Case 1:19-cv-09410-PKC Document 70 Filed 03/30/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`FINCO SERVICES, INC.,
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`Plaintiff,
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`v.
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`FACEBOOK, INC., CALIBRA, INC.,
`JLV, LLC and CHARACTER SF, LLC,
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`Defendants.
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`CASE NO. 1:19-cv-09410 (PKC) (KHP)
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`JOINT STIPULATION AND [PROPOSED]
`ORDER RE: DISCOVERY OF
`ELECTRONICALLY STORED
`INFORMATION
`
`1.
`PURPOSE
`This Order will govern discovery of electronically stored information (“ESI”) in this case
`as a supplement to the Federal Rules of Civil Procedure, and any other applicable orders and rules.
`The parties and the Court recognize that this Joint Stipulation and [Proposed] Order is based on
`facts and circumstances as they are currently known to each party, that the electronic discovery
`process is iterative, and that additions and modifications to this Joint Stipulation and [Proposed]
`Order may become necessary as more information becomes known to the parties.
`For the avoidance of doubt, this stipulation is limited to e-discovery; nothing herein shall
`relieve the parties of the duty to conduct a reasonable search for hard copy documents in response
`to a requesting party’s discovery requests in accordance with the Federal Rules of Civil Procedure.
`And nothing in this ESI stipulation shall waive in whole or in part any objection raised by a party
`in connection with specific discovery requests served in this action.
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`Case 1:19-cv-09410-PKC Document 70 Filed 03/30/20 Page 2 of 14
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`2.
`COOPERATION AND PROPORTIONALITY
`The parties are aware of the importance the Court places on cooperation and commit to
`cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the
`Discovery of ESI to promote the “just, speedy, and inexpensive determination” of this action, as
`required by Fed. R. Civ. P. 1. The parties are expected to use reasonable, good faith and
`proportional efforts to preserve, identify and produce relevant and discoverable information
`consistent with Fed. R. Civ. P. 26(b)(1). This includes identifying appropriate limits to discovery,
`including limits on custodians, identification of relevant and discoverable subject matter, time
`periods for discovery, and other parameters to limit and guide preservation and discovery issues.
`The failure of counsel or the parties to cooperate in facilitating and reasonably limiting discovery
`requests and responses will be considered in cost-shifting determinations.
`3.
`LIAISON
`Each party shall designate an individual or individuals as e-discovery liaison(s) who must:
`(a)
`be prepared to meet and confer on discovery-related matters and to participate in
`discovery dispute resolution;
`be knowledgeable about the party’s discovery efforts; and
`be, or have reasonable access to those who are, familiar with the party’s electronic
`systems and capabilities in order to explain those systems and answer relevant
`questions; and be, or have reasonable access to those who are, knowledgeable about
`the technical aspects of e-discovery, including electronic document storage,
`organization, and format issues, and relevant information retrieval technology,
`including search methodology.
`4.
`PRESERVATION
`Each party is responsible for taking reasonable and proportionate steps to preserve relevant
`and discoverable ESI within its possession, custody or control consistent with Sedona Conference
`Principle 6 which instructs that “[r]esponding parties are best situated to evaluate the procedures,
`methodologies, and technologies appropriate for preserving and producing their own electronically
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`(b)
`(c)
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`Case 1:19-cv-09410-PKC Document 70 Filed 03/30/20 Page 3 of 14
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`(b)
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`(c)
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`stored information.”1 The parties have discussed their preservation obligations and needs and agree
`that preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the
`costs and burdens of preservation and to ensure proper ESI is preserved, the parties agree that:
`(a)
`Parties shall preserve non-duplicative, discoverable information
` in their
`possession, custody or control. Parties, however, shall not be required to modify
`the procedures used by them in the usual course of business to back-up and archive
`data, such as automatic email back-up or other archival systems.
`Subject to and without waiving any protection described in Section 4(a) above, the
`parties agree that:
`1.
`Only ESI created or received after June 1, 2018 will be preserved;
`2.
