[Proposed] Stipulation And Order On The Production

Source document: [Proposed] Stipulation And Order On The Production; document type: Proposed order (stipulated/unsigned; 12 pages).

Full text

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
UNITED STATES OF AMERICA, et al.,
ex rel. PAUL PIETSCHNER,
Plaintiffs,
v.

KATHRYN PETRALIA; ROBERT FROHWEIN;
and SPENCER ROBINSON,
Defendants.

Civil Action No. 4:21-CV-110-SDJ

[PROPOSED] STIPULATION AND ORDER ON THE PRODUCTION
OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION

Rule 26(f) of the Federal Rules of Civil Procedure states that the parties must develop a
proposed discovery plan that states the parties’ views and proposals on, among other things, “any
issues about disclosure, discovery, or preservation of electronically stored information, including
the form or forms in which it should be produced.”  Fed. R. Civ. P. 26(f)(3)(C).
The following Stipulation and Order on the Production of Documents and Electronically
Stored Information (“Order”) shall apply to and govern discovery in the above-captioned action
(the “Action”) and documents and electronically stored information (“ESI”) produced by or
obtained from any party or non-party in the course of the Action.
I.
GENERAL PROVISIONS
1.
Except as specifically set forth herein, this Order does not alter or affect the
applicability of the Federal Rules of Civil Procedure or Local Rules for the United States District
Court for the Eastern District of Texas.
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2.
This Order shall not enlarge or affect the proper scope of discovery in this
Litigation, nor imply that discovery produced under the terms of this Order is properly
discoverable, relevant, or admissible in this or in any other litigation.
3.
Absent special circumstances, and subject to the parties’ written responses and
objections, the production specifications set forth in this Order shall govern the production of all
documents, including but not limited to hard copy documents, transcripts, exhibits, video and audio
files, ESI, and any other materials and information (including, to avoid any ambiguity, any copies,
summaries, or derivations thereof) produced by the parties in the first instance during discovery in
the Action.
4.
The parties will meet and confer concerning the applicability of this Stipulation and
Order to any Documents to be reproduced in this action that were previously produced in another
action or as part of a pre-complaint investigation.  Generally, where the United States has obtained
ESI or other information from a non-party to this litigation before the United States filed its
Complaint in Intervention, the United States will produce that material as it was received.
5.
The parties agree to use reasonable, good faith, and proportional efforts to preserve,
identify and produce relevant and discoverable information consistent with Fed. R. Civ. P.
26(b)(1).  The parties further agree to preserve ESI in such a way that it can be produced in a
reasonably usable form in accordance with Federal Rule of Civil Procedure 34(b)(2)(E)(ii).
6.
Production Specifications.  The U.S. Department of Justice’s Specifications for
Production of ESI and Digitized Images (“Production Specifications”), attached and incorporated
herein by reference, describe the production formats and fields to be included in all documents
produced by each party as a default.  In the case of ESI and Digitized Images obtained by the
United States from a non-party to this litigation before the United States filed its Complaint in
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Intervention, the United States will produce such ESI and Digitized Images in the format that they
were received by the United States.  Nothing in this paragraph shall require the United States to
obtain or produce metadata or other information about such ESI and Digitized Images that is not
presently in the United States’ possession.
II.
SPECIFIC PROVISIONS
1.
Search and Collection Methodology
a)
Meet and Confer.  No later than fourteen (14) days after the Producing
Party has served objections and responses to the Requesting Party’s requests for
production, the Parties shall meet and confer regarding search methods intended to be used
to identify responsive documents and ESI including the search terms, date limitations, and
custodians intended to be applied to the documents searched, and the Producing Party shall
disclose their proposed search methodology.  To the extent there are production issues that
are not addressed in the Stipulation, the Parties shall meet and confer with respect to these
issues, as well.  If the issue is not resolved within fourteen (14) calendar days after the meet
and confer, either Party may thereafter immediately submit the dispute to the Court for
resolution.
b)
TAR.  Without prior agreement of the Parties, Technology Assisted Review
(“TAR”) will not be applied before or after any application of search terms by any Party,
unless TAR is used for review prioritization only.  Should a Producing Party wish to use
any method or methodology not specifically addressed by this Protocol to exclude
documents from any collection, review or production, notice to the Receiving Party must
be made prior to the use of any such method or methodology.  Such notice must disclose
their proposed method or methodology, and the Parties will meet and confer regarding such
