Hempel v. Cydan Development, Inc.
3:18-cv-00008 | D. Nev. | Jun 22, 2018
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Case 3:18-cv-00008-MMD-VPC Document 42 Filed 06/21/18 Page 1 of 14
THE O’MARA LAW FIRM, P.C.
DAVID C. O'MARA
NEVADA BAR NO. 8599
311 East Liberty St.
Reno, Nevada 89501
(775) 323~1321
(775) 323-4082 (fax)
JOSHUA L. SEIFERT PLLC
Joshua L. Seifert, Esq. (Pro Hac Vice)
jseifert@seifertp|lc.com
175 Varick Street
New York, NY 10014
(646) 470-2647
SLARSKEY LLC
David Slarskey, Esq. (Pro Hac Vice)
dslarskey@slarskey.corn
800 Third Avenue, 18th Floor
New York, NY 10022
(212) 658-0661
Counsel for Plaintiff§
/
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ENTERED sERvED 0N
COUNSEUPART\ZS OF RECORD
JUN 22 2313
CLERK US DlSTR|CT COURT
D|STR|CT OF NEVADA
BYZ DEPUTY
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
ADDISON HEMPEL, CASSIDY
HEMPEL, CHRISTINE HEMPEL, HUGH
HEMPEL, and SOLUTION
THERAPEUTICS,
Plaintiffs,
v.
CYDAN DEVELOPMENT, INC.,
CYDAN II, INC., VTESSE, INC.,
SUCAMPO PHARMACEUTICALS,
INC., and DOES I-X and ROE
CORPORATIONS I-V, inclusive,
Defendants.
Case No. 3:18-cv-00008-MMD-VPC
STIPULATION AND [d¥OPOS'E-D] ORDER
REGARDING ESI AND TECHNICAL
SPECIFICATIONS GOVERNING
DOCUMENT PRODUCTION
This matter comes before the Court by stipulation of Plaintiffs Addison Hempel, Cassidy
Hempel, Christine Hempel, Hugh Hempel, and Solution Therapeutics, and Defendants Cydan De-
velopment, Inc., Cydan II, Inc., Vtesse, Inc., and Sucampo Pharmaceuticals, Inc. (collectively, the
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Case 3:18~cv-00008-MMD-VPC Document 42 Filed 06/21/18 Page 2 of 14
“Parties”), to address production of ESI (as defined below) and technical specifications governing
document production. Having found that the Parties, by and between their undersigned counsel,
have stipulated and agreed to the terms set forth herein, and good cause having been shown, the
following Stipulation shall be entered:
SPECIFICATIONS GOVERNING ESI AND DOCUMENT PRODUCTION
l. DEFINITIONS
l. “Documents” means any Hard Copy Documents, ESI, or other material produced
in this litigation in response to a Party’s document requests, compulsory process, or voluntarily.
2. “ESI” means electronically stored information and includes, but is not limited to,
e-mails and attachments, instant messaging and other electronic communications, word processing
documents, text files, image files, container files, hard drives, external/intemal drives, shared
drives, thumbdrives, servers, spreadsheets, slide presentations, graphics, audio files (including, but
not limited to voicemail and telephone recordings), databases, calendars, telephone logs,
transaction logs, intemet usage files, offline storage or information stored on clouds or removable
media, information contained on laptops or other portable devices and network access infonnation,
Native Files and the corresponding Metadata that is ordinarily maintained
3. “Hard Copy Document” means a document that is maintained in hard copy or paper
form.
4. “Image File” means a representation of ESI produced by (i) converting a Native
File into a standard image format capable of being viewed and printed on standard computer sys-
tems; or (ii) scanning a Hard Copy Document into a standard image file capable of being viewed
and printed on standard computer systems.
5. “Load File” means a file containing commands and information necessary to import
coded, captured, or extracted data (including Metadata, extracted text, and the links between re-
lated records or document images) from ESI into a document management database, such as Rel-
ativity.
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6. “Metadata” means: (i) information embedded in a Native File that is not ordinarily
viewable or printable from the application that generated, edited, or modified such Native File;
and (ii) information generated automatically by the operation of a computer or other information
technology system when a Native File is created, modif\ed, transmitted, deleted, sent, received or
otherwise manipulated by a user of such system. Metadata is a subset of ESI.
7. “Native File” means ESI in the electronic format of the application in which such
ESl was created, viewed and/or modifled. Native Files are a subset of ESI.
8. “OCR” means Optical Character Recognition, and is the machine recognition of
printed characters from Image Files or other non-searchable text contained in a Document into
machine~encoded text so that the text can be indexed and searched for specific characters, words,
or phrases.
