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Thought, Inc., A California Corporation v. Oracle Corporation


May 7, 2013


The opinion of the court was delivered by: Honorable Jeffrey S. White United States District Judge



The above-captioned Parties stipulate as follows: 3

1. This order supplements all other discovery rules and orders. It streamlines Electronically Stored Information ("ESI") production to promote a "just, speedy, and inexpensive 5 determination" of this action, as required by Federal Rule of Civil Procedure 1. 6

2. This order may be modified in the Court's discretion or by agreement of the parties.

If the parties cannot resolve their disagreements regarding any modifications, the parties shall 8 submit their competing proposals and a summary of their dispute to the Court. 9

10 shifting determinations, if any. A party's meaningful compliance with this order and efforts to 11 promote efficiency and reduce costs will be considered in cost-shifting determinations, if any. 12

4. Absent a showing of good cause, general ESI production requests under Federal

Rules of Civil Procedure 34 and 45, or compliance with a mandatory disclosure requirement of this 15

5. Absent agreement of the parties or further order of this Court, the following

17 parameters shall apply to ESI production: 18

19 the production of discoverable documents and electronically stored information when production 20 commences. The following terms shall be defined: 21

22 information can be obtained or translated into reasonably usable form and shall have the same 23 meaning as used in the Federal Rules of Civil Procedure and case law construing same. 24

25 creating application for the ESI, e.g., the file in which the ESI is normally created, viewed and/or 26 modified. 27

(3) "Metadata" means: (i) information embedded in a Native File that is 28 not ordinarily viewable or printable from the application that generated, edited, or modified such

3. A party's non-responsive or dilatory discovery tactics will be considered in cost Both parties reserve the right to seek cost shifting under appropriate circumstances. 13

Court, shall not include metadata except as indicated in Paragraph 5.I.

A. Definitions and Scope. The following protocol and definitions shall control (1) "Document(s)" means ESI existing in any medium from which (2) "Native File(s)" or "Native Format" means the file defined by the Native File; and (ii) information generated automatically by the operation of a computer or other 2 information technology system when a Native File is created, modified, transmitted, deleted or 3 otherwise manipulated by a user of such system. 4

(4) "Static Image(s)" means a representation of ESI produced by 5 converting a Native File into a standard image format capable of being viewed and printed on 6 standard computer systems. A Tagged Image File Format (TIFF) image is an example of a Static 7

(5) "Load/Unitization file" means an electronic file containing 9 information identifying a set of paper-scanned images or processed ESI and indicating where 10 individual pages or files belong together as Documents, including attachments, and where each 11 document begins and ends. A Load/Unitization file will also contain data relevant to the individual 12

Extracted Text. 14

software used in conjunction with a scanner that is capable of reading text-based documents and 16 making such documents searchable using appropriate software. 17 includes all header, footer and document body information. 19

34(a) or pursuant to initial production of documents identified in the party's Rule 26(a) disclosures. 22

23 response to any request for production of documents pursuant to Fed. R. Civ. P. 34(a) or pursuant 24 to initial production of documents identified in the party's Rule 26(a) disclosures. 25

Image. 8

Documents, including extracted and user created Metadata, coded data, as well as OCR or 13

(6) "OCR" means the optical character recognition file that is created by

(7) "Extracted Text" means the text extracted from a Native File and

(8) "Receiving Party" shall mean the party receiving production of

Documents in response to any request for production of document(s) pursuant to Fed. R. Civ. P. 21

(9) "Producing Party" shall mean the party producing Documents in B. General Format of Production. Subject to the provisions of paragraph

5.C., Documents that are produced in these proceedings, whether originally stored in paper or 27 electronic form, shall be produced in electronic image form in the manner as described below. 28

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 Documents that are not susceptible 2 to production in the format or methods of production addressed herein. In that event, the Receiving 3

Party and the Producing Party will meet and confer to discuss alternative production requirements, 4 concerns, formats, or methods. following formats: 7