proposal in good faith.  If the issue is not resolved within fourteen (14) calendar days after
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the meet and confer, either Party may thereafter immediately submit the dispute to the
Court for resolution.
c)
De-Duplication.  A party is required to produce only a single copy of a
responsive document.  A producing party electing to deduplicate shall deduplicate across
Custodians and at the family-level only (i.e., if there are identical child documents that
have different parents, they are not duplicative, and an attachment to a document is not a
duplicate of the same document maintained as a standalone document).  Each party may
de-duplicate responsive ESI (based on Source Hash, MD5 hash values, or other industry
standard method) across Custodians.  For emails with families, the hash value is generated
based on the parent/child document grouping.  To the extent that deduplication through
hash values is not possible, the parties shall meet and confer to discuss any other proposed
method of deduplication.  A producing party must make reasonable efforts to identify all
agreed upon custodians who were in possession of any de-duplicated documents through
an appropriate load file field named DupeCustodian.  All duplicative custodian file paths
that would have been included in the filepath metadata field, to the extent such metadata
exists, but are excluded because of horizontal/global de-duplication, must be identified in
a metadata field called “DupeCustodian File path.”  Additionally, all BCC recipients whose
names would have been included in the BCC metadata field, to the extent such metadata
exists, but are excluded because of horizontal/global de-duplication, must be identified in
the BCC metadata field specified in the Production Specifications.  In the event of rolling
productions of documents or ESI, the producing party will, as needed, supplement the load
files with updated All Custodian information, as well as BCC information to the extent
such metadata exists.  Duplicate custodian information may be provided by a metadata
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overlay and will be provided by a producing party on an ongoing basis.  In the case of ESI
obtained by the United States from a non-party to this litigation before the United States
filed its Complaint In Intervention, the United States may produce that ESI as it was
received, without further deduplication.
2.
Production of ESI
a)
TIFFs.  When producing black and white paper documents scanned to
images, or rendered ESI, they shall be produced as 300 dpi, 1 bit, single-page TIFF files,
CCITT Group IV (2D Compression).  When producing in color, paper documents scanned
to images, or rendered ESI, they shall be produced as 300 dpi single-page JPG.  Each TIFF
image should be named as its corresponding Bates number.  Original document orientation
should be maintained (i.e., portrait to portrait and landscape to landscape).  Bates numbers,
confidentiality designations, and redactions should be burned into the TIFF image files.
TIFF image files should be provided in a self-identified “Images” folder.
b)
System Files.  Common system and program files as defined by the NIST
library (which is commonly used by discovery vendors to exclude system and program
files from document review and production) need not be processed, reviewed or produced.
c)
Metadata Fields and Processing.  Absent special circumstances, each of
the metadata and coding fields set forth in the Production Specifications that can be
reasonably extracted from a document shall be produced for that document, to the extent
already in existence and reasonably accessible or available.  To the extent that metadata
does not exist, is not reasonably accessible or available, or would be unduly burdensome
to collect, nothing in this Stipulation shall require any party to extract, capture, collect or
produce such data.  Any metadata fields for redacted documents that would reveal
privileged information shall be excluded.
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d)
Extracted Text Files.  For each document, an extracted text file should be
provided along with its corresponding TIFF image file(s) and metadata.  The file name of
each extracted text file should be identical to that of the first image page of its
corresponding document, followed by .txt.  File names should not contain any special
characters or embedded spaces.  The text of native files should be extracted directly from
the native file.  However, if a document has been redacted, OCR of the redacted document
will suffice in lieu of extracted text.  Also, if extracted text is not available in the native
file, the documents should be processed by an OCR tool prior to production to extract
available text so that the record is searchable.
e)
Database Load Files/Cross-Reference Files.  Documents should be
provided with an image load file that can be loaded into commercially acceptable
production software (i.e., .OPT and .DAT files for use in Recommind, Relativity, etc.)
using standard Concordance delimiters.  The first line in each metadata .DAT file should
be the header containing the agreed upon field names, and each subsequent line should
contain the fielded data for each document.  The image and data load files (i.e., .OPT and
.DAT files) should be provided in a self-identified “Data” folder.
f)
Native Files.  The following files shall be produced in the native format that
