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W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico

2013 WL 1352562 (D.P.R. 2013)

April 3, 2013

McGiverin, Bruce J., United States Magistrate Judge

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Summary

The court outlined the protocols for the production of ESI from the Federal Deposit Insurance Corporation in its capacity as receiver of Westernbank Puerto Rico. This included initial disclosures and requests for production, production method, form of production, data culling, and duplicates. The parties must also use industry standard MD5 or SHA–1 hash values and meet and confer in good faith about any other technology or process used.

Additional Decisions

W HOLDING COMPANY, INC., et al., Plaintiffs,
v.
CHARTIS INSURANCE COMPANY OF PUERTO RICO, Defendant,
Federal Deposit Insurance Corporation, as receiver of Westernbank Puerto Rico, Plaintiff–Intervenor,
v.
Frank Stipes Garcia, et al., Cross–Claim Defendants,
Chartis Insurance Company of Puerto Rico, Previously–Joined Defendant,
and
Marlene Cruz Caballero, et al., Additional Defendants

Civil No. 11–2271 (GAG/BJM)

United States District Court, D. Puerto Rico

April 03, 2013

Counsel

Carlos A. Lazaro–Castro, Raul Gonzalez–Toro, San Juan, PR, Andres Rivero, Alan H. Rolnick, Charles E. Whorton, Rivero Mestre, LLP, Miami, Maria Paula Aguila, Rivero Mestre, Coral Gables, FL, for Plaintiffs.
Carey L. Menasco, Elizabeth L. Baer, Pro Hac Vice, Erin L. Delatte, George Denegre Jr., James A. Brown, Liskow & Lewis, PLC, New Orleans, LA, Larry L. Goodman, Federal Deposit Insurance Corporation, Arlington, VA, Linette Figueroa–Torres, Manuel Fernandez–Bared, Jane P. Van Kirk, Toro, Colon, Mullet, Rivera & Sifre, PSC, San Juan, PR, for Plaintiff–Intervenor.

McGiverin, Bruce J., United States Magistrate Judge

ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED INFORMATION FROM FDIC–R

I. Preamble and Definitions

*1 For the reasons stated in the accompanying opinion, the parties to this action are hereby ordered to comply with the following as a default protocol for obtaining certain electronically stored information (“ESI”) from the Federal Deposit Insurance Corporation in its capacity as receiver of Westernbank Puerto Rico (“FDIC–R”). FDIC–R and any other party may privately agree to alter these terms as permitted by Fed.R.Civ.P. 29(b). In the absence of agreement, however, this order will control until it is amended or vacated by the court.

The following terms are given special meanings:

Native File means ESI in the electronic format of the application in which such ESI is normally created, viewed, and/or modified. Native Files are a subset of ESI.

Metadata means (i) information embedded in a Native File that is not ordinarily viewable or printable from the application that generated, edited, or modified such Native File; and (ii) information generated automatically by the operation of a computer or other information technology system when a Native File is created, modified, transmitted, deleted, or otherwise manipulated by a user of such system. Metadata is a subset of ESI.

Static Image means a representation of ESI produced by converting a Native File into a standard image format capable of being viewed and printed on standard computer systems. In the absence of agreement of the Parties or order of Court, a Static Image should be provided in Tagged Image File Format (TIFF, or .TIF files). If a TIFF or .TIF file cannot be created, then the Static Image should be provided in Portable Document Format (PDF). If Load Files were created in the process of converting Native Files to Static Images, or if Load Files may be created without undue burden or cost, Load Files shall be provided as set forth in Part III.D.

Load File means the file necessary to load data into a reviewable database. A load file can, for example, specify what individual pages belong together as a document, what attachments are included with a document, where a document begins and ends, and what metadata is associated with a document.

DMS Data means ESI in the following “DMS iConnect” databases identified by FDIC–R:

WT ADP PC Payroll Employee Master 44

WT AFS ImageVision Additional Images (Checks/Returns/Lockbox) 55

WT AFS ImageVision Check Images 46_1

WT AFS ImageVision Check Images 46_2

WT AFS Return and Lockbox Check Images 54

WT Data Select CLCS Customer Master 15

WT Data Select CLCS Loan Master 16

WT Data Select CLCS Loan Participation Master 17

WT Data Select CLCS Loan Transaction History 18

WT Email Database

WT Email Database 2

WT Fiserv Signature Customer Master 1

WT Fiserv Signature Deposit Master 6

WT Fiserv Signature Deposit Master Additional Details 7

WT Fiserv Signature Deposit Transaction History 8_1

*2 WT Fiserv Signature Deposit Transaction History 8_2

WT Fiserv Signature GL Master 13

WT Fiserv Signature GL Transaction History 14

WT Fiserv Signature Loan Collateral 5

WT Fiserv Signature Loan Master 2

WT Fiserv Signature Loan Master Additional 52

WT Fiserv Signature Loan Part Tran History 53

WT Fiserv Signature Loan Participation 3

WT Fiserv Signature Loan Transaction History 4

WT Fiserv Signature Safety Deposit Box Master 11

WT Fiserv Signature Safety Deposit Box Transaction History 12

WT Fiserv Signature Time Deposit Master 9

WT Fiserv Signature Time Deposit Transaction History 10

WT Forensic Data 2

WT Forensic Data Email

WT Forensic File Inventories

WT GFI MailArchiver Email

WT GFI MailArchiver Email Part2

WT INQ MortgageWare Loan Applications 19

WT INQ MortgageWare Loan Applications Custom Fields 1 20

WT INQ MortgageWare Loan Applications Custom Fields 2 21

WT Investigations Master Inventory

WT Metavante Metaviewer Reports Deposit Loan Wires others 45

WT Microsoft Access AP Transaction History 38

WT Microsoft Access AP Vendor Master 37

WT Microsoft File Shares and Miscellaneous Documents 51

WT Scanned Documents

WT Scanned Documents 2

WT TPG Derivative Genius CUSIP Buckets 42

WT TPG Derivative Genius General Ledger 43

WT TPG Derivative Genius Investment Portfolio 39

WT TPG Derivative Genius Investment Positions 41

WT TPG Derivative Genius Investor Instruments 40

WT TSC Trust Account Management 31

WT TSC Trust Account Plan Amendments 35

WT TSC Trust Account Plan Master 30

WT TSC Trust Account Plan Status 33

WT TSC Trust Account Withdrawal Transactions 34

WT TSC Trust Financial Reports (AP others) 36

WT TSC Trustee Payouts 32

WT T–Sys DXR Reports Statements Charge-offs others 50

WT William Stuckey NT–ABL Asset Customer Credit Lines 23

WT William Stuckey NT–ABL Asset Customer Master 22

WT William Stuckey NT–ABL Asset Loan Daily Status 28

WT William Stuckey NT–ABL Asset Loan Interest Rates 25

WT William Stuckey NT–ABL Asset Loan Limits 26

WT William Stuckey NT–ABL Asset Loan Master 24

WT William Stuckey NT–ABL Asset Loan Reduction Schedule 27

WT William Stuckey NT–ABL Asset Loan Transaction History 29

(See Docket No. 391–1, p. 12–13).

Westernbank/Inyx Data means the Inyx bankruptcy ESI identified by FDIC–R from the following sources and with the following Bates codes:

Image: https://ediscoveryassist.s3.amazonaws.com/uploads/images/UAPLWOKR_W_Holding.png

*3 (See Docket No. 391–1, p. 14).

II. Initial Disclosures and Requests for Production

Absent contrary agreement, FDIC–R must produce the documents identified in its Rule 26 initial disclosures, as well as the Westernbank/Inyx Data, in the way specified in part III. To the extent FDIC–R is obligated to supplement its initial disclosures, it is likewise obligated to supplement production under this part.

To obtain production from searchable DMS Data, the requestor must propose initial parameters for a query, such as search terms, databases, and fields of metadata to be searched. FDIC–R and the requestor must reasonably cooperate to reach an agreement on a query that will satisfy the request. FDIC–R's cooperation must include, but is not limited to, offering hit reports and suggesting alternative queries that better meet the request. The requestor's cooperation must include, but is not limited to, identifying specific complaints about queries and suggesting alternatives. FDIC–R will then produce all non-privileged data resulting from the agreed-upon query, subject to the terms in the following sections.

Requests for production of any other data—including non-searchable DMS Data, physical documents, and other sources of ESI—are not governed by this part.

III. Production Method

A. Form of Production for Email

All electronic email from Windows–Based ESI (“WESI”) shall be produced as Static Images complete with full text extracts and the following fields of metadata, to the extent the metadata is available:

1. Custodian (Name of Custodian from which file is being produced);

2. Other Custodians (Name(s) of custodian(s) who had exact copy of message before de-duplication);

3. Author (FROM field);

4. CC;

5. BCC;

6. Recipient (TO field);

7. MD5 Hash Value or Equivalent;

8. Date Sent (Date the email was sent);

9. Date Received (Date the file was received);

10. Time Sent (Time the email was received);

11. Time Received (Time the email was received);

12. File Type (Application used to create the file);

13. Page Count;

14. File Ext (Extension for the file);

15. PST Name;

16. Body Text (Extracted text);

17. Bates Begin (Beginning Production Number);

18. Bates End (Ending Production Number);

19. Attach Begin (Beginning Attachment Range Number);

20. Attach End (Ending Attachment Range Number).

Electronic mail shall be produced along with attachments to the extent the message and/or any attachment is responsive, relevant and not privileged. As a general matter, subject to specific review, a message and its attachments(s) shall not be withheld from production based on the fact that one or more attachments are privileged, irrelevant or non-responsive. To the extent the message and/or one or more attachments is privileged or non-responsive, the responsive, non-privileged documents shall be produced along with placeholders indicating whether the individual record was withheld as non-responsive or privileged.

B. Form of Production for Other WESI

*4 All other WESI (including attachments to electronic mail) shall be produced as Static Images complete with full text extracts and the following fields of metadata, to the extent the metadata is available:

1. Custodian (Name of Custodian from which file is being produced);

2. Other Custodians (Name(s) of custodian(s) who had exact copy of file before de-duplication);

3. Author;

4. Doc Title (Title of file from properties);

5. Doc Subject (Subject of file from properties);

6. Created Date (Date the file was created);

7. Created Time (Time the file was created);

8. Last Modified Date (Date the file was last modified);

9. Last Modified Time (Time the file was last modified);

10. Last Saved By (Name of user who last saved the file);

11. File Type (Application used to create the file);

12. Doc Type;

13. Page Count;

14. File Ext (Extension for the file);

15. Path (Full path of the original location where the file was located);

16. MD5 Hash (MD5 hash value of the original native file);

17. Body Text (OCR for paper data or Extracted text for all ESI);

18. Bates Begin (Beginning Production Number);

19. Bates End (Ending Production Number);

20. Attach Begin (Beginning Attachment Range Number);

21. Attach End (Ending Attachment Range Number).

C. Form of Production for Spreadsheets

ESI in the form of spreadsheets shall be produced in native format. There will be a static image placeholder within the final Bates-numbered set, stating that the document will be produced natively. The file name of the placeholder will be changed to reflect the static image's Bates number for cross-reference purposes. These documents will be accompanied with the appropriate load files indicating a cross reference to the Bates numbered Static Image.

D. Load Files

All WESI shall be produced along with an IPRO, Opticon, or Summation DII load file indicating Bates numbers and document breaks. Metadata shall be produced in Concordance DAT file format, DII format and summary text file for Summation, or XML format and extracted full text shall be provided in TXT file format at the document level. Non–Windows–Based Applications and Data shall be subject to the same production requirements to the extent technically and legally feasible.

E. Data Culling

The following file types shall be processed for production:

Image: https://ediscoveryassist.s3.amazonaws.com/uploads/images/PAMYBMFX_W_Holding_2.png

Image: https://ediscoveryassist.s3.amazonaws.com/uploads/images/LIIEDPHN_W_Holding_3.png

F. Duplicates

*5 To avoid the production of more than one copy of a particular unique item, the Parties shall use industry standard MD5 or SHA–1 hash values within (1) all emails identified for production, and (2) all loose files identified for production. The Parties will not de-duplicate attachments to emails against loose files.

G. Other Methods to Streamline Discovery

The Parties shall meet and confer in good faith about any other technology or process that a producing party proposes to use to streamline the culling, review and production of ESI (e.g., email threading, near de-duplication, technology assisted review). The Parties shall make reasonable good faith efforts to resolve any objections to the use of such technology or process before seeking relief from the court.

H. Production Media

Documents shall be produced on external hard drives or readily accessible computer or electronic media, e.g., CDs or DVDs, or by FTP upload (“Production Media”). All Production Media should have the following four directories: (1) IMAGES for the images; (2) DATA for the .dat and .opt files; (3) TEXT for the extracted text/OCR files; and (4) NATIVES for the native Excel files. The Production Media shall identify: (a) the producing party's name; (b) the production date; and (c) the Bates Number range of the materials contained on the Production Media.

I. Color

Where the original of a produced document is in color, and color is material to the interpretation of the document, the receiving party may request that the document be produced in color (whether electronic or paper).

J. Physical Documents

Documents that exist solely in physical hard-copy format shall be converted and produced following the same protocols outlined above. The metadata shall indicate document breaks and identify the custodian from whom the document was collected. The “.tiff” files shall be subject to an Optical Character Recognition (“OCR”) process.

K. Inaccessible Data

The Parties need not collect documents stored on disaster recovery backup tapes unless a showing of specific need is made.

IV. Labeling

To the extent that the production reasonably preserves the organization by which Westernbank's documents were “kept in the usual course of business,” FDIC–R may furnish production without further review or labeling. Otherwise, FDIC–R must organize and label its production to correspond to the categories in the request. See Fed.R.Civ.P. 34(b)(2)(E)(i).

V. Claw–Back

Producing any ESI or documents for inspection shall be without prejudice to any claim that said ESI or documents are protected by the attorney-client privilege, work product doctrine, or any other applicable privilege or basis for withholding production. Upon demand, the receiving party shall return any such inadvertently produced ESI or documents subject to a privilege claim, including all copies thereof, to the producing party. To the extent that the parties disagree over the application of these principles to any such production or challenge the privileged nature of such material, the receiving party shall not make use of the material in question until the matter is resolved by the Court.

*6 This order does not reduce the claw-back protections afforded by any other rule, such as Fed.R.Evid. 502 or Fed R. Civ. P. 26(b)(5)(B).

VI. Conclusion

This order does not alter the obligation under Local Rule 26(b) to make a “reasonable and good faith effort to reach an agreement” before bringing discovery disputes to the court. Moreover, the parties and their attorneys can expect stiff monetary and other sanctions to be imposed against the losing party in any discovery-related motions. See Fed.R.Civ.P. 37.

IT IS SO ORDERED.