipulation.
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`As in all cases, costs may be shifted for disproportionate ESI production requests
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`pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory
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`discovery tactics are cost-shifting considerations.
`4.
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`A party’s meaningful compliance with this Order and efforts to promote efficiency
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`and reduce costs will be considered in cost-shifting determinations.
`5.
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`General ESI production requests under Federal Rules of Civil Procedure 34 and 45
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`shall not include email or other forms of electronic correspondence (collectively “email”). To
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`obtain email parties must propound specific email production requests.
`6.
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`The parties may use keyword searches to assist in identifying relevant, non-
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`privileged ESI responsive to requests for production. The parties shall not be required to search
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`for or preserve information stored at locations that are inaccessible or accessible only through
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`extraordinary measures, including backup systems/tapes, disaster recovery systems, residual,
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`deleted, fragmented, damaged or temporary data, and/or encrypted data where the key or password
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`cannot be ascertained after reasonable efforts. Additionally, the parties need not search for or
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`preserve information stored solely on personal digital assistants, mobile phones, voicemail
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`systems, instant messaging systems, and social media (such as Facebook or Twitter).
`7.
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`The parties shall not be required to suspend automated deletion that is associated
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`with electronic databases, server log files, or backup or disaster recovery systems. With respect to
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`web pages, the parties need only make good faith efforts to preserve the source code responsible
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`for the dynamic generation of such pages, not the actual content(s) of such pages.
`8.
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`Email production requests shall only be propounded for specific issues, rather than
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`general discovery of a product or business. Prior to any production of emails, the parties shall
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`meet and confer and discuss and explain the necessity of the requested email production.
`9.
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`Email production requests shall be phased to occur after the parties have exchanged
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`initial disclosures and basic documentation about the patents, the prior art, the accused
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`instrumentalities, and the relevant finances. While this provision does not require the production
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`2 STIP AND ORDER RE DISCOVERY OF ELECTRONICALLY STORED
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`Case 4:18-cv-00670-HSG Document 81 Filed 06/19/18 Page 3 of 8
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`of such information, the Court encourages prompt and early production of this information to
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`promote efficient and economical streamlining of the case.
`10.
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`Email production requests shall identify the custodian, search terms, and time
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`frame. The parties shall cooperate to identify the proper custodians, proper search terms and
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`proper timeframe as set forth in the Guidelines.
`11.
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`Each requesting party shall limit its email production requests to a total of three
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`custodians per producing party for all such requests. The parties may jointly agree to modify this
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`limit without the Court’s leave. The Court shall consider contested requests for additional
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`custodians, upon showing a distinct need based on the size, complexity, and issues of this specific
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`case. Cost-shifting may be considered as part of any such request.
`12.
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`Each requesting party shall limit its email production requests to a total of five
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`search terms per custodian per party. The parties may jointly agree to modify this limit without the
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`Court’s leave. The Court shall consider contested requests for additional search terms per
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`custodian, upon showing a distinct need based on the size, complexity, and issues of this specific
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`case. The Court encourages the parties to confer on a process to test the efficacy of the search
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`terms. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such
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`as the producing company’s name or its product name, are inappropriate unless combined with
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`narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive
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`combination of multiple words or phrases (e.g., “computer” and “system”) narrows the search and
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`shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g.,
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`“computer” or “system”) broadens the search, and thus each word or phrase shall count as a
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`separate search term unless they are variants of the same word. Use of narrowing search criteria
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`(e.g., “and,” “but not,” “w/x”) is encouraged to limit the production and shall be considered when
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`determining whether to shift costs for disproportionate discovery. Should a party serve email
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`production requests with search terms beyond the limits agreed to by the parties or granted by the
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`Court pursuant to this paragraph, this shall be considered in determining whether any party shall
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`bear all reasonable costs caused by such additional discovery.
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`3 STIP AND ORDER RE DISCOVERY OF ELECTRONICALLY STORED
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`Case 4:18-cv-00670-HSG Document 81 Filed 06/19/18 Page 4 of 8
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`13.
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`Nothing in this Order prevents the parties from agreeing to use technology assisted
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`review and other techniques insofar as their use improves the efficacy of discovery.
`14.
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`Electronic data should be provided in the following format:
`A.
