Jeff Jonah v. Kimberly-Clark Corporation et al

Northern District of California, cand-4:2015-cv-03243

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Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 1 of 12 GUTRIDE SAFIER LLP SIDLEY AUSTIN LLP 1 ADAM J. GUTRIDE (State Bar No. 181446) Amy P. Lally (State Bar No. 198555) SETH A. SAFIER (State Bar No. 197427) alally@sidley.com 2 MARIE A. MCCRARY (State Bar No. 1999 Avenue of the Stars, 17th Floor 262670) Los Angeles, CA 90067 3 100 Pine Street, Suite 1250 Telephone: (310) 595-9500 San Francisco, CA 94111 Facsimile: (310) 595-9501 4 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 SIDLEY AUSTIN LLP 5 Naomi A. Igra (State Bar No. 269095) TYCKO & ZAVAREEI LLP nigra@sidley.com 6 HASSAN ZAVAREEI 555 California Street, Suite 2000 ANDREW JONATHAN SILVER San Francisco, CA 94104 7 1828 L Street, N.W., Suite 1000 Telephone: (415) 772-1200 Washington, DC 20036 Facsimile: (415) 772-7400 8 Telephone: (202) 417-3658 SIDLEY AUSTIN LLP 9 SPANGENBERG SHIBLEY & LIBER LLP Sheri Porath Rockwell (State Bar No. 165726) STUART E. SCOTT 555 West Fifth Street, Ste. 4000 10 1001 Lakeside Avenue East, Suite 1700 Los Angeles, CA 90013 Cleveland, OH 44114 Telephone: (213) 896-6000 11 Telephone: (216) 696-3232 Facsimile: (213) 896-6600 Facsimile: (216) 696-3924 Sheri.rockwell@sidley.com 12 Attorneys for Plaintiffs Attorneys for Defendants 13 14 UNITED STATES DISTRICT COURT 15 FOR THE NORTHERN DISTRICT OF CALIFORNIA 16 OAKLAND DIVISION 17 JENNIFER DAVIDSON and JEFF JONAH, Case Nos. 14-cv-01783-PJH (lead) and 18 individuals, on behalf of themselves, the general 15-cv-03243-PJH (consolidated) public, and those similarly situated, 19 Plaintiffs, STIPULATED ORDER RE: 20 DISCOVERY OF v. ELECTRONICALLY STORED 21 INFORMATION $6 02',),(' KIMBERLY-CLARK CORPORATION; 22 KIMBERLY-CLARK WORLDWIDE, INC.; and KIMBERLY-CLARK GLOBAL SALES LLC, 23 Defendants. 24 25 26 27 28 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 2 of 12 1 1. PURPOSE 2 This Order will govern discovery of electronically stored information ("ESI") and 3 documents originating as hard copy paper that are also to be produced in electronic format, in this 4 case as a supplement to the Federal Rules of Civil Procedure, this Court's Guidelines for the 5 Discovery of Electronically Stored Information, and any other applicable orders and rules. 6 2. COOPERATION 7 The parties are aware of the importance the Court places on cooperation and commit to 8 cooperate in good faith throughout the matter consistent with this Court's Guidelines for the 9 Discovery of ESI. 10 3. LIAISON 11 The parties have identified liaisons to each other who are and will be knowledgeable about 12 and responsible for discussing their respective ESI. Each e-discovery liaison will be, or have 13 access to those who are, knowledgeable about the technical aspects of e-discovery, including the 14 location, nature, accessibility, format, collection, search methodologies, and production of ESI in 15 this matter. The parties will rely on the liaisons, as needed, to confer about ESI and to help 16 resolve disputes without court intervention. 17 4. PRESERVATION 18 The parties have discussed their preservation obligations and needs and agree that 19 preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs 20 and burdens of preservation and to ensure proper ESI is preserved, the parties agree that: 21 (a) Discovery preservation and collection efforts can cause unnecessary expense, delay 22 in the discovery process, and may implicate potentially privileged communications and work- 23 product. If, based upon good faith, a dispute arises involving the preservation or collection of 24 discoverable information, the parties agree to meet and confer on the basis for such discovery, 25 including the need for the requested discovery, the relevancy to the claims or defenses of the 26 action, proportionality of the proposed discovery, and alternative means of obtaining such 27 information. 