Viamedia, Inc. v. Comcast Corporation et al

Northern District of Illinois, ilnd-1:2016-cv-05486

STIPULATED ORDER Re: Discovery of Electronically Stored Information ("ESI") Signed by the Honorable Amy J. St. Eve on 1/10/2017:Mailed notice

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Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 1 of 15 PageID #:377 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION) VIAMEDIA, INC.,))) Case No. 1:16-cv-05486 Plaintiff,)) Hon. Amy St. Eve v.)) COMCAST CORPORATION, and) COMCAST SPOTLIGHT, LP,)) Defendants.)) STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY STORED INFORMATION ("ESI") Unless otherwise agreed to by the parties, 1 this Order will govern discovery of electronically stored information ("ESI") in this case as a supplement to the Federal Rules of Civil Procedure, this Court's Local Rules, and any other applicable orders and rules. The purpose of this Order is to expedite the flow of discovery material, facilitate the prompt resolution of disputes over confidentiality and privilege, and protect material to be kept confidential or privileged, pursuant to Federal Rule of Civil Procedure 26(c), Federal Rule of Evidence 502(d) and the Court's inherent authority. Capitalized terms in this Order are defined in the attached Exhibit A. 1 The parties agree that this Stipulation will not apply to the production, in this action, of any ESI or other material previously produced to the United States Department of Justice ("DOJ") in connection with the latter's pending investigation in which both parties have received Civil Investigative Demands. To the extent that the parties are required to produce part or all of their respective DOJ productions, by virtue of a Court order or otherwise, the Producing Party will produce it in exactly the same form and format as it was produced to the DOJ, including any and all metadata or other information attendant to that production. 1 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 2 of 15 PageID #:377 1. COOPERATION The parties are aware of the importance the Court places on cooperation and commit to cooperate in good faith throughout the matter consistent with the Seventh Circuit Electronic Discovery Pilot Program Principle 1.02. 2. LIAISON Pursuant to Seventh Circuit Electronic Discovery Pilot Program Principle 2.02, the parties will identify liaisons to each other who are and will be knowledgeable about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or have access to those who are, knowledgeable about the technical aspects of e-discovery, including the location, nature, accessibility, format, collection, search methodologies, and production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer about ESI and to help resolve disputes without court intervention. 3. PRESERVATION Pursuant to Seventh Circuit Electronic Discovery Pilot Program Principle 2.03, the parties have discussed their preservation obligations and needs and agree that preservation of potentially relevant ESI will be reasonable and proportionate. Given the nature and complexity of this action, the parties agree to address methods to reduce the costs and burdens of preservation and to ensure proper ESI is preserved in response to particular discovery requests. The following categories of ESI are not discoverable—and, to the extent that they exist, need not be retained, processed, reviewed, or produced—except upon a showing of good cause: (a) recorded voicemail and other voice messages; (b) instant messaging communications, including Skype communications; (c) temporary data stored in a computer's random access memory (RAM), or other ephemeral data; (d) common system and program files; (e) deleted, slack, fragmented, unallocated data, or data that no longer has a file marker on hard drives; (f) backup data that is 2 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 3 of 15 PageID #:377 substantially duplicative of data that is more accessible elsewhere; (g) electronic mail sent to or from mobile devices (e.g., iPhone and Blackberry devices), provided that a copy of such mail is routinely saved elsewhere; (h) other electronic data stored on a mobile device, such as calendar or contact data or notes, provided that a copy of such information is routinely saved elsewhere; (i) logs of calls made from mobile devices; (j) Network Access and Server Activity Logs; (k) data remaining from systems that are no longer in use, and that is unintelligible on systems in use; (l) on-line access data such as temporary internet files, history, cache, cookies, etc.; (m) data in metadata fields that are frequently updated automatically, such as last-opened dates; (n) other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business; (o) records of text or pin-to-pin messages sent to or from mobile devices (e.g., iPhone and Blackberry devices) not maintained by the parties in the ordinary course of their business; and (p) back-ups or other long-term storage media (Backup and Archival Files) that were created strictly for use as a data back-up or disaster recovery medium. 4. SEARCH The parties will cooperate in good faith regarding the disclosure and formulation of appropriate search terms and protocols used to search for ESI responsive to document requests served pursuant to Fed. R. Civ. P. 34. The parties shall meet and confer as early as possible to discuss, inter alia:  Disclosure of search terms used to search for documents responsive to document requests, including semantic synonyms. Semantic synonyms shall mean without limitation code words, terms, phrases or illustrations, acronyms, abbreviations, or non-language alphanumeric associational references to relevant ESI, or information that may lead to the discovery of relevant ESI.  