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`TIFFs. Each document shall be produced in Group IV Tagged Image File
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`Format (“TIFF”) regardless of whether such documents are stored by the parties in the ordinary
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`course of business in electronic or hard copy form. When reasonably feasible, each TIFF image
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`file should be one page and should reflect how the source document would appear if printed to
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`hard copy.
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`B.
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`Database Load Files/Cross-Reference Files. Documents should be provided
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`with an image load file that can be loaded into commercially acceptable production software (e.g.,
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`Concordance, Summation, Relativity). Each TIFF in a production should be referenced in the
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`corresponding image load file. The total number of documents referenced in a production’s data
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`load file shall match the total number of designated document breaks in the Image Load file(s) in
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`the production.
`C.
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`Text files. For each document, a document-level text file should be provided
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`in addition to the TIFFs. The text of native files should be extracted directly from the native file,
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`and each text file will be named using its corresponding image files (e.g., ABC0000001.TXT).
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`Documents for which text cannot be extracted will be produced with OCR.
`D.
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`Hard Copy Documents. Hard copy documents shall be scanned using
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`Optical Character Recognition (“OCR”) technology and searchable ASCII text (or Unicode text if
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`the text is in a language requiring characters outside of the ASCII character set) files shall be
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`produced. Each file shall be named with the unique Bates Number of the first page of the
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`corresponding TIFF document followed by the extension “TXT”
`E.
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`Redactions. With respect to documents containing redacted text, no text will
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`be provided for the redacted portion. OCR will be provided for the unredacted portions of the
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`documents.
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`Case 4:18-cv-00670-HSG Document 81 Filed 06/19/18 Page 5 of 8
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`F.
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`Unique IDs. Each image should have a unique file name which will be the
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`Bates number of that page. The Bates number must appear on the face of the image in the lower
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`right corner.
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`G.
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`Unique Documents. The parties agree to use reasonable efforts to de-
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`duplicate, using a verifiable process, documents within the production. If copies of a responsive
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`document are stored at more than one location within a party’s possession, custody, or control, the
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`producing party shall not be required to search for or produce more than one such copy of the
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`responsive document absent a showing of good cause that the production of additional copies is
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`necessary.
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`H.
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`Metadata. The parties agree to produce the following metadata for each
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`document, to the extent it is reasonably available:
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` BegDoc – The unique designation for the beginning of the document.
` EndDoc – The unique designation for the end of the document
` BEGATTACH – the beginning of any attachments to the document
` ENDATTACH – the end of any attachments to the document
` Custodian – the custodian of the document
` Email Subject - Subject of the e-mail message extracted by metadata extraction
`software
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` Email From - Author of e-mail message extracted by metadata extraction
`software
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` Email To - Recipients of email message extracted from email file by metadata
`extraction software
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` Email CC - Recipients of 'Carbon Copies' of the e-mail message extracted by
`software.
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` Email BCC - Recipients of 'Blind Carbon Copies' for e-mail messages extracted
`by software
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` Date Received - Received date and time of an e-mail message (according to
`original time zones) extracted by metadata extraction software.
`5 STIP AND ORDER RE DISCOVERY OF ELECTRONICALLY STORED
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`Case 4:18-cv-00670-HSG Document 81 Filed 06/19/18 Page 6 of 8
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` Date Sent - Sent date and time of an e-mail message (according to original time
`zones) DEFAULT TIMEZONE IS GMT
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` ParentID – the parent of any documents in a family of documents
` File Name - File name of the native file extracted as metadata
` DocType – the file format of the document
` Document Extension - File extension of document that represents the file type to
`Windows Operating System created by metadata extraction software.
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` File size - Size of the native file in bytes provided by the metadata extraction
`software (Whole Number only)
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` Author - Author field extracted from the metadata of document by metadata
`extraction software. This field will be empty for emails.
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` Date Created - Date and time from the Date Created property extracted by the
`metadata extraction software from original file.
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` Date Last Modified - Date and time from the Modified property of a document,
`representing the date and time that changes to the document were last saved
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`extracted by metadata extraction software.
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` MD5Hash - Unique Identifier -OR- SHA-1Hash - Unique Identifier
`The fields Date Received, Date Sent, Date Created, and Date Last Modified will be
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`provided in the format: mm/dd/yyyy hh:mm:ss
`I.