28 1 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 3 of 12 1 (b) Non-Discoverable ESI. Consistent with the proportionality standard, and absent a 2 Party's specific written notice for good cause, the following categories of ESI are presumed to be 3 inaccessible and not discoverable: 4 i. ESI deleted in the normal course of business before the time a preservation 5 obligation in this matter came into effect; 6 ii. Backup data files that are (a) maintained in the normal course of business for 7 purposes of disaster recovery, including but not limited to backup tapes, 8 disks, SAN, and other forms of media, and (b) substantially duplicative of 9 data that are more accessible elsewhere; 10 iii. Deleted, slack, fragmented, or unallocated data only accessible by forensics; 11 iv. Random access memory (RAM), temporary files, or other ephemeral data 12 that are difficult to preserve without disabling the operating system; 13 v. On-line access data such as (without limitation) temporary internet files, 14 history files, cache files, and cookies; 15 vi. Data in metadata fields frequently updated automatically, such as last-opened 16 or last-printed dates; 17 vii. Electronic data (e.g., call logs, email, calendars, contact data, notes, and text 18 messages) sent to or from mobile devices, provided that a copy of all such 19 electronic data is routinely saved elsewhere (such as on a server, laptop, 20 desktop computer, or cloud storage); 21 viii. Voicemail, including Telephone or VOIP voice messages; 22 ix. Text messages and instant messages; 23 x. SAS program and data files (unless such program or data files are created in 24 connection with expert discovery); 25 xi. Server, system, network, or software application logs; 26 xii. Data remaining from systems no longer in use that is unintelligible on the 27 systems in use; 28 2 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) ACTIVE 234900907 Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 4 of 12 1 xiii. Electronic data temporarily stored by laboratory equipment or attached 2 electronic equipment, provided that such data is not ordinarily preserved as 3 part of a laboratory report; and 4 xiv. Structural files not material to individual file contents. 5 (c) Disaster-Recovery Backup Data. Consistent with the proportionality standard, and 6 absent a Party's specific written notice for good cause, no Party shall be required to modify or 7 suspend procedures, including rotation of backup media, used in the normal course of business to 8 back up data and systems for disaster recovery purposes. Absent a showing of good cause, such 9 backup media shall be considered to be not reasonably accessible. 10 5. SEARCH 11 The parties will meet and confer about methods to search ESI in order to identify ESI that 12 is subject to production in discovery and filter out ESI that is not subject to discovery. 13 6. PRODUCTION FORMATS 14 With the exception of Excel files, or other native files that cannot be converted to image 15 files, the parties shall produce all relevant, responsive, and non-privileged ESI as Bates-stamped 16 single-page TIFF images with a CSV load file that enables the document to be uploaded and 17 viewed using standard litigation support software in accordance with the provisions below. 18 (a) Production Media. The parties shall produce documents on external hard drives, via 19 secure link, FTP, or readily accessible computer or electronic media, e.g., CDs, DVDs 20 ("Production Media"). Productions shall have the following four directories: (1) IMAGES for the 21 images; (2) DATA for the .dat and .opt files; (3) TEXT for the extracted text/OCR files; and (4) 22 NATIVES for any native Excel or other files. The Producing Party shall identify: (a) the 23 Responding Party's name; (b) the production date; and (c) the Bates Number range of the 24 materials contained on the Production Media. 25 (b) Color. The parties may produce documents in color or in black and white, at the 26 Producing Party's discretion, but if the Receiving Party makes a reasonable request for production 27 of a document in color, the Producing Party shall not unreasonably deny such request. 28 3 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) ACTIVE 234900907 Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 5 of 12 1 (c) Unique IDs. Images shall be produced using a unique file name that will be the 2 Bates number of that page (e.g., ABC000001.TIFF). The Bates number must appear on the face 3 of the image and not obliterate, conceal, or interfere with any information from the source 4 document. Native files shall be produced using a name that will bear the production number and 5 any confidentiality designation. If a Receiving Party determines it is necessary that it have access 6 to the original file name (e.g., ABC000002_Confidential_OriginalFilename.xls) of any document 7 produced in a native format and, on that basis, makes a request for the original name, the parties 8 agree to meet and confer in good faith concerning such requests, which will not be unreasonably 9 denied. 