Pacer: GRANTING JOINT MOTION GOVERNING "ESI" IN PATENT CASES !
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Message: Pacer: GRANTING JOINT MOTION GOVERNING "ESI" IN PATENT CASES !
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff,
Civil
No.
13cv2894 H (BGS)
13cv2896 H (BGS)
13cv2897 H (BGS)
13cv2899 H (BGS)
13cv2914 H (BGS)
13cv2915 H (BGS)
13cv2938 H (BGS)
13cv2946 H (BGS)
ORDER GRANTING JOINT
MOTION GOVERNING
DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION IN PATENT
CASES
[ECF No. 30.]
v.
CENTON ELECTRONICS, INC.,
Defendant.
e.Digital Corporation,
Plaintiff,
v.
CORSAIR MEMORY, INC.,
Defendant.
e.Digital Corporation,
Plaintiff,
v.
NEW DANE, dba DANE-ELEC;
GIGASTONE CORPORATION; and
DANE ELEC CORP. USA aka DANE
CORP.,
Defendants.
e.Digital Corporation,
Plaintiff,
v.
EYE-FI, INC.
Defendant .
e.Digital Corporation,
Plaintiff,
v.
MUSHKIN, INC.,
Defendant.
e.Digital Corporation,
Plaintiff,
v.
OTHER WORLD COMPUTING, INC.,
Defendant.
e.Digital Corporation,
Plaintiff,
v.
SWISSBIT AG; SWISSBIT NA, INC.,
Defendants.
e.Digital Corporation,
Plaintiff,
v.
SEAGATE TECHNOLOGY, LLC,
Defendant.
Good cause appearing, the Court GRANTS the parties’ Joint Motion for
Production of Electronically Stored Information and ORDERS as follows:
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 for good cause. If the parties cannot
resolve their disagreements regarding modifications, the parties may submit their
competing proposals and a summary of their dispute. Proposed modifications or
disputes regarding ESI that counsel for the parties are unable to resolve will be
presented to the Court at the initial case management conference, Fed. R. Civ. P.
Rule 16(b) Scheduling Conference, or as soon as possible thereafter.
3. Costs will be shifted for disproportionate ESI production requests
pursuant to Federal Rule of Civil Procedure 26. Likewise, a party's nonresponsive or
dilatory discovery tactics will be cost-shifting considerations.
4. A party's meaningful compliance with this Order and efforts to
promote efficiency and reduce costs will be considered in cost-shifting
determinations.
5. General ESI production requests under Federal Rules of Civil
Procedure 34 and 45 must not include metadata absent a showing of good cause.
However, fields showing the date and time that the document was sent and received,
as well as the complete distribution list, must generally be included in the
production.
6. Each requesting party will limit its ESI production requests to a total
of ten custodians per producing party for all such requests, excluding requests for
email which are addressed in paragraphs 8-12. A custodian may be identified by job
description or function so long as it identifies a single person. The parties may
jointly agree to modify this limit without the Court's leave. The Court will consider
contested requests for additional custodians per producing party, or requests for
searches of servers, databases or other systems not maintained by a single person,
upon showing of good cause and distinct need based on the size, complexity, and
issues of this specific case. Should a party serve ESI production requests for
additional custodians beyond the limits agreed to by the parties or granted by the
Court pursuant to this paragraph, the requesting party may bear all reasonable costs
caused by such additional discovery. While there is no per se limit on quantity of
search terms for the identified custodians for non-email ESI, a party may not request
more than twenty search terms absent consent or Order of the Court
granted for good cause shown. Parties must meet and confer to limit ESI custodians
and search terms prior to approaching the Court for assistance on any ESI matters.
Each party must use a common set of search terms for all custodians of another
party from whom it seeks ESI.
7. General ESI production requests under Federal Rules of Civil
Procedure 34 and 45 must not include email or other forms of electronic
correspondence.(collectively “email“). To obtain email parties must propound
specific email production requests.
8. Email production requests will only be propounded for specific
issues, rather than general discovery of a product or business.
9. Email production requests must be phased to occur after the parties have
exchanged initial disclosures and basic documentation about the patents, the prior
art, the accused instrumentalities, and the relevant finances. While this provision
does not require the production of such information, the Court encourages prompt
and early production of this information to promote efficient and economical
streamlining of the case.
10. Email production requests will identify the custodian, search terms,
and time frame. The parties will cooperate to identify the proper custodians, proper
search terms and proper time frames.
11. Each requesting party must limit its email production requests to a
total of five custodians per producing party for all such requests. The parties may
jointly agree to modify this limit without the Court's leave. The Court will consider
contested requests for additional custodians per producing party, upon showing of
good cause and distinct need based on the size, complexity, and issues of this
specific case. Should a party serve email production requests for additional
custodians beyond the limits agreed to by the parties or granted by the Court
pursuant to this paragraph, the requesting party may bear all reasonable costs caused
by such additional discovery.
12. Each requesting party will limit its email production requests to a
total of five search terms per custodian per party. The parties may jointly agree to
modify this limit without the Court's leave. The Court will consider contested
requests for additional search terms per custodian, upon showing a distinct need
based on the size, complexity, and issues of this specific case. The search terms
must 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 will 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 will 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 must be considered when
determining whether to shift costs for disproportionate discovery. Should a party
serve email production requests with search terms beyond the limits agreed to by the
parties or granted by the Court pursuant to this paragraph, the requesting party may
bear all reasonable costs caused by such additional discovery.
13. The receiving party must not use ESI that the producing party asserts
is attorney- client privileged or work product protected to challenge the privilege or
protection.
14. 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.
15. The mere production of ESI in a litigation as part of a mass
production will not itself constitute a waiver for any purpose.