Post-search error sampling and sampling/testing reports, if any.  Potential use of computer-assisted review or predictive coding techniques. 3 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 4 of 15 PageID #:377 The parties will meet and confer, prior to the application of search terms to find documents responsive to party document requests, and will review any search terms proposed and/or requested by the parties. The parties will continue to meet and confer regarding any search process issues as necessary and appropriate, including any supplemental requests to add additional search terms based on supplemental document productions by either party. This ESI protocol does not address or resolve any other objection to the scope of the parties' respective discovery requests. 5. PRODUCTION FORMATS The parties agree that documents produced in these proceedings, whether originally stored in paper or electronic form, shall be produced in electronic form in the manner as described below. Notwithstanding the foregoing provisions of this paragraph, the parties reserve the right to request that an alternative format or method of production be used for certain Documents. In that event, the Receiving Party and the Producing Party will meet and confer to discuss alternative production requirements, concerns, formats, or methods. (a) Document Format. Documents shall be produced according to the following formats: (i) Electronic Production of Paper Documents. Documents that are maintained in paper format shall be scanned per document and converted to a Static Image, and, except as otherwise provided below, shall be produced as black and white 1-bit TIFF images at 300 x 300 d.p.i. or greater resolution, in Group 4 compression single-page TIFFs and reflect the full and complete information contained in the original source Document. Documents shall also be produced with the associated OCR, and with a load file, in accordance with paragraph 5(a)(iii), below. No Producing Party shall be required to ensure that the OCR is an exact duplicate of the contents of the TIFF image; and the Receiving 4 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 5 of 15 PageID #:377 Party shall accept the OCR in its "as is" condition. In the event a Document is redacted, the Producing Party shall withhold the redacted text for that Document. (ii) Electronically Stored Information. Except as provided in paragraph 6(a)(iv) below, Document images shall be generated from electronic Documents in a Group IV 300DPI compression single-page "TIFF" image that reflects the full and complete information contained on the original source Document. All black and white images must be in 1-bit TIFF image format and color documents, if applicable, must be in 8-bit JPG image format, together with a Load File or functional equivalent specified in Paragraph 6(a)(iii) that contains a reference to the corresponding image information. The acceptable formats for the image cross-reference files are .log, .dii, .opt, and .lfp. The image load files should indicate document breaks. In the event a Document is redacted, the Producing Party shall withhold the redacted text for that Document. (iii) File Structure. Each production shall include the following unless otherwise agreed between the parties: a. Index File:  Each production has one index file, in .DAT file format  The format of the DAT file should use UTF-8 encoding.  Standard Concordance delimiters shall be used o Comma — ASCII character 20 (¶) o Quote — ASCII character 254 (þ) o Newline — ASCII character 174 (®)  First line must contain the column/field names (set forth in paragraph 6(h) herein)  The fields BEGBATES, ENDBATES, TEXTPATH and NATIVELINK must be present 5 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 6 of 15 PageID #:377  Each subsequent row must contain the Metadata for one Document  Every row must have the same number of columns/fields (empty values are acceptable)  File should be placed in the root directory b. OCR and Extracted Text Files (.TXT Files):  A single text file for each Document containing all the Document's pages, in text.  Filenames should be of the form: <Bates num>.txt, where <Bates num> is the Bates number of the first page of the Document, filenames should not contain spaces  Text must be encoded in UTF-8 format  The TEXTPATH of the OCR or Extracted Text files should be included as a field in the DAT file listed above  Files should be placed in the text/ subdirectory c. Image Files:2  A single image for each page in each Document  A single image per file (no multi-page image files)  The default format should be 1-bit black and white single-page TIFF images and 24-bit color JPG images, if applicable.  Filenames should be of the form: <Bates num>.<ext>, where <Bates num> is the BATES number of the page, and <ext> is the appropriate extension for the image format (.jpg, .tif, .png, etc.), filenames should not contain spaces  Files should be placed in the images/ subdirectory  Microsoft Word files should be imaged with Track Changes and Comments on. d. Native Files: 2 Not required for documents produced in Native Format. 