8 maintained in paper format shall be scanned as black and white images at 300 x 300 d.p.i. or 9 greater resolution, in a Group 4 compression single-page Tagged Image File Format ("TIFF" or 10 ".tiff format") reflecting source attachment information and reflecting the full and complete 11 information contained in the original Document. Documents shall also be produced with the 12 associated OCR in accordance with Paragraph 5.C.(3). No Producing Party shall be required to 13 ensure that the OCR is an exact duplicate of the contents of the TIFF image; and the Receiving 14

(2) Electronically Stored Information. Except as provided in Paragraph 5.C.(5) below, Document images shall be generated from electronic Documents in a 17 Group 4 compression single-page black and white "TIFF" image that reflects the full and complete 18 information contained on the original document, together with a load file or functional equivalent 19 specified in Paragraph 5.C.(3) that contains (or is produced with a corresponding text file that 20 contains) the metadata as set forth in Paragraph 5.I. and extracted text. In the event a Document is 21 redacted, the Producing Party shall withhold the redacted text for that Document. The failure to 22 withhold such text for a redacted document by a Producing Party shall not be deemed a waiver of 23 the privilege associated with that Document. 24 25 a unitization file ("load file") for all produced Documents in accordance with the following 26 formatting, including for native Documents (in the same or a separate load file): 27

* Single text file per document containing all the document's pages

C. Production Format. Documents shall be produced according to the (1) Electronic Production of Paper Documents. Documents that are Party shall accept the OCR in its "as is" condition. 15

(3) Load/Unitization File Structure. The Producing Party shall produce

OCR and Extracted Text Files (.TXT Files):

* Pages separated by form feed character (decimal 12, hex 0xC)

* Filenames should be of the form:


Where is the BATES number of the first page in the


* Text must be encoded in UTF-8 or ANSI

Images Files:

* Single page per image and single image per file;

* TIFF is the default FORMAT unless the following formats are agreed

to: jpeg, jpeg2000, giff, png, single image tiff, and bmp

* Filenames should be of the form:


Where is the BATES number of the page, and is

the appropriate extension for the image format (.jpg, .tif, .png, etc)

Index Files:

* Comma Separated Value (.CSV) files or Concordance .DAT files

* First line must contain the column/field names (set forth in paragraph

5.I. herein)

* Every row must have the same number of columns/fields (empty

values are acceptable)

* Text must be encoded in UTF-8 or ANSI.

* Values must be enclosed by decimal 17, hex 0x11 (ascii device

control 1) or an equivalent

* Values must be separated by decimal 19, hex 0x13 (ascii device

control 3) or standard .DAT delimeters; to avoid errors, the parties

agree to use, where available, default Concordance delimiters: ¶ and

&Thorn; because of imaging or formatting problems shall be identified by the Receiving Party.

The Producing Party and the Receiving Party shall meet and confer to attempt to resolve problem(s), to 17 the extent the problem(s) are within the Parties' control. 18

(5) Native Format Documents. Notwithstanding the foregoing

19 provisions of this paragraph, the parties recognize that it may be appropriate for certain Documents 20 to be produced in Native Format. Therefore, the Producing Party shall produce all spreadsheets 21

(e.g., .XLS or .XLSX files) and .PPT presentations in native format unless there is an agreement to 22 the contrary. The Receiving Party may also request that the Producing Party produce additional file 23 types of electronic Documents in Native Format where the converted image format distorts or 24 causes the information to be improperly displayed. Such Documents shall be listed by the 25

Receiving Party or a general agreement may be reached after meeting and conferring. Prior to 26 producing any Protected Information as defined in any applicable Protective Order entered herein 27 in Native Format, the Producing Party and the Receiving Party shall meet and confer to establish 28 additional procedures, to the extent necessary, for the protection of the native information.

Native Index Files (if separate):

* .CSV files or Concordance .DAT files

* All lines contain data -- first row must NOT contain column headers.

* Every row must have 2 columns/fields (empty values are NOT


* 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 or ANSI.