9. “Producing Party” means a Party that produces Hard Copy Documents, ESl, or
other material in connection with this litigation in response to document requests, compulsory
process, or voluntarily.
10. “Receiving Party” means a Party that receives Hard Copy Documents, ESI, or other
material from a Producing Party in connection with this action.
Il. GENERAL PROVISlONS
ll. wge This Stipulation and Order Regarding ESI and Technical Speciflcations
Goveming Document Production (“this Order”) specifies the form and manner in which the Parties
shall be required to produce ESl and Hard Copy Documents for use in the above~captioned matter.
The production of ESI and Hard Copy Documents in a manner consistent with the specifications
set forth in this Order shall be sufficient to satisfy a Producing Party’s obligation to produce its
materials in reasonably useable form and as they are maintained in the ordinary course of business.
12. Liaisons and Conferrals. Below each Party identifies its “discovery liaison” who is
and will be knowledgeable about and responsible for discussing the production of ESI. Each liaison
will be, or will have access to those who are, knowledgeable about the technical aspects of e-
discovery, including the location, nature, accessibility, format, collection, and production of ESI
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Case 3:18-cv-00008-MMD-VPC Document 42 Filed 06/21/18 Page 4 of 14
in this matter. The Parties will rely on the liaisons, as needed, to meet and confer about ESI and to
help resolve disputes without court intervention The Parties agree to meet and confer in good faith
regarding any dispute concerning the subject matter of this Order. If the Parties are unable to re-
solve their dispute, they will present it to the Court for adjudication in a manner consistent with
the Local Rules. No Party may seek relief from the Court concerning compliance with this Order
unless it has orally conferred (or made a reasonable, good faith effort to orally confer) with the
other affected Parties.
Plaintiffs’ Discovery Liaison: Joshua L. Seifert
Seifert PLLC
Phone: 646_470-2647
Email: jseifert@seifegpllc.com
Defendants’ Discovery Liaison: Benjamin Stoll
Williams & Connolly LLP
Phone: 202-434-5756
Email: bstoll@wc.com
13. Protective Order. All productions are subject to the Stipulation and Protective and
Order for the Protection and Exchange of Confidential Information in this matter, dated June 19,
2018 (“Protective Order”). ECF Doc. No. 40. Nothing in this Order shall be deemed to modify or
affect the Protective Order. In the event of a conflict between this Order and the Protective Order,
the Protective Order shall govern.
14. Non-Waiver. Nothing in this Order shall be construed as a waiver of any Party’s
rights under the Federal Rules of Civil Procedure and other applicable laws, rules, and orders of
the Court, including, but not limited to, the right to propound and object to discovery requests and
the right to object to the production, discoverability, admissibility, authenticity, or confidentiality
of any Documents. Nothing in this Order shall affect, in any way, the Parties’ rights to seek reim-
bursement of costs associated with the collection, review, and/or production of Documents,
15. Compliance and Deviations. The Parties agree to make good faith efforts to comply
with the requirements and specification of this Order. If a Producing Party, notwithstanding such
efforts, cannot comply with any material aspect of this Order, or if compliance with a material
aspect of this Order would be unreasonable or disproportionate, then within a reasonable time after
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discovery of the inability or infeasibility of compliance, such Producing Party shall inform the
Receiving Party in writing as to why compliance with this Order is impossible, unreasonable, or
disproportionate Notwithstanding this Order, the Parties may separately agree to deviate from the
protocols and specifications set forth herein as to specific Documents or categories of Documents,
without leave of the Court, provided that such agreement is memorialized in writing.
16. Modification. The requirements of this Order may be modified by agreement of
the Parties or upon further order of the Court for good cause shown.
17. Third-Pamg Productions. A Party that issues a non-party subpoena shall include a
copy of this Order and the Protective Order in this case with the subpoena and request that the non-
party produce Documents in accordance with the specifications set forth therein. The Party issuing
the subpoena is responsible for producing to all other Parties any Documents obtained as a result
of the subpoena within a reasonable amount of time.
III. COLLECTION AND REVIEW
18. Custodians. Each Party will collect ESI by identifying a reasonable number of cus-
todians and then asking each custodian to identify locations where potentially relevant ESI may
be |ocated.