10 (d) Parent-Child Relationships. Parent-child relationships (association between an 11 attachment and its parent document) shall be preserved. Responsive, non-privileged attachments, 12 enclosures, and/or exhibits to any parent document should also be produced. Attachments shall be 13 produced adjacent to the parent document, in terms of Bates numbers, with the first attachment 14 being named with the next sequential number after the parent, and any additional attachment(s) 15 sequentially numbered after that first attachment. To the extent that a Receiving Party believes 16 that certain non-responsive family members should be produced for context, the Receiving Party 17 may make such request for production of such family members on a document-by-document basis. 18 The parties agree to meet and confer in good faith concerning such requests, which will not be 19 unreasonably denied. 20 (e) Redactions. If the parties are redacting information from a page, they shall 21 electronically "burn" the word "Redacted" onto the page at or reasonably near to the location of 22 the redaction(s). 23 (f) Gaps. Documents shall be produced using sequential Bates numbers with no gaps. 24 There shall be no gaps in Bates numbers between productions. A unique production volume 25 number will be used for each production. If any unavoidable gaps occur, the parties will provide 26 advance notice of those gaps within productions and/or between productions and will provide a 27 TIFF placeholder indicating that the gap was intentional. 28 4 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) ACTIVE 234900907 Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 6 of 12 1 (g) Objective Coding and Metadata Fields. The parties shall provide the objective 2 coding and metadata fields (the "Production Fields") as set forth in Exhibit A. Nothing herein 3 shall require the parties to (i) create or otherwise supply any metadata that is not maintained in the 4 usual course of business, or (ii) disclose any privileged information. 5 (h) Native Format. The Responding Party shall produce spreadsheets (e.g., Excel files) 6 and any other materials not readily convertible to TIFF format (e.g. three dimensional design files) 7 in native format. Except with respect to these files, the parties shall not produce ESI in native 8 format, absent a specific and reasonable need. If a native file originally had track changes, 9 comments, or other collaborative change features turned on, the .TIF file will display those 10 changes in the converted image file. Upon request from the Receiving Party that any files be 11 produced in native format (identified by Bates number), the parties agree to meet and confer in 12 good faith concerning such requests, which will not be unreasonably denied. 13 (i) Text Files. For each produced document, a document-level text file shall be 14 provided in addition to the image files (TIFFs). The text of native files should be extracted 15 directly from the native file and each text file will be named using its corresponding beginning 16 bates number (e.g., ABC000001.TXT). For ESI with redacted text, Optical Character Recognition 17 ("OCR") data in lieu of text files shall be provided. 18 (j) Physical Documents. Nothing herein shall relieve the parties of any obligations they 19 may have to search for responsive Documents in hard copy form. The parties shall convert and 20 produce documents that exist solely in physical hard-copy format following this Order. The 21 metadata shall indicate document breaks and identify the custodian from whom the document was 22 collected. The ".tiff' files shall be subject to an OCR process. 