Duffy v. Yardi Systems Inc

7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE MCKENNA DUFFY and MICHAEL BRETT, | Case No. 2:23-cv-01391-RSL individually and on behalf of all others || Similarly situated, AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED 12 Plaintiffs, INFORMATION; AND ORDER 13 V. 14 | YARDI SYSTEMS, INC., et al, Defendants.

The parties hereby stipulate to the following provisions regarding the discovery of electronically stored information (“ESI”) in this matter: A. General Principles 1. An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.

2. As provided in LCR 26(f), the proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) must be applied in each case when formulating a discovery plan. To further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as possible.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN ] 3. Applicability: This ESI Protocol Order will govern the production of ESI and || paper documents. To the extent that a party collected and processed documents prior to the entry || of this ESI Protocol Order, and production of such documents cannot be made in accordance || with the terms of this ESI Protocol Order, the parties will meet and confer concerning the || potential formats of the production of any such documents.

6 4. Cooperation: The parties acknowledge their duty to work together cooperatively || throughout the discovery process. The parties agree that they will adhere to the principles of || reasonableness and proportionality. Further, the parties agree to meet-and-confer with one another in good faith and in a timely manner to address and resolve any disputes. Ifthe parties | are unable to resolve such disputes, either party may raise the dispute to the Court for resolution || as provided for in Local Rule 37(a) of this Court.

12 5. While this ESI Protocol Order is intended to address the majority of documents || and data sources handled in this matter, there may be situations where the parties come into || contact with data sources, such as ESI from social media, ephemeral messaging systems, || collaboration tools, mobile device apps, and modern cloud sources. In the event such data || sources are likely to contain relevant materials, the parties agree to meet and confer in good faith || about potential production from such sources.

18 |B. ESI Disclosures 19 1. Within 20 days of entry of responding to the opposing party’s first sets of request || for production, or at a time mutually agreed to by the parties: 21 2. Custodians. Each party will disclose an initial list of proposed custodians. The || custodians shall be identified by name title, and a short description of the types of relevant || information that this custodian is expected to possess. The parties agree to meet and confer || about the relevance, proportionality, and burden of the custodians.

25 3. If, after the parties identify initial document custodians, a requesting party || determines that an additional document custodian should be added, then the requesting party may || advise the producing party in writing of the proposed additional document custodian and the || basis for the request. The parties will, 45 days following the Court’s entry of an order on the AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN || motions to dismiss, meet and confer regarding a protocol for consolidated requests for additional || custodians, which shall address issues including but not limited to the number of additional || consolidated requests for custodians made to each Defendant. No party shall make requests for || additional custodians in the absence of this protocol. The parties agree that, in any event, any || requesting party shall not be permitted to make requests for additional custodians, absent || extraordinary good cause, within 90 days of the close of fact discovery.

7 a. For document custodians agreed on by the parties or ordered by the Court, || a producing party will take reasonable steps to identify whether unique responsive ESI || (including text messages and/or iMessages), if any, are located on any cellphones in the || possession, custody, or control of the producing party, and whether such unique, responsive || information, if limited in scope, can be produced in a less burdensome manner that would not || require the imaging of an entire device. For example, in the instance of a limited group of || unique, responsive text messages or instant messages, a screenshot of the communication(s) || would suffice. For those document custodians with unique, responsive ESI that is not so limited, || the parties shall, pursuant to the provisions of this protocol, produce the responsive non- || privileged communications, unless they are “synched” or saved elsewhere (e.g., on a server, || laptop, desktop computer, or “cloud” storage). The parties shall meet and confer regarding the || potential disclosure of additional information related to cellphone data, including custodial cell || phone numbers.

20 4. Non-custodial Data Sources. A list of non-custodial data sources (e.g., shared || drives, servers, cloud storage) in the producing party’s possession, custody, or control, if any, || likely to contain responsive ESI.

23 5. Inaccessible Data. A list of data sources, if any, likely to contain responsive ESI || (by type, date, custodian, electronic system or other criteria sufficient to specifically identify the || data source) that a party asserts is not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(B).

26 IC. ESI Discovery Procedures 27 1. Search methodology. The parties shall timely confer to attempt to reach || agreement on appropriate search terms and queries, file type and date restrictions, data sources AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN || Gncluding custodians), and other appropriate computer- or technology-aided methodologies, || before any such effort is undertaken. The parties shall continue to cooperate in revising the || appropriateness of the search methodology.

4 2. Search Terms. The parties shall meet and confer concerning the search terms and || methodology to be used by the producing party and issues related to the proportionality, || relevance, and burden of the proposed search methodology. If, after disclosure of the producing || party’s proposed search method, search parameters, and search terms, and prior to the conducting || of any searches, and after a reasonable meet and confer process, a requesting party believes in || good faith that the producing party’s proposals regarding search, retrieval, and production would | result in deficiencies in production, the requesting party may make their initial requests for || different or additional search methods, parameters, or search terms within twenty one business || days. To the extent that the producing party objects to the additional and/or revised terms, the || parties agree that the producing party will provide information to show that the || proposed/additional terms impose undue burden or do not assist in identifying potentially || responsive documents.

16 a. Prior to running searches: 17 1. The producing party shall, with regard to structured data, disclose || reasonable information regarding the databases (such as the name of the database) and queries || used, and with regard to other electronic discovery, disclose reasonable information regarding || the data sources (including, where relevant, the particular custodians) and search terms used, any || file type and date restrictions, and any other methodology that it proposes to use to locate ESI || likely to contain responsive and discoverable information. The producing party may provide || unique hit counts for a search query if requested.