6 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 7 of 15 PageID #:377  Native files need only be produced for (a) Microsoft Excel files, (b) Microsoft PowerPoint files, and (c) other files that the parties may agree should be produced natively pursuant to paragraph 6(a)(iv), below.  Where Documents are produced in Native Format (pursuant to paragraph 6(a)(iv) below) filenames must be unique in the production, unless the content is identical; preferably by naming files by the starting Bates number of the associated document  The filename of a native file must retain the file extension corresponding to the original Native Format; for example, an Excel 2003 spreadsheet's extension must be .xls  Each native file filename must correspond to the NATIVELINK metadata field in its corresponding document's row in the DAT file  Where native files are produced pursuant to this subsection, it is unnecessary to produce Image files, such as TIFF images, other than the bates stamped native placeholder documents discussed below.  Native files should be placed in the natives subdirectory (iv) Native Format Documents. The parties recognize that it may be appropriate for certain Documents to be produced in Native Format. Therefore, the Producing Party shall produce all .XLS spreadsheets and .PPT presentations in Native Format unless there is an agreement to the contrary, with bates stamped native placeholder documents representing native documents for purposes of document identification and confidentiality designations. The Receiving Party may also request that the Producing Party produce additional file types of electronic Documents in Native Format where the converted image format distorts or causes the information to be improperly displayed, or for which there is no visual representation, such as audio files. The parties will meet and confer regarding such requests. 7 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 8 of 15 PageID #:377 If a Document to be produced as a Native Format contains privileged information as well as non-privileged information, it shall be produced in TIFF format with redactions rather than Native Format. When a document or email is withheld, all metadata associated with the withheld document is excluded from the metadata DAT file. To the extent the Producing Party wishes to establish additional procedures for the protection of confidential information as defined in any applicable Confidentiality Order entered herein produced in Native Format, the Producing Party and the Receiving Party shall meet and confer to establish additional procedures, to the extent necessary, for the protection of the information in Native Format. (v) Color. Documents shall be produced in black and white in the first instance. If a produced Document contains color and that color is necessary to decipher the meaning, context, or content of the document, the Producing Party shall honor reasonable requests for either the production of the original source Document for inspection and copying or production of a color image of the Document. (vi) Resolution of Production Issues. If Documents cannot be read because of imaging or formatting problems, the Producing Party and the Receiving Party shall meet and confer to attempt to resolve problem(s), to the extent the problem(s) are within the parties' control. (vii) Support for Experts' Opinions. Unless a Document should be produced in Native Format, Documents supporting the Producing Party's experts' opinions shall be produced as PDF files in color where the original source Document contains color and color is necessary to decipher the meaning, context or content of the document. 8 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 9 of 15 PageID #:377 (b) Production Media. A Producing Party shall produce Documents on such readily accessible computer or electronic media as the Producing Party and the Receiving Party may hereafter agree upon (the "Production Media"). Information that shall be identified on the face of the Production Media shall include: (1) the production date, and (2) the confidentiality notation required by the Confidentiality Order entered in this case, if the media contains Confidential Information, as defined in the Confidentiality Order. The face of the Production Media shall also contain the Bates Number range(s) of the Documents on the Production Media, and where not practicable to do so, may be provided in an accompanying letter. If the Producing Party encrypts or "locks" the production, the Producing Party shall include with the production or in a separate letter or email an explanation of how to decrypt the files. The parties agree to the following production formats: SFTP site, CD, DVD or external USB hard drive, whichever results in the least number of items. (c) Production of Structured Data. To the extent a response to discovery requires production of discoverable electronic information contained in a Database, in lieu of producing the Database, the parties shall meet and confer to, with an understanding of which fields are relevant, agree upon a set of queries to be made for discoverable information and generate a report in a reasonably usable and exportable electronic file (e.g., Excel or CSV format) for review by the Requesting Party or counsel. Upon review of the report(s), the Requesting Party may make reasonable requests for additional information to explain the Database scheme, codes, abbreviations, and different report formats