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Custom Hair Designs by Sandy, LLC v. Central Payment Co., LLC

United States District Court, D. Nebraska

January 2, 2018

CUSTOM HAIR DESIGNS BY SANDY, LLC, and SKIP'S PRECISION WELDING, LLC, on behalf of themselves and all others similarly situated, Plaintiffs,

          WAGSTAFF & CARTMELL, LLC, Tyler W. Hudson, Melody R. Dickson, Counsel for Plaintiffs

          BAIRD HOLM LLP, Kenneth W. Hartman, David L. Balser, Jonathan R. Chally, Brandon R. Keel, Allison Hill White, KING & SPALDING LLP, Counsel for Defendant



         WHEREAS, Plaintiffs and Defendant in the above-captioned action (the “Action”), by and through their undersigned counsel, hereby stipulate and agree that the following Joint Stipulation Regarding Discovery of Electronically Stored Information and Hard Copy Documents shall apply to all discovery in the Action; and

         WHEREAS, the Parties seek to facilitate the exchange of ESI and hard copy documents in the Action, pursuant to this Court's authority and with the consent of the Parties:


1.1 “Document” or “Documents” shall have the meaning contemplated in Federal Rule of Civil Procedure 34(a)(1)(A). A draft or non-identical copy is a separate document within the meaning of this term.
1.2 “ESI” is an abbreviation of “electronically stored information” and shall have the same meaning it has in Federal Rule of Civil Procedure 34(a)(1)(A).
1.3 “Extracted Text” means the text extracted from a Document, and includes all header, footer, and document body information.
1.4 “Load/Unitization File” means an electronic file containing information identifying a set of paper-scanned images, processed ESI, or Native Format files, as well as the corresponding Full Extracted Text or OCR text files, and containing agreed-upon extracted or user-created Metadata, as well as information indicating unitization (i.e., document breaks and document relationships such as those between an Email and its attachments). A Load/Unitization File is used to import all image, native, and text files and their corresponding production information into a document database. The Producing Party shall produce a load/unitization file (“load file”) for all produced documents in accordance with specifications provided in Exhibit A.
1.5 “Metadata” means structured information about ESI that is created by the file system or application, embedded in the Document or Email, and sometimes modified through ordinary business use.
1.6 “Native Format” means the format of ESI in the application in which such ESI was originally created and/or as used by the Producing Party in the usual course of its business and in its regularly conducted activities.
1.7 “OCR” means the optical character recognition technology used to read paper Documents or electronic images of Documents and output such Documents to a searchable text format. The latter text is also referred to as the “OCR text” or simply “OCR.” 1.8 “Party” or “Parties” means, individually or collectively, all plaintiffs and defendant in the Action, as well as any later added plaintiffs and defendants, including all of their respective officers, directors, and employees.
1.9 “Producing Party” means any Party or third party that produces hard copy or ESI Documents in this Action.
1.10 “Requesting Party” means any Party that serves a request for production of Documents in the Action.
1.11 “Responsive Document” means any Document that is responsive to any discovery request or subpoena served on a Producing Party in this Action and which a Producing Party has agreed or been ordered to produce, subject to the limitations set forth in the Local Rules, the Federal Rules of Civil Procedure, or Court order.
1.12 “Tagged Image File Format” or “TIFF” refers to the CCITT Group IV graphic file format for storing bit-mapped images of ESI or paper Documents. For files produced as TIFF images, each page of a document shall be electronically saved as an image file, as outlined in Exhibit A.

         2. SCOPE

2.1 The procedures and protocols set forth in this Order shall govern the production format of ESI in the Action, unless the Parties agree in writing to change them or they are changed by the Court at the request of a Party. This Order does not define the scope of production, nor, unless specified below, the relevance of any particular information. Nothing in this Order establishes any agreement as to either the temporal or subject matter scope of discovery in the Action. The discovery requests, objections thereto, agreements of the Parties, and any Court orders shall govern the scope of documents to be produced. Nothing in this Protocol is intended to be inconsistent with or to exceed a Party's obligations under the Local Rules or the Federal Rules of Civil Procedure.
2.2 As outlined in Federal Rule of Civil Procedure 26(b)(2)(B), a Producing Party need not provide discovery of ESI from sources that it identifies as not reasonably accessible because of undue burden or cost. If a Producing Party objects to production of particular ESI as not being reasonably accessible because of undue burden or cost, such Party shall describe the nature of the objection with reasonable particularity in the Party's responses and objections to the Requesting Party's request for production or via letter if the issue is unknown at the time of the responses and objections. The Parties shall promptly meet and confer thereafter in an attempt to resolve the issue concerning accessibility and, if no resolution is reached, seek appropriate relief from the Court as outlined in Federal Rule of Civil Procedure 26(b)(2)(B) and in accordance with Magistrate Judge Zwart's Civil Case Management Practices.
2.3 Generally, the costs of producing ESI pursuant to this Protocol shall be borne by each Producing Party. Any Producing Party who produces ESI in TIFF format shall do so at their sole cost and expense, and such Producing Party hereby waives the right to seek reimbursement or taxing of such Tiffing costs pursuant to 28 U.S.C. § 1920, or any other state or federal cost recovery provision. If a Producing Party reasonably believes that producing particular ESI poses a particularly undue burden or cost as a result of the ESI not being reasonably accessible, such Party may object to the production of that ESI as provided for in Paragraph 2.2.
2.4 The Parties do not waive any objections to the responsiveness, production, discoverability, possession, custody, control, or confidentiality of Documents, including (without limitation) objections regarding the burden, over-breadth, or relevance of any document requests, or any other objection under the Local Rules or Federal Rules of Civil Procedure. Nothing in this Stipulated Order shall be interpreted to require the disclosure of information that is otherwise not discoverable under the Local Rules or Federal Rules of Civil Procedure.
2.5 If a member of a document family that has otherwise been determined to be responsive cannot technically be processed (e.g., unsupported file format, file corruption, inaccessible password-protected document), those technical problems shall be identified and disclosed to the Requesting Party by production of a Bates-labeled slipsheet that states “Technical issue-file cannot be processed”; the associated metadata for the file with the technical problem shall be produced if technically possible. A Requesting Party may thereafter raise with the Producing Party any questions or concerns, and the parties shall meet and confer to attempt to resolve any issues.
2.6 The Parties shall meet and confer in good faith in an effort to resolve any disputes that may arise under this Order, prior to seeking assistance from the Court, in accordance with Magistrate Judge Zwart's Civil Case Management Practices.


