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Matthew Edwards, et al., Individually and On Behalf of All Others Similarly Situated v. National Milk Producers Federation

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


February 14, 2013

MATTHEW EDWARDS, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
NATIONAL MILK PRODUCERS FEDERATION, AKA COOPERATIVES ESI WORKING TOGETHER; DAIRY FARMERS OF AMERICA, INC.; LAND O'LAKES, INC.; DAIRYLEA COOPERATIVE INC.; AND AGRI-MARK, INC.,
DEFENDANTS.

The opinion of the court was delivered by: Hon. Jeffrey S. White

CLASS ACTION STIPULATION AND [PROPOSED] 20ORDER RE DISCOVERY PROTOCOL Courtroom: 11

I. DEFINITIONS

A. "Electronically stored information" or "ESI," as used herein, means and refers to computer generated information or data of any kind, stored in or on any storage media located on computers, file servers, disks, tape or other real or virtualized devices or media. Non limiting examples of ESI include: * Emails;

* E-Mail Server Stores (e.g., Lotus Domino .NSF or Microsoft Exchange .EDB); 10 * Word processed documents (e.g., Word or WordPerfect files and drafts); 11 * Spreadsheets and tables (e.g., Excel or Lotus 123 worksheets); 12 * Accounting Application Data (e.g., QuickBooks, Money, Peachtree data); 13 * Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF images); 14 * Sound Recordings (e.g., .WAV and .MP3 files); 15 * Video and Animation (e.g., .AVI and .MOV files); 16 * Databases (e.g., Access, Oracle, SQL Server data, SAP); 17 * Contact and Relationship Management Data (e.g., Outlook, ACT!); 18 * Calendar and Diary Application Data (e.g., Outlook PST, blog entries); 19 * Presentations (e.g., PowerPoint, Corel Presentations); 20 * Computer Aided Design/Drawing Files; 21 * Cloud based or other virtualized ESI, including application, infrastructure and data; and 22 * Backup and Archival Files (e.g., Vertitas, Zip, .GHO). 23 Notwithstanding anything to the contrary herein, the following ESI are not discoverable in 24 this action except upon a showing of good cause as may be determined by the Court: 25 1. Information contained on back-up tapes or other long-term, archival storage media 26 that were created for use as a disaster recovery mechanism. If a Party requests that such long-term storage media be searched for ESI that is not cumulative of ESI stored in active media or that is not available as paper or hard copy discovery, the Parties agree to meet and confer in good faith regarding the request, including the appropriateness of cost sharing. 2 2. Temporary data stored in a computer's random access memory or RAM.

3. Temporary data such as voicemail, instant messages, social media postings and 4 other forms of ESI that are not normally recorded and preserved in the course of the company's 5 business operations. 6 B. "Native data format" means and refers to the format of ESI in which it was 7 generated and/or as used by the producing party in the usual course of its business and in its 8 regularly conducted activities. 9 C. "Metadata" means and refers to information about information or data about 10 data, and includes without limitation (i) information embedded in or associated with a native file 11 that is not ordinarily viewable or printable from the application that generated, edited, or modified 12 such native file which describes the characteristics, origins, and/or usage of the electronic file 13 and/or (ii) information generated automatically by the operation of a computer or other information 14 technology system when a native file is created, modified, transmitted, deleted or otherwise 15 manipulated by a user of such system. 16 D. "Static Image" means or refers to a representation of ESI produced by converting a 17 native file into a standard image format capable of being viewed and printed on standard computer 18 systems. 19 E. "Documents" includes writings, drawings, graphs, charts, photographs, sound 20 recordings, images, and other data, data records or data compilations - stored in any medium from 21 which information can be obtained. 22 F. "Media" means an object or device, real or virtualized, including but not limited to 23 a disc, tape, computer or other device, on which data is or was stored.

II. FORMAT OF PRODUCTION 26

A. TIFF Image Files. The Parties agree that all ESI will be produced as single-page, 27 black-and-white Group IV TIFF image files of at least 300 dpi resolution, except as provided in 28 section II.H. Each image file shall be of the form: .tif where is the BATES number of the page. Original document orientation as displayed in the native file should 2 be maintained in the TIFF image (e.g., portrait to portrait and landscape to landscape). 3

