Case 6:22-cv-00031-ADA Document 51-1 Filed 09/07/22 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Plaintiff,
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`v.
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`FLYPSI, INC. (D/B/A FLYP),
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`GOOGLE LLC,
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`Defendant.
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`§
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`Case No. 6:22-CV-00031-ADA
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`JURY TRIAL DEMANDED
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`AGREED ORDER REGARDING DISCOVERY OF
`ELECTRONICALLY STORED INFORMATION
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`1. PURPOSE
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`This Order will govern discovery of electronically stored information (“ESI”) in the above-
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`captioned cases as a supplement to the Federal Rules of Civil Procedure and any other applicable
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`orders and rules.
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`2. COOPERATION
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`The parties are aware of the importance the Court places on cooperation and commit to cooperate
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`in good faith throughout the matter.
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`3. PROPORTIONALITY
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`Parties are expected to use reasonable, good faith and proportional efforts to preserve, identify
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`and produce relevant information consistent with Fed. R. Civ. P. 26(b)(1)1. This includes
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`identifying appropriate limits to discovery, identification of relevant subject matter, time periods
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`for discovery, and other parameters to limit and guide preservation and discovery issues. A
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`party’s meaningful compliance with this order and efforts to promote efficiency and reduce costs
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`1 Information can originate in any form, including ESI and paper, and is not limited to information
`created or stored electronically.
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`may be considered in cost-shifting determinations.
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`4. COST-SHIFTING
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`As in all cases, costs may be shifted for disproportionate ESI production requests pursuant
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`to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory discovery
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`tactics are cost-shifting considerations.
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`5. LIAISON
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`a)
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`The parties have identified liaisons to each other who are and will be
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`knowledgeable about and responsible for discussing their respective ESI. Each e-discovery
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`liaison will be, or have access to those who are, knowledgeable about the technical aspects of e-
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`discovery, including the location, nature, accessibility, format, collection, search methodologies,
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`and production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer
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`about ESI and to help resolve disputes without court intervention.
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`b)
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`c)
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`Flypsi, Inc. appoints Danielle Sloan as its e-discovery liaison.
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`Google LLC appoints Joshua Yin as its e-discovery liaison.
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`6. PRESERVATION
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`The parties have discussed their preservation obligations and needs and agree that
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`preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs
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`and burdens of preservation and to ensure proper ESI is preserved, the parties agree that:
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`a)
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`b)
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`c)
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`Only ESI created or received on or after January 1, 2011 will be preserved;
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`The parties have discussed the types of ESI they believe should be preserved;
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`The following data sources are not reasonably accessible because of undue
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`burden or cost pursuant to Fed. R. Civ. P. 26(b)(2)(B). ESI from these sources will be preserved
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`pursuant to normal business retention, but not searched, reviewed, or produced:
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`1. backup systems and/or tapes used for disaster recovery;
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`2. systems, server, and network logs; and
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`3. systems no longer in use that cannot be accessed.
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`d)
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`Among the sources of data the parties agree are not reasonably accessible, the
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`parties agree not to preserve, search, or collect the following:
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`1. voice messages
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`2. information from handsets, mobile devices, personal digital assistants, and tablets
`that is duplicative of information that resides in a reasonably accessible data
`source;
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`3. instant messaging and chat application data;
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`4. automatically saved versions of documents and emails;
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`5. video and audio recordings;
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`6. deleted, slack, fragmented, or other data accessible only by forensics;
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`7. random access memory (RAM), temporary files, or other ephemeral data that are
`difficult to preserve without disabling the operating system;
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`8. on-line access data such as temporary internet files, history, cache, cookies, and
`the like;
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`9. dynamic fields of databases or log files that are not retained in the usual course
`of business; and
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`10. data in metadata fields that are frequently updated automatically, such as last
`opened dates.
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`7. SEARCH
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`a)
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`The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or
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`earlier if appropriate, they will meet and confer about methods to search ESI (including the need
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`to search email related ESI under the applicable provisions of the Court’s Order Governing
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`Proceedings in Patent Cases) in order to identify ESI that is subject to production in discovery
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`and filter out ESI that is not subject to discovery.
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`b)
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`Each party will use its best efforts to filter out common system files and
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`application executable files by using a commercially reasonable hash identification process.