23 (k) Duplicates. The Responding Party may use software to identify duplicate 24 documents that are in files of individual or multiple Production Custodians. To the extent that 25 exact duplicate documents (based on MD5 or SHA-1 hash values at the document level) reside 26 following the Keyword Screening Procedure, the Responding Party shall produce only a single 27 copy of a responsive document. This de-duping should be done only on exact duplicative 28 documents, and only documents for which the main parent document and the attachments are 5 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) ACTIVE 234900907 Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 7 of 12 1 exactly the same will be considered exact duplicates. The parties agree to exchange, as part of the 2 metadata text file, a field indicating all custodians who held a copy of any responsive record that 3 was de-duplicated from their production. 4 (l) Documents Previously Produced: Notwithstanding any other provision of this 5 Order, to the extent that any of the parties have already produced relevant documents or ESI in 6 previous litigation related to flushable wipes, such documents or ESI may be produced in this 7 litigation in the same format and manner as previously produced. Subsequent to such production, 8 the Receiving Party may make reasonable requests for re-production of particular documents or 9 ESI in the format required by this Order. 10 (m) No Designation of Discovery Requests: Documents that are produced do not need to 11 be organized and labeled to correspond to the categories in the requests for production. 12 (n) Confidentiality Designations: If a particular document qualifies for confidential 13 treatment pursuant to the terms of the parties' December 9, 2014 Stipulated Protective Order, or 14 has been redacted, the designation shall be shown both on the face of all TIFFs pertaining to such 15 item/document and in the appropriate data field in the load file. 16 7. TIMING OF PRODUCTIONS 17 The parties will produce ESI on a rolling basis to provide each other with documents as 18 expediently as reasonably possible. 19 8. PHASING 20 The parties agreed not to phase the production of ESI at this time. 21 9. DOCUMENTS PROTECTED FROM DISCOVERY 22 (a) Pursuant to Fed. R. Evid. 502(d), the production of a privileged or work-product- 23 protected document, whether inadvertent or otherwise, is not a waiver of privilege or protection 24 from discovery in this case or in any other federal or state proceeding. For example, the mere 25 production of privileged or work-product-protected documents in this case as part of a mass 26 production is not itself a waiver in this case or in any other federal or state proceeding. 27 (b) Communications involving outside counsel and/or work product created by outside 28 counsel on or after February 21, 2014 regarding Defendants' flushable wipe products need not be 6 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) ACTIVE 234900907 Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 8 of 12 1 placed on a privilege log. Communications and/or documents reflecting work product may be 2 identified on a privilege log by category, rather than individually, if appropriate. 3 (c) Where there is a chain of privileged emails that are all subject to the exact same 4 privilege, and for the same reasons, the privilege log need only include one entry on for the entire 5 email chain; there is no need to log each email contained in the chain separately. However, all 6 recipients and senders of each email in the chain must be identified. 7 (d) Redacted documents need not be logged if the un-redacted portions of the document 8 reflect the identifying information that would otherwise be in a privilege log (e.g., to, from, etc.) 9 and the redaction itself explains the reason for the redaction. If a Receiving Party believes that the 10 un-redacted portion of a particular document does not adequately explain the reason for the 11 redaction(s) and, on that basis, requests that the redacted document be included on a privilege log, 12 the parties agree to meet and confer in good faith concerning such requests, which will not be 13 unreasonably denied. 14 10. MODIFICATION 15 This Stipulated Order may be modified by a Stipulated Order of the parties or by the Court 16 for good cause shown. 17 18 IT IS SO STIPULATED, through Counsel of Record. 