24 il. To the extent any search term or query produces a disproportionate || number of hits, the parties agree to meet and confer in good faith prior to collection. The || producing party may identify each search term or query returning overbroad results || demonstrating the overbroad results and a counter proposal correcting the overbroad search or || query.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 b. Upon reasonable request, a party shall disclose additional information || pertinent to the relevance of a particular discovery request or the proportionality and burden of || producing documents from a particular source or a particular type of documents.

4 c. Use of TAR: Ifa party elects to use TAR to cull or otherwise limit the || volume of unstructured ESI subject to linear review, the parties will meet and confer in good || faith to discuss the process for the use of TAR prior to the application of TAR in those instances, || including the extent of disclosure of information related to the TAR tool’s procedures, || prioritization and training of the TAR tool.

9 3. Structured data: To the extent a discovery request calls for the production of || responsive ESI contained in a structured database, the producing party shall reasonably attempt, 11 provided it is not unduly burdensome or disproportionate to the needs of the case, to extract such || data for review by the requesting party. To the extent this is not reasonably practicable, or to the |] extent a producing party contends that such a report is unduly burdensome or disproportionate to || the needs of the case, the parties shall meet and confer in good faith to discuss the requested || structured data with the understanding that the requesting party may be required to engage a || neutral third party with the appropriate skills and expertise. Production Format 17 a. The general proposed product format for document production is set forth || in Appendix A, including relevant Metadata fields to be produced to the extent reasonable.

19 b. The producing party must take all appropriate measures to preserve the | integrity of the underlying ESI, i.e., the original formatting, the metadata (as noted below) and, || where applicable, the revision history.

22 c. Ifa document is more than one page, the unitization of the document and any 23 attachments and/or affixed notes shall be maintained as they existed in the 24 original document.

25 4. De-duplication. The parties may de-duplicate their ESI production across || custodial and non-custodial data sources, and the duplicate custodian information removed || during the de-duplication process tracked in a duplicate/other custodian field in the database load || file, and the duplicate file path information produced in the All Paths metadata field. If AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN || processing and production is done on a rolling basis, updated duplicate custodians and All Paths || fields with additional values shall be provided in an overlay metadata load file. The producing || party shall identify whether the overlay replaces previously produced fields for a file or || supplements them.

5 5. Email Threading. The parties, at their election, may use analytics technology to || identify email threads and need only produce the unique most inclusive copy and related family |}members. and may exclude lesser inclusive copies, provided that all emails with responsive || attachments are produced, regardless of their role within the thread, as determined by the || producing party’s eDiscovery software analytics. Upon reasonable request, the producing party || will produce a less inclusive copy of a specific email thread so long as such a request is || proportional to the needs of the case and does not create undue burden for the producing party.

12 || The parties agree to meet and confer regarding the proportionality and burden of such a request.

13 6. Hard-Copy Documents. If the parties elect to produce hard-copy documents in an || electronic format, the production of hard-copy documents will include a cross-reference file that || indicates document breaks and sets forth the custodian or custodian/location associated with each || produced document. Hard-copy documents will be scanned using Optical Character Recognition || technology and searchable ASCII text files will be produced (or Unicode text format if the text is || in a foreign language). The parties will meet and confer on the procedure to be used if the || Producing Party believes that the cost would outweigh the usefulness of scanning (for example, || when the condition of the paper is not conducive to scanning and will not result in accurate or || reasonably useable/searchable ESI). Each file will be named with a unique Bates Number (e.g., || the unique Bates Number of the first page of the corresponding production version of the || document followed by its file extension).

24 ID. Preservation of ESI 25 The parties acknowledge that they have an obligation, as expressed in Fed. R. Civ. P. || 37(e), to take reasonable and proportional steps to preserve discoverable information in the || party’s possession, custody, or control. With respect to preservation of ESI, the parties agree as || follows: AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 1. Absent a showing of good cause by the requesting party, the parties shall not be || required to modify the procedures used by them in the ordinary course of business to back-up || and archive data; provided, however, that the parties shall take reasonable and proportional steps || to preserve all discoverable ESI in their possession, custody, or control.

5 2. Absent a showing of good cause by the requesting party, the following categories || of ESI need not be preserved: 7 a. Deleted, slack, fragmented, or other data only accessible by forensics.

8 b. Random access memory (RAM), temporary files, or other ephemeral data 9 that are difficult to preserve without disabling the operating system.

10 c. On-line access data such as temporary internet files, history, cache, cookies, and the like. d. Data in metadata fields that are frequently updated automatically, such as 12 last-opened dates (see also Section (E)(5)).

13 e. Interim automatically saved drafts, as opposed to drafts saved by a user.

14 f. Dynamic fields of databases or log files that are not retained in the usual y: 15 course of business.

16 g. Back-up data that is duplicative of data that 1s more accessible elsewhere.

17 h. Server, system or network logs.

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

J: Electronic data (e.g., email, calendars, contact data, and notes) sent to or 20 from mobile devices (e.g., iPhone, iPad, Android devices), provided that a copy of all such electronic data is automatically saved in real time py of all such el ic data 1 ically di | ti elsewhere (such as on a server, laptop, desktop computer, or “cloud” 22 storage).

23 Privilege 24 1. Production of Privilege Logs: Except as provided otherwise below, for any || document withheld in its entirety, the producing party will produce privilege logs in MS Excel || format or any other format that permits electronic sorting and searching. Privilege logs will be || produced to all other parties no later than 60 days after the substantial completion of the || producing party’s document production unless a different deadline is agreed to by the parties.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 2. Privilege Log Requirements: To the extent applicable, each party’s privilege log || only needs to provide objective metadata (to the extent it is reasonably available and does not || reflect privileged or protected information) and a description of privileged material consistent || with Fed. R. Civ. P. 26(b)(5).

