The opinion of the court was delivered by: The Honorable U Edward M. Chen A
David J. Millstein (CSB #87878) MILLSTEIN & ASSOCIATES 2 100 The Embarcadero, Suite 200 San Francisco, California 94105 3 Telephone: (415) 348-0348 Facsimile: (415) 348-0336 4 Email: email@example.com 5 Scott D. Gilbert (ADMITTED PRO HAC VICE) Stephen A. Weisbrod (ADMITTED PRO HAC VICE) 6 August J. Matteis Jr. (ADMITTED PRO HAC VICE) Kathleen Hale (ADMITTED PRO HAC VICE) 7 GILBERT LLP 1100 New York Avenue, NW, Suite 700 8 Washington, DC 20005 Telephone: (202) 772-2200 9 Facsimile: (202) 772-3333 Email: firstname.lastname@example.org 10 Email: email@example.com Email: firstname.lastname@example.org 11 Email: email@example.com 12 Other Plaintiffs' Counsel Appear on the Signature Page 13
STIPULATION PARTIALLY RESOLVING PLAINTIFFS' MOTIONS AND PRACTICE TO COMPEL PRODUCTION OF DOCUMENTS RELATING TO REGULATORY SETTLEMENT, POLICY-RELATED DOCUMENTS, AND FINANCIAL DOCUMENTS, AND FOR PROTOCOL GOVERNING PRODUCTION OF ELECTRONICALLY STORED INFORMATION
On March 9, 2011, Plaintiffs, on behalf of the Class, and Conseco Life Insurance Company ("Conseco") appeared before the Court for argument on four discovery related motions 27 filed by Plaintiffs: Plaintiffs' Motion to Compel Documents Relating to the Regulatory 28 Settlement [Dkt. No. 140]; Plaintiffs' Motion to Compel Policy-Related Documents [Dkt. No. 141]; Plaintiffs' Motion to Compel Financial Documents [Dkt. No. 142]; Plaintiffs' Motion 2 for a Protocol Governing the Production of Electronically Stored Information by Conseco [Dkt. 3 No. 143]. Prior to the hearing, at the Court's instruction, Plaintiffs and Conseco met and 4 conferred further regarding their discovery disputes. The Parties exchanged proposals, conferred 5 in person on two occasions prior to the hearing, and were able to resolve the majority of their 6 disputes. At the hearing, the Court provided further instruction and guidance, and the parties met 7 and conferred following the hearing. They now submit this stipulation reflecting their 8 agreements, which partially resolve the motions. 9
2011 of documents that Conseco either previously had agreed to produce or has the ability to 13 produce without conducting an extensive search (because the locations of the documents are 14 already known to Conseco). the parties have stipulated that Conseco's Phase Two production obligations will be limited to the 17 production of "High-Level Documents." For the purposes of this Stipulation, "High-Level 18
Documents" means reports, studies, memoranda, presentations, and correspondence, whether in 19 draft or final form, including printed-out or scanned emails, but does not include handwritten 20 notes, emails stored on email servers, emails stored on individual employees' computer hard 21 drives, or correspondence to or from individual policyholders. 22
Plaintiffs may seek after reviewing the earlier productions. 24
The Parties have agreed to a three-phased document production schedule, as described Phase One, which Conseco believes is now complete, called for production by March 31, Phase Two encompasses Conseco's principal document production. In certain respects,
In Phase Three the Parties will confer in good faith about additional documents that
IT THEREFORE IS STIPULATED AND AGREED, by and between the undersigned, as
I.PHASE ONE: CONSECO'S NEAR-TERM DOCUMENT PRODUCTION
A. Conseco states that on March 31, 2011, Conseco produced (or logged on a privilege log) the following documents:
1. Internal communications concerning the so-called administrative error;
2. Conseco rate books relating to the Lifetrend 3 and 4 Policies;
3. Base cost of Insurance Table(s);
4. Documents sufficient to show the formula Conseco currently uses to calculate cost of insurance;
5. Documents sufficient to show any formulas Conseco used to calculate cost of insurance prior to October 2008; and
6. Business or factual documents provided to state regulators in the course of their examination of the Lifetrend 3 and 4 Policies to the extent that such documents were not created specifically for the purpose of communicating with the state regulators, provided, however, that any obligation of Conseco to produce documents that were provided to the regulators or otherwise relate to the regulatory examination and that were created specifically for the purpose of communicating with the regulators are not the subject of this Stipulation and will be addressed separately.
II.PHASE TWO: CONSECO'S PRINCIPAL DOCUMENT PRODUCTION
A. The Parties shall take the following steps regarding the search for and production of electronically stored information:
1. By April 22, 2011, Conseco's counsel shall make a good faith survey of the
nature of the Lifetrend 3 or 4-related email residing on the business computers of the 30 custodians identified by Plaintiffs on March 29, 2011, and shall provide a custodian-by-custodian summary of that survey to Plaintiffs;
2. Without further order of the Court, Conseco will search the email and High Level Documents saved in Microsoft Word or WordPerfect format found on the imaged hard drives of up to 15 of the 30 previously-identified custodians, to be selected by Plaintiffs based on the results of the survey described above. Conseco initially will use search terms provided by Plaintiffs to search the imaged hard drives of 3 of the fifteen custodians, to be selected by Plaintiffs. If, based on the initial search results, Conseco concludes that certain search terms provided by Plaintiffs produce too many irrelevant hits, Conseco will propose alternative search terms, and the parties will meet and confer in good faith in an effort to agree on search terms to be used for the remaining 12 custodians. Conseco will produce (or log on a privilege log) the responsive documents to Plaintiffs; and 3. The Parties may meet and confer on whether Conseco should image additional hard drives and whether Conseco should restore backup tapes.
B. Conseco will produce documents pertaining to specific policyholders as follows:
1. By May 18, 2011, Conseco will produce the following information for every Class Member:
a. The name, contact information, and policy number for every policyholder; and
b. In electronic format (to be agreed upon by April 25, 2011), data contained in certain fields (to be agreed upon by April 25, 2011)
from the CK4 policy administration database.
2. By May 18, 2011, Conseco will produce the following documents for a random sample of policies (the size of such sample to ...