Federal Trade Commission v. Directv, Inc. et al

Northern District of California, cand-4:2015-cv-01129

ORDER by Judge Haywood S. Gilliam, Jr. Granting {{52}} Stipulation Re: Discovery of Electronically Stored Information.

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1 Chad S. Hummel (Bar No. CA 139055) Jonathan E. Nuechterlein Clayton S. Friedman (Bar No. CA 245513) 2 General Counsel Mark D. Campbell (Bar No. CA 180528) Michael Yaghi (Bar No. CA 202720) 3 Eric D. Edmondson, D.C. Bar No. 450294 chummel@sidley.com, cfriedman@sidley.com; Erika Wodinsky, Cal. Bar No. 091700 mcampbell@sidley.com; myaghi@sidley.com 4 Jacob A. Snow, Cal. Bar No. 270988 SIDLEY AUSTIN LLP 5 Boris Yankilovich, Cal Bar No. 257887 1999 Avenue of the Stars, 17th Floor 901 Market Street, Suite 570, Los Angeles, CA 90067 6 San Francisco, CA 94103 Telephone: (310) 595-2600 (415) 848-5100 / (415) 848-5184 (fax) Facsimile: (310) 595-2601 7 eedmondson@ftc.gov; ewodinsky@ftc.gov; 8 jsnow@ftc.gov; byankilovich@ftc.gov Ryan M. Sandrock (Bar No. CA 251781) SIDLEY AUSTIN LLP 9 Raymond E. McKown, Cal. Bar No. 150975 555 California Street Kenneth Abbe, Cal. Bar No. 172416 San Francisco, CA 94104 10 Stacy Procter, Cal. Bar No. 221078 Telephone: (415) 772-1200 11 10877 Wilshire Blvd., Suite 700, Facsimile: (415) 772-7400 Los Angeles, CA 90024 rsandrock@sidley.com 12 (310) 824-4343 / (310) 824-4380 (fax) rmckown@ftc.gov; sprocter@ftc.gov Attorneys for Defendants 13 DIRECTV and DIRECTV, LLC 14 Attorneys for Plaintiff Federal Trade Commission 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 FEDERAL TRADE COMMISSION, Plaintiff, Case No. 15-cv-01129-HSG 19 20 v. STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY 21 DIRECTV, STORED INFORMATION a corporation, 22 and 23 DIRECTV, LLC, 24 a limited liability company, 25 Defendants. 26 27 1. PURPOSE 28 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG Page 1 of 7 1 This Order will govern discovery of electronically stored information ("ESI") in this case 2 as a supplement to the Federal Rules of Civil Procedure, this Court's Guidelines for the 3 Discovery of Electronically Stored Information, and any other applicable orders and rules. 4 2. COOPERATION 5 The parties are aware of the importance the Court places on cooperation, and commit to 6 cooperate in good faith throughout the matter consistent with this Court's Guidelines for the 7 Discovery of ESI. 8 3. LIAISON 9 The parties have identified liaisons to each other who are and will be knowledgeable 10 about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or 11 have access to those who are, knowledgeable about the technical aspects of e-discovery, 12 including the location, nature, accessibility, format, collection, search methodologies, and 13 production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer about 14 ESI and to help resolve disputes without court intervention. 15 4. PRESERVATION 16 The parties have discussed their preservation obligations and needs, and agree that 17 preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs 18 and burdens of preservation and to ensure that proper ESI is preserved, the parties agree that: 19 a. Only ESI created or received after January 1, 2007 will be preserved. 20 b. The parties have committed to exchanging a list of the types of ESI they believe 21 should be preserved and the criteria for organizational departments, custodians or 22 descriptions of custodians, or general job titles, for which they believe ESI should 23 be preserved. In the context of responding to the Federal Trade Commission's 24 ("FTC") Civil Investigative Demands ("CIDs") in connection with the FTC's 25 investigation leading to this action, Defendants (collectively, "DIRECTV") have 26 already preserved and produced to the FTC certain ESI that was in their 27 possession, custody, or control. 28 c. In addition to the agreements referenced in Paragraph 6 of the Initial Joint Case [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG Page 2 of 7 1 Management Statement (Dkt. 33), the parties agree generally not to require the 2 preservation or production of the following categories of materials, absent a 3 showing of good cause by the requesting party: 4 i. Random access memory (RAM), temporary files, or other ephemeral data 5 that are difficult to preserve without disabling the operating system; and 6 ii. Back-up data that are duplicative of data that are more accessible 7 elsewhere. 8 The parties agree that they may subsequently identify additional types of ESI that 9 need not be preserved, logged, or produced. 10 d. Recognizing that the obligation to preserve materials is not necessarily identical 11 to and coextensive with the obligation to produce materials in discovery, the 12 parties agree that any agreement or commitment to preserve materials by any 13 party does not constitute that party's admission that such materials are properly 14 discoverable or will be produced in discovery. 15 5. SEARCH 16 The parties agree that after responding in writing to requests to produce pursuant to Fed. 17 R. Civ. P. 34, they will meet and confer about methods to search ESI in order to identify ESI that 18 is subject to production in discovery and filter out ESI that is not subject to discovery. The 19 parties may agree to use search terms where appropriate. 20 6. PRODUCTION FORMATS 21 Except as noted below, the parties agree to produce documents in native format whenever 22 possible, in near-native format when native is not possible, and, if neither format is 23 technologically feasible, TIFF files with metadata and extracted text. 24 For email ESI, the parties agree to produce in MSG, EML, or PST formats, or if none of 25 these formats is technologically feasible, as TIFF files with metadata and extracted text. For 26 webpage ESI, the parties agree to produce in existing native format, or that is not technologically 27 feasible, in a near-native format that would sufficiently permit a full and fair examination of ESI. 28 For multimedia ESI, the parties agree to produce in .mp3 or .mp4 formats, or not technologically [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG Page 3 of 7 1 feasible, in existing native format. For materials available only in "hard" format—e.g., on 2 paper—the parties agree to produce in a PDF format, with searchable text embedded in the PDF, 3 or if not technologically feasible, as singe-page TIFF files with metadata and extracted, 4 searchable text. For ESI available only in a format accessible through proprietary software not 5 available to the general public, the parties agree to confer about production. 