or to request specific data from identified fields. If a Producing Party asserts that certain ESI is inaccessible or otherwise unnecessary or inadvisable under the circumstances, or if the Requesting Party asserts that, following production, certain ESI is not reasonably usable, the parties shall meet and confer with their respective 9 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 10 of 15 PageID #:377 technology experts to discuss resolving such assertions. If the parties cannot resolve any such disputes after such a meet and confer has taken place, the issue shall be presented to the Court for resolution. (d) Document Unitization. Paper Documents scanned into Document Images shall be logically unitized in a manner so as to maintain the document(s) and any attachments, as they existed in their original state, if possible. For electronic documents, 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 through the scanning or conversion process from Native Format to TIFF, provided however that the parties shall only be required to present one level of parent-child relationship. Document Images generated from attachments to e-mails stored in Native Format shall be produced contemporaneously and sequentially immediately after the parent e-mail. All paper Documents imaged and produced electronically shall include a unitization file ("load file") in accordance with paragraph 6(a)(iii)(a). (e) Duplicates. The Producing Party may remove duplicate Documents pursuant to the following limitations: removal of duplicates shall only be done on exact duplicate Documents (based on MD5 or SHA-1 hash values at the Document family level). As a general rule, a Producing Party may de-duplicate its production within a source (custodian), or across the entire production (cross-custodian/globally). De-duplication must be performed at the document family level. Stand-alone files will de-duplicate against other stand-alone files, but not against attachments contained in document families. If a Producing Party de-duplicates across the entire production (globally), the Producing Party shall provide the name of each custodian possessing the de-duplicated copy. E-mail that includes content on the "bcc" or other blind copy field shall not be 10 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 11 of 15 PageID #:377 treated as duplicate of an e-mail that does not include content in the "bcc" or other blind copy field, even if all remaining content in the e-mail is identical. The names of the custodians should be entered into the Custodian and Duplicate Custodian fields as described in Exhibit B. Nothing in this paragraph is intended to resolve a Producing Party's objections in written discovery requests on the ground that the request is duplicative because the requested Documents were produced or are being produced by other parties. With respect to paper or other Documents for which metadata does not exist, a Producing Party may only de-duplicate within a source (e.g., custodian), provided however that if the Producing Party provides the custodian field for metadata as requested in Exhibit B it may de-duplicate across the entire production. (f) Paper Documents Containing Fixed Notes. Paper Documents that contain fixed notes shall be scanned with the notes affixed, if it can be done so in a manner so as not to obstruct other content on the Document. If the content of the Document is obscured by the affixed notes, the Document and note shall be scanned separately. (g) Bates Numbering and Other Unique Identifiers. Each Producing Party shall Bates number its production(s) as follows: (i) Document Images. Each page of a produced Document—except Native Files— shall have a legible, unique page identifier ("Bates Number") electronically "burned" onto the image at a location that does not unreasonably obliterate, conceal, or interfere with any information from the source document. The Bates Numbers shall be enumerated as defined above in Definitions. The Producing Party will use a consistent prefix throughout the matter unless good reason exists for using a different prefix. No other legend or stamp will be placed on the Document Image other than a confidentiality legend (where applicable), redactions, the Bates Number identified above, and any other 11 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 12 of 15 PageID #:377 internal tracking number that the Producing Party may choose to use. The confidentiality legend shall be "burned" onto a Document's image at a location that does not unreasonably obliterate or obscure any information from the source document. (ii) Native Format Documents. In the event Native Format Documents are produced, in order to preserve the integrity of those Native Format Documents, no Bates Number, confidentiality legend or internal tracking number should be added to the content of the Native Document unless otherwise agreed between the Producing Party and the Receiving Party during any meet and confer related to confidentiality protections for Native Format Documents; however, the Producing Party will provide a MD5 Hash Value for each Native Format Document. (h) Metadata. The Producing Party shall produce the metadata information described in Exhibit B, if available, with each production and in the format described in Paragraph 6(a)(iii)(a) above. The Producing Party has no obligation or duty to fill in any metadata fields or create any metadata that is not present with the original source file. For each Document, the Producing Party shall produce a line in the index file with the fields identified in Exhibit B, where available. The field naming conventions shall be as described in Exhibit B unless otherwise agreed and consistently applied across all productions. (i) Compressed Files. Compression file types (i.e., .CAB, .GZ, .TAR, .Z, .ZIP) shall be decompressed in a reiterative manner to ensure that a zip within a zip is decompressed into the lowest possible compression resulting in individual folders and/or files. 