DATED: August 21, 2014
Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court
6 13cv2894 H (BGS
SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff,
Civil
No.
13cv2894 H (BGS)
13cv2896 H (BGS)
13cv2897 H (BGS)
13cv2899 H (BGS)
13cv2914 H (BGS)
13cv2915 H (BGS)
13cv2938 H (BGS)
13cv2946 H (BGS)
ORDER GRANTING JOINT
MOTION GOVERNING
DISCOVERY OF
ELECTRONICALLY STORED
INFORMATION IN PATENT
CASES
[ECF No. 30.]
v.
CENTON ELECTRONICS, INC.,
Defendant.
e.Digital Corporation,
Plaintiff,
v.
CORSAIR MEMORY, INC.,
Defendant.
e.Digital Corporation,
Plaintiff,
v.
NEW DANE, dba DANE-ELEC;
GIGASTONE CORPORATION; and
DANE ELEC CORP. USA aka DANE
CORP.,
Defendants.
e.Digital Corporation,
Plaintiff,
v.
EYE-FI, INC.
Defendant .
e.Digital Corporation,
Plaintiff,
v.
MUSHKIN, INC.,
Defendant.
e.Digital Corporation,
Plaintiff,
v.
OTHER WORLD COMPUTING, INC.,
Defendant.
e.Digital Corporation,
Plaintiff,
v.
SWISSBIT AG; SWISSBIT NA, INC.,
Defendants.
e.Digital Corporation,
Plaintiff,
v.
SEAGATE TECHNOLOGY, LLC,
Defendant.
Good cause appearing, the Court GRANTS the parties’ Joint Motion for
Production of Electronically Stored Information and ORDERS as follows:
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 for good cause. If the parties cannot
resolve their disagreements regarding modifications, the parties may submit their
competing proposals and a summary of their dispute. Proposed modifications or
disputes regarding ESI that counsel for the parties are unable to resolve will be
presented to the Court at the initial case management conference, Fed. R. Civ. P.
Rule 16(b) Scheduling Conference, or as soon as possible thereafter.
3. Costs will be shifted for disproportionate ESI production requests
pursuant to Federal Rule of Civil Procedure 26. Likewise, a party's nonresponsive or
dilatory discovery tactics will be cost-shifting considerations.
4. A party's meaningful compliance with this Order and efforts to
promote efficiency and reduce costs will be considered in cost-shifting
determinations.
5. General ESI production requests under Federal Rules of Civil
Procedure 34 and 45 must not include metadata absent a showing of good cause.
However, fields showing the date and time that the document was sent and received,
as well as the complete distribution list, must generally be included in the
production.
6. Each requesting party will limit its ESI production requests to a total
of ten custodians per producing party for all such requests, excluding requests for
email which are addressed in paragraphs 8-12. A custodian may be identified by job
description or function so long as it identifies a single person. The parties may
jointly agree to modify this limit without the Court's leave. The Court will consider
contested requests for additional custodians per producing party, or requests for
searches of servers, databases or other systems not maintained by a single person,
upon showing of good cause and distinct need based on the size, complexity, and
issues of this specific case. Should a party serve ESI production requests for
additional custodians beyond the limits agreed to by the parties or granted by the
Court pursuant to this paragraph, the requesting party may bear all reasonable costs
caused by such additional discovery. While there is no per se limit on quantity of
search terms for the identified custodians for non-email ESI, a party may not request
more than twenty search terms absent consent or Order of the Court
granted for good cause shown. Parties must meet and confer to limit ESI custodians
and search terms prior to approaching the Court for assistance on any ESI matters.
Each party must use a common set of search terms for all custodians of another
party from whom it seeks ESI.
7. General ESI production requests under Federal Rules of Civil
Procedure 34 and 45 must not include email or other forms of electronic
correspondence.(collectively “email“). To obtain email parties must propound
specific email production requests.
8. Email production requests will only be propounded for specific
issues, rather than general discovery of a product or business.
9. Email production requests must be phased to occur after the parties have
exchanged initial disclosures and basic documentation about the patents, the prior
art, the accused instrumentalities, and the relevant finances. While this provision
does not require the production of such information, the Court encourages prompt
and early production of this information to promote efficient and economical
streamlining of the case.
10. Email production requests will identify the custodian, search terms,
and time frame. The parties will cooperate to identify the proper custodians, proper
search terms and proper time frames.
11. Each requesting party must limit its email production requests to a
total of five custodians per producing party for all such requests. The parties may
jointly agree to modify this limit without the Court's leave. The Court will consider
contested requests for additional custodians per producing party, upon showing of
good cause and distinct need based on the size, complexity, and issues of this
specific case. Should a party serve email production requests for additional
custodians beyond the limits agreed to by the parties or granted by the Court
pursuant to this paragraph, the requesting party may bear all reasonable costs caused
by such additional discovery.
12. Each requesting party will limit its email production requests to a
total of five search terms per custodian per party. The parties may jointly agree to
modify this limit without the Court's leave. The Court will consider contested
requests for additional search terms per custodian, upon showing a distinct need
based on the size, complexity, and issues of this specific case. The search terms
must 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 will 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 will 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 must be considered when
determining whether to shift costs for disproportionate discovery. Should a party
serve email production requests with search terms beyond the limits agreed to by the
parties or granted by the Court pursuant to this paragraph, the requesting party may
bear all reasonable costs caused by such additional discovery.
13. The receiving party must not use ESI that the producing party asserts
is attorney- client privileged or work product protected to challenge the privilege or
protection.
14. 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.
15. The mere production of ESI in a litigation as part of a mass
production will not itself constitute a waiver for any purpose.
DATED: August 21, 2014
Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court
6 13cv2894 H (BGS
21 Recommendations
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Aug 27, 2014 12:36PM
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