* Values must be enclosed by double quotes (ascii character 34)

* Values must be separated by a comma (ascii character 44)

(4) Resolution of Production Issues. Documents that cannot be read instance. If a produced Document contains color and that color is necessary to decipher the 3 meaning, context, or content of the document, the Producing Party shall honor reasonable requests 4 for either the production of the original Document for inspection and copying or production of a 5 color image of the Document. 6

(6) Color. Documents may be produced in black and white in the first

D. Production Media. A Producing Party shall produce Documents on a

CD-ROM, DVD, external hard drive, ftp, or such other readily accessible computer or electronic 8 media as the Producing Party and the Receiving Party may hereafter agree upon (the "Production 9

Media"). Information that shall be identified on the face of the Production Media shall include: (1) 10 the production date, and (2) the confidentiality notation required by the Protective Order entered in 11 this case, if the media contains Confidential Information, as defined in the Protective Order. Where 12 practicable, the face of the Production Media shall also contain the Bates Number range(s) of the 13

Documents on the Production Media. Where not practicable, the range(s) may be provided in an 14 accompanying letter. If the Producing Party encrypts or "locks" the production, the Producing 15

E. Document Unitization. When scanning paper documents into Document

Images as described in paragraph 5.C.(1), they shall be unitized in a manner so as to maintain the 18 document(s) and any attachments as they existed in their original state. For electronic documents, 19 the relationship of documents in a document collection (e.g., cover letter and enclosures, e-mail 20 and attachments, binder containing multiple documents, or other documents where a parent-child 21 relationship exists between the documents) shall be maintained through the scanning or conversion 22 process from native format to TIFF, provided however, that the Parties shall be required to present 23 only one level of parent child relationship. Document Images generated from attachments to 24 e-mails stored in Native Format shall be produced contemporaneously and sequentially 25 immediately after the parent e-mail. All hard copy documents imaged and produced electronically 26 shall include a unitization file ("load file") in accordance with paragraph 5.C.(3). 27

28 fixed notes shall be scanned with the notes affixed, if it can be done so in a manner so as not to Party shall include with the production an explanation of how to decrypt the files. 16 F. Paper Documents Containing Fixed Notes. Paper Documents that contain obstruct other content on the document. If the content of the Document is obscured by the affixed 2 notes, the Document and note shall be scanned separately. 3

G. Duplicates. If a Producing Party who has more than one identical copy of an 4 electronic document (i.e., the documents are actual duplicates), the Producing Party need produce 5 only a single copy of that document. A Producing Party need not produce the same electronically 6 stored information in more than one form. 7

8 production(s) as follows: 9

10 legible, unique page identifier ("Bates Number") electronically "burned" onto the image at a 11 location that does not unreasonably obliterate, conceal, or interfere with any information from the 12 source document. The Bates Number shall contain a two to four letter prefix associated with the 13

Producing Party's name followed by 8 numbers (e.g., ABCD00000001). The Producing Party will 14 use a consistent prefix throughout the matter. Thus, once a party chooses a four letter prefix, e.g. 15

ABCD, it shall not later produce a Document using a different prefix, e.g. EFGH. No other legend 16 or stamp will be placed on the Document Image other than a confidentiality legend (where 17 applicable), redactions, the Bates Number identified above, and any other internal tracking number 18 that the Producing Party may choose to use. The confidentiality legend shall be "burned" onto each 19 document's image at a location that does not unreasonably obliterate or obscure any information 20 from the source document. 21

22 are produced, in order to preserve the integrity of those Native Format Documents, no Bates 23

Number, confidentiality legend, or internal tracking number should be added to the internal content 24 of the Native Document, but may be added to the file name and/or to a document placehold 25 provided with the production. Additionally, Native Format Documents may be produced with 26 password protection. 27

28 shall produce the metadata information described below with each production and in the format

H. Bates Numbering. Each Producing Party shall Bates number its (1) Document Images. Each page of a produced Document shall have a (2) Native Format Documents. In the event Native Format Documents