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`Hash values that may be filtered out during this process are located in the National Software
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`Reference Library (“NSRL”) NIST hash set list. Additional culling of file types based on file
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`header information may include, but are not limited to: Application Package File, Backup Files,
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`Batch Files, Binary Disc Image, C++ File Formats, Cascading Style Sheet, Configuration File,
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`Database File, Dictionary Files, Dynamic Link Library, Event Log Files, Executable Files,
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`Hypertext Cascading Stylesheet, Java Archive Files, JavaScript files, JavaScript Source Code
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`and Class Files, Macintosh Resource Fork Files, MP3 Files, MP4 Files, Package Manager Files,
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`Program Files, Program Installers, Python Script Files, Quicktime Files, Shell Script Files,
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`System or Temporary Files, Thumbnail Cache Files, Troff Files, TrueType Font Files, Video
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`Media Files, Waveform Audio File Format, Windows Cabinet File, Windows Command Files,
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`Windows File Shortcut, Windows Help Files, Windows Metafiles and Enhanced Metafiles,
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`Windows Spool Files, Windows System File. Source code files will be provided according to
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`the Protective Order and not included in data productions.
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`c)
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`A party is required to produce only a single copy of a responsive document, and
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`a party may de-duplicate responsive ESI.
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`d)
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`If applicable, no provision of this Order affects the inspection or production of
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`source code which will be collected and made available consistent with the Protective Order
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`governing this case.
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`8. PRODUCTION FORMATS
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`The parties agree to produce documents in the formats described in Appendix 1 to this
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`Order. If particular documents warrant a different format, the parties will cooperate to arrange
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`for the mutually acceptable production of such documents. The parties agree not to degrade the
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`searchability of documents as part of the document production process.
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`Case 6:22-cv-00031-ADA Document 51-1 Filed 09/07/22 Page 5 of 9
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`9. DOCUMENTS PROTECTED FROM DISCOVERY
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`a)
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`Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product-
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`protected document, whether inadvertent or otherwise, is not a waiver of privilege or protection
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`from discovery in this case or in any other federal or state proceeding. Disclosures among a
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`party’s attorneys (including attorneys of third parties that share issues of common interest) of
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`work product or other communications relating to issues of common interest shall not affect or
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`be deemed a waiver of any applicable privilege or protection from disclosure. For example, the
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`mere production of privileged or work-product-protected documents in this case as part of a mass
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`production is not itself a waiver in this case or in any other federal or state proceeding. A
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`producing party may assert privilege or protection over produced documents at any time by
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`notifying the receiving party in writing of the assertion of privilege or protection. Information
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`that contains privileged matter or attorney work product shall be returned immediately if such
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`information appears on its face to have been inadvertently produced or if requested.
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`b)
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`Communications that: (1) concern a case; (2) involve trial counsel in that case;
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`and (3) post-date the filing of the complaint in that case need not be placed on a privilege log.
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`Such post-date communications may be identified on a privilege log by category, rather than
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`individually, if appropriate.
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`c)
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`Activities undertaken in compliance with the duty to preserve information are
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`protected from discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).
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`d)
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`Nothing in this Agreement shall be interpreted to require disclosure of irrelevant
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`information or relevant information protected by the attorney-client privilege, work-product
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`doctrine, or any other applicable privilege or immunity. The parties do not waive any objections
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`to the production, discoverability, admissibility, or confidentiality of documents and ESI.
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`10. MODIFICATION
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`This Agreed Order may be modified by an Agreed Order of the parties or by the Court
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`for good cause shown. Any such modified Agreed Order will be titled sequentially as follows,
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`“First Modified Agreed Order re: Discovery of Electronically Stored Information,” and each
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`modified Agreed Order will supersede the previous Agreed Order.
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`IT IS SO AGREED, through Counsel of Record.
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`Dated: September 7, 2022
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`/s/ Michael A. Bittner_______________________
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`Counsel for Plaintiff Flypsi, Inc. (d/b/a Flyp)
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`Dated: September 7, 2022
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`/s/ Paige Arnette Amstutz__________________
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`Counsel for Defendant Google LLC
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`IT IS ORDERED that the foregoing Agreed Order Regarding Discovery of Electronically
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`Stored Information is approved.
