Case No. 1:16-cv-00449-BLW.

J.R. SIMPLOT COMPANY, Plaintiff, v. McCAIN FOODS USA, INC., Defendant.

United States District Court, D. Idaho.

Editors Note
Applicable Law: 35 U.S.C. § 271
Cause: 35 U.S.C. § 271 Patent Infringement
Nature of Suit: 830 Patent
Source: PACER

Attorney(s) appearing for the Case

J.R. Simplot Company, Plaintiff, represented by Dana M. Herberholz , Parsons Behle & Latimer.

J.R. Simplot Company, Plaintiff, represented by Margaret N. McGann , pro hac vice, Andrew Virel Wake , Parsons Behle & Latimer & Christopher J. Cuneo , Parsons Behle & Latimer.

McCain Foods USA, Inc., Defendant, represented by Fredric V. Shoemaker , Greener Burke Shoemaker Oberrecht PA, Meredith M. Wilkes & Slade Dean Sokol , Greener Burke Shoemaker Oberrecht, PA.


B. LYNN WINMILL, Chief District Judge.

Finding good cause therefore,

NOW THEREFORE IT IS HEREBY ORDERED, that the motion (docket no. 16) is GRANTED, and the following Stipulation shall govern E-Discovery in this case:


1. This order supplements all other discovery rules and orders. It streamlines Electronically Stored Information ("ESI") production to promote a "just, speedy, and inexpensive determination" of this action, as required by Federal Rule of Civil Procedure 1.

2. This order may be modified in the Court's discretion or by agreement of the parties.

3. Except as expressly stated, nothing in this order affects the parties' discovery obligations under the Federal or Local Rules.


4. Absent agreement of the parties or further order of this Court, the following parameters shall apply to ESI production:

a. General Document Image Format. Each electronic document shall be produced in single-page, 300 dpi CCITT Group IV black and white tagged Image File Format ("TIFF") format. Where color is imperative to full understanding of the document, color should suitably be produced in full color .jpeg images. Load files shall be provided to indicate the location and unitization of the TIFF files. All data load files shall be compatible with Concordance and Summation and at a minimum, include a DAT file. TIFF files shall be accompanied by searchable text files named as per the TIFF image, shall be provided with page breaks in load file identifying document start and end, and shall be named with a unique production number followed by the appropriate extension. If a document is more than one page, the unitization of the document and any attachments and/or affixed notes shall be maintained as they existed in the original document. The image load file shall be produced in .OPT and .LFP format. All documents associated with emails shall be produced with cross reference between the parent email and child attachments intact.

b. Footer. Each document image shall contain a footer with a sequentially ascending production number.

c. Non-Convertible Files. Certain Types of files such as system, program, video, and sound files may not be amenable to conversion into anything meaningful in TIFF format. Responsive, non-convertible files will be produced in the form of a placeholder TIFF image. Some examples of file types that may not convert include file types with the following extensions: *.exp *.ilk *.res *.trg *.tlh *.idb *.pdb *.pch *.opt *.lib *.cab *.mov *.mp3 *.swf *.psp *.chi *.chm *.com *.dll *.exe *.hlp *.ivi *.ivt *.ix *.msi *.nls *.obj *.ocx *.rmi *.sys *tmp *.ttf *.vbx *.wav *.wpg *.iso *.pdb *.eps *ast. *sldprt. *stp. *.step *.mpeg *.mpg *.ram *.rm *psd *.ai *.aif *.bin *.hqx *.snd *.mpe *.wmv *.wma. Each TIFF placeholder will contain the endorsed bates number and endorsed confidentiality designation. The file itself will be produced natively in accordance with paragraph 4(d) of this order.

d. Native Files. Documents produced in native file format shall be labeled, to the extent practicable, by assigning a Bates number as the file name (e.g. ABC0000001.xls). The load file should contain a field called "NATIVE" with the path to the corresponding native file. Native files should be in a directory named "NATIVES." A party may seek production of native files for any produced images that are deemed unusable, unsearchable, or unduly burdensome. Upon receipt of such request, the producing party shall produce the document in its native format to the extent it exists.

e. Metadata. Load files should include, where applicable, the information listed in the Table of Metadata Fields, attached as Exhibit A. However, the parties are not obligated to include metadata for any document that does not contain such metadata in the original if it is not possible to automate the creation of metadata when the document is collected. The parties reserve their rights to object to any request for the creation of metadata for documents that do not contain metadata in the original.

f. No Backup Restoration Required. Absent a showing of good cause, no party need restore any form of media where backup data is maintained in a party's normal or allowed processes, including but not limited to backup tapes, disks, SAN, and other forms of media, to comply with its discovery obligations in the present case.


5. As part of the Initial Disclosures due on March 28, 2017, or at a later time if agreed to by the parties, each party shall disclose:

a. Custodians. The eight custodians most likely to have discoverable ESI in their possession, custody, or control. The custodians shall be identified by name, title, and the type of potentially discoverable information likely to be under his or her control.

b. Non-Custodial Data Sources. A list of non-custodial data sources (e.g. shared drives, servers, etc.), if any, likely to contain discoverable ESI.

c. Third-Party Data Sources. A list of third-party data sources, if any, likely to contain discoverable ESI (e.g. third-party email and/or mobile device providers, "cloud" storage, etc.) and, for each such source, the extent to which a party is (or is not) able to preserve information stored in the third-party data source.