6 If particular documents warrant a different format, the parties will cooperate to arrange 7 for the mutually acceptable production of such documents. 8 The parties agree to permit de-duplication of identical files only in accordance with the 9 FTC's Production Guide (exchanged between the parties). Specifically, the parties agree to de- 10 duplicate only if within a unique custodian search, and only by using hash value (MD5 or SHA- 11 1). 12 The parties agree not to use email threading software as part of production. 13 The parties agree to strip password protection from ESI materials produced whenever 14 possible. If not possible, the producing party shall provide a reference sheet with clearly 15 identified passwords for password-protected materials. 16 The parties agree not to degrade the searchability of documents as part of the document 17 production process. 18 Subject to and consistent with this Order, the parties agree to adhere to the Federal Trade 19 Commission, Bureau of Consumer Protection Production Requirements, attached hereto as 20 Exhibit A, including, but not limited to, for the procedures governing the production of Metadata 21 in ESI. 22 DIRECTV need not re-produce to the FTC in discovery documents that DIRECTV has 23 already produced to the FTC as part of its responses to the FTC's CIDs. However, to the extent 24 that any such previously produced documents are responsive to the FTC's requests in discovery, 25 in lieu of re-production DIRECTV shall specify which of its previously produced documents are 26 responsive. 27 7. PHASING 28 When a party propounds discovery requests pursuant to Fed. R. Civ. P. 34, the parties [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG Page 4 of 7 1 agree, if appropriate, to discuss phasing the production of ESI (e.g., phasing by ESI source or 2 type). 3 8. DOCUMENTS PROTECTED FROM DISCOVERY 4 a. Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product- 5 protected document, whether inadvertent or otherwise, is not a waiver of privilege 6 or protection from discovery in this case or in any other federal or state 7 proceeding. For example, the mere production of privileged or work-product- 8 protected documents in this case is not itself a waiver in this case or in any other 9 federal or state proceeding. Nothing in this Order shall be interpreted to limit the 10 applicability of Fed. R. Evid. 502(d). 11 b. The parties shall take reasonable steps to prevent the disclosure of privileged or 12 work product material (together, "protected" material). In the event of such 13 disclosure, the parties shall follow the procedures set forth in Fed. R. Civ. P. 14 26(b)(5)(B) and herein for materials produced in discovery in this action by both 15 parties and nonparties. 16 c. If a receiving party discovers material produced to it by a party or nonparty in this 17 action that the receiving party reasonably believes to be protected material, the 18 receiving party shall promptly notify the producing party in writing and segregate 19 that material (or the protected portion) until it receives a response from the 20 producing party or the passage of seven days, whichever is earlier. If, after such 21 notice, the party that produced the material fails within seven days to state its 22 position about the privileged or protected status of the material, the receiving 23 party may deem all claims of privilege of protection for that material waived. 24 d. If a producing party discovers that it has disclosed protected material to another 25 party, it shall (1) notify the receiving party in writing within seven days after such 26 discovery, and (2) take prompt reasonable steps to identify any other protected 27 material that it also may have disclosed. If the producing party fails to notify the 28 receiving party within seven days of its disclosure of the protected material and [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG Page 5 of 7 1 state its position about the privileged or protected status of the material, the 2 receiving party may deem all claims of privilege of protection for that material 3 waived. 4 e. If the parties disagree about the applicability of any asserted privilege or other 5 protection for material that the producing party contends is protected material and 6 should not have been disclosed, the parties shall promptly meet and confer to 7 resolve the issue. If the parties cannot resolve the issue, the party that produced 8 the material shall have the obligation to raise that dispute to the Court and shall 9 exercise reasonable diligence in doing so. 10 f. Any party's return, sequester, or destruction of any material pursuant to this Order 11 or the procedures set forth in Fed. R. Civ. P. 26(b)(5)(B) does not waive any right 12 to challenge the assertion of privilege or other protection for that material in any 13 litigation. 14 9. MODIFICATION 15 This Stipulated Order may be modified by a Stipulated Order of the parties or by the 16 Court for good cause shown. 17 18 IT IS SO STIPULATED, through Counsel of Record. 19 Dated: October 7, 2015 20 /s/ Eric D. Edmondson _ Eric D. Edmondson 21 Counsel for Plaintiff 22 FEDERAL TRADE COMMISSION 23 Pursuant to Local Rule 5-1(i), the filer attests that concurrence in the filing of this 24 document has been obtained from the other 25 signatory. 26 Dated: October 7, 2015 27 /s/ Chad S. Hummel _ Chad S. Hummel 28 Counsel for Defendants [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG Page 6 of 7 1 2 IT IS ORDERED that the forgoing Agreement is approved. 3 4 Dated: October 15, 2015 5 _________________________________________ Haywood S. Gilliam, Jr. 6 United States District Judge 7 Northern District of California 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] STIPULATED ORDER RE: DISCOVERY OF ESI - 15-CV-01129-HSG Page 7 of 7