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MedIdea, L.L.C. v. Depuy Orthopaedics, Inc.

United States District Court, D. Massachusetts

October 20, 2017

MEDIDEA, L.L.C. Plaintiff,

          MEDIDEA, L.L.C. Joseph M. Vanek (pro hac vice), Jeffrey R. Moran (pro hac vice), Martin Amaro (pro hac vice), Vanek, Vickers & Masini, P.C., Kevin Gannon, BBO No. 640931, Prince Lobel Tye LLP

          DEPUY ORTHOPAEDICS, INC., DEPUY SYNTHES PRODUCTS, INC., AND DEPUY SYNTHES SALES, INC. Christopher M. Morrison (BBO #651335), JONES DAY, Calvin P. Griffith 312-224-1508, Kenneth S. Luchesi, Anthony T. Jacono, JONES DAY


          Hon. George A. O'Toole, Jr., United States District Judge

         Plaintiff, Medldea, L.L.C., and Defendants DePuy Orthopaedics, Inc., DePuy Synthes Products, Inc. and DePuy Synthes Sales, Inc. d/b/a DePuy Synthes Joint Reconstruction, by their respective counsel, have stipulated and agreed to this proposed order regarding the production of documents and electronically stored information. The Court, having reviewed the parties' proposed stipulated order, adopts the parties' stipulation and agreement, and orders:


         A. 1. "Document" or "documents" is defined to be synonymous in meaning and equal in scope to the usage of this term in Federal Rules of Civil Procedure 26 and 34 and the Local Rules of this Court.

         A.2. "Email" means electronic messages sent or received asynchronously, including any documents incorporated as attachments, including, but not limited to, industry-standard applications like Microsoft Outlook, Google Gmail or Lotus Notes.

         A.3. "ESI" is an abbreviation of "electronically stored information" and shall have the same meaning and scope as it has in the Federal Rules of Civil Procedure.

         A.4. "Extracted Text" means the text extracted from a Native Format file and includes at least all header, footer and document body information.

         A.5. "Hard Copy Document" means a Document that was maintained in paper form at the time this Stipulated Order was entered.

         A.6. "Load File" means an electronic file that is used to import all required production information into a document database, including document images, extracted or OCR text, native files where required, and metadata, as well as information indicating document and page breaks, and document relationships such as those between an email and its attachments and between a document and information related to embedded content.

         A.7. "Metadata" means structured information about ESI that is created by the file system or application, embedded in the Document or Email and sometimes modified through ordinary business use. Metadata of the ESI describes, inter alia, the characteristics, origins, usage and validity of the collected ESI.

         A.8. "Native Format" means the format of ESI in the application in which such ESI was originally created.

         A.9. "OCR" means the optical character recognition technology used to read electronic images of Hard Copy Documents and to output readable content of such documents to a searchable text format. The latter text is also referred to as the "OCR text" or simply "OCR." A. 10. "Party" or "Parties" means, individually or collectively, the Plaintiff and Defendants in the above-captioned action. As appropriate, "Party" can also refer to third parties, if any, who choose or are ordered to produce documents or ESI in this action under the terms of this Order.

         A. 11. "Producing Party" means a Party that produces documents.

         A. 12. "Receiving Party" means a Party to whom documents are produced.

         A. 13. "Tagged Image File Format, " "TIFF, " ".TIFF, " or ".TIF" refers to the CCITT Group IV graphic file format for storing bit-mapped images of ESI or Hard Copy Documents.

         B. SCOPE

         B. 1. The procedures and protocols set forth in this Stipulated Order shall govern the format and processing of Documents or ESI produced by the Parties in the above-captioned matters, to the extent available. Any practice or procedure set forth herein may be modified only by written agreement of the Parties subject to approval by the Court.

         B.2. The Parties do not waive any objections to the production, discoverability, admissibility, or confidentiality of Documents, including, without limitation, objections regarding the burden, overbreadth or relevance of document requests related to Documents. This Stipulated Order does not define the scope of production, nor the relevance of any particular information. The discovery requests, objections thereto, agreements of the Parties, and any Court orders in the above-captioned actions shall govern the scope of documents to be produced.

         B.3. Nothing in this stipulation is intended to alter the parties' obligations under Federal Rule of Civil Procedure 26(b)(2)(B) and 34(a)(1).

         B.4. Nothing in this Stipulated Order is intended to be an exhaustive list of discovery obligations or rights of a Producing Party or a Requesting Party. To the extent additional obligations or rights not addressed in this Order arise under the Federal Rules of Civil Procedure, local rules, or applicable state and federal statutes, they shall be controlling.

         B.5. The Parties shall make reasonable efforts to comply with and resolve any differences concerning compliance with this Stipulated Order. If the Parties are unable to reach agreement, the Parties shall submit any dispute to the Court for resolution.


         C. 1. This Stipulated Order shall govern the production format of Documents and ESI, to the extent available. This Stipulated Order does not govern any procedures or criteria used to limit the scope of production, such as identification and preservation of potentially responsive data types and systems, custodian selection, or any technology-assisted culling or review processes, such as the use of keyword search terms.

         C.2. The Parties shall produce Hard Copy Documents and ESI according to the specifications provided in Exhibit A, subject to paragraph C.5. below.

         C.3. A Producing Party is only required to produce a single copy of any document. A Producing Party may de-duplicate ESI across its custodians or sources, but if that option is exercised, the Producing Party shall identify each custodian who had a copy of the produced document in the Custodian All field in the Metadata Load File. De-duplication shall be based on MD5 or SHA-1 hash values, and each Producing Party must disclose the methodology it uses to de-duplicate. However, (i) de-duplication shall be performed only at the document family level so that attachments are not de-duplicated against identical stand-alone versions of such documents and vice versa; (ii) attachments to Emails or other Documents shall not be disassociated from the parent Email or Document, even if they are exact duplicates of another Document in the production; and (iii) Hard Copy Documents may not be eliminated as duplicates of responsive ESI if there is anything written on the Hard Copy Document that makes it different from the electronic copy. A party may only de-duplicate "exact duplicate" Documents and may not de-duplicate "near duplicate" Documents, both of the quoted terms in this sentence being given their ordinary meaning in the e-discovery field. Common system files defined by the NIST library ( need not be produced.

         C.4. The Parties will make reasonable efforts to ensure that all encrypted or password-protected Documents reasonably believed to contain responsive material are successfully processed for review and production under the requirements of this Stipulated Order, and that any such decrypted Document believed to be non-privileged and responsive is produced. To the extent encrypted or password-protected Documents are successfully processed according to the requirements of this Stipulated Order, the Parties have no duty to identify the prior encrypted status of such Documents. To the extent such Documents are not successfully processed, the Producing Party agrees to: (a) produce a slipsheet for each encrypted or password protected Document that cannot be successfully processed indicating that the Document cannot be decrypted; and (b) provide the metadata for the Document required by Exhibit A to the extent it can be reasonably extracted from the file in its encrypted form. Nothing in this Stipulated Order shall be deemed to require a Producing Party to process or review for production any encrypted files that do not appear reasonably likely to contain responsive material. The Parties shall meet and confer regarding any requests that a Producing Party undertake additional efforts to decrypt files after production.

         C.5. Microsoft Excel, Access, and other spreadsheet files, PowerPoint files, Word files containing tracked changes, comments, or hidden text, video and audio files, and animation files (together, "Native Files") shall be produced in Native Format. For any Document produced in Native Format, a single-page TIFF image shall be produced with the legend "Document Produced in Native Format". If a Document to be produced in Native Format contains privileged information, the Document will be produced in redacted TIFF format, or in redacted Native Format, at the Producing Party's discretion, to the extent reasonably and technically possible. To the extent Documents that fall under this paragraph contain privileged information that cannot be redacted or produced in either TIFF or native format, such Documents will be logged on a privilege log consistent with applicable Orders in this proceeding. To the extent Documents that fall under this paragraph contain non-responsive information, such documents will be redacted in either redacted TIFF format or natively, with a notation on the redacted page(s) indicating "Redacted - Non-Responsive" (or similar language). The Metadata Load Files shall contain a link to the Native Files via fielded data values called "Native Link." The Native Link values should ...

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