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Meijer, Inc. v. Ranbaxy Inc.

United States District Court, D. Massachusetts

September 28, 2016

MEIJER, INC. and ME1JER DISTRIBUTION, INC. on behalf of themselves and all others similarly situated, Plaintiffs
v.
RANBAXY INC., RANBAXY LABORATORIES, LTD., RANBAXY U.S.A., INC. AND SUN PHARMACEUTICAL INDUSTRIES LTD., Defendants

          PROPOSED ORDER ESTABLISHING PROTOCOL ON ELECTRONICALLY STORED INFORMATION

          NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE.

         This Protocol (the "ESI Protocol") shall apply to all discovery of electronically stored information ("ESI") in this matter. It may be supplemented or amended by subsequent agreement of the parties in light of further developments, including but not limited to the parties' decisions concerning the engagement of third party document vendors.

         The Parties shall meet and confer in good faith on any issue arising under this ESI Protocol. In the event the Parties cannot reach an agreement on a disputed matter, the Parties may bring the matter to the Court's attention.

         I. DEFINITIONS

         A. "Electronically stored information" or "ESI, " as used herein, shall have the meaning contemplated in the Federal Rules of Civil Procedure and applicable case law.

         B. "Native data format" means and refers to the format of ESI in which it was generated and/or as used by the producing party in the usual course of its business and in its regularly conducted activities.

         C. "Metadata" means (i) information associated with a native file that is not ordinarily viewable or printable from the application that generated, edited, or modified such native file which describes the characteristics, origins, usage or validity of the electronic file or (ii) information generated automatically by the operation of a computer or other information technology system when a native file is created, modified, transmitted, deleted or otherwise manipulated by a user of such system.

         D. "Static Image" means or refers to a representation of ESI produced by converting a native file into a standard image format capable of being viewed and printed on standard computer systems.

         E. "Documents" shall have the meaning contemplated in the Federal Rules of Civil Procedure and applicable case law.

         F. "Media" means an object or device, including but not limited to a disc, tape, drive, computer or other device, whether or not in the producing party's physical possession, on which data is or was stored.

         G. "Parties" means or refers to the named plaintiffs and defendant in the above-captioned matter, as well as any later added plaintiffs and defendants.

         H. "Load/Unitization file" means an electronic file containing information identifying a set of paper-scanned images or processed ESI and indicating where individual pages or files belong together as documents, including attachments, and where each document begins and ends. A Load/Unitization file will also contain data relevant to the individual Documents, including extracted and user-created metadata.

         II. SEARCH TERMS FOR ELECTRONIC DOCUMENTS

         The Parties agree to the use of reasonable key word searches, incorporating the search terms, custodians, sources, and date ranges (as determined by the process described below) as a means to identify relevant ESI for review and production. Notwithstanding the foregoing, the fact that a document may have been retrieved by application of agreed upon search terms shall not prevent any Party from withholding from production such document for lack of responsiveness, privilege, or other permissible objection.

         Notwithstanding the foregoing, to the extent any Party identifies responsive ESI not hit upon by the filters noted above, all such non-privileged documents must be produced, subject to the Parties' objections to discovery requests.

         The parties agree that they will cooperate in good faith regarding the disclosure and formulation of appropriate search terms, custodians, and potentially relevant noncustodial sources in advance of any ESI search. With the objective of limiting the scope of review and production, and thereby reducing discovery burdens, the parties agree to meet and confer as early as possible, and in advance of any search that results in production of documents, with a view to facilitating production in accordance with the deadlines established by the Court while minimizing the need for motions practice. During that meet and confer process:

         Each Producing Party shall provide all proposed search terms that it believes would lead to the identification of relevant documents (including any known semantic synonyms, acronyms, abbreviations, non language alphanumeric references, nicknames, or other terms likely to lead to the identification of relevant or responsive documents), to be used when searching for ESI responsive to the Requesting Party's document requests.

         Each Producing Party shall (a) identify its own proposed individual and departmental custodians (including title for any individual custodians); and (b) produce reasonably accessible, existing organizational charts relating to departments within the Party's organization in which the proposed custodians work.

         Each Producing Party shall disclose all ESI storage systems or devices known to contain, or reasonably believed to contain, responsive ESI.

         If any Requesting Party believes that additional search terms, custodians, or sources may be necessary to identify documents responsive to its requests, they may propose such additional items, and the parties will meet and confer.

         Notwithstanding the foregoing, the parties may approach the Court with disputes concerning search term selection and testing, if any, on any date after November 14, 2016.

         Nothing in this protocol shall operate to limit or expand a party's obligations under the Federal Rules of Civil Procedure and applicable decisional authority.

         Nothing in this ESI protocol shall waive in whole or in part any objection raised by a party in its written responses to specific discovery requests served in this action.

         This provision does not prevent any party from undertaking searches of its own ESI for its own purposes at any time.

         III. FORMAT OF PRODUCTION

         A. Document Image Format.

         1. With the exception of databases discussed in Section III.L and ESI discussed in Section III.B below or unless otherwise agreed to in writing by a requesting party, at the non-reimbursable and non-taxable cost of the producing party, ESI shall be produced electronically as a single-page "TIFF" image in single page Group IV .tif format with a view to achieving an image that is substantially similar to how the source document would have appeared if printed out to a printer attached to a computer viewing the file.

         2. When a document not produced in native format has tracked changes or hidden text (i.e., "notes" in a PowerPoint slide) associated with it, the parties will produce the document in a form showing the tracked changes, subject to any claims of privilege.

         3. Load files of the static images shall be created and produced together with their associated static images to facilitate the use of the produced images by a document management or litigation support database system.

         4. The parties shall meet and confer to the extent reasonably necessary to facilitate the import and use of the produced materials with commercially available document management or litigation support software.

         B. Native File Format.

         1. Notwithstanding the language of Federal Rule of Civil Procedure 34(b)(1)(C) providing that the requesting party is entitled to specify the form in which ESI is to be produced, the parties agree that only spreadsheets (e.g., Excel files), presentations (e.g., PowerPoint files), audio files, and video files must be produced in native format.

         Further, if production of any other document(s) in native format is believed necessary to decipher the meaning, context, or content of a document produced in the document image format agreed pursuant to paragraph III.A, the producing party will promptly honor requests made in good faith for the production of the document in native format; provided, however, that the producing party reserves the right to seek appropriate relief from the Court from such requests if deemed unduly burdensome.

         2. If any document to be produced in native format contains redactions for privilege, that document may be produced in TIFF format as described herein, with the privileged information redacted from the image.

         C. Production of Physical Documents.

         Documents or records which either were originally generated as or converted into ESI but now only exist in physical hard-copy format, or documents or records that were originally generated in hard-copy format, shall be converted to the document image format agreed pursuant to paragraph III.A and produced following the same protocols set forth herein or otherwise agreed to by the parties.

         D. ...


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