`The parties shall agree on the custodians for whom they believe ESI should
`be preserved, including the addition of additional custodians as necessary;
`These data sources are not reasonably accessible because of undue burden or cost
`pursuant to Fed. R. Civ. P. 26(b)(2)(B) and ESI from these sources will be
`preserved pursuant to normal business retention, but not searched, reviewed, or
`produced, unless otherwise ordered by the Court upon a motion of a party:
`1.
`backup systems and/or tapes used for disaster recovery; and
`2.
`systems no longer in use that cannot be accessed.
`Among the sources of data the parties agree are not reasonably accessible, based on
`mutual representation of the parties’ counsel, the parties agree not to preserve,
`collect, process, review and/or produce the following:
`1.
`Deleted, slack, fragmented, or unallocated data only accessible by forensics.
`2.
`Random access memory (RAM), temporary files, or other ephemeral data
`that are difficult to preserve without disabling the operating system.
`
`(d)
`
`
`1 The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic
`Document Production, 19 SEDONA CONF. J. 118 (2018).
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`3.
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`4.
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`5.
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`6.
`7.
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`On-line data such as temporary internet files, history, cache, cookies, and
`the like.
`Data in metadata fields that are frequently updated automatically, such as
`last-opened dates.
`Back-up data that are substantially duplicative of data that are more
`accessible elsewhere.
`Voice messages.
`Instant messages and chats that are not chronicled to an email archive
`system.
`Sound recordings, including, without limitation, .mp3 and .wav files
`Video recordings
`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).
`11. Mobile device activity logs
`12.
`Server, system, or network logs.
`13.
`Dynamic fields in databases or log files not stored or retained in the usual
`course of business.
`Data remaining from systems no longer in use that is unintelligible on the
`systems in use.
`Information created or copied incidental to the deployment, maintenance,
`retirement, and/or disposition of computer equipment by the party, such as
`incidental copies of a hard drive made when information is transferred from
`an old, retired device to a new device.
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`8.
`9.
`10.
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`14.
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`15.
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`16.
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`requires unreasonable,
`forms of ESI whose preservation
`Other
`disproportionate, and/or non-routine, affirmative measures that are not
`utilized in the ordinary course of business.
`SEARCH
`The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier
`if appropriate, they will meet and confer about methods to search ESI in order to
`identify ESI that is subject to production in discovery and filter out ESI that is not
`subject to discovery.
`Nothing in this Order shall be construed or interpreted as precluding a producing
`party from performing a responsiveness review to determine if documents captured
`by search terms are in fact relevant to the requesting party’s request. Further,
`nothing in this Order shall be construed or interpreted as requiring the production
`of all documents captured by any search term if that document is in good faith and
`reasonably deemed not relevant to the requesting party’s request.
`Each party will use its best efforts to filter out common system files and application
`executable files by using a commercially reasonable hash identification process.
`Hash values that may be filtered out during this process are located in the National
`Software Reference Library (“NSRL”) NIST hash set list.
`De-Duplication. Each party is required to produce only a single copy of a
`responsive document and each party may de-duplicate responsive ESI (based on
`MD5 hash values at the document level) across Custodians. For emails with
`attachments, the hash value is generated based on the parent/child document
`grouping. To the extent that de-duplication through MD5 hash values is not
`possible, the parties shall meet and confer to discuss any other proposed method of
`de-duplication.
`Email Threading. Where multiple email messages are part of a single chain or
`“thread,” a party is only required to produce the most inclusive message (“Last In
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`5.
`(a)
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`(b)
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`(c)
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`(d)
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`(e)
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`6.
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`7.
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`8.
`(a)
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`Time Email”) and need not produce earlier, less inclusive email messages or
`“thread members” that are fully contained, including attachments and including
`identical senders and recipients, within the Last In Time Email. Only email
`messages for which the parent document and all attachments are contained in the
`Last In Time Email will be considered less inclusive email messages that need not
`be produced
`PRODUCTION FORMATS
`The parties agree to produce documents in the formats described in Appendix 1 to
`this Order. If particular documents warrant a different format, the parties will
`cooperate to arrange for the mutually acceptable production of such documents.