is referenced in their Native Link field, along with a full TIFF or TIFF placeholder image
that is named by the beginning Bates Number of the file, associated document-level text
files, as well as metadata load files in delimited text format containing the fields required
by Paragraph 3(c): (1) Spreadsheet files (e.g. Excel), (2) presentation files (e.g.
powerpoint), and (3) media files such as audio and video files.  If a document to be
produced as a Native File is subject to redactions, the document will be redacted natively,
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to the extent reasonably and technically possible.  Each document produced in response to
such requests shall be produced with a “NativeLink” entry in the .DAT load file indicating
the relative file path to each Native File on the production media, and all extracted text and
applicable metadata fields set forth in the Production Specifications.  In the case of ESI
obtained by the United States from a non-party to this litigation before the United States
filed its Complaint In Intervention, the United States will produce Native Files to the extent
and in the manner the United States received them, and shall have no obligation to obtain
or produce Native Files that are not presently in the United States’ possession.
g)
Requests for Other Native Files.  Other than as specifically set forth
above, a producing party need not produce documents in native format.  If good cause
exists for the receiving party to request production of certain documents in native format,
the receiving party may request production in native format by providing: (1) a list of the
Bates numbers of documents it requests to be produced in native format; and (2) an
explanation of the need for reviewing such documents in native format.  The producing
party shall not unreasonably deny such requests.
h)
Structured Data.  To the extent responding to a discovery request requires
production of ESI contained in a database, or ESI that cannot be rendered or reviewed
without the use of proprietary software (whether created by the Producing Party or not) the
producing party may comply with the discovery request by querying the database and
generating a report (“Database Report”) in a reasonably usable and exportable electronic
format (for example, in Excel or CSV format).  The parties agree to meet and confer in
good faith about the fields that are available and reasonably accessible for inclusion in the
Database Report.  To the extent available and reasonably accessible, the first line in the
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Database Report will show the column headers for each field of data included in the
Database Report.  If available, a data dictionary should accompany the production; if
unavailable, a description of fields should accompany the production.  If no report option
is available, or if the report options are not reasonably usable, the Producing Party shall
make the information available for inspection and copying on the system where it is
currently maintained, or otherwise provide direct access to the data.  Unless otherwise
agreed, the parties have no obligation to provide a supplemental report for records and
information post-dating the extraction of the Database Report except as may be necessary
to calculate relief after a determination by the Court as to liability.  In the case of structured
data obtained by the United States from a non-party to this litigation before the United
States filed its Complaint in Intervention, nothing in this paragraph shall require the United
States to obtain or produce information about the structure data that is not presently in the
United States’ possession.
i)
Parent-Child Relationships.  Parent-child relationships (the association
between e-mails and attachments) will be preserved.  E-mail attachments will be
consecutively produced with the parent e-mail record.  For example, if a party produces an
e-mail with its attachments, such attachments should be produced behind the e-mail in the
order in which they were attached.
j)
Redactions for Relevance.  No redactions for relevance may be made
within produced ESI.  The Parties agree that redactions may be made to the extent any
information is protected from disclosure under any Federal law or privilege.
3.
Production of Hard Copy Documents
a)
TIFFs.  To the extent that hard copy documents will be produced,
documents should be produced in the form of single-page, Group IV TIFFs at 300 dpi.
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Each TIFF image should be named as its corresponding Bates number.  Original document
orientation should be maintained (i.e., portrait to portrait and landscape to landscape).
Bates numbers, confidentiality designations, and redactions should be burned into the TIFF
image files.  TIFF image files should be provided in a self-identified “Images” folder.
Where reasonably possible, documents should be logically unitized.
b)
Scanning and Unitization.  In scanning hard copy documents, distinct
documents should not be merged into a single record, and single documents should not be
split into multiple records (i.e., paper documents should be logically unitized) to the extent
practicable.  In the case of an organized compilation of separate documents – for example,
a binder containing several separate documents behind numbered tabs – the document
behind each tab should be scanned separately.  If any original hard copy document has any
