Case 2:20-cv-00337-JRG Document 65 Filed 03/16/21 Page 1 of 7 PageID #: 452
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CIVIL ACTION NO. 2:20-cv-00337-JRG
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`§
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`§ §
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`SEAGEN INC.,
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`Plaintiff,
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`v.
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`DAIICHI SANKYO CO., LTD.,
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`Defendant.
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`ORDER REGARDING E-DISCOVERY
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`The Court ORDERS as follows:
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`1.
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`This order supplements all other discovery rules and orders. It streamlines Electronically
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`Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
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`determination” of this action, as required by Federal Rule of Civil Procedure 1.
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`This order may be modified in the Court’s discretion or by agreement of the Parties.
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`A Party’s meaningful compliance with this order and efforts to promote efficiency and
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`2.
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`3.
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`reduce costs will be considered in cost-shifting determinations.
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`4.
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`Absent a showing of good cause, general ESI production requests under Federal Rules of
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`Civil Procedure 34 and 45, or compliance with a mandatory disclosure requirement of this
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`Court, shall not include metadata. However, fields showing the date and time that the
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`document was sent and received, as well as the complete distribution list, shall generally
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`be included in the production if such fields exist.
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`5.
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`Absent agreement of the Parties or further order of this Court, the following parameters
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`shall apply to ESI production:
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`A.
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`General Document Image Format. Each electronic document shall be produced
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`in the form in which it is ordinarily maintained (“native format”) or in single-page
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`Tagged Image File Format (“TIFF”) format. Files produced in native format shall
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`have a TIFF Image indicating that the file was produced natively and having a
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`metadata field that identifies the file path for the location of the associated native
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`file within the production load file. TIFF files shall be single page and shall be
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`named with a unique production number followed by the appropriate file extension.
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`Load files shall be provided to indicate the location and unitization of the TIFF
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`files. If a document is more than one page, the unitization of the document and any
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`attachments and/or affixed notes shall be maintained as they existed in the original
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`document.
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`B.
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`Text-Searchable Documents. No Party has an obligation to make its production
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`text-searchable; however, if a Party’s documents already exist in text-searchable
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`format independent of this litigation, or are converted to text-searchable format
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`for use in this litigation, including for use by the producing Party’s counsel, then
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`such documents shall be produced in the same text-searchable format at no cost to
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`the receiving Party.
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`C.
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`Footer. Each document image shall contain a footer with a sequentially ascending
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`production number.
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`D.
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`Native Files. A Party that receives a document produced in a format specified
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`above may make a reasonable request to receive the document in its native format,
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`and upon receipt of such a request, the producing Party shall produce the document
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`in its native format.
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`E.
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`Databases. The Parties agree to undertake reasonable efforts to provide data from
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`databases or other structured data sources in a reasonably useful format consistent
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`with how such data is stored in the ordinary course of business.
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`F.
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`No Backup Restoration Required. Absent a showing of good cause, no Party
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`need restore any form of media upon which backup data is maintained in a Party’s
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`normal or allowed processes, including but not limited to backup tapes, disks,
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`SAN, and other forms of media, to comply with its discovery obligations in the
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`present case. Absent a showing of good cause, the following categories of ESI
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`are deemed not reasonably accessible and need not be collected and preserved:
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`i.
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`ii.
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`Deleted, “slack,” fragmented, or unallocated data;
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`Random access memory (RAM), temporary files, or other
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`ephemeral data that are difficult to preserve without disabling the
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`operating system;
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`iii.
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`Online access data such as (without limitation) temporary internet
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`files, history files, cache files, and cookies; and
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`iv.
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`Server, system, network, or software application logs.
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`G.
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`Voicemail and Mobile Devices. Absent a showing of good cause, voicemails,
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`PDAs and mobile phones are deemed not reasonably accessible and need not be
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`collected and preserved.
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`6.
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`General ESI production requests under Federal Rules of Civil Procedure 34 and 45, or
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`compliance with a mandatory disclosure order of this Court, shall not include e-mail or
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`other forms of electronic correspondence (collectively “e-mail”). To obtain e-mail,
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`Parties must propound specific e-mail production requests.
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`7.