`The parties agree not to degrade the searchability of documents as part of the
`document production process.
`PHASING
`When a party propounds discovery requests pursuant to Fed. R. Civ. P. 34, the
`parties agree to phase the production of ESI. Following the initial production, the
`parties will continue to prioritize the order of subsequent productions.
`DOCUMENTS PROTECTED FROM DISCOVERY
`Pursuant to Fed. R. Evid. 502(d) and (e), the production of a privileged or work-
`product-protected document, whether inadvertent or otherwise, is not a waiver of
`privilege or protection from discovery in the pending case or in any other federal
`or state proceeding. Disclosures among defendants’ attorneys of work product or
`other communications relating to issues of common interest shall not affect or be
`deemed a waiver of any applicable privilege or protection from disclosure. For
`example, the mere production of privileged or work-product-protected documents
`in this case as part of a mass production is not itself a waiver in this case or in any
`other federal or state proceeding. A producing party may assert privilege or
`protection over produced documents at any time by notifying the receiving party in
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`writing of the assertion of privilege or protection. Information that contains
`privileged matter or attorney work product shall be returned immediately or
`destroyed if such information appears on its face to have been inadvertently
`produced, or if requested. The receiving party must return, sequester, or destroy
`ESI that the producing party claims is privileged or work product protected as
`provided in Rule 26(b)(5)(B) and may use such ESI only to challenge the claim of
`privilege or protection.
`Activities undertaken in compliance with the duty to preserve information are
`protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
`The parties agree to furnish logs that comply with Fed. R. Civ. P. 26(b)(5) and any
`other legal requirements for all documents withheld or redacted on the basis of
`privilege, attorney work product, or similar doctrines. Privilege logs may be
`produced on a rolling basis or after all productions are complete, but prior to the
`close of discovery.
`Communications and documents that post-date the filing of the complaint need not
`be placed on a privilege log.
`Parties agree to log only the Last In Time Emails in a thread and need not log earlier,
`less inclusive email messages or “thread members” that are fully contained within
`the Last In Time Email.
`Communications may be identified on a privilege log by category, rather than
`individually, if appropriate.
`Nothing in this Order shall be interpreted to require disclosure of irrelevant
`information or relevant information protected by the attorney-client privilege,
`work-product doctrine, or any other applicable privilege or immunity. The parties
`do not waive any objections to the production, discoverability, admissibility, or
`confidentiality of documents and ESI.
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`(b)
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`(c)
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`(d)
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`(e)
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`(f)
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`(g)
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`9.
`MODIFICATION
`This Stipulated Order may be modified by a Stipulated Order of the parties or by the Court
`for good cause shown.
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`SO STIPULATED AND AGREED.
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`Dated: March 30, 2020
`
` /s/ Dale M. Cendali
`Dale M. Cendali
`Johanna Schmitt
`Jordan Romanoff
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`(212) 446-4800
`dale.cendali@kirkland.com
`johanna.schmitt@kirkland.com
`jordan.romanoff@kirkland.com
`
`Counsel for Defendants Facebook, Inc.,
`Calibra, Inc. and JLV, LLC
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`Dated: March 30, 2020
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` /s/ Kandis M. Koustenis (with permission)
`Kandis M. Koustenis
`BEAN KINNEY & KORMAN PC
`2311 Wilson Boulevard, Suite 500
`Arlington, VA 22201
`(703) 525-4000
`(703) 525-2207 (fax)
`kkoustenis@beankinney.com
`
`Ethan Horwitz
`CARLTON FIELDS P.A.
`405 Lexington Avenue, 36th Floor
`New York, New York 10174
`(212) 380-9617
`(212) 785-5203 (fax)
`ehorwitz@carltonfields.com
`
`Counsel for Plaintiff Finco Services, Inc.
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`SO ORDERED.
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`Dated: __________________________
`New York, New York
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`______________________________________
`P. Kevin Castel, U.S. District Judge
`Katherine H. Parker, U.S. Magistrate Judge
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`1.