4 containing searchable text from the native file. Each filename shall be of the form: .txt where is the BATES number of the first page of the document. Text shall 6 be encoded in UTF-8. Load files of the static images should be created and produced together with 7 their associated static images to facilitate the use of the produced images by a document 8 management or litigation support database system. The parties shall meet and confer to the extent 9 reasonably necessary to facilitate the import and use of the produced materials with commercially 10 available document management or litigation support software. 11 12 production of discoverable electronic information contained in a database, in lieu of producing the 13 database, the parties shall meet and confer to, with an understanding of which fields are relevant, 14 agree upon a set of queries to be made for discoverable information and generate a report in a 15 reasonably usable and exportable electronic file (e.g., Excel or CSV format) for review by the 16 requesting party or counsel. Upon review of the report(s), the requesting party may make 17 reasonable requests for additional information to explain the database schema, codes, 18 abbreviations, and different report formats or to request specific data from identified fields. 19

If a producing party asserts that certain ESI is inaccessible or otherwise unnecessary or inadvisable 20 under the circumstances, or if the requesting party asserts that, following production, certain ESI is 21 not reasonably usable, the parties shall meet and confer with their respective technology experts to 22 discuss resolving such assertions. If the parties cannot resolve any such disputes after such a meet 23 and confer has taken place, the issue shall be presented to the Court for resolution. 24

25 originally generated as ESI but now only exist in physical hard-copy format, and documents or 26 records that were originally generated in hard-copy format, shall be converted to a single page 27

.TIFF file and produced following the same protocols set forth herein or otherwise agreed to by the 28 parties. OCR will be provided for such documents.

B. Text Files. Accompanying these TIFF files shall be a multipage text (.TXT) file

C. Production of Structured Data. To the extent a response to discovery requires

D. Production of Physical Documents. Documents or records that either were 2 shall be produced as TIFF images. The exception to this rule shall be presentation-application files 3

Access), and multimedia audio/visual files such as voice and video recordings (e.g., .wav, .mpeg, 5 and .avi files), for which all ESI items shall be produced in native format. Each native file shall be 6 of the form: .ext where is the BATES number of the document and .ext 7 is the original native file extension. In the event a Document subject to this paragraph requires 8 redaction, it shall be produced in TIFF in accordance with paragraph II.I below. If upon review the 9 receiving party believes the production of an above-listed document in TIFF is inadequate, it shall 10 meet and confer with the producing party regarding whether an alternate method of redaction 11 would be appropriate. 12

13 files as detailed in Section II.L below. Each party will designate its preferred format for receiving 14 production documents. Defendants' preferred load file format is set forth in Section L. Plaintiffs' 15 preferred production format is set forth in Attachment A. The image load file shall reference each 16

TIFF file in the corresponding production, and the total number of TIFF files referenced in the load 17 file shall match the total number of image files in the production. The total number of documents 18 referenced in a production's data load file should match the total number of designated document 19 breaks in the corresponding image load file for that production. 20

21 done on exact duplicate documents on either a custodian basis or a global basis (based on MD5 or 22

SHA-1 hash values at the document level).

24 contains color, the producing party may produce black and white image(s). At the request of the 25 receiving party, the parties shall meet and confer to discuss production of color image(s) for 26 specific documents. 27 28 native format, each page of a produced document shall have a legible, unique page identifier E. Native Files. In accordance with section II.A, the parties agree that Documents (e.g., MS PowerPoint), spreadsheet-application files (e.g., MS Excel), personal databases (e.g., MS 4 F. Document Unitization. All productions will include data load files and image load G. Duplicates. Removal of duplicate documents shall be performed but shall only be H. Color. For files not produced in their native format, if an original document I. Bates Numbering and Other Unique Identifiers. For files not produced in their ("Bates Number") electronically "burned" onto the bottom right hand corner of the TIFF image in 2 such a manner that information from the source document is not obliterated, concealed, or 3 interfered with. There shall be no other legend or stamp placed on the document image unless a 4 document qualifies for confidential treatment pursuant to the terms of the Protective Order or 5 Qualified Protective Order entered by this Court in this litigation, or has been redacted in 6 accordance with applicable law or Court order. In the case of confidential materials as defined in a 7 Protective Order, or materials redacted in accordance with applicable law or Court order, a 8 designation may be "burned" onto the document's image at the bottom left hand corner of the page 9 or on top of the redacted text. Each party should use a different production prefix. For any ESI produced in native data format, the producing party shall produce a single-page TIFF slipsheet indicating that a native item was produced and reflecting the production Bates 12 number, any confidential designation and text stating "Document Produced in Native Format." 13 The native file will be produced in searchable format, preferably in extracted text. 14 15 hard drive (with standard PC compatible interface), or such other readily accessible computer or 16 electronic media as the parties may hereafter agree upon (the "Production Media"). Each item of 17 Production Media shall include: (1) text referencing that it was produced in this lawsuit(2) the 18 production date, (3) the production volume for the party; and (4) the Bates number range of the 19 materials contained on such Production Media item. 20 21 reflecting the full text that has been electronically extracted from the original, native electronic files 22 ("Extracted Text"). The Extracted Text shall be provided in UTF-8 text format and shall be labeled 23 and produced on Production Media in accordance with the provisions of paragraph II.J above, 24 "Production Media". The text files will be named with the unique Bates number of the first page 25 of the corresponding document followed by the extension ".txt." with the relative pathing to these 26 text files included in the "index file" on the production media. 27 28 with native data format ESI requested, and includes without limitation, file, application and system J. Production Media. Documents shall be produced on CD-ROM, DVD, external K. Electronic Text Files. Text files for produced documents shall be produced L. Metadata. The production of Metadata produced will be provided in connection metadata. 2