6. The parties agree to meet and confer on or before April 7, 2017 to develop a schedule (not to be filed with the Court) by which proposed email search terms will be exchanged, email searches will be executed, revised email search terms exchanged, and results of such searches exchanged. The parties shall cooperate in revising the appropriateness of the search terms. The parties agree that any discussions relating to email search terms, including but not limited to discussions relating to the procedures to be employed for collecting and searching emails and the results of such searches, shall not be a waiver of attorney-client privilege or work product protections.

7. Each requesting party shall limit its email production requests to a total of eight custodians and five keyword search terms per custodian per party, and an appropriately-limited time frame for which emails must be collected. The parties may jointly agree to modify this limit without the Court's leave. Email search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company's name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g., "computer" and "system") narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., "computer" or "system") broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g., "and," "but not," "w/x") is encouraged to limit the production and shall be considered when determining whether to shift costs for disproportionate discovery. The parties agree that within fourteen (14) days of receiving a requesting party's email production requests, the parties will meet and confer to discuss the requesting party's email search terms, including but not limited to the procedures to be employed for collecting and searching emails and reporting the results of such searches as well as a reasonable time frame for email production, and that any such discussions shall not be a waiver of attorney-client privilege or work product protections.

8. The Court shall consider contested requests to run searches using email search terms beyond the default limits upon a showing of good cause and distinct need. The Court shall also consider whether to shift costs for email search terms beyond the default limits that result in unreasonable or disproportionate discovery.

9. Notwithstanding prior agreement on the search terms to be used for electronic searches, should a search produce an unreasonably large number of non-responsive or irrelevant results, the parties shall (at the producing party's request) meet and confer to discuss application of further negative search restrictions (e.g., if a single search was for "card" and ninety percent of the resulting documents came from the irrelevant term "credit card," a negative limitation to ignore documents only returned as a result of "credit card" may be applied to remove these documents). The requesting party shall not unreasonably oppose such further restrictions designed to reduce the unreasonably large number of immaterial search results.

10. All documents that are hardcopy or paper files shall be scanned and produced in the same manner as documents existing in electronic format, above.


11. The parties acknowledge that they have an obligation to take reasonable and proportional steps to preserve discoverable information in the party's possession, custody, or control.

12. Absent a showing of good cause by the requesting party, the parties shall not be required to modify the procedures used by them in the ordinary course of business to back-up and archive data; provided however, that the parties shall take all reasonable steps to preserve all discoverable ESI in their possession, custody, or control.

13. Absent a showing of good cause by the requesting party, the following categories of ESI are not reasonably accessible because of undue burden or cost and need not be preserved:

a. Deleted, slack, fragmented, or other data only accessible by forensics.

b. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system.

c. On-line access data such as temporary internet files, history, cache, cookies, and the like.

d. Back-up data that are substantially duplicative of data that are more accessible elsewhere.

e. Server, system or network logs.

f. Data remaining from systems no longer in use that is unintelligible on the systems in use.

g. Electronic data (e.g., email, calendars, contact data, and notes) sent to or from mobile devices (e.g., iPhone, iPad, Android, and Blackberry devices), provided that a copy of all such electronic data is routinely saved elsewhere (such as on a server, laptop, desktop computer, or "cloud" storage).

h. Voicemail and text messages.


14. The Parties stipulate and agree that privileged communications or documents prepared or created after the filing of the Complaint (October 4, 2016) are not required to be listed on a privilege log.

15. Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a privileged or work product protected ESI is not a waiver in the pending case or in any other federal or state proceeding.

16. The mere production of ESI in a litigation as part of a mass production shall not itself constitute a waiver for any purpose.


TABLE OF METADATA FIELDS Field Specifications Field Type Description Description Name Field Name (Email) (E-Files/Attachments) BegDoc Unique ID Paragraph The Document ID The Document ID (Bates number associated number associated number) with the first page with the first page of a of an email. document. EndDoc Unique ID Paragraph The Document ID The Document ID (Bates number associated number associated number) with the last page with the last page of a of an email. document. BegAttach Unique ID Paragraph The Document ID The Document ID (Bates number associated number associated number) with the first page with the first page of a Parent-Child of a parent email. parent document. Relationships EndAttach Unique ID Paragraph The Document ID The Document ID (Bates number associated number associated number) with the last page with the last page of Parent-Child of the last the last attachment to a Relationship attachment to a parent document. parent email. Pages Pages Number The number of The number of pages pages for an for a document. email. DateSent Date The date the email For email attachments, (MM/DD/YYYY was sent. the date the parent format) email was sent. Author Author Paragraph The display name The name of the author Display Name of the author or as identified by the (email) sender of an metadata of the email. document. To Recipient Paragraph The display name The display name of of the recipient(s) the recipient(s) of a of an email. document (e.g., fax recipients). CC CC Paragraph The display name of the copyee(s) of a email. BCC BCC Paragraph The display name of the blind copyee(s) of an email. Subject Subject (email) Paragraph The subject line of The subject of a an email. document from entered metadata. Custodian Custodian Paragraph The custodian of The custodian of a an email. document.


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