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`APPENDIX 1: PRODUCTION FORMAT
`Production Components. Except as otherwise provided below, ESI shall be
`produced in accordance with the following specifications:
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`(a) an ASCII delimited data file (.DAT) using standard delimiters;
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`(b) an image load file (.OPT) that can be loaded into commercially acceptable
`production software (e.g. Concordance);
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`2.
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`(c) page level TIFF images;
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`(d) and document level .TXT files for all documents containing extracted full text
`or OCR text.
`If a particular document warrants a different production format, the parties
`will cooperate in good faith to arrange for a mutually acceptable production
`format.
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`Production Media and Access Controls. Documents shall be encrypted and
`produced through electronic means, such as secure file sharing methods (e.g.
`FTP), or on CD, DVD, flash drive or external hard drive (“Production Media”).
`Each piece of Production Media shall identify a production number corresponding
`to the production volume (e.g. “VOL001”). Each piece of Production Media shall
`also identify: (a) the producing party’s name; (2) the production date; (3) the
`Bates Number range of the materials contained on the Production Media.
`Nothing in this Order will preclude or impair any and all protections provided the
`parties by any Protective Order(s) agreed and entered into by the parties. Any data
`produced by the producing party must be protected in transit, in use, and at rest by
`all in receipt of such data. Parties will use best efforts to avoid the unnecessary
`copying or transmittal of produced documents. Any copies made of produced data
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`3.
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`4.
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`must be kept on media or hardware employing whole-disk or folder level
`encryption or otherwise secured on information systems and networks in a manner
`consistent with the best practices for data protection. If questions arise, Parties will
`meet and confer to ensure security concerns are addressed prior to the exchange of
`any documents.
`Data Load Files/Image Load Files. Each TIFF in a production must be
`referenced in the corresponding image load file. The total number of documents
`referenced in a production’s data load file should match the total number of
`designated document breaks in the image load file(s) in the production. The total
`number of pages referenced in a production’s image load file should match the
`total number of TIFF files in the production. All images must be assigned a
`unique Bates number that is sequential within a given document and across the
`production sets. The Bates Numbers in the image load file must match the
`corresponding documents’ beginning Bates numbers in the data load file. The
`total number of documents in a production should match the total number of
`records in the data load file. Load files shall not vary in format or structure within
`a production, or from one production to another.
`Metadata Fields. Each of the metadata and coding fields set forth below that can
`be extracted shall be produced for each document. The parties are not obligated to
`populate manually any of the fields below if such fields cannot be extracted from
`a document, with the exception of the following: (a) BEGBATES, (b)
`ENDBATES, (c) BEGATTACH, (d) ENDATTACH, (e) CUSTODIAN, (f)
`DEDUPED_CUSTODIAN, (g) CONFIDENTIALITY, (h) REDACTIONS, (i)
`NATIVEFILEPATH, (j) TEXTFILEPATH, and (k) HASHVALUE, which should
`be populated by the party or the party’s vendor. The parties will make reasonable
`efforts to ensure that metadata fields automatically extracted from the documents
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`correspond directly to the information that exists in the original documents.
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`Field Name
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`BEGBATES
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`ENDBATES
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`BEGATTACH
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`ENDATTACH
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`CUSTODIAN
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`Field Description
`Beginning Bates number as stamped on the production
`image
`Ending Bates number as stamped on the production image
`First production Bates number of the first document in a
`family
`Last production Bates number of the last document in a
`family
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`Individual from whom the documents originated
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`CONFIDENTIALITY
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`Confidentiality designation assigned to document
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`NATIVEFILEPATH
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`Native File Link (Native Files only)
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`TEXTFILEPATH
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`HASHVALUE
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`AUTHOR
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`DOCDATE
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`DATEMODIFIED
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`FROM
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`TO
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`CC
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`BCC
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`Path to extracted text/OCR file for document
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`MD5 hash value of document
`Any value populated in the Author field of the document
`properties (Edoc or attachment only)
`Date the document was created (format: MM/DD/YYYY)
`(Edoc or attachment only)
`Date when document was last modified according to
`filesystem information (format: MM/DD/YYYY) (Edoc or
`attachment only)
`The name and email address of the sender of the email
`All recipients that were included on the “To” line of the
`email
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`All recipients that were included on the “CC” line of the
`email
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`All recipients that were included on the “BCC” line of the
`email
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`DATRECEIVED
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`DATESENT
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`Date email was received (format: MM/DD/YYYY)
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`Date email was sent (format: MM/DD/YYYY)
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`Field Name
`FILESIZE
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`Field Description
`The original file size of the produced document
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`5.