The image load file to be provided should be in Concordance Image, or Opticon, format

(.OPT or .LOG) and IPRO format (.LFP). This file is a page level load file representing one image 4 per line. As an example:

The fields are, from left to right:

~ Field One -- (REL00001) -- The page identifier 10

~ Field Two -- (REL01) -- The volume identifier 11

~ Field Three -- (D:\IMAGES\001\REL00001.TIF) -- a path to the image to be loaded 12

~ Field Four -- (Y) -- Document marker -- a "Y" indicates the start of a unique document. 13

~ Field Five -- (blank) -- unused 14

~ Field Six -- (blank) -- unused 15

~ Field Seven -- (3) --used to store page count. The image load files described in this paragraph are 16 not required by Plaintiffs, because Plaintiffs can load images directly from the .DAT files. 17

Plaintiffs can produce .TIFF images with the image load files requested by Defendants (.OPT or 18 .LOG). The Metadata fields identified below will be extracted and produced (to the extent 19 available) in a flat delimited text file or .dat format with values enclosed by Concordance standard 20 delimiters: 21

 Application Name;  AttachCount (number of attachments);  Beginning Document Number;  Ending Document Number;  BegAttach (the Beginning Document Number of the parent document); 24  EndAttach (the Ending Document Number of the last attachment);  Conversation Index; 25  Custodian;  FileExt (the extension of the filename, e.g., "DOC" for an MS Word 26 document);

 Filename (the original filename);  Filepath;  FileSize (in KB);  Date Created (to the degree such information is reasonably available using "Robocopy" or similar software);

 Time Created (to the degree such information is reasonably available using "Robocopy" or similar software);  Date Last Modified;  Time Last Modified;  RevisionNumber;  Author;  To/From/Cc/Bcc fields*fn1 (including name and email addresses to the degree that they appear on face of the email);  Date Sent;  Date Received; 8  Time Sent;  Time Received;  Time Zone Processed (time zone set during data processing);  Subject Line; 9 10  MD5;  MessageID (message ID of the email header);  Page Count; 12  Path to Extracted Text files;  Path to Native files;  Volume (indicative of production volume); and  Family Date (also referred to as Sort Date or Group Date).

The parties are not obligated to populate manually any of these fields if such fields cannot be 16 extracted from a document, with the exception of the CUSTODIAN, VOLUME, and 17 TIMEZONEPROCESSED. VOLUME and TIMEZONEPROCESSED shall be populated by the 18 producing party only to the extent that it can be done on a batch basis. CUSTODIAN shall be 19 populated by the producing party to the extent that a custodian can be identified.

M. Attachments. Email attachments and embedded files or links must be mapped to 21 their parent by the inclusion of the BegAttach and End Attach fields. The BegAttach field should 22 list the first page of the parent document and the End Attach filed should list the last page of the 23 last attachment.

N. Compressed Files. Compression file types (i.e., .CAB, .GZ, .TAR, .Z, .ZIP) shall 25 be decompressed in a reiterative manner to ensure that a zip within a zip is decompressed into the 26 lowest possible compression resulting in individual folders and/or files.