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`Native Format. The parties have agreed that the following documents may
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`be produced in native format: Excel files, Access Files, Microsoft Project Files, CAD files, GDS
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`files, and GDSII files. Native files will be produced with a placeholder TIFF image. Each TIFF
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`placeholder will contain the endorsed Bates number, endorsed confidentiality designation, and the
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`name of the native file. The parties reserve the ability to produce other types of files in native
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`form, or to request that other file types be produced in native form or in another reasonably usable
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`form upon review of the other party’s production. The parties reserve their respective rights to
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`object to any such request.
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`Case 4:18-cv-00670-HSG Document 81 Filed 06/19/18 Page 7 of 8
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`J.
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`Databases. Certain types of databases kept in the normal course of business
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`contain information that allows for analysis and computation and as such the data may be
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`produced in an electronic format. Data from these types of databases may be produced in database
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`or delimited text file format, as reasonably available.
`K.
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`Non-convertible Files.
`i.
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`Certain types of files such as system, program, video, and sound
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`files may not be amenable to conversion into anything meaningful in TIFF format. Responsive,
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`non-convertible files may be produced in the form of native files with a placeholder TIFF image.
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`Some examples of file types that may not convert include file types with the following extensions:
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`*.ai *.aif *.bin *.brd *.cab *.cfg *.chi *.chm *.com *.dll *.dsn *.eps *.exe *.exp *.hlp *.hqx *.idb
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`*.ilk *.iso *.ivi *.ivt *.ix *.lib *.mpeg *.mpg *.mov *.mp3 *.mpe *.msi *.nls *.obj *.ocx *.opj
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`*.opt *.pdb *.pch *.psd *.psp *.ptf *.ram *.res *.rm *.rmi *.step *.sys *.swf *.snd *.tag *.tlh
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`*.tmp *.trg *.ttf *.vbx *.wav *.wmv *.wma*.wpg *.xfd.
`ii.
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`Non-convertible files may be produced natively and with a
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`placeholder TIFF image. Each TIFF placeholder will contain the endorsed Bates number, endorsed
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`confidentiality designation, and the name of the non-convertible file, including the file extension.
`L.
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`Gaps. Productions should contain sequential Bates numbers with no gaps.
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`There should be no gaps in Bates numbers between productions. A unique production volume
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`number will be used for each production. If any unavoidable gaps occur, the parties agree to
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`provide advance notice of those gaps within productions and/or between productions.
`M.
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`Parent-child Relationships. Parent-child relationships, if available, will be
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`preserved.
`15.
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`Production Media and Labels. Documents will be produced either via FTP or on
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`CD-ROM or DVD or on portable hard drives. The parties agree to attach a label to each piece of
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`media containing production data. The label will provide the following information:
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`Case name
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`Case number
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`Production date
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`7 STIP AND ORDER RE DISCOVERY OF ELECTRONICALLY STORED
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`Case 4:18-cv-00670-HSG Document 81 Filed 06/19/18 Page 8 of 8
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`Volume number
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`Bates range
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`Confidentiality designation (if applicable)
`16.
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`Nothing in this Order is intended to prevent either party from complying with the
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`requirements of the European Union’s General Data Protection Regulation (GDPR) (EU)
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`2016/679. The parties agree to meet and confer before including European custodians or data
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`sources in any ESI or other discovery request in order to discuss compliance with GDPR.
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`IT IS SO STIPULATED, through Counsel of Record.
`
`Dated: June 19, 2018
`
`NI, WANG & MASSAND, PLLC
`
`
`
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`Dated: June 19, 2018
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`
`
`By: /s/ Hao Ni
`(with permission by Jonathan J. Lamberson)
`
`Hao Ni
`
`Attorneys for Plaintiff
`HYPERMEDIA NAVIGATION, LLC
`
`FISH & RICHARDSON P.C.
`
`By: /s/ Jonathan J. Lamberson
`
`Jonathan J. Lamberson
`
`Attorneys for Defendant
`MICROSOFT CORPORATION
`
`ATTESTATION
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`Pursuant to Civil L.R. 5-1(i)(3), I attest that concurrence in the filing of the document has
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`been obtained from each of the other signatories above.
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`IT IS ORDERED that the forgoing Agreement is approved.
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`Dated: June 19, 2018
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`
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`
`
`/s/ Jonathan J. Lamberson
`Jonathan J. Lamberson
`
`
`
`
`
`
`Hon. Haywood S. Gilliam, Jr.
`United States District Court
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