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`6.
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`7.
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`8.
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`TIFFs. Documents that exist only in hard copy format shall be scanned and
`produced as TIFFs. Documents that exist as ESI shall be converted and produced
`as TIFFs, except as provided below. The parties shall take reasonable efforts to
`process presentations (e.g. MS PowerPoint) with hidden slides and speaker’s
`notes unhidden, and to show both the slide and the speaker’s notes on the TIFF
`image. Unless excepted below, single page, black and white, Group IV TIFFs
`should be provided, at least 300 dots per inch (dpi) for all documents. Each TIFF
`image shall be named according to a unique corresponding Bates number
`associated with the document. Each image shall be branded according to the
`Bates number and the agreed upon confidentiality designation. Original document
`orientation should be maintained (i.e., portrait to portrait and landscape to
`landscape). Where the TIFF image is unreadable or has materially degraded the
`quality of the original, the producing party shall provide a higher quality TIFF
`image or the native or original file.
`Color. The parties may request color copies of a limited number of documents
`where color is necessary to accurately interpret the document.
`Text Files. A single multi-page text file shall be provided for each document, and
`the filename should match its respective TIFF filename. When possible, the text
`of native files should be extracted directly from the native file. Text files will not
`contain the redacted portions of the documents. A commercially acceptable
`technology for optical character recognition “OCR” shall be used for all scanned,
`hard copy documents and for documents with redactions.
`Native files. Spreadsheets (e.g. MS Excel) will be produced in native format
`unless redacted, in which instance, spreadsheets shall be produced in TIFF with
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`OCR Text Files. Presentation files (e.g. MS PowerPoint) may also be produced in
`native format if necessary for the most legible production of the information
`contained in those files. To the extent that they are produced in this action, audio,
`video, and multi-media files will be produced in native format. Native files shall
`be produced with a link in the NATIVEFILEPATH field, along with extracted
`text (where extracted text is available) and applicable metadata fields set forth in
`paragraph 4 above. A Bates numbered TIFF placeholder indicating that the
`document was provided in native format must accompany every native file. If
`good cause exists to request production of files, other than those specifically set
`forth above, in native format, the requesting party may request such production
`and provide an explanation of the need for native file review, which request shall
`not unreasonably be denied. The parties agree to work out a protocol for use of
`native files at depositions, hearings, or trial.
`Confidentiality Designation. Responsive documents in TIFF format will be
`stamped with the appropriate confidentiality designations in accordance with the
`protective order entered in this matter. Each responsive document produced in
`native format will have its confidentiality designation identified in the filename of
`the native file and indicated on its corresponding TIFF placeholder.
`Databases and Other Structured Data. The parties shall meet and confer
`regarding the production format and scope of data contained in databases in order
`to ensure that any information produced is reasonably usable by the receiving
`party and that its production does not impose an undue burden on the producing
`party, by, for example, requiring development of reports and/or software code to
`extract the information. To avoid doubt, information will be considered
`reasonably usable when produced in CSV format, tab-delimited text format,
`Microsoft Excel format, or Microsoft Access format. To the extent a party is
`constrained from producing responsive ESI because of a third party license or
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`9.
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`10.
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`Case 1:19-cv-09410-PKC Document 70 Filed 03/30/20 Page 14 of 14
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`because software necessary to view the ESI is hardware-dependent, the parties
`shall meet and confer to reach an agreement on alternative methods to enable the
`requesting party to view the ESI.
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