19. Deduplication. Each Party is only required to produce a single copy of each
responsive Document and so may employ industry-standard deduplication, either within custodian
or across all custodians or sources (e.g., “global deduplication”).Deduplication must take place at
the “family” level, meaning that two emails may not be deduplicated if they have different attach-
ments even if the content of the emails themselves are identical, and that two email attachments
may not be deduplicated if they are attached to different emails even if the content of the attach-
ments themselves are identical.lf a Party exercises its option to globally de-duplicate, that Party
must identify each custodian or source where the Document was located in the “custodian”
Metadata field. Hard Copy Documents may not be eliminated as duplicates of responsive ESI.A
Party may only de-duplicate “exact duplicate” Documents and may not de-duplicate “near
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Case 3:18-cv-00008-MMD-VPC Document 42 Filed 06/21/18 Page 6 of 14
duplicate” Documents, both of the quoted terms in this sentence being given their ordinary
meaning in the electronic discovery field.
20. Search Terms. Once each Party has collected its ESl and run any applicable dedu-
plication, it will run search terms on that ESl to generate the Documents that will be individually
revised for responsiveness The Parties agree that they will use search terms that are narrowly
tailored to identify relevant and discoverable information and that they will select search terms
that collectively generate a reasonable number of Documents proportionate to the needs of the
case. The Parties agree that it would be unreasonable and disproportionate to the needs of the case
for either side to individually review more than 100,000 Documents.
21. Predictive Coding. Nothing in this Order shall preclude any Party from employing
analytics, including predictive coding, during the course of its review of Documents, However, for
the avoidance of doubt, absent mutual agreement or court order, all post-search-term responsive-
ness determinations shall be made by an attomey.
IV. PRODUCTION FORMAT
22. General Form of Production. Except as provided in Paragraphs 27-30, all ESI and
Hard Copy Documents shall be produced as single-page, black and white, Group IV TIFF image
files with the associated text and Metadata specified in this Section ll.For each Document, an
extracted text file should be provided along with its corresponding TIFF image file(s) and
Metadata. Each production should include separate “DATA,” “IMAGES,” “NativeFiles,” and
“TEXT” folders.
23. lmage Reguirements. TIFF image files shall be of at least 300 dpi resolution. The
page orientation (i.e. , portrait or landscape) of a TIFF image file shall be the same as the underlying
Document from which the TIFF image is created, The page size of a TIFF image file shall be 8.5
x ll inches unless, in the reasonable judgment of the Producing Party, a particular Document
requires a different page size.
24. Bates Numbers. Each TIFF image shall be branded with a Bates number that must:
(1) be unique across the entire production; (2) maintain a constant length of nine numeric digits
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Case 3:18-cv-00008-MMD~VPC Document 42 Filed 06/21/18 Page 7 of 14
(including O-padding) across the entire production; (3) be sequential within a given Document;
and (4) include a three-letter prefix identifying the Producing Party followed by a single-dash.
Each TIFF image file shall be named with the same page-level bates number branded on the
underlying image. If a Bates number or set of Bates numbers are skipped in a production, the
Producing Party will so note in a cover letter accompanying the production,
25. Text Reguirements. All ESI and Hard Copy Documents shall be produced with a
corresponding multipage text file (i.e., one text file per ESI or Hard Copy Document as opposed
to one text file per page). The text file for an ESI Document shall be created by extracting text
directly from the underlying native file, unless the ESI Document must be redacted prior to
production, in which case the text file shall be generated by applying industry standard OCR
technology to the redacted version of the ESI document. The text file for Hard Copy Documents
shall also be created using industry standard OCR technology. Each text file shall be named with
the beginning Bates number of the ESI or Hard Copy Document to which the text file relates.
26. Metadata Reguirements. ESI shall be produced with the Metadata specified in
Exhibit A to this Order to the extent such Metadata exists in the original ESI. The Parties are not
obligated to create or manually code Metadata fields that are not automatically generated by the
processing of the ESI or that do not exist as part of the original Metadata of the ESI, except that
all produced ESI must contain, at a minimum, the following Metadata:
a. BegBates
b. EndBates
c. BegFamily
d. EndFamily
f. Custodians
The Producing Party is not required to provide any Metadata or specified information in Exhibit
A to this Order that contains privileged information
27. When Native Production Reguired. The following types of ESI shall be produced
in native format only, whether they exist as attachments to emails, embedded files, or standalone
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files: (1) Microsoft Access files and other database; and (2) audio or video files such as .wav or
.mpeg files.
28. When Native Production May Be Reguested. A Paify may request that ESI
originally produced as TIFF(s) be additionally produced in native format, A Producing Party shall
honor such a request where the TIFF version of the ESI omits substantive content included in the
native file or where the TIFF version suffers adverse formatting changes as a result of the
conversion to TIFF, such as the loss of meaningful color distinctions.