5 a. Objective metadata includes the following (as applicable to the document ‘ types as shown in Appendix A): 1. A unique privilege log identifier il. Custodian ill. CustodianOther or CustodianAll (if applicable) iV. Author Vv. From Vi. To Vil. CC Vill. BCC 1x. Subject or Filename Xx. Date Sent X1. Date Received Xl. Date Created b. In addition to the objective metadata fields, a party must also include a field on its privilege log entitled “Attorney/Description of Privileged Material” that, consistent with Fed. R. Civ. P. 26(b)(5) will enable other parties to assess the claim, and a field listing the privilege claim asserted. Where the information cannot be determined by reference to other objective metadata, a party must manually populate on its privilege log an author and date for any withheld document where that information is not provided by the objective metadata, unless such information is not reasonably discernable from the document.

2. Documents Redacted for Privilege: As an initial production matter, redacted documents need not be logged as long as the objective metadata (.e., to, from, cc, bee, recipients, date, and time, unless the privilege or protection is contained in these fields) is not AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN || redacted. For redacted documents where the subject matter is not decipherable as a result of || redactions, a description of the contents of the document that is sufficient to understand the || subject matter of the document may be requested. The producing party will undertake || reasonable efforts to make limited redactions of privileged or work product information. After || receipt of the production, the requesting party may request in good faith that the producing party || create a privilege log for specific redacted documents and explain the basis for specific || redactions so long as such a request is not disproportionate to the needs or the case and is not || unduly burdensome. The parties agree to meet and confer about the proportionality and burden || of such a request.

10 3. Challenges to Privilege Claims: Following the receipt of a privilege/redaction | log, a requesting party may identify, in writing (by Bates/unique identified number), the || particular documents that it believes do not meet the requirements of this Order. The producing || party shall respond to such a request within 30 days. If a party challenges a request for further | information, the parties shall meet and confer to try to reach a mutually agreeable solution. If || they cannot agree, the matter may be brought to the Court.

16 4. With respect to privileged or work-product information generated after the filing || of the complaint, parties are not required to include any such information in privilege logs.

18 5. Communications between a party and its outside counsel and communications || between a Defendant’s employees and its in-house litigation counsel created after September 8, || 2023 are not required to be included in privilege logs.

21 6. Activities undertaken in compliance with the duty to preserve information are || protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).

23 7. Pursuant to Fed. R. Evid. 502(d), the production of any documents, electronically || stored information (ESI) or information, whether inadvertent or otherwise, in this proceeding || shall not, for the purposes of this proceeding or any other federal or state proceeding, constitute a || waiver by the producing party of any privilege applicable to those documents, including the || attorney-client privilege, attorney work-product protection, or any other privilege or protection || recognized by law. This Order shall be interpreted to provide the maximum protection allowed AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN || by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. Nothing contained || herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI || or information (including metadata) for relevance, responsiveness and/or segregation of || privileged and/or protected information before production. Information produced in discovery | that is protected as privileged or work product shall be immediately returned to the producing || party.

7 | F. Clawback Process 8 1. Any party or non-party may request the return of any produced material or || information on the grounds of privilege or work product protection by identifying it, stating the || basis for withholding such material or information from production, and providing any other || information that would be listed on a supplemental privilege log.

12 2. If a party attempts to clawback a document authored or received by an individual || who is scheduled for a deposition within 15 days of the date of the deposition, and the propriety || of the clawback is not resolved pursuant to F(4) prior to the date of the deposition, then the || parties will meet and confer on the appropriate course of action, which may, but need not || necessarily include: rescheduling the deposition until the issue is resolved by the Court, || conferring prior to the deposition to determine if the document may be used in the deposition || subject to agreed-upon limitations; and/or calling the Court if the clawback is made during the || deposition to determine if immediate resolution is possible.

20 3. Notwithstanding the foregoing, the parties agree that any document used by any || party in a deposition, expert report, or court filing in this action (with the exception of a motion || to determine the existence of any privilege) shall not be eligible for protection under Rule 502(d) 23 a clawed-back document if the producing party does not clawback that document pursuant to || this ESI Protocol within 30 calendar days of its use. For a document used by a party in a || deposition, expert report, or court filing in this action that is clawed back after 30 calendar days || of its use, Rule 502(b) shall govern any dispute with respect to the producing party’s potential || waiver of attorney-client privilege or work product protection with respect to the document.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 4. Federal Rule of Civil Procedure 26(b)(5)(B) shall govern the clawback of || produced documents or information on the grounds of privilege or work product protection. Ifa || party or non-party requests the return of such produced material or information then in the || custody of one or more parties, the possessing parties shall within 7 business days: destroy or || return to the requesting party or non-party the produced material or information and all copies || thereof, or notify the producing party or non-party that it wishes to challenge the claim of || privilege or work product protection and has sequestered the material until the issues can be || resolved. The parties agree to meet and confer regarding the claim of privilege. If, at the | conclusion of the meet and confer process, the parties are still not in agreement, they may bring || the issue to the Court. A party challenging a clawback request may use the content of the clawed- || back document for the sole purpose of filing a motion with the Court under seal.

12 Redactions 13 1. In addition to any redactions required by law, a producing party may redact || personal information to the extent that the information falls within one of the following || categories: (1) information that relates to the medical or health issues of an individual, (2) social || security numbers, taxpayer-identification numbers, driver’s license numbers, personal address || information and/or phone numbers, passport numbers, financial-account numbers or other bank || account information, or personal passcodes. Such redactions should be identified as “PI” on the || redactions.

20 2. Unless otherwise agreed, a party may not make redactions based on an assertion || that the data is not relevant. The only redactions permitted are on the basis of privilege and the || categories listed in G(1).

23 3. The parties agree that, where ESI items need to be redacted, they shall be || produced solely in TIFF format, or JPG format if producing documents in color, with each || redaction clearly indicated, except in the case of personal database files and Excel spreadsheets, || which shall be redacted in native format. Any non-privileged metadata fields reasonably || available shall be provided. The parties understand that for certain MS Excel documents or other || file types or files, TIFF redactions may be impracticable. These documents may be redacted AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN || using litigation database applications that can redact native Excel files, or in native format by || inserting “[REDACTED]” in the cells from which data has been deleted before production.

3 | H. Non-Party Discovery 4 1. A party that issues a non-party subpoena (the “issuing party”’) shall include a copy || of this ESI Protocol Order with the subpoena.

6 2. The issuing party shall be responsible for producing any documents obtained || under a subpoena to all other parties.

8 3. If the non-party production is not Bates-stamped, the issuing party shall endorse || the non-party production with unique prefixes and Bates numbers prior to producing them to all || other parties.

11 || DATED: May 6, 2024 Respectfully submitted, 12 HAGENS BERMAN SOBOL SHAPIRO LLP 13 /s/ Steve W. Berman 14 Steve W. Berman (WSBA No. 12536) /s/ Theodore Wojcik Id Theodore Wojcik (WSBA No. 55553) 16 /s/Breanna Van Engelen 7 Breanna Van Engelen (WSBA No. 49213) /s/ Stephanie A. Verdoia 18 Stephanie A. Verdoia (WSBA No. 58636) 19 /s/ Xiaovi Fan 30 Xiaoyi Fan (WSBA No. 56703) 1301 Second Avenue, Suite 2000 21 Seattle, WA 98101 Telephone: (206) 623-7292 22 Facsimile: (206) 623-0594 Email: [email protected] 23 Email: [email protected] Email: [email protected] 24 Email: [email protected] 25 Email: [email protected] AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 Rio S. Pierce (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 2 715 Hearst Avenue, Suite 300 Berkeley, CA 94710 3 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 4 Email: [email protected] 5 Attorneys for Plaintiffs MCKENNA DUFFY and 6 MICHAEL BRETT g DATED: May 6, 2024. Respectfully submitted, VAN KAMPEN & CROWE PLLC DEBEVOISE & PLIMPTON LLP /s/ Al Van Kampen /s/ Abraham Tabaie Al Van Kampen (WSBA No. 13670) Abraham Tabaie (pro hac vice) 11 P.O. Box 33632 650 California Street Seattle, WA 98133 San Francisco, CA 94108 Telephone: (206) 441-1121 Telephone: (415) 738-5700 Email: [email protected] Email: [email protected] | VINSON & ELKINS LLP Maura K. Monaghan (pro hac vice) 14 Michael Schaper (pro hac vice) Michael W. Scarborough (pro hac vice) Kristin D. Kiehn (pro hac vice) 15 Dylan I. Ballard (pro hac vice) 66 Hudson Boulevard M. Kevin Costello (pro hac vice) New York, NY 10001 16 Madison Lo (pro hac vice) Telephone: (212) 909-6000 Mission Street, Suite 2000 Email: [email protected] 17 San Francisco, CA 94105 Email: [email protected] Telephone: (415) 979-6900 Email: [email protected] 18 Email: [email protected] Email: [email protected] Attorneys for Defendant Yardi Systems, Inc. 19 Email: [email protected] Email: [email protected] BAILEY DUQUETTE PC 20 Stephen Medlock (pro hac vice) /s/ Hozaifa Cassubhai 2200 Pennsylvania Avenue NW Hozaifa Cassubhai (WSBN No. 39512) Suite 500 West William Burnside (WSBN No. 36002) Washington, DC 20037 800 Fifth Ave, Suite 101-800 Telephone: (202) 639-6500 Seattle, WA 98104 Email: [email protected] Phone: (206) 225—2250 Fax : (866) 233-5869 Mackenzie Newman (pro hac vice) Email: [email protected] 1114 Avenue of the Americas [email protected] 32nd Floor New York, NY 10036 Attorneys for Defendant Calibrate Property %6 Telephone: (212) 237-0000 Management, LLC Email: [email protected] Attorneys for Defendant Bridge Property 28 Management, L.C.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN | CABLE HUSTON LLP FOGARTY LAW GROUP PLLC || Brian S. Epley /s/ Paul E. Fogarty Brian S. Epley (WSBA No. 48412) Paul E. Fogarty (WSBN No. 26929) || Jon W. Monson (WSBA No. 43912) 1904 Third Avenue, Ste 933 1455 SW Broadway, Suite 1500 Seattle, WA 98101 || Portland, OR 97201-3412 Telephone: (206) 441-0172 Telephone: (503) 224-3092 Email: [email protected] || Email: [email protected] Email: [email protected] NORTON ROSE FULBRIGHT US LLP Attorneys for Defendant Dalton Michael Swarztendruber (pro hac vice) || Management, Inc. 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 | SHOOK, HARDY & BACON L.L.P. Telephone: (214) 855-8067 [email protected] || /s/ Steven Rich Steven Rich (WSBA No. 48444) Eliot Turner (pro hac vice) || 701 Fifth Avenue, Suite 6800 1301 McKinney, Suite 5100 Seattle, WA 98104 Houston, TX 77010 || Telephone: (206) 344-7600 Telephone: (713) 651-5113 Email: [email protected] Email: [email protected] Ryan Sandrock (pro hac vice) Attorneys for Defendant Creekwood Property || 555 Mission Street, Suite 2300 Corporation San Francisco, CA 94105 || Telephone: (415) 544-1900 PERKINS COIE LLP Email: [email protected] 15 /s/ David A. Perez Attorneys for Defendant LeFever Mattson David A. Perez (WSBA No. 43959) || Property Management Elvira Castillo (WSBA No. 43893) Tiffany Lee (WSBA No. 51979) | K&L GATES LLP Marten King (WSBA No. 57106) 1201 Third Avenue, Suite 4900 || /s/ Christopher M. Wyant Seattle, WA 98101-3099 Christopher M. Wyant (WSBA No. 35561) Telephone: 206.359.6767 || Tyler Lichter (WSBA No. 51090) Email: [email protected] Fourth Avenue, Suite 2900 Email: [email protected] || Seattle, WA 98104 Email: [email protected] Phone: (206) 623-7580 Email: [email protected] || Fax: (206) 623-7022 Email: chris. [email protected] Adrianna Simonelli (WSBA No. 58472) 22 tyler. [email protected] 1120 NW Couch Street, Tenth Floor Portland, OR 97209-4128 || Lauren Norris Donahue (pro hac vice) Telephone: 503-727-2000 W. Madison St., Suite 3300 Facsimile: 503—727—2222 || Chicago, IL 60602 Email: [email protected] Telephone: (312) 372-1121 || Fax: (312) 827-8000 Attorneys for Defendant HNN Associates, LLC Email: [email protected] 26 STOKES LAWRENCE, P.S.

Derek Sutton (pro hac vice) || 301 Hillsborough St., Suite 1200 /s/ Valerie Walker Raleigh, NC 27603 Valerie Walker (WSBA No. 52584) || Telephone: (919) 743-7331 Mathew Harrington (WSBA No. 33276) AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN |) Fax: (919) 516-2122 1420 Fifth Avenue, Suite 3000 Email: [email protected] Seattle, WA 98101-2393 2 Telephone: (206) 626-6000 Attorneys for Defendant R.D. Merrill Real — Email: Valerie. [email protected] || Estate Holdings, LLC Email: [email protected] | GORDON REES SCULLY SPENCER FANE LLP MANSUKHANI, LLP 5 Jessica Nelson (pro hac vice) /s/ Todd A. Bowers Donald Heeman (pro hac vice) || Todd A. Bowers (WSBA No. 24638) 100 South Fifth Street, Suite 2500 Sth Avenue, Suite 2100 Minneapolis, MN 55402 || Seattle, WA 98104 Telephone: (612) 268-7006 Telephone: (206) 695-5197 Email: [email protected] || Email: [email protected] Email: [email protected] | ROETZEL & ANDRESS Attorneys for Defendant Manco Abbott, Inc. || Stephen W. Funk (pro hac vice) BRADLEY BERNSTEIN SANDS LLP South Main Street, Suite 400 |] Akron, OH 44308 /s/ Heidi B. Bradley Telephone: (330) 849-6602 Heidi B. Bradley (WSBA No. 35759) 12 Cell: (330) 819-5387 2800 First Avenue, Suite 326 Email: [email protected] Seattle, WA 98121 13 Telephone: (206) 337-6551 Attorneys for Defendant Summit Email: [email protected] || Management Services, Inc. /s/ Darin M. Sands 15 Darin M. Sands (WSBA No. 35865) 1425 SW 20" Ave., Suite 201 16 Portland, OR 97201 Telephone: (503)734—2480 17 Email: [email protected] 18 Attorneys for Defendant Morguard Management Company Inc. AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 ORDER 2 Based on the foregoing, IT IS SO ORDERED.

4 Dated this 7th day of May, 2024.

6 Robert S. Lasnik UNITED STATES DISTRICT JUDGE 1] AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 APPENDIX A 2 PRODUCTION FORMAT PROTOCOL 3 1. DEFINITIONS || The following definitions and terms shall apply in this APPENDIX A: 5 1. “Document” carries its broad meaning consistent with Fed. R. Civ. P. 34 and 6 includes ESI and hard copy/paper material. A draft or non-identical copy is a separate Document within the meaning of this term.

2. “EST” means electronically stored information, and carries a broad meaning 8 consistent with Fed. R. Civ. P. 34(a) and Fed. R. Evid. 1001.

9 3. “Extracted Text” means the text extracted from a Native File, and includes all 10 header, footer, and document body information.

4. “Load File” means a load utilization file, which 1s an electronic file containing information identifying a set of paper-scanned images or processed ESI, and 12 containing: (1) an indication of which individual pages or files constitute each Document, including attachments, and links to the Static Images associated with 13 each Document; (11) links to any Native Files, where native files are being produced, including attachments, associated with each Document; and (111) data 14 relevant to each individual Document, including extracted and user-created 15 Metadata and coded data.

16 5. “Metadata” means: (i) information associated with or embedded in a Native File that does not constitute the primary content region of the file; and (11) information 17 generated automatically by the operation of a computer or other information technology system when a Native File is created, modified, transmitted, deleted, 18 or otherwise manipulated by a user of such system.

19 6. “Native File” or “Native Format” refers to ESI that is produced in the format in 0 which it was maintained (e.g., an Excel document produced in .xls format would be produced in native format).

7. “OCR” means the optical character recognition file that is created by software 22 used in conjunction with a scanner that is capable of reading text-based documents and making such documents text searchable using appropriate 23 software.

24 8. “Producing Party” means the party producing Documents in response to any request for production of documents pursuant to Fed. R. Civ. P. 34(a) or for any other reason.

9. “Requesting Party” means the party receiving a production of Documents in 27 response to any request for production of document(s) pursuant to Fed. R. Civ. P. 38 34(a) or for any other reason.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 10. “Tmage(s)” means a representation of ESI produced by converting a Native File into a standard image format capable of being viewed and printed on standard document review systems. Tagged Image File Format (TIFF) and JPG images are 3 examples of Static Images.

4 OVERVIEW || The production format has four main components.

6 1. A directory containing images of every page of every Document in the 4 production, Bates-numbered sequentially. g 2. A directory containing Native Files for a subset of the Documents, each file named with the Bates number of the first page of the Document it represents and 9 the confidentiality designation, with no additional text beyond this, and with the same extension as the original Native File type of the Document.

3. A directory containing OCR or Extracted Text files, one file per Document, each 1] file named with the Bates number of the first page of the Document it represents 1 with no additional text beyond this, followed by “txt” suffix.

B 4. Load Files containing the Metadata for each Document in .DAT file format, and an image load file in .OPT format that provides relative links to every page of the 14 images associated with the documents referenced in the accompanying .DAT load file.

Il. FORMAT FOR PRODUCTION Commencement of Production.

The production of Documents shall proceed at such time, place, and in such sequence as allowed under the Federal Rules of Civil Procedure, as agreed to by the parties, or permitted by the Court.

General Format of Production.

71 Documents that are produced in these proceedings, whether originally stored in paper or electronic form, shall be produced in electronic image form, where reasonably feasible.

23 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, 1f such Documents are not susceptible to production in the format or methods of production addressed herein. In that event, the parties will meet and confer to discuss alternative production 27 . requirements, concerns, formats, or methods.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN || Production Format.

2 All documents shall be produced in the following formats when reasonably feasible: 3 1. Electronic Production of Paper Documents. Documents that are maintained in 4 paper format shall be scanned at 300 x 300 dots per inch (DPI) or greater resolution, in single-page Group IV TIFF format, and shall reflect the full and 5 complete information contained in the original Document. Hard copy Documents shall be produced with associated OCR files at the same time that the TIFF files 6 are produced and with a Load File that includes at least the following Metadata fields: Begin Bates; End Bates; Begin Family; End Family; Pages; TextPath; 7 Placeholder; File Extension; Custodian; All Custodians; Confidentiality; and g Redacted, as those fields are described in Section I, below. If color is material to the understanding of a document, the Requesting Party may request that a 9 document be re-produced in single-page color JPG image format. When subjecting physical documents to an OCR process, the settings of the OCR 10 software shall maximize text quality over process speed. Any settings such as “auto-skewing” or “auto-rotation,” should be turned on when documents are run 11 through the process. Paper Documents that contain fixed notes shall be scanned 12 with the notes affixed, if it can be done so in a manner so as not to obstruct other content on the document. If the content of the Document is obscured by the 13 affixed notes, the Document and notes shall be scanned separately.

14 2. Production of Electronically Stored Information (ESI). Unless otherwise specified, Document images shall be generated from electronic Documents as 15 single page Group IV TIFF images that reflect the full and complete information 16 contained on the original Document. If color is material to the understanding of a document, the Requesting Party may request that a document be re-produced in 17 singe-page color JPG image format. In the event a Document is redacted, the Producing Party shall withhold the redacted text for that Document. The failure to 18 withhold such text for a redacted Document by a Producing Party shall not be 19 deemed a waiver of the privilege associated with that Document.

20 3. File Structure. The Producing Party shall produce the following sets of files with each production.

71 a. Image Load File.

22 (1) Every document referenced in a production image load file must 3 have all corresponding images, text and metadata.

24 (2) The name of the image load file must mirror the name of the delivery volume and should have an .OPT file extension.

25 (3) The volume names must be reasonably consecutive (e.g. ABC001, ABC002...).

7 (4) The load file must contain one line per image.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN ] (5) Every image in the delivery volume must be contained in the image load file. (6) The image key must be named the same as the Bates number of the 3 image.

4 (7) Load files must not span across media.

5 (8) File should be placed in the root directory or a folder labeled “DATA.”

4 a. Metadata Load File. (1) Each production has one load file, in “Concordance” style .DAT 8 format. ? (2) Values must be enclosed by b (ASCII Decimal 254). (3) Values must be separated by the “Device Control 4” character, 11 ASCII decimal 20.

12 (4) The first line of the load file must contain the column/field names 13 (5) The fields Begin Bates and End Bates must be present, and the first 14 fields listed in the load file.

15 (6) The field NativePath must be present if native files are included in the document production. (7) Each subsequent row must contain the Metadata for one 17 Document.

18 (8) Every row must have the same number of columns/fields (empty 19 values are acceptable).

0 (9) Text must be encoded in UTF-8.

1 (10) File should be placed in the root directory or a folder labeled “DATA.” b. OCR and Extracted Text Files (TXT Files). (1) A single text file for each Document containing all the Document’s 24 pages, in text.

25 (2) Filenames should be of the form: <Bates num>.txt, where <Bates num> is the Bates number of the first page of the Document.

27 (3) Text must be encoded in UTF-8.

28 (4) AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 (5) Files should be placed in a directory labeled “TEXT.”

2 c. Image Files.

3 (1) Single-page Group IV TIFF or JPG images for each Document, 4 containing all images for that document.

5 (2) Filenames should be of the form: <Bates num>.<ext>, where <Bates num> is the BATES number of the first page of the 6 document (1.e., the “Begin Bates” number), and <ext> is the 4 appropriate extension for the image format (tif, jpg). g (3) Files should be placed in the “IMAGES” subdirectory.

9 4. Illegible Documents. The Producing Party and the Requesting Party shall meet and confer to attempt to resolve problem(s) related to documents that cannot be 10 read because of imaging or formatting problems, or because they are password- protected, shall be promptly identified by the Requesting Party.

1] a. Native Format Documents. The parties recognize that it may be 12 appropriate for certain Documents to be produced in Native Format, such B as spreadsheets, engineering drawings, presentations or slides, and audio and video files. In all cases, unless there is no textual content, an OCR or 14 Extracted Text file shall be produced along with the Native File. The parties agree to meet and confer regarding the production of certain file 15 types in native format where necessary.

16 b. Excel and Access Databases. To the extent that responsive documents exist in Excel or another spreadsheet program, documents shall be V7 produced in Native Format, or a format agreed to by the parties. To the 18 extent that the document format constitutes a database created or maintained in Access or another database program, Documents shall be 19 produced in their Native Format, or in a format agreed to by the parties, where reasonably feasible. If a database is based upon proprietary 20 software, the parties shall meet and confer regarding the format of production, which shall be a reasonably feasible format, to enable review by the Receiving Party. An image placeholder shall be provided for each 22 document produced in Native Format. Each placeholder shall contain the phrase “DOCUMENT PRODUCED IN NATIVE FORMAT,” or 23 something similar, and shall be stamped with confidentiality designation 34 and the Bates number corresponding to the native file. c. PowerPoint Presentations (PPT). PPT presentations should be produced in 25 Native Format (e.g., as .PPT files). PPT presentations that require redactions shall be produced in single-page TIFF or JPG format, along with speaker notes. The linked native file name should also match the 27 Begin Bates field with the appropriate file extension. Any hidden slides or speakers notes should be included in PPT presentations.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 d. Password-Protected, Encrypted or Proprietary-Software Files: With respect to any ESI items that are password-protected or encrypted within 2 the scope of review, the Producing Party will take reasonable steps to 3 request passwords from custodians to remove the protection and produce an unencrypted version of the file. In the event that encrypted or 4 password-protected documents, which are reasonably likely to be responsive to a document request, remain for a particular custodian after 5 such reasonable efforts have been made, the Producing Party shall advise the Requesting Party. To the extent that the Requesting Party would need 6 to use proprietary software to view certain ESI, the Parties agree to meet 7 and confer regarding the next steps, if any, with respect to such ESI. g e. Audio and Video Data. Parties should make best efforts to ensure care is taken for collection and production of any responsive audio and/or video 9 data, and to preserve any Metadata that may be associated with those items. These data types may be stored in audio or video recordings, 10 voicemail text messaging, and related/similar technologies. f. Word Documents (or similar). Microsoft Word documents (.DOC, 12 -.DOCX, or substantially similar non-Microsoft file formats) should be produced in single-page TIFF or JPG format for each Document, 13 containing all images for that document, and should be imaged in a manner that captures tracked changes and comments. Upon the request of 14 the Requesting Party, documents with tracked changes and comment shall 15 be re-produced in color JPG image format. To the extent a Requesting Party believes the converted image format distorts, omits, or causes 16 information to be improperly displayed, the Requesting Party may request the Document in Native Format and the Producing Party shall meet and 17 confer to attempt to resolve the problem(s).

18 g. To the extent the Producing Party produces a Document in Native Format, 19 the following specifications apply: 0 (1) Filenames must be unique in the production, unless the content is identical. Files should be named for the starting Bates number of 71 the associated Document.

22 (2) The filename must retain the file extension corresponding to the original Native Format (e.g., an Excel 2003 spreadsheet’s 23 extension must be .xls).

24 5. Color. For any non-native documents where color is material to the understanding 25 of the document or parts thereof (e.g., pie and bar charts), the document shall be, at the request of the Requesting Party, re-produced as single page color JPG 26 images, or documents that need to be produced in color may be produced in native format. Otherwise, non-native document images may be produced in black 27 and white.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN 1 6. Production Media. A Producing Party may produce Documents electronically (via secure FTP, for example), or on an external hard drive, DVD, CD-ROM, or such 2 other readily accessible computer or electronic media as the Producing Party and 3 the Requesting Party may hereafter agree upon (the “Production Media”).

Production Media should be labeled on its face with the production date, the 4 production volume, the Bates range contained on the Production Media, and any confidentiality notation that may be required by the Protective Order entered in 5 this case. Where not practicable to label Production Media on its face, a letter or email with the required information should be provided. If the Producing Party 6 encrypts or “locks” the production, the Producing Party shall include, under 7 separate cover, instructions regarding how to decrypt the files, and any necessary passwords.

7. Document Unitization. When scanning paper documents into Document images, 9 they shall be unitized in a manner to maintain the Document(s) and any attachments as they existed in their original state, as reasonably feasible. Any 10 applicable folder structure information should also be provided. Responsive ll attachments to e-mails stored shall be produced contemporaneously and sequentially immediately after the parent e-mail.

2 8. Duplicates. A Producing Party who has more than one identical copy of an 13 electronic Document (1.¢., the Documents are actual duplicates) need only produce a single copy of that Document if the documents do not have any 14 attachments. Document families that are exact duplicates on the family level may 15 only be deduplicated when the parent email/document and all attachments are exact duplicates. For avoidance of doubt, a Producing Party may de-duplicate 16 actual duplicate documents across custodians, but all custodians should be identified in the All Custodians and duplicate file paths shall be identified in the 17 All Paths metadata fields.

18 9. Bates Numbering. Each Producing Party shall Bates number its production(s) as follows: a. Each Bates number should consist of a unique identifier consisting of a 20 prefix, followed by nine numbers (e.g., ABC000000001). The prefix 21 should be substantially similar for all pages produced by the same Producing Party throughout this litigation, and the bates sequence shall not 22 contain spaces. Each page of a Document must have its own Bates 33 number, and Bates numbers should be sequential. b. Document Images. Each page of a produced Document shall have a 24 legible, unique page identifier (Bates number) electronically “burned” 5 onto the image at a location that does not unreasonably obliterate, conceal, or interfere with any information from the source Document. No other 26 legend or stamp should be placed on the document other than a confidentiality designation (where applicable), a privilege designation, or 27 a redaction stamp (where applicable). For confidential documents the 28 confidentiality designation shall be “burned” onto each Document’s image AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN at a location that does not unreasonably obliterate or obscure any information from the source Document.

3 c. Native Format Documents. In order to preserve the integrity of any Native Format Documents that will be produced, no Bates number, 4 confidentiality legend or redaction information should be added to the content of the Native Format Document. Each native should have an 5 individual Bates number assigned in the file name.

6 If documents cannot be rendered to a readable TIFF/JPG format, and the document needs || to be redacted for personally identifiable information or privileged content, the native documents || may be redacted by creating a new copy of the native document and inserting “Redacted” or || similar language where the protected content is located. In that circumstance, a copy of the || original native file will be maintained and the party will identify documents redacted in native || format in the Redacted metadata field.

Hl. METADATA FIELDS A. For scanned hard copy documents, the Producing Party will provide the Metadata 13 fields below, to the extent reasonably feasible.

14 | FIELD NAME FIELD DESCRIPTION ||| Begin Bates The production Bates number associated with the first page of a Document.

16 ||| End Bates The production Bates number associated with the last page of a Document.

7 BeginFamily Begin Bates number of first page of the parent Document of family 18 of attachments.

EndFamily End Bates number of the last page of last attachment to a family of 19 Documents.

20 Total number of pages in the Document.

Link to text file for the document.

21 Placeholder Identifies a Document has a placeholder image (Y/N).

The extension of the file.

Identification of the custodian(s) from whom the file was sourced.

23 All Custodians Identification of all custodians of the document.

94 ||| Confidentiality Confidentiality designation. (Y/N) field that identifies whether the document is redacted.

23 Production Volume Production volume number (e.g., VOL001, VOL002, etc.).

26 ||| Producing Party Name of party producing the Document.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN | B. For ESI and documents that were originally stored in electronic format, all fields below should be provided, to the extent reasonably feasible. Unless otherwise agreed 2 by the parties, the field-naming conventions shall be as stated below, and shall be consistently applied across all productions: FIELD NAME FIELD DESCRIPTION Begin Bates The production Bates number associated with the first page of a 5 Document.

End Bates The production Bates number associated with the last page of a 6 Document.

BeginFamily Begin Bates number of the first page of parent Document of family 7 of attachments. g EndFamily End Bates number of the last page of last attachment to a family of Documents.

9 Number of document attachments.

10 Identification of the custodian(s) from whom the file was sourced.

All Custodians Identification of all custodians who the Producing Party agreed to 11 produce and where a duplicate of the Document was de-duplicated when processing the documents.

12 File Path The file path from which the document was collected All Paths If the Producing Party engages in deduplication, then Identification of all file paths for duplicate copies ||} Author Author field extracted from the Metadata of a Document or other creator identified for the Document.

15 From field extracted from the Metadata of an email message.

16 To field extracted from the Metadata of an email message.

Cc field extracted from the Metadata of an email message.

7 Bec field extracted from the Metadata of an email message.

18 Total number of pages in the Document.

9 Datetime received (MM/DD/YYYY HH/MM/SS).

Datetime sent (MM/DD/YYYY HH/MM/SS).

20 Datetime created (MM/DD/YYYY HH/MM/SS).

Date Modified Datetime that a Document was last modified (MM/DD/YYYY 21 HH/MMISS).

22 |}| Last Modified By Identification of person(s) who last modified a Document.

Message Id Unique Message Id. 23 In Reply To Message ID of email that instant email is in reply to.

24 Title field value extracted from the Metadata of the Native File.

95 Subject line extracted from an email, e-document or e-attachment.

The full name of the Native File.

26 The extension of the file.

7 The size of the file in bytes.

MDS Hash The MDS hash value of a Document.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN ||| FIELD NAME FIELD DESCRIPTION , || Document Type Application Name of the application used to open the file.

3 Il NativePath The relative path to the native file for this Document.

4 The relative path to the text file for this Document.

Whether a Document has redactions (Y/N).

5 Placeholder Whether a Document has a placeholder image (Y/N).

6 ||| Confidentiality Level of Confidentiality assigned.

Track Changes Document has track changes (Y/N).

Hidden Content Identifies documents with hidden content (7.e., hidden rows, 8 columns, sheets, or slides).

Speaker Notes Document has speaker notes (Y/N).

9 Indicates there are comments in the document.

10 ||| Production Volume Production volume number (e.g., VO01, V002, etc.).

Producing Party Name of party producing the Document.

AGREEMENT RE DISCOVERY OF ELECTRONICALLY STORED HAGENS BERMAN