note or attachment affixed to it, the producing party shall scan and produce copies of the
original hard-copy document along with all notes and attachments to it in the same manner
as other documents.  If any such note or attachment obscures any information on the
original hard copy document, the producing party shall also produce a copy of the original
hard-copy document without the note or attachment affixed in order to make the underlying
information visible.  The relationship among the documents in the compilation should be
reflected in the proper coding of the beginning and ending document and attachment fields
(i.e., the “BegBates,” “EndBates”, “BegAttach”, and “EndAttach” fields).  The Parties will
make reasonable efforts to unitize the documents correctly.  Within 14 calendar days (or
as otherwise agreed) after notice from a requesting party that a document appears to have
been unitized incorrectly, the producing party shall either explain why the unitization is
correct or produce a correctly unitized replacement.  In the case of scanned hard-copy
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documents obtained by the United States from a non-party to this litigation before the
United States filed its Complaint in Intervention, the United States may produce such
documents in the format they were received by the United States.
c)
OCR Text Files.  Optical Character Recognition (“OCR”) text files shall
be provided as a single text file for each document, not one text file per page.  Each file
should be named with the beginning Bates number that is assigned to its corresponding
document, followed by .txt extension.  OCR text files should be provided in a self-
identified “Text” directory.  To the extent a document is redacted, OCR text files for such
a document shall not contain text for redacted portions.
d)
Database Load Files/Cross-Reference Files.  Documents should be
provided with an image load file that can be loaded into commercially acceptable
production software (i.e., .OPT and .DAT files for use in Recommind, Relativity, etc.)
using standard Concordance delimiters.  The first line in each metadata .DAT file should
be the header containing the agreed upon field names, and each subsequent line should
contain the fielded data for each document.  The image and data load files (i.e., .OPT and
.DAT files) should be provided in a self-identified “Data” folder.
e)
Parent-Child Relationships.  Parent-child relationships (the association
between e-mails and attachments) will be preserved where such information is reasonably
available.
f)
Redactions for Relevance.  No redactions for relevance may be made
within a produced hard-copy document.  The Parties agree that redactions may be made to
the extent any information is protected from disclosure under any Federal law.
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g)
Coding Fields.  Absent special circumstances, documents should be
produced with at least the following searchable information in accompanying delimited
data files: (1) BegBates, (2) EndBates, (3) BegAttach, (4) EndAttach, (5) Confidentiality
Designation
(“Confidential,” or
“Null”),
(6)
Custodian;
and
(7)
Source.
Entity/departmental custodians should be identified with a description of the entity or
department.  A producing party shall use a uniform description of a particular custodian
across productions.
4.
Bates Numbering
a)
Each TIFF image should be assigned a Bates number that: (1) is unique
across the entire document production; (2) maintains a constant length across the entire
production (i.e., padded to the same number of characters); (3) contains no special
characters or embedded spaces; and (4) is sequential within a given document.
b)
If a Bates number or set of Bates numbers is skipped in a production, the
producing party will so note in a cover letter or production log accompanying the
production.
5.
Production Delivery
a)
Documents that have been identified as responsive by a Producing Party
shall be produced on a rolling basis at reasonable intervals.
b)
Unless otherwise agreed, documents and ESI will be produced via secure
FTP site or similar electronic transmission format.  If the data volume is such that electronic
transmission of the production is impracticable the production will be delivered on an
encrypted external hard drive to a location designated by the Requesting Party.  Production
media should have an alphanumeric volume name; if a hard drive contains multiple
volumes, each volume should be contained in an appropriately named folder at the root of
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the drive. Volumes should be numbered consecutively (ABC001, ABC002, etc.).
Deliverable media should be labeled with the name of the Matter, the identity of the
Producing Party, and the following information: Volume name, production range(s), and
date of delivery.
III.
MODIFICATION
1.
This Order may be modified by agreement of the affected Parties or by the Court
for good cause shown.  Nothing in this Order waives the right of any Party to petition the Court
for an Order modifying its terms upon good cause shown, provided, however, that the affected
Parties must first meet and confer and use reasonable best efforts to negotiate an exception from
or modification to this Order prior to seeking relief from the Court.
IT IS SO ORDERED this ______ day of _________,  2025.
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