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`Dated: ______________________
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`_________________________________________
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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`APPENDIX 1
`PRODUCTION FORMAT AND METADATA
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`1. Production Components. Productions shall include single page TIFFs, Text Files, and
`ASCII delimited metadata file (.txt, .dat, or .csv), and an image load file that can be
`loaded into commercially acceptable production software (e.g., Concordance).
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`2. Image Load File shall contain the following comma-delimited fields: BEGBATES,
`VOLUME, IMAGE FILE PATH, DOCUMENT BREAK, FOLDER BREAK, BOX
`BREAK, PAGE COUNT.
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`3. Metadata Fields and Metadata File. 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. The metadata file shall be delimited according to the following
`characters:
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`● Delimiter = ¶ (ASCII:020)
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`● Text-Qualifier = þ (ASCII:254)
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`● New Line = ® (ASCII:174)
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`● Multi-value delimiter - ; (ASCII Code 059)
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`Field Name
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`BEGBATES
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`ENDBATES
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`TITLE
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`FILENAME
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`DATEMOD
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`DATECREATED
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`NATIVELINK
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`TEXTLINK
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`Field Description
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`Beginning Bates number as stamped on the production image
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`Ending Bates number as stamped on the production image
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`Title from properties of document
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`Filename of an electronic document (Edoc or attachment)
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`Date an electronic document was last modified or created
`(format: MM/DD/YYYY) (Edoc or attachment)
`Date the document was created (format: MM/DD/YYYY)
`(Edoc or attachment)
`Native File Link (Native Files only)
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`Link to text files
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`4. TIFFs. Documents that exist only in hard copy format shall be scanned and produced as
`TIFFs. Unless excepted below, documents that exist as ESI shall be converted and
`produced as TIFFs. Unless excepted below, single page 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). TIFFs shall show all text and images that
`would be visible to a user of the hard copy documents.
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`5. Text Files. A single multi-page text file shall be provided for each document, and the
`filename should match its respective TIFF filename. A commercially acceptable
`technology for optical character recognition “OCR” shall be used for all scanned, hard
`copy documents. 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, and
`OCR text files will be substituted instead of extracted text files for redacted documents.
`All documents shall be produced with a link in the TextLink field.
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`6. Image Load Files / Data 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. The total number of documents in a production should match the total
`number of records in the data load file.
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`7. Bates Numbering. All images must be assigned a unique Bates number that is sequential
`within a given document and across the production sets.
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`8. Confidentiality Designation. Responsive documents in TIFF format will be stamped
`with the appropriate confidentiality designations in accordance with the Protective Order
`in this matter. Each responsive document produced in native format will have its
`confidentiality designation identified in the filename of the native file.
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`9. Redaction Of Information. If documents are produced containing redacted information,
`an electronic copy of the original, unredacted data shall be securely preserved in such a
`manner so as to preserve without modification, alteration or addition the content of such
`data including any metadata therein.
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`10. Native Files. Spreadsheets (e.g., MS Excel, Google Sheets) and delimited text files (e.g.,
`comma-separated value (.csv) files and tab-separated value (.tsv) files) shall be produced
`in either their native format or MS Excel. TIFF images need not be produced unless the
`files have been redacted, in which instance such files shall be produced in TIFF with
`OCR Text Files. A TIFF placeholder indicating that the document was provided in native
`format should accompany the database record. If a file has been redacted, TIFF images
`and OCR text of the redacted document will suffice in lieu of a native file and extracted
`text.
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`11. Proprietary Files. To the extent a response to discovery requires production of ESI
`accessible only through proprietary software, the parties should continue to preserve each
`version of such information. The parties shall meet and confer to finalize the appropriate
`production format.
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`12. Production Media. Documents shall be encrypted and produced on external hard drives,
`readily accessible computer(s) or other electronic media (“Production Media”). Each
`piece of Production Media shall identify a production number corresponding to the
`production volume (e.g., “VOL001,” “VOL002”), as well as the volume of the material
`in that production (e.g., “-001,” “-002”). Each piece of Production Media shall also
`identify: (1) the producing party’s name; (2) the production date; and (3) the Bates
`Number range of the materials contained on the Production Media.
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