3 format production problems shall be promptly identified and disclosed to the requesting party; the 4 parties shall then meet and confer to attempt to resolve the problems. 5

6 such information is not reasonably accessible because of undue burden or cost, or because 7 production in the requested format is asserted to be not reasonably accessible because of undue 8 burden or cost, and before asserting such an objection, the responding party will inform the 9 requesting party of the format in which it is willing to produce it, the nature and location of the 10 information claimed to not be reasonably accessible, the reason(s) why the requested form of 11 production would impose an undue burden or is unreasonably costly, and afford the requesting 12 party 10 business days from receipt of such notice to propose an alternative means of compliance 13 with the request. Such proposal may include alternative cost estimates for ESI discovery 14 production, may offer a proposal for ESI discovery cost allocation, or both. Notwithstanding 15 anything contained herein to the contrary, a producing party shall not produce ESI in a format not 16 requested or designated by the requesting party unless (i) the parties have met and conferred, and, 17 having been unable to resolve such format production conflict at such meet and confer session, (ii) 18 prior to referral to and resolution of such issue by the court. 19

20 longer retrievable, the responding party shall explain whether any backup or copy of such original 21 ESI exists. 22

III. OBJECTIONS TO ESI PRODUCTION

A. For files not produced in their native format, documents that present imaging or B. If either party objects to producing the requested information on the grounds that C. If a party believes that responsive ESI no longer exists in its original format, or is no D. ESI of Limited Accessibility. If a Producing Party contends that any responsive ESI, excluding back-up tapes or other long-term storage media that were created for use as a 24 disaster recovery mechanism, is not reasonably accessible within the meaning of Fed. R. Civ. P. 25 26(b)(2)(B), that Party shall timely identify such ESI with reasonable particularity and shall 26 provide the Requesting Party with the basis for declining to produce such ESI, including but not 27 limited to information about the nature of any limitations on access, an estimate of the likely costs 28 that might be incurred in producing such ESI, the method used for storage of ESI (for example, the type of system used to store the ESI), and where such ESI is kept. The parties shall negotiate in 2 good faith concerning the production of any such ESI. If the Parties are unable to reach agreement, 3 the Parties shall submit any dispute to the Court, who shall determine what burden may be imposed 4 upon the Producing or Requesting Parties to resolve the dispute and whether or to what extent the 5 costs of such production shall be borne by the Producing or Requesting Parties.

IV. MISCELLANEOUS

7

A. This Stipulated Order is not intended to govern any protections or restrictions 8 related to the production of privileged litigation material. The Parties have separately addressed 9 the process for handling the production of privileged litigation materials in the Stipulated 10 Protective Order. 11 B. Limited 28 U.S.C. § 1920 Waiver. In consideration of the parties' agreed upon Protocol, the producing party agrees not to seek the reimbursement of any increased costs relating 13 to the production, storage, and maintenance of the ESI produced by that party in .tiff format over 14 native format. Nothing herein constitutes an acknowledgement (implicit or otherwise) by any party 15 that ESI-related costs are taxable under 28 U.S.C. § 1920. 16

Respectfully submitted, 18 DATED: February 12, 2013 HAGENS BERMAN SOBOL SHAPIRO LLP 19 By: /s/ Elaine T. Byszewski 20 Elaine T. Byszewski HAGENS BERMAN SOBOL SHAPIRO LLP 21 301 North Lake Avenue, Suite 203 Pasadena, CA 91101 22 Telephone (213) 330-7150 Facsimile (213) 330-7152 23 elaine@hbsslaw.com 24 Steve W. Berman George W. Sampson 25 Craig R. Spiegel HAGENS BERMAN SOBOL SHAPIRO LLP 26 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone (206) 623-7292 Facsimile (206) 623-0594 steve@hbsslaw.com george@hbsslaw.com craig@hbsslaw.com 2 Attorneys for the Plaintiffs WILLIAMS & CONNOLLY LLP 4 By:/s/ Steven R. Kuney 5 Steven R. Kuney WILLIAMS & CONNOLLY LLP 6 725 Twelfth Street, N.W. Washington, D.C. 20005 7 Telephone: (202) 434-5843 Facsimile: (202) 434-5029 8 skuney@wc.com 9 BAKER & MILLER PLLC 10 By:/s/ W. Todd Miller BAKER & MILLER PLLC 11 2401 Pennsylvania Avenue, N.W., Ste 300 Washington, D.C. 20037 12 Telephone: (202) 663-7822 Facsimile: (202) 663-7849 13 tmiller@bakerandmiller.com 14 Jesse W. Markham, Jr. (SBN 87788) Marshall P. Madison Professor of Law 15 University of San Francisco School of Law 16 2130 Fulton Street San Francisco, CA 94117 17 Telephone: (415) 422-4473 Email: markham@usfca.edu 18 Attorneys for Defendant Dairy Farmers of America, 19 Inc. 20 EIMER STAHL KLEVORN & SOLBERG LLP 21 By:/s/ Nathan P. Eimer Nathan P. Eimer 22 EIMER STAHL KLEVORN & SOLBERG LLP 224 South Michigan Avenue, Suite 1100 23 Chicago, Illinois 60604 Phone: (312) 660-7601 24 Fax: (312) 692-1718 neimer@eimerstahl.com 25 Attorneys for Defendant Land O' Lakes, Inc. 26 BOND SCHOENECK & KING, PLLC By:/s/ Edward R. Conan______________________ 28 Edward R. Conan (pro hac vice)

THE PARTIES HEREBY STIPULATE AND AGREE TO THE ABOVE TERMS.