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`E-mail production requests shall be phased to occur timely after the Parties have exchanged
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`initial disclosures, a specific listing of likely e-mail custodians, a specific identification of
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`the fifteen most significant listed e-mail custodians in view of the pleaded claims and
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`defenses,1 infringement contentions and accompanying documents pursuant to P.R. 3-1
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`and 3-2, invalidity contentions and accompanying documents pursuant to P.R. 3-3 and 3-
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`4, and preliminary information relevant to damages. The exchange of this information
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`shall occur at the time required under the Federal Rules of Civil Procedure, Local Rules, or
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`by order of the Court. Each requesting Party may also propound up to five written
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`discovery requests and take one deposition per producing Party to identify the proper
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`custodians, proper search terms, and proper time frame for e-mail production requests.
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`The Court may allow additional discovery upon a showing of good cause.
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`8.
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`E-mail production requests shall identify the custodian, search terms, and time frame. The
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`Parties shall cooperate to identify the proper custodians, proper search terms, and proper
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`time frame. For avoidance of doubt, e-mail production requests to custodians shall be
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`limited to only e-mail or other forms of electronic correspondence. Each requesting Party
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`shall limit its e-mail production requests to a total of eight custodians per producing Party
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`for all such requests. 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 or fewer
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`custodians per producing Party, upon showing a distinct need based on the size,
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`complexity, and issues of this specific case.
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`9.
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`Each requesting Party shall limit its e-mail production requests to a total of ten search terms
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`1 A “specific identification” requires a short description of why the custodian is believed to be
`significant.
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`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 or fewer search
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`terms per custodian, upon showing a distinct need based on the size, complexity, and
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`issues of this specific case. The search terms shall be narrowly tailored to particular
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`issues. Indiscriminate terms, such as the producing company’s name or its product name,
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`are inappropriate unless combined with narrowing search criteria that sufficiently reduce
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`the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g.,
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`“computer” and “system”) narrows the search and shall count as a single search term. A
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`disjunctive combination of multiple words or phrases (e.g., “computer” or “system”)
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`broadens the search, and thus each word or phrase shall count as a separate search term
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`unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,”
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`“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. If any search term, date
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`range, or custodian results in overly broad results, the Parties will meet and confer in good
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`faith to consider refining or modifying the search terms, date range, or custodian.
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`10.
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`E-mails from Non-Custodians. To the extent that a Party elects to make a voluntary
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`production of an e-mail from an individual that is not designated as an e-mail custodian,
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`the Parties shall meet and confer regarding requests for any additional e-mails from such
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`individual. The Court shall consider contested requests for any additional e-mails from
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`non-custodians, upon showing a distinct need based on the voluntarily produced e-mail
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`and the specific issues of this case.
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`11.
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`To contain costs in the identification of non-duplicative relevant ESI from the email
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`collections of identified custodians for review and production, the Parties may use
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`Case 2:20-cv-00337-JRG Document 65 Filed 03/16/21 Page 6 of 7 PageID #: 457
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`advanced search and retrieval technologies, including e mail threading, predictive coding,
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`or other technology-assisted review, given the use of such technology is disclosed to the
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`other Party prior to its use. In the case of a Party’s disclosure of the intended use of
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`predictive coding or technology assisted review, within seven days of disclosure, the other
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`Party is permitted to request information regarding the confidence metrics to be used. The
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`Parties agree to meet and confer regarding the specific analytics and confidence metrics
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`that will be exchanged and a schedule for the exchange.
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`12.
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`The Parties will take reasonable steps, prior to production, to unencrypt and restore any
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`discoverable ESI that is encrypted (e.g., password-protected) and will produce relevant,
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`non-privileged, responsive documents that can be reasonably unencrypted and restored.
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`13.
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`Pursuant to Federal Rule of Evidence 502(d) and Paragraph 12 of the Protective Order
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`(Dkt. No. 55), both of which are expressly incorporated herein, the inadvertent production
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`of a privileged or work product protected ESI is not a waiver in the pending case or in any
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`other federal or state proceeding.
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`14.
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`The Producing Party may redact from any TIFF image, metadata field, or native file
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`material that is protected from disclosure by applicable privilege or immunity, that is
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`governed by either domestic or foreign privacy laws or regulations, private personal
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`information of employees or other persons, or other information that the Protective Order
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`allows to be redacted.
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`15.
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`The mere production of ESI in a litigation as part of a mass production shall not itself
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`constitute a waiver for any purpose.
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`16.
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`Except as expressly stated, nothing in this order affects the Parties’ discovery obligations
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`under the Federal or Local Rules.
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 16th day of March, 2021.
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