United States District Court, D. Massachusetts
MEIJER, INC. and ME1JER DISTRIBUTION, INC. on behalf of themselves and all others similarly situated, Plaintiffs
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.
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.
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.
"Electronically stored information" or
"ESI, " as used herein, shall have
the meaning contemplated in the Federal Rules of Civil
Procedure and applicable case law.
"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.
"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.
"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.
"Documents" shall have the meaning
contemplated in the Federal Rules of Civil Procedure and
applicable case law.
"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.
"Parties" means or refers to the named
plaintiffs and defendant in the above-captioned matter, as
well as any later added plaintiffs and defendants.
"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
SEARCH TERMS FOR ELECTRONIC DOCUMENTS
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.
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.
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:
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.
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.
Producing Party shall disclose all ESI storage systems or
devices known to contain, or reasonably believed to contain,
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.
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.
in this protocol shall operate to limit or expand a
party's obligations under the Federal Rules of Civil
Procedure and applicable decisional authority.
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.
provision does not prevent any party from undertaking
searches of its own ESI for its own purposes at any time.
FORMAT OF PRODUCTION
Document Image Format.
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.
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.
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.
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.
Native File Format.
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
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.
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.
Production of Physical 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.