Suzanne O. Galbato (pro hac vice) Lucy S. Clippinger (pro hac vice) 2 BOND, SCHOENECK & KING, PLLC One Lincoln Center 3 Syracuse, NY 13202-1355 Telephone: (315) 218-8000 4 Facsimile: (315) 218-8100 econan@bsk.com 5 sgalbato@bsk.com lsclippinger@bsk.com 6 7 FARMER BROWNSTEIN LLP 8 By:/s/ William S. Farmer______________________ William S. Farmer (SBN 46694) 9 Jacob P. Alpren (SBN 235713) FARMER BROWNSTEIN LLP 10 235 Pine Street, Suite 1300 San Francisco, CA 94104 11 Telephone (direct and fax): (415) 962-2877 Main: (415) 795-2050 12 wfarmer@farmerbrownstein.com jalpern@farmerbrownstein.com 13 Attorney for Defendant Dairylea Cooperative Inc. 14 KEKER &VAN NEST, LLP 15 By: __/s/ Paula L. Blizzard _________ 16 Paula L. Blizzard Jan N. Little 17 KEKER &VAN NEST, LLP 633 Battery Street 18 San Francisco, CA 94111 Telephone: (415) 773-6608 19 pblizzard@kvn.com jlittle@kvn.com 20 Jill M. O'Toole 21 Susan S. Murphy SHIPMAN & GOODWIN, LLP 22 One Constitution Plaza Hartford, CT 06103 23 Telephone (860) 251-5000 jotoole@goodwin.com 24 smurphy2@goodwin.com 25 Attorney for Defendant Agri-Mark, Inc. 26 STEPTOE & JOHNSON LLP By:/s/ Chong S. Park Chong S. Park Kenneth P. Ewing John J. Kavanagh STEPTOE & JOHNSON LLP 2 1330 Connecticut Ave., NW Washington, DC 20036 3 Telephone (202) 429-3000 Facsimile (202) 429-3902 4 CPark@steptoe.com 5 Dylan Ruga STEPTOE & JOHNSON LLP 2121 Avenue of the Stars 6 7 Suite 2800 8 Los Angeles CA 90067 Telephone (310) 734-3228 9 Facsimile (310) 734-3300 DRuga@steptoe.com 10 Attorney for Defendant National Milk Producers Federation

11

I, Elaine T. Byszewski, attest that concurrence in the filing of this document has been obtained 12 from each of the other signatories. 13 14 15

IT IS SO ORDERED 16 17

Hon. Jeffrey S. White UNITED STATES DISTRICT JUDGE

ATTACHMENT A: PLAINTIFFS' PREFERRED PRODUCTION FORMAT 2 3 OCR and Extracted Text Files (.TXT Files): 4  Single text file per document containing all the document's pages 5  Filenames should be of the form: 6 .txt 7 Where is the BATES number of the first page in the document.

 Text must be encoded in UTF-8. 9 Images Files: 10  Single page per image 11  Single image per file 12  TIFF is default FORMAT unless the following formats are agreed to: jpeg, 13 jpeg2000, giff, png, single image tiff, and bmp 14  Filenames should be of the form: 15 .

Where is the BATES number of the page, and is the appropriate 17 extension for the image format (.jpg, .tif, .png, etc) 18 Index Files: 19  Comma Separated Value (.CSV) files (commonly .DAT files) 20  First line must contain the column/field names (set forth in Section II.L herein) 21  Every row must have the same number of columns/fields (empty values are 22 acceptable)

 Text must be encoded in UTF-8 24  Values must be enclosed by Concordance standard delimiters 25 Native Index Files: 26  .CSV files  All lines contain data -- first row must NOT contain column headers.  Every row must have 2 columns/fields (empty values are NOT acceptable)  First column/field must contain the BATES number for the document  Second column/field must contain the filename (NOT the full path) of the native file. Filenames must be unique in the production -- unless the content is identical (for example, a native and an OCR text file may both be named XYZ01234567.TXT if they are identical).  Text must be encoded in UTF-8  Values must be enclosed by double quotes (ascii character 34)  Values must be separated by a comma (ascii character 44)


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