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Farmers Edge Inc. v. Farmobile, LLC

United States District Court, D. Nebraska

October 24, 2016



          Thomas D. Thalken, United States Magistrate Judge.

         This matter is before the court on the parties' Stipulation and Joint Motion for Protective Order and ESI Protocol Governing the Disclosure and Use of Discovery Materials (Filing No. 76). The parties have agreed, and the court adopts, the following provisions should govern the production format for Electronically Stored Information (“ESI”), other than source code, as well as paper documents being produced electronically.

         I. Preliminary Matters.

         A. The parties shall meet and confer to the extent reasonably necessary to facilitate the import and use of the produced materials with commercially available document management or litigation support software, which for Defendants is kCura Relativity.

         B. Documents that present imaging or formatting problems shall promptly be identified and, if the documents cannot be readily re-produced without problems, the parties shall promptly meet and confer to attempt to resolve the problems.

         C. This Protocol is to be read in conjunction with the Protective Order that the parties anticipate the Court will enter in this matter. To the extent that any provision herein conflicts with the Protective Order, the Protective Order provision shall govern.

         II. Document Image Format and Other Considerations.

         A. Paper Documents - Hard copy documents shall be produced in single page TIFF. If hard copy documents are scanned into an electronic form, the unitization of the document and any attachments shall be maintained as they existed in the original when creating the image file. The relationship of documents in a document collection (e.g., cover letter and enclosures, e-mail and attachments, binder containing multiple documents, or other documents where a parent-child relationship exists between the documents) shall be maintained throughout the scanning or conversion process.

         B. Electronic Files (except spreadsheets, presentations, and other files not generally accessed via single page layout) - Electronic documents shall be produced in single page TIFF, with the exception of non-redacted spreadsheet, e.g. Excel, and presentation, e.g., PowerPoint; however, a requesting party may make a subsequent request for native format production upon particularized need pursuant to Paragraph VI below. Metadata for documents generated from native electronic documents shall be produced as set forth in Paragraph VII. Electronic files, whether converted to images or produced in native format, also shall be produced with parent and child files intact; appropriate Parent ID and Child ID numbers shall be provided. When a document is withheld for any reason and is part of a family of documents, its absence should be designated with a placeholder image with a corresponding production number.

         C. Spreadsheets and Presentations - Notwithstanding the foregoing provisions of this paragraph, the parties recognize that it may be appropriate for certain files to be produced in native file format (e.g., Excel, Lotus 123 or PowerPoint); the parties, therefore, agree the producing party shall produce spreadsheets, such as those created in Excel or Lotus 123, and presentations, such as PowerPoint, in native format pursuant to Paragraph VI below. For natively produced documents in a family of documents, a placeholder TIFF image should be also included with a corresponding production number and confidentiality designation, if any. The parties reserve the right to omit placeholder images for large quantities of native files. The parties must disclose the Bates range of files being produced without placeholders, or otherwise appropriately identify them for the receiving party.

         D. TIFFs - All TIFFs shall be placed in an Images folder with subfolders not to exceed 5, 000 images per folder and accompanied by appropriate load files for the document management or litigation support software being used by the receiving party (such as .dii, .opt, .dat, etc.), which shall be placed in a data folder.

         E. Color - Documents containing color need not be originally produced in color. If, however, an original document contains color necessary to understand the meaning, context, and/or content of the document, the producing party shall honor reasonable requests for either the production of an original document for inspection and copying or production of a color image of the document.

         F. Duplicates - To the extent that exact duplicate documents (based on MD5 or SHA-1 hash values at the document level) reside within a party's data set, each party is only required to produce a single copy of a responsive document. This de-duping should be done only on exact duplicate documents, meaning the parent and child documents are exactly the same. De-duplication done within and across custodians (horizontal de-duplication) is acceptable but the producing party must inform the receiving party that horizontal de-duplication is being employed. Also, any horizontal de-duplication must be done in a manner to preserve information on blind copy (BCC) recipients of emails. Parties must take care to ensure that when custodians are eliminated from a data set for review and production, de-duplication was not based on that custodian's data set. When horizontal de-duplication is employed, the producing party must provide information identifying the data sets from which duplicates were removed, such as through a “duplicate custodian” field.

         G. “Loose” Electronic Files - “Loose” electronic files and user files will not be de-duplicated against e-mail data. If a “Loose” electronic file or user file is a duplicate of a document in the e-mail data (i.e., an attachment to an e-mail), the parties shall produce separately both the e-mail data, including the attachments, and the “Loose” electronic files and user files.

         H. E-mail “Threading” - The parties are generally not required to produce an original e-mail and its responses thereto as separate, unique documents. The parties are allowed, but not required, to produce the final, all-inclusive “thread” to represent the comprehensive e-mail conversation. Any and all divergences from the all-inclusive thread by any custodian must be separately assessed for production. If a receiving party believes there is a need for production of emails separately within a given thread, the producing party shall produce them separately or the parties will promptly meet and confer to attempt to resolve the issue.

         I. Searchable Text - For produced images, a producing party shall produce full text extracted from the electronic files, accompanied by a load file. For redacted documents, full text consisting of OCR will be provided. The .txt/OCR will be provided in document level or page level files and in a full text folder, with the docid (begbates) and file path provided in the data folder. It is the producing party's obligation to make sure that documents containing text are searchable to the extent practicable. The producing party is obligated to promptly raise any issues that arise pertaining to non-searchable data containing text.

         J. Documents Stored in Third Party Electronic Repositories - To the extent the parties produce documents that are in the possession of third parties, they shall apply the provisions of this Protocol to the extent practicable under the circumstances. The parties reserve the right to request that the cost of any effort beyond what is practicable be shifted to the requesting party.

         K. The parties agree that it is not necessary to search for relevant information from the following sources of electronically stored information:

a. RAM (random access memory);
b. fragmented files, or other deleted items that may reside in unallocated space on a device
c. logs of e-mail history;
d. temporary Internet History such as cookies and cache;
e. non-executable and system files; and f. legacy system ESI.

         The parties agree that cause must be shown in order to discover information from these sources due to the additional cost and burden that may be associated with them, and the parties reserve the right to request that the cost of such retrieval and searching be shifted to the requesting party.

         L. Application - This Protocol only applies to the production of paper documents being produced electronically and the following categories of electronic documents: e-mails (and any associated attachments) and user files (word processing documents, spreadsheets, and presentations). The parties shall meet and confer to agree on the form of any production ...

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