The procedures set forth in this Protocol specify and outline the process for the “inspection” of the images in the Parties' databases as provided for by the ESI Protocol (Dkt No. 81) at § E(4).[1] First, the Party invoking its rights (the “Requesting Party”) will request images from the opposing party (the “Opposing Party”). Second, the Opposing Party will produce copies of all existing images that are in, called by, or have ever been called by, its Discoverable Databases (as defined in the ESI Protocol), including without limitation the live Discoverable Databases, all historical versions of the Discoverable Databases and all historical backups that are available (hereinafter the “Image Library”) and certain associated data for each image (the “Associated Data”). Third, the Requesting Party may use digital-matching software, manual review, and/or other methods in order to inspect the Image Library. This Protocol is designed and shall be interpreted to ensure that each Party is able to exercise its rights to review all of the images of commercial real estate maintained by the other Party, as set forth in the ESI Protocol, effectively and in a cost-efficient manner, while protecting the other Party's property rights and confidentiality.

The Parties shall confer to resolve any disputes that arise under this Protocol. If any Party objects to any action(s) taken by another Party in relation to this Protocol, the objecting Party shall state the specific objection in writing to counsel for such other Party. If a dispute cannot be resolved by the Parties, it shall be presented to the Special Master for resolution in accordance with the Order Appointing Special Master (Dkt. No. 103) and each Party reserves all rights under the Order Appointing Special Master, including the right to file objections to, or a motion to adopt or modify, any order, report, or recommendation of the Special Master relating to disputes that arise under this Protocol.

The Parties reserve all rights under the Federal Rules of Civil Procedure for matters relating to the Image Inspection Protocol that are not specifically addressed in this Protocol. The Parties also reserve the right to modify or vary this protocol by written agreement of the Parties or by Order of the Special Master or the Court.

*2 The Parties currently envision hiring third-party vendors to assist in the production of the Image Library and any inspection of the Image Library. Each Party will be permitted to select its own vendor to aid in the production of the Image Library and inspection of the Image Library so long as the vendor has experience in the area of digital image matching. After the Requesting Party retains an image-matching vendor (the “Vendor”) and the Requesting Party is ready to commence its request for production, the Requesting Party will provide the name and contact information for the Vendor. The Opposing Party will then have five (5) business days to lodge any objections to the use of the Vendor. In the event of any objections, such objections shall be settled in accordance with Section A.2 of this Protocol. If the Opposing Party does not object to the use of the Vendor or such objections are overruled, all individuals associated with the Vendor who will have access to the Image Library or Associated Data will agree to be bound by Protective Order Governing Confidential Information (Dkt. No. 38) (“Protective Order”) and will sign the Acknowledgement and Agreement to be Bound attached to the Protective Order as Exhibit A (“Acknowledgement”). A copy of each signed Acknowledgement shall be provided to counsel for the Opposing Party.

After the Acknowledgement is signed, the Requesting Party will send a formal request to counsel for the Opposing Party for such Party's Image Library (or a subset thereof) to be produced. Within 21 days, the Opposing Party will work with the Vendor to provide to the Vendor the requested Image Library via secure FTP or such secure transfer mechanism (such as Amazon S3 cloud storage) as the Parties subsequently agree. The images in the Image Library will be produced to the Vendor in native format to the extent available. All communications between the Opposing Party and the Vendor will include counsel from both the Requesting Party and the Opposing Party.

Simultaneous with the production of the Image Library, in addition to the production of the images in native format, the Opposing Party shall provide a spreadsheet with the following Associated Data for each image contained in the Image Library, insofar as that data is available and readily accessible: (1) unique image identifier; (2) photographer name; (3) image shot date; (4) image upload date; (5) individual who uploaded image; (6) attachment extension; (7) image source; (8) file name; (9) file path; (10) MD5 checksum; (11) property name; and (12) complete address.

The images in the Image Library will be marked as “Confidential” under the terms of the Protective Order and the spreadsheet containing the Associated Data will be marked as “Highly Confidential” under the terms of the Protective Order.

The Vendor will be treated for all purposes as an undisclosed consulting expert pursuant to Federal Rule of Civil Procedure 26(b)(4)(D). For the avoidance of doubt, the Opposing Party may not subpoena or depose the Vendor, and may not make any other formal or informal request of the Vendor during the course of the litigation. The only exception to this provision is that should the Requesting Party choose to disclose someone employed by or otherwise associated with the Vendor as a testifying expert witness pursuant to Rule 26(b)(4)(A), then the relevant discovery rules for testifying expert witnesses shall then apply.

Absent further agreement by the Parties, the Image Library and Associated Data provided by the Opposing Party for inspection will be destroyed within sixty days of the final disposition of this litigation (other than portions of back-up tapes or other archived electronic material, which should be destroyed in accordance with standard retention policies). The Requesting Party must submit a written certification to the Opposing Party by the 60-day deadline that (a) identifies by category all the images or data that was destroyed by it and the Vendor and (b) affirms that the Requesting Party and the Vendor have not retained any copies, reproductions, or captures of the Image Library, Associated Data, or any images or data contained therein (other than portions of back-up tapes or other similar archived electronic material, which should be destroyed in accordance with standard retention policies).

*3 All costs on the Requesting Party for its Vendor and for any inspection of the Image Library shall be borne by the Requesting Party except that the Opposing Party's cost in preparing the images for its production to the Vendor shall be borne by the Opposing Party.

IT IS SO ORDERED.