I. Metadata. To the extent it is reasonably accessible, the Producing Party described in this Paragraph 5, above. For images generated from native electronic documents, a 2

Producing Party shall produce with each production the following fields, where available. The field 3 naming conventions shall be the following, unless otherwise agreed. Substantially similar field 4 names may be used if consistent with the defined fields. Field names must be consistently applied 5 for each production by a Producing Party. Upon request from the Receiving Party, the Producing 6

Party shall produce additional metadata for select documents. In the event the parties cannot reach 7 agreement regarding a request to produce metadata, it shall be the Receiving Party's burden to 8 show good case for such production. 9

26 electronic format that allows text searching and organization of data. When there is a chain of 27



SOURCEName of party producing the document/dataALL CUSTODIANS Name of person from whose files the ALL document/data is being produced BEGINBATES Beginning Bates Number (production ALL number)

ENDBATES Ending Bates Number (production number) ALL FROM Sender EMAIL*fn1

TO Recipient EMAIL CC Additional Recipients EMAIL BCC Blind Additional Recipients EMAIL SUBJECT Subject line of Email EMAIL

BEGATTACH First Bates number of a family range (i.e. EMAIL Bates number of the first page of the parent email)

ENDATTACH Last Bates number of a family range (i.e. EMAIL Bates number of the last page of the last attachment)



DOCTYPE Document type (e.g. .doc, .pst, .ppt, .xls, .pdf) EDOCS

NATIVELINK The path to the native files in the production EDOCS

AUTHOR The creator of a documents EDOCS

TITLE The title of a document EDOCS

J. Privilege Logs. The Producing Parties will produce privilege logs in an privileged emails, the Producing Party need only include one entry on the privilege log for the 2 entire e-mail chain, and need not log each e-mail contained in the chain separately. The parties 3 shall meet and confer regarding the appropriate timing for the production of privilege logs. 4

However, the production of a privilege log for a custodian shall be not less than 7 days prior to that 5 custodian's deposition. The Producing Party and the Receiving Party may modify the deadlines for 6 production of privilege logs by agreement. Parties are not required to include in the privilege logs 7 any information or Documents generated or created after the filing of the complaint in this matter. 8

K. No Backup Restoration Required.Absent a showing of good cause, no 9 party need restore any form of media upon which backup data is maintained in a party's normal or 10 allowed processes, including but not limited to backup tapes, disks, SAN, and other forms of 11 media, to comply with its discovery obligations in the present case. 12

13 by the Requesting Party, the categories of ESI identified in Schedule A need not be preserved. 14

15 and 45, or compliance with a mandatory disclosure order of this court, shall not include e-mail or 16 other forms of electronic correspondence (collectively "e-mail"). To obtain e-mail, parties must 17 propound specific e-mail production requests. 18

N. E-mail production requests shall be phased to occur timely after the parties 19 have exchanged initial disclosures, a specific listing of all e-mail custodians likely to have 20 discoverable information, a specific identification of the ten most significant listed e-mail 21 custodians in view of the pleaded claims and defenses,*fn2 infringement contentions and 22 accompanying documents pursuant to Patent L.R. 3-1 and 3-2, invalidity contentions and 23 accompanying documents pursuant to Patent L.R. 3-3 and 3-4, and preliminary information 24 relevant to damages. The exchange of this information shall occur at the time required under the 25

Federal Rules of Civil Procedure, Local Rules, or by order of the Court. The parties may jointly 26 agree to modify this limit or, failing agreement, by seeking leave of Court. 27

L. Categories that Need Not Be Preserved. Absent a showing of good cause M. General ESI production requests under Federal Rules of Civil Procedure 34 2 time frame. The parties shall cooperate to identify the proper custodians, proper search terms, and 3 proper time frame. Each requesting party shall limit its e-mail production requests to a total of 4 eight custodians per producing party for all such requests. The parties may jointly agree to modify 5 this limit without the Court's leave. The Court shall consider contested requests for additional or 6 fewer custodians per producing party upon showing a distinct need based on the size, complexity, 7 and issues of this specific case. 8