6. PHASING When a party propounds discovery requests pursuant to Fed. R. Civ. P. 34, the parties agree to meet and confer regarding the phasing of the production of ESI, should such phasing be appropriate. 12 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 13 of 15 PageID #:377 7. OBJECTIONS TO ESI PRODUCTION If either party objects to producing requested information in the formats described herein on the grounds that such information is not reasonably accessible because of undue burden or cost, before asserting such an objection, the responding party will inform the requesting party of any format in which it is willing to produce the requested data, the nature and location of the information claimed to not be reasonably accessible, the reason(s) why the requested form of production would impose an undue burden or is unreasonably costly, and afford the requesting party 10 business days from receipt of such notice to propose an alternative means of compliance with the request. Such proposal may include alternative cost estimates for ESI discovery production, may offer a proposal for ESI discovery cost allocation, or both. The parties shall meet and confer in good faith to resolve any dispute regarding a proposed deviation from the provisions of this stipulation. To the extent the parties are unable to resolve any such dispute, each party reserves the right to seek judicial intervention in compliance with the relevant court rules and orders. Nothing in this Order negates the parties' ongoing obligations to report spoliation of evidence. 8. DOCUMENTS PROTECTED FROM DISCOVERY (a) For any document withheld in its entirety or produced but redacted on the basis of privilege or work product protections, the party withholding the document(s) (the "Withholding Party") will produce privilege/redaction logs consistent with the requirements of the Federal Rules of Civil Procedure. (b) The logs shall be in Excel format or any other format that permits electronic sorting and searching, except that (1) the parties shall have no obligation to log information generated on or after May 23, 2016, and (2) the parties shall have no obligation to log information generated on or after November 18, 2015, that is compromised of the parties' communications with outside 13 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 14 of 15 PageID #:377 counsel. When there is a chain of privileged e-mails, the Withholding Party need only include one entry for the top/most recent email on the privilege/redaction log for the entire e-mail chain and need not log each e-mail contained in the chain separately. For each document withheld or redacted, the producing party's privilege/redaction logs shall include, to the extent it is reasonably available through metadata, the following information: (a) custodian or source; (b) date; (c) author(s); (d) for documents produced but redacted on the ground of privilege, the starting and ending Bates number; (e) recipient(s), CC(s) and BCC(s) (for e-mail and paper Document communications such as letters and internal memoranda); (f) specification of the privilege claimed; and (g) a description of the document and the basis for the privilege or redaction claim. Privilege/redaction logs shall be produced at a time mutually agreed to by the parties. (c) Information produced pursuant to this Order that is subject to a claim of privilege or confidentiality shall be treated in a manner consistent with the procedures set forth in the Confidentiality Order entered in this matter. 9. MODIFICATION This Order shall be subject to modification by the Court on its own initiative or on motion of a party or any other person with standing concerning the subject matter. IT IS SO STIPULATED, through the below-identified counsel of record. SO ORDERED. Dated: January 10, 2017 _________________________________ Hon. Amy St. Eve United States District Judge 14 Case: 1:16-cv-05486 Document #: 55 Filed: 01/10/17 Page 15 of 15 PageID #:377 Dated: January 9, 2017 Respectfully submitted, /s/ Ross B. Bricker /s/ Britt M. Miller Ross B. Bricker Britt M. Miller Sally K. Sears Coder Matthew D. Provance JENNER & BLOCK LLP MAYER BROWN LLP 353 N. Clark Street 71 South Wacker Drive Chicago, Illinois 60654 Chicago, IL 60606 Tel: (312) 222-9350 Tel: 312.782.0600 Fax: (312) 527-0484 Facsimile: 312.701.7711 rbricker@jenner.com bmiller@mayerbrown.com ssearscoder@jenner.com mprovance@mayerbrown.com AND AND Arthur J. Burke (pro hac vice) Mark W. Ryan (pro hac vice) David B. Toscano (pro hac vice) MAYER BROWN LLP DAVIS POLK & WARDWELL LLP 1999 K Street NW 450 Lexington Avenue Washington, DC 20001 New York, New York 10017 Tel: 202.263.3000 Tel: (212) 450-4000 Facsimile: 202.263.3300 Fax: (212) 701-5800 mryan@mayerbrown.com Arthur.Burke@davispolk.com David.Toscano@davispolk.com Attorneys for Plaintiff Viamedia, Inc. Attorneys for Defendants Comcast Corporation and Comcast Spotlight, LP 15