         3.1 Format Guidelines:

         The Parties shall produce paper Documents and ESI according to the specifications provided in this Order and Exhibit A hereto. The Parties agree to meet and confer in good faith if any of the technological specifications set forth in Exhibit A result in unforeseen technological issues.

         3.2 De-Duplication:

         The Parties shall use reasonable, good faith efforts to avoid the production of duplicate ESI. The Parties agree that production of ESI documents globally de-duplicated to remove exact duplicate documents shall constitute production of documents as maintained in the ordinary course of business provided that a single copy of the responsive document or record is produced (the “Single Production Copy”). No Party shall eliminate duplicates of hard copy or electronic documents by manual review. Exact duplicates shall be defined as ESI with exact MD5 or SHA-1 hash values. Where any such documents have attachments, hash values must be identical for both the document-plus-attachment(s) (including associated metadata) as well as for any attachment (including associated metadata) standing alone. For email the MD5 hash values should be calculated at the parent level and include the full body of any and all attachments as well as the “TO, ” “FROM, ” “CC, ” “BCC, ” “Date Sent, ” “Date Received, ” “Date Created, ” and “Date Modified” values in that calculation. When the Producing Party is globally de-duplicating across custodians, the Producing Party shall populate a field of metadata that identifies each custodian who had a copy of the produced document (the “duplicate custodian field”) in addition to a separate field of data identifying the custodian whose document is produced.

         3.3 Documents To Be Produced Natively:

         A Producing Party shall produce Microsoft Excel and other spreadsheet files, including comma or tab delimited text files, Microsoft Access, and audio and video files in Native Format except where such files are redacted in accordance with this Order. The production of Structured Data, which the Parties may, from time to time, agree is also to be produced in its Native Format, is governed by paragraph 3.4. The production Load Files shall contain a link to the produced Native Format files as specified in the “Native Link” Metadata field described in Exhibit A. Each electronic file produced in Native Format shall be assigned a unique Document Number as set forth in Paragraph 3.6, and for each a single page placeholder TIFF image branded with this unique Document Number, the phrase “PRODUCED IN NATIVE FORMAT”, and the corresponding confidentiality designation under the Protective Order to be entered in the Action will be produced. No Party may attach to any pleading or any correspondence addressed to the Court, Special Master, or any adverse or third Party, or submit as an exhibit at a deposition or any other judicial proceeding, a copy of any produced native format document without ensuring that either the corresponding placeholder slip sheet is attached to the document or the corresponding Bates number and confidentiality legend, as designated by the Producing Party, appears on the document.

         Responsive ESI produced in Native Format shall be produced with all required Metadata contained in or associated with that file to the extent technologically possible consistent with Exhibit A. Extracted Text taken from natively produced files will be provided at a document level. There will be one text file per document, using the same name as the beginning Bates number (Document ID) of the document. The extracted text file for a document will reside in the same location (file directory) as the images for that document. The text file associated with any redacted document will exclude redacted text (i.e., the Producing Party will OCR the redacted image and replace the original extracted text).

         If production in Native Format is necessary to decipher the meaning, context, or content of a document produced only in TIFF format, the Producing Party will honor a reasonable written request made in good faith and shall produce the document in native format within 14 days, unless such production would reveal material redacted in accordance with Paragraph 3.11. Where the document produced only in TIFF format that is requested in Native Format contains redactions, the Producing Party will produce a Near Native redacted copy of the document if possible. If the Responding Party is unable to produce a Near Native redacted copy of the requested document, the Parties will meet and confer to resolve the issue.

         3.4 Structured Data.

         To the extent a response to discovery requires production of discoverable electronic information contained in a database and the responsive data cannot reasonably be produced in either Excel or .csv format, in advance of producing such information, the Parties agree to meet and confer regarding the format of the production (e.g., commercial database, or some other agreed-upon format). The Responding Party will answer reasonable requests to explain any codes or abbreviations contained in the structured data through a meet-and-confer process.

         3.5 Unitization:

         If a Document is more than one page, to the extent possible, the unitization of the Document and any attachments or affixed notes shall be maintained as they existed in the ordinary course of business when collected by the Producing Party. ...

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