9 ten search terms per custodian per party. The parties may jointly agree to modify this limit without 10 the Court's leave. The Court shall consider contested requests for additional or fewer search terms 11 per custodian, upon showing a distinct need based on the size, complexity, and issues of this 12 specific case. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, 13 such as the producing company's name or its product name, are inappropriate unless combined 14 with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive 15 combination of multiple words or phrases (e.g., "computer" and "system") narrows the search and 16 shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., 17 "computer" or "system") broadens the search, and thus each word or phrase shall count as a 18 separate search term unless they are variants of the same word. Use of narrowing search criteria 19 (e.g., "and," "but not," "w/x") is encouraged to limit the production and shall be considered when 20 determining whether to shift costs for disproportionate discovery. 21 22 privileged or work product protected ESI document is not a waiver in the pending case or in any 23 other federal or state proceeding. See also Section 13 of the Stipulated Protective Order in this 24 matter, specifying that "When a Producing Party gives notice to Receiving Parties that certain 25 inadvertently produced material is subject to a claim of privilege or other protection, the 26 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 27 12. The mere production of ESI in a litigation as part of a mass production shall not

O. E-mail production requests shall identify the custodian, search terms, and P. Each requesting party shall limit its e-mail production requests to a total of Q. Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of a 26(b)(5)(B)". 28

itself constitute a waiver for any purpose. 2 13. Except as expressly stated, nothing in this order affects the parties' discovery 3 obligations under the Federal or Local Rules.

4 difficult to preserve without disabling the operating system. 5 6 like. 7 8 opened dates. 9 10 elsewhere. 11 to instant messaging.


1. Deleted, slack, fragmented, or other data only accessible by forensics.

2. Random access memory (RAM), temporary files, or other ephemeral data that are

3. On-line access data such as temporary internet files, history, cache, cookies, and the

4. Data in metadata fields that are frequently updated automatically, such as last-

5. Back-up data that are substantially duplicative of data that are more accessible

6. Voice messages.

7. Instant messages that are not ordinarily printed or maintained in a server dedicated

8. Device-to-device (pin-to-pin) messages sent to or from mobile devices (e.g.,

Android, iPhone, and Blackberry devices), provided that a copy of such mail is routinely saved 16 elsewhere. 17

18 notes, provided that a copy of such information is routinely saved elsewhere. 19

22 equipment, provided that such data is not ordinarily preserved as a part of a laboratory report. 23

24 use. 25

26 and Twitter. 27 28

9. Other electronic data stored on a mobile device, such as calendar or contact data or 10. Logs of calls made from mobile devices.

11. Server, system, or network logs.

12. Electronic data temporarily stored by laboratory equipment or attached electronic

13. Data remaining from systems no longer in use that is unintelligible on the systems in

14. Company wikis and social network data from services such as Facebook, LinkedIn


DATED: May 6, 2013 /s/ Jeff D. Friedman Steve W. Berman (Pro Hac Vice Application to be filed) Mark S. Carlson 3 4 (Pro Hac Vice Application to be filed) 5 HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 6 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 7 8 Jeff D. Friedman (173886) 9 10 HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 11 Berkeley, CA 94710 12 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 13 14 Attorneys for Plaintiff and Counterclaim Defendant THOUGHT, INC. 15 16 DATED: May 6, 2013 /s/ Robert J. Artuz P 17 James G. Gilliland, Jr. (SBN 107988) 18 Mehrnaz Boroumand Smith (SBN 197271) 19 Steven D. Moore (pro hac vice) 20 KILPATRICK TOWNSEND & STOCKTON LLP Eighth Floor, Two Embarcadero Center 21 22 San Francisco, CA 94111 23 Telephone: (415) 576-0200 Facsimile: (415) 576-0300 24 Attorneys for Defendants and 25 Counterclaim Plaintiffs ORACLE CORPORATION, ORACLE AMERICA, INC. and ORACLE INTERNATIONAL CORPORATION


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