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DAVID JOHNS, on behalf of himself and all v. BAYER CORPORATION

December 1, 2010

DAVID JOHNS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, [PROPOSED] ORDER APPROVING JOINT PLAINTIFF,
v.
BAYER CORPORATION, AN INDIANA INFORMATION CORPORATION AND BAYER HEALTHCARE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. Jan M. Adler

MOTION AND STIPULATION TO PROTOCOL FOR THE PRODUCTION OF DISCOVERABLE DOCUMENTS AND ELECTRONICALLY STORED

Courtroom: D

Having considered the Stipulation to Protocol for the Production of Discoverable Documents and Electronically Stored Information, and good cause appearing therefor, the Stipulation shall become and hereby is an Order of this Court. IT IS HEREBY ORDERED that the following Protocol for the Production of Discoverable Documents and Electronically Stored Information shall govern discovery in this matter. As used in this document, the term "Discoverable Documents and Electronically Stored Information" means discoverable documents and data consistent with Fed. R. Civ. P. 34(a) relevant to the claim(s) or defense(s) of any party subject to discovery pursuant to Fed. R. Civ. P. 26(b)(1).

1. Electronic Discovery. Discovery of electronically stored information shall proceed in the following sequenced fashion:

a. After receiving requests for document production, the Producing Party shall conduct a reasonable and good faith search for responsive documents and electronically stored information;

b. The Producing Parties retain their right to maintain that certain sources of electronically stored information are not reasonably accessible because of undue burden or cost; and

c. If an inaccessible objection is made, the Producing Party shall produce, if practicable, a description of the electronically stored information deemed inaccessible that describes the electronically stored information's storage media, location, format, custodians (if determinable), and reason why they are deemed inaccessible.

d. The following categories of electronically stored information are not discoverable in this case:

(1) "deleted," "slack," "fragmented," or "unallocated" data on hard drives;

(2) random access memory (RAM) or other ephemeral data;

(3) on-line access data such as temporary internet files, history, cache, cookies, etc.;

(4) voicemails;

(5) data in metadata fields that are frequently updated automatically, such as last-opened dates;

(6) backup data that is substantially duplicative of data that is more accessible elsewhere; and

(7) instant messages.

2. General Format of Production. Subject to the provisions of paragraph 4, documents that are produced in these proceedings, whether originally stored in paper or electronic form, shall be produced in electronic image form (described below) in the manner provided herein. Notwithstanding the foregoing provisions of this paragraph, the parties reserve the right to request that an alternative format or method of production be used for certain documents and, in that event, the parties will meet and confer to discuss alternative production requirements, concerns, formats, or methods.

3. Production Format. All documents shall be produced in such fashion as to identify the location, i.e., the network file folder, hard drive, back-up tape, or other location, where available, where the documents were stored, and where applicable and practicable, the natural person in whose possession they were found and the business address of each document's custodian. Documents shall be produced according to the following formats:

a. Document Images. A "Document Image" is defined as an electronic or digital picture of a document. All Document Images generated from hard copy documents shall be scanned as black and white images at 300 d.p.i. or greater resolution, shall be produced with Optical Character Recognition ("OCR") file(s) and shall be saved and produced in a Group 4 compression single-page Tagged Image File Format ("TIFFs" or ".tiff format") and reflect the full and complete information contained on the original document. Document Images generated from electronic documents shall be saved electronically (or "printed") in a Group 4 compression single-page "TIFF" image that reflects the full and complete information contained on the original document, with a .txt or functionally equivalent extracted text file and, if applicable, with meta-data as set forth in paragraph 11. For Document Images produced, the Producing Party shall produce a unitization file ("load file") in a commercially available document management or litigation support software such as Summation or Concordance format with any additional information necessary to comply with Fed. R. Civ. P. 34(b)(2)(E), including, but not limited to, the beginning and ending Bates numbers of all documents, and the beginning and ending Bates numbers of all document attachments with parent child relationships (i.e., email with document attachments). The parties shall meet and confer to the extent reasonably necessary to ...


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