19 Dated: August 17, 2018 20 21 By: /s/ By: /s/ _________________ GUTRIDE SAFIER LLP SIDLEY AUSTIN LLP 22 Adam J. Gutride Amy P. Lally Seth A. Safier 1999 Avenue of the Stars, 17th floor 23 Marie A. McCrary Los Angeles, CA 90067 Telephone: (310) 595-9662 Kristen G. Simplicio Facsimile: (310) 595-9501 24 100 Pine Street, Suite 1250 Alally@sidley.com San Francisco, CA 94111 25 Telephone: (415) 271-6469 26 Facsimile: (515) 449-6469 Attorneys for Defendants Kimberly-Clark Global Sales, LLC; Kimberly-Clark 27 Attorneys for Plaintiffs Corporation; and Kimberly-Clark Worldwide, Inc. 28 7 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) ACTIVE 234900907 Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 9 of 12 ATTESTATION PURSUANT TO LOCAL RULE 5-1(I)(3) 1 Pursuant to Local Rule 5-1(i)(3), regarding signatures, Amy P. Lally hereby attests that 2 concurrence in the filing of this document has been obtained from counsel for Defendants. 3 Dated: August 17, 2018 /s/ 4 Amy P. Lally 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 10 of 12 [PROPOSED] ORDER 1 2 PURSUANT TO STIPULATION, IT IS SO ORDERED that the forgoing Stipulation is 3 S DISTRICT TE approved. TA C 4 O S U ED RT ERED UNIT O ORD IT IS S 5 R NIA Dated: August 20, 2018 ilton Ham hyllis J. NO Judge P FO 6 UNITEDESTATES JUDGE RT LI H A RN C F D IS T IC T O 7 PHYLLIS J. HAMILTON R 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 11 of 12 Exhibit A: 1 Production Fields 2 BEGBATES Start Bates (including prefix) -- No spaces or special 3 characters ENDBATES End Bates (including prefix) - - No spaces or special 4 characters BEGATTACH The identifier of the first page of the first document in a 5 family group. This is used for page-level numbering schemes. ENDATTACH The identifier of the last page of the first document in a 6 family group. This is used for page-level numbering schemes. PARENTBATES Document ID of the parent document. This field will only be 7 available on child items. ATTACHMENT Child document list: BEGDOC# of each child (populated 8 ONLY in parent records) CUSTODIAN Custodian/source of initial instance of document/family 9 collected DUPCUSTODIAN Custodian(s)/source(s) of any instances of document/family 10 collected FROM Sender of an email. 11 TO Recipient(s) from the to line of an email. CC Carbon copy recipient(s) on an email. 12 BCC Blind carbon copy recipient(s) on an email. SUBJECT Subject line from an email. 13 DATESENT The date an email was sent. TIMESENT The time an email was sent. 14 DATERCVD The date an email was received. TIMERCVD The time an email was received. 15 FILEEXT The file extension of the native file. AUTHOR Person who created the file. A file can have one or no author. 16 CREATEDATE The date the file was created. 17 CREATETIME The time the file was created. DATELASTMOD The date changes were last made to a file. 18 TIMELASTMOD The time changes were last made to a file. FILENAME The original name of the first instance native file. 19 DUPFILENAME The original name(s) of any instances of native file. FILELENGTH File length is a file's size in bytes. 20 PGCOUNT The number of pages in a document. DOCTYPE The kind of file a document came from. 21 FAMDATE The date of the parent document. For emails this will be date sent and for non-emails date last modified. 22 FAMTIME The time of the parent document. TIMEZONE The TimeZone from which the native file was collected. 23 PATH The full file, folder, or directory structure from which the initial instance of a document was collected. 24 DUPPATH The full file, folder, or directory structures from which any instances of the document were collected. 25 HASH Numeric value of a fixed length that uniquely identifies data. NATIVEPATH The path to a copy of a file within the production deliverable. 26 OCRPATH The path to a copy of the OCR Text within the production deliverable. 27 TITLE Available title information extracted from MS Office and PDF documents. 28 Exhibit A page 1 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) Case 4:15-cv-03243-PJH 4:14-cv-01783-PJH Document 50 85 Filed 08/20/18 08/17/18 Page 12 of 12 1 COMPANY Available company information extracted from MS Office and PDF documents. 2 DATEACCESSED The date the file was last accessed. TIMEACCESSED The time the file was last accessed. 3 DATEPRINTED The date the file was last printed. TIMEPRINTED The time the file was last printed. 4 CONVDATE The date the email conversation started. CONVTIME The time the email conversation started. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit A page 2 ESI STIPULATED ORDER Case Nos. 14-cv-01783 (PJH) and 15-cv-03243 (PJH) ACTIVE 234900907