29. Redacting Native Files. Ifredactions of Native Files are necessary, the redacted file
may be produced in TIFF in accordance with Paragraphs 21-24, provided that the redacted files
are TIFFed in a manner that will yield production of all non-privileged content, including, but not
limited to, speaker’s notes, hidden rows and columns, and comments. If the Parties encounter na-
tive files containing privileged content that are not easily converted to TIFF images, the Parties
shall meet and confer to determine a suitable manner of production.
30. Production Specifications for Native Files. When producing ESI in native format,
the Producing Party shall:
a. Provide a corresponding single-page TIFF placeholder stating “Document
Produced in Native.” The placeholder shall be branded with a Bates number
meeting the requirements of Paragraph 23.
b. Name the native file with the Bates number affixed to the corresponding TIFF
placeholder.
c. Provide the text and Metadata, including the original file name of the underlying
ESI, required under Paragraphs 24 and 25.
31. Load Files. All productions of ESI and Hard Copy Documents shall be
accompanied with metadata load files and image load files using standard delimiters. The metadata
load file must include a header row with unique field names. Each Producing Party shall provide
data and image load files in a format that reasonably allows the Receiving Party to load productions
to its document review or case management database,
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32. Family Relatignships of ESI. Parent-child relationships between produced ESI
(e.g., the association between an attachment and the e-mail to which it is attached, or a spreadsheet
embedded within a Word document) must be preserved by assigning sequential Bates numbers to
all produced files within a parent-child group, and by providing accurate attachment ranges for
those files in the Metadata fields, as required by Exhibit A.
33. Scanning and Unitization of Hard Copy Documents, The Parties agree to use
reasonable efforts to ensure that Hard Copy Documents are logically unitized such that: (1)
multiple, distinct Documents are not merged into a single Document; and (2) distinct Documents
are not split into multiple Document ranges. The Parties agree to use reasonable efforts to maintain
the family relationships of Hard Copy Documents by scanning and Bates numbering those
Documents in sequential order, This provision does not obligate any Party to produce Documents
in a manner other than in which those Documents were kept in the ordinary course of business.
34. Entei_‘prise Level Databases and Unusual Data Types. This Order does not govern
the production of ESI maintained in enterprise level databases or other unusual or unique formats
or structures. The Parties shall meet and confer, as necessary, regarding the production format of
such ESI.
35. Password Protected ESI. The Producing Party will take reasonable steps, prior to
production, to unencrypt and/or restore any discoverable ESI that is encrypted or otherwise pass-
word protected. This includes attempting to obtain the password from the custodian of the ESI.
Relevant, non-privileged Documents that can be reasonably unencrypted or restored will be pro-
duced.
36. Preservation of Metadata. The Parties shall use industry standard technology and
processes to ensure the Metadata required to be produced for ESI is preserved during the collection,
processing, and production of those Documents. However, the Parties also acknowledge that in
some circumstances it may be more efficient to collect ESI informally, such as by making a simple
electronic copy of a file discovered during the course of a witness interview. If the original
Metadata of these files becomes of material importance during the course of the litigation, the
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Parties shall meet and confer regarding how to address that issue and will promptly raise any
disputes that cannot be resolved with the Court, Nothing in this Order is intended to permit a Party
to convert a file that is ordinarily maintained as ESI to a Hard Copy Document for production in
this litigation,
37. Error Files. If responsive ESI cannot be converted to TIFF without error due to
corruption or some other issue, such ESI shall be produced in native form under the requirements
of Paragraph 29. lf redactions of such files are necessary, however, the Parties shall meet and
confer to determine a suitable manner of producing the non-privileged content contained in these
files.
38. Container Files. The Parties need not produce container files (e.g., .zip) so long as
the responsive contents of those files are produced in accordance with the specifications of this
Order.
V. METHOD OF PRODUCTION
39. Branding. All Bates Numbers, confidentiality designations, and redactions shall be
burned into the TIFF image files so that they appear when the Document is printed.
40. Production Media. Each Party shall produce its ESI and/or Hard Copy Documents
on electronic storage media such as CDs, DVDs, or USB hard drives, or via FTP or sharefile. Each
piece of electronic storage media shall be assigned a sequential volume number that identifies the
Producing Party and, if applicable, the non-party who originally produced the ESI and Hard Copy
Documents,
41. Cover Letter. Each Party shall accompany each production of ESI and/or Hard
Copy Documents with a cover letter specifying: (l) the volume or volumes comprising the
production; and (2) the Bates range or ranges of the materials being provided on each volume and
whether those bates ranges contain any known gaps.
42. l_£n_cryp_tio_n. All productions will be made on encrypted media. The Producing
Party shall transmit the encryption key or password to the Receiving Party via email contempora-
neously with sending the encrypted production.
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IV. CONFIDENTIALITY AND PRIVILEGE
43. Confidentiality. The Parties may brand the ESI they produce “confidential” in ac-
cordance with the Protective Order. A Party may designate an entire category of Documents “con-
fidential” without individually reviewing each Document in the category for confidentiality if the
Party has a good faith basis for believing that any Document within the category is likely to be
confidential, as defined in the Protective Order.
44. Privilege Logs. All responsive Documents that a Producing Party withheld from
disclosure based on a claim of any privilege, protection, or immunity must be listed in a privilege
log on a document-by-document basis (not by category). The privilege log must be provided to
the Receiving Party in a format that is text-searchable and that allows the Receiving Party to sort
the entries chronologically and by Bates number (e.g., Excel). Communications with outside coun-
sel of record in this matter need not be logged.
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45. Clawback. The inadvertent or unintentional production of ESI or Hard Copy Doc-
uments containing information that is subject to a claim of attorney-client privilege or work-
product protection shall not be deemed a waiver of such privilege or protection, Such inadvertently
produced ESI or Hard Copy Documents is governed by the Protective Order.
IT IS SO STIPULATED, this 218t day of June, 2018.
/s/ David C. 0'Mara
David C. O’Mara
Nevada Bar No. 8599
TI-IE O’MARA LAW FIRM, P.C.
311 E. Liberty St.
Reno, NV 89501
(775) 323-1321
david@omaralaw.net
JOSHUA L. SEIFERT PLLC
Joshua L. Seifert, Esq.
Pro Hac Vice
175 Varick Street
New York, NY 10014
(646) 470-2647
jseifert@seifertp|lc.com
SLARSKEY LLC
David Slarskey, Esq.
Pro Hac Vice
800 Third Avenue, 18th Floor
New York, NY 10022
(212) 658-0661
dslarskey@slarskey.com
COUNSEL FOR PLAINTIFFS
I'l` IS SO ORDERED.
Dated: 10 /@
/s/ E. Leif Reid
E. Leif Reid
Nevada Bar No. 5750
LEWIS ROCA ROTHGERBER CHRISTIE
LLP
One East Liberty Street
Suite 300
Reno, NV 89501-2128
Telephone: (775) 823-2900
Paul B. Gaffney (pro hac vice)
Jessica Bodger Rydstrom (pro hac vice)
Benjamin M. Stoll (pro hac vice)
Amanda J. Cox (pro hac vice)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
COUNSEL FOR DEFENDANTS
1/`§@@
Ui`IITED STATE§/MAGIS’|TKA TE IUDGE
Case 3:18-cv-00008-MMD-VPC Document 42 Filed 06/21/18 Page 13 of 14
EXHlBIT A
2 All produced ESI and Hard Copy Documents must contain the following Metadata fields:
3 l. BegBates
4 2. EndBates
5 3. BegFamily
6 4. EndFamily
7 5. Custodians
8 To the extent the original ESI contains the following Metadata fields or the Metadata is created
9 automatically during ESI processing, ESI must be produced with the following additional
10 Metadata fields:
1 1 6. FileName
12 7. NativeLink
13 8. TextLink
14 9. FileSize
1 5 10. FileAuthor
16 1 1. CreatedDate
l 7 l 2. CreatedTime
l 8 1 3. LastModifiedDate
1 9 14. LastModifiedTime
20 15. MDSHash
21 16. FileTitle
22 17. FileExtension
23 18. FileType
24 19. Confidentiality
25 20. Redacted
26
27
28
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l To the extent the original ESI is an email document that contains the following Metadata fields
2 or the Metadata is created automatically during ESI processing, the email ESI must be produced
3 with the following additional Metadata fields:
4 21. From
5 22. To
6 23. CC
7 24. BCC
8 25. Subject
9 26. SentDate
10 27. SentTime
ll 28. ReceivedDate
12 29. ReceivedTime
13 30. Messages ID
14 31 . Attachment ID
15 32. Conversation lD
16 Date and time fields in the Metadata load file must be formatted as follows:
17 Date: mm/dd/yyyy
18 Time: hh:mm:ss (in military time)
19
20
21
22
23
24
25
26
27
28
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