This Court enters the following provisions regarding 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.

B. ESI Disclosures

Within 10 days after written responses to discovery requests made under Fed. R. Civ. P. 34 are served, but no earlier than 14 days after entry of this Order, the responding party shall disclose:

1. Custodians. An initial list of proposed custodians within its organization (past or present) likely to possess responsive ESI, as well as the potential custodians’ job titles, tenure, and a brief summary of their primary responsibilities. The requesting party may identify any additional custodians it believes should be included. The parties will meet and confer about any disputed custodians promptly and in good faith.

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 any 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.

a. The producing party shall disclose the data sources (including custodians), search terms and queries, any file type and date restrictions, and its intent to use technology-assisted review, if applicable. The producing party shall provide unique hit counts for each search query, if applicable.

c. Where a producing party chooses to use search terms to identify potentially responsive documents, the party shall exercise reasonable due diligence in investigating and analyzing its data in providing its proposed list of search terms. Examples of such due diligence may include but are not limited to: identification of commonly misspelled words appearing on responsive documents or electronically stored information; identifying idiosyncratic language and terms of art (e.g., acronyms, nicknames, codenames, project names) utilized by a party in responsive documents and by interviewing relevant custodians about the same; utilizing quality control metrics; and using an iterative search approach to identify the terms most likely to locate responsive documents.

b. After disclosure, the Parties will engage in a meet and confer process regarding the producing party’s search methodology and, if applicable, additional terms sought by the non-producing party. The Parties may propose modifications to the search terms proposed by any Party, and the Parties shall continue to cooperate in revising the appropriateness of the search methodology.

c. The following provisions apply to search terms / queries of the requesting party. Focused terms and queries generally 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.

d. If a party seeks to use technology assisted review (“TAR”) during its search methodology, it shall notify the other Parties in the litigation of its intent to do so. At that time, the responding party shall provide a description of its proposed TAR methodology. Following this notification, the Parties will meet and confer regarding the TAR methodology.

3. Format.[1] ESI will be produced in the formats set out in Appendix A to this stipulation. If particular ESI warrants a different format or method of production, the Parties may request to produce that ESI in an alternative format or method of production than set out in Appendix A. In such case the Parties agree to cooperate in good faith to arrange for a mutually acceptable production format.

a. ESI will be produced to the requesting party with searchable text, in the format described in Appendix A.

b