The parties hereby stipulate to the following provisions regarding the discovery of
electronically stored information (“ESI”) in this matter and move for entry of an order:
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.
B. ESI Disclosures
Within 30 days of entry of this Order, or at a later time if agreed to by the parties, each
party shall disclose:
1. Custodians. The five custodians for each game (Big Fish Casino and Jackpot Magic
Slots) most likely to have discoverable ESI in their possession, custody, or control. The custodians
shall be identified by name, title, connection to the instant litigation, and the type of the information
under the custodian’s control.
2. Non-custodial Data Sources. A list of non-custodial data sources (e.g., shared
drives, servers), if any, likely to contain discoverable ESI.
3. Third-Party Data Sources. A list of third-party data sources, if any, likely to contain
discoverable ESI (e.g., third-party email providers, mobile device providers, cloud storage) and,
for each such source, the extent to which a party is (or is not) able to preserve information stored
in the third-party data source.
4. Inaccessible Data. A list of data sources, if any, likely to contain discoverable 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).
5. Foreign data privacy laws. Nothing in this Order is intended to prevent either party
from complying with the requirements of a foreign country’s data privacy laws, e.g., the European
Union’s General Data Protection Regulation (GDPR) (EU) 2016/679. The parties agree to meet
and confer before including custodians or data sources subject to such laws in any ESI or other
discovery request.
C. ESI Discovery Procedures
1. On-site inspection of electronic media. Such an inspection shall not be required
absent a demonstration by the requesting party of specific need and good cause or by agreement
of the parties.
2. 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 (including
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.
a. Prior to running searches:
i. The producing party shall disclose the data sources (including
custodians), search terms and queries, 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 each search query.
ii. After disclosure, the parties will engage in a meet and confer process
regarding additional terms sought by the non-producing party.
iii. The following provisions apply to search terms / queries of the
requesting party. Focused terms and queries should be employed; broad terms or queries, such as
product and company names, generally should be avoided. A conjunctive combination of multiple
words or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single
search term. A disjunctive combination of multiple words or phrases (e.g., “computer” or
“system”) broadens the search, and thus each word or phrase shall count as a separate search term
unless they are variants of the same word. 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.
3. Format.
a. ESI will be produced to the requesting party with searchable text, in a
format to be decided between the parties. Acceptable formats include, but are not limited to, native
files, multi-page TIFFs (with a companion OCR or extracted text file), single-page TIFFs (only
with load files for e-discovery software that includes metadata fields identifying natural document
breaks and also includes companion OCR and/or extracted text files), and searchable PDF.
b. Unless otherwise agreed to by the parties, files that are not easily converted
to image format, such as spreadsheet, database, and drawing files, will be produced in native
format.
c. Each document image file shall be named with a unique number (Bates
Number). File names should not be more than twenty characters long or contain spaces. When a
text-searchable image file is produced, the producing party must preserve the integrity of the
underlying ESI, i.e., the original formatting, the metadata (as noted below) and, where applicable,
the revision history.
d. If a document is more than one page, the unitization of the document and
any attachments and/or affixed notes shall be maintained as they existed in the original document.
e. The parties shall produce their information in the following format: singlepage images and associated multi-page text files containing extracted text or with appropriate
software load files containing all information required by the litigation support system used by the
receiving party.
4. De-duplication. The parties may de-duplicate their ESI production across custodial
and non-custodial data sources after disclosure to the requesting party.
5. Email Threading. The parties 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. Upon reasonable request, the producing party will produce a
less inclusive copy.
6. Metadata fields. If the requesting party seeks metadata, the parties agree that only
the following metadata fields need be produced, and only to the extent it is reasonably accessible
and non-privileged: document type; custodian and duplicate custodians (or storage location if no
custodian); author/from; recipient/to, cc and bcc; title/subject; email subject; file name; file size;
file extension; original file path; date and time created, sent, modified and/or received; and hash
value. The list of metadata type is intended to be flexible and may be changed by agreement of the
parties, particularly in light of advances and changes in technology, vendor, and business practices.
D. Preservation of ESI
The parties acknowledge that they have a common law 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:
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 preserve all discoverable ESI in their
possession, custody, or control.
2. The parties will supplement their disclosures in accordance with Fed. R. Civ. P.
26(e) with discoverable ESI responsive to a particular discovery request or mandatory disclosure
where that data is created after a disclosure or response is made (unless excluded under Sections
(D)(3) or (E)(1)-(2)).
3. Absent a showing of good cause by the requesting party, the following categories
of ESI need not be preserved:
[1]a. Deleted, slack, fragmented, or other data only accessible by forensics.
b. Random access memory (RAM), temporary files, or other ephemeral data
that are difficult to preserve without disabling the operating system.
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
last-opened dates (see also Section (E)(5)).
e. Back-up data that are duplicative of data that are more accessible
elsewhere.
f. Server, system or network logs.
g. Data remaining from systems no longer in use that is unintelligible on the
systems in use.
h. Electronic data (e.g., email, calendars, contact data, and notes) sent to or
from mobile devices (e.g., iPhone, iPad, Android devices), provided that
a copy of all such electronic data is automatically saved in real time
elsewhere (such as on a server, laptop, desktop computer, or “cloud”
storage).
i. Text messages.
j. Dynamic fields of databases or log files that are not retained in the usual
course of business and that would require extraordinary affirmative
measures to preserve.
k. Automatically saved versions of files (e.g., Microsoft Office documents
and emails) that are not retained in the usual course of business and that
would require unduly burdensome affirmative measures to preserve.
E. Privilege1. A producing party shall create a privilege log of all documents fully withheld from
production on the basis of a privilege or protection, unless otherwise agreed or excepted by this
Agreement and Order. Privilege logs shall include a unique identification number for each
document and the basis for the claim (attorney-client privileged or work-product protection). For
ESI, the privilege log may be generated using available metadata, including author/recipient or to/from/cc/bcc names; the subject matter or title; and date created. Should the available metadata
provide insufficient information for the purpose of evaluating the privilege claim asserted, the
producing party shall include such additional information as required by the Federal Rules of
Civil Procedure. Privilege logs will be produced to all other parties no later than 30 days before
the deadline for filing motions related to discovery unless an earlier deadline is agreed to by the
parties.
2. Redactions need not be logged so long as the basis for the redaction is clear on the
redacted document.
3. 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.
4. 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).
5. 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
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.
6. The entry of this ESI Order does not, on its own, obligate Defendant to produce
software code, software components, game logic, operating systems, algorithms or other means for computation or operation of a game or gaming platform, which shall be subject to separate
discovery requests and the terms of a separate protocol entered or to be entered in this matter,
with all objections reserved.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: June 8, 2023
Footnotes
The omission of any category of ESI from the above-enumerated list shall not be construed to
impose on any party an affirmative obligation to preserve ESI beyond those obligations required
by law, including the Federal Rules of Civil Procedure. Nor shall such omission require any
party to affirmatively implement preservation measures not used in the ordinary course of
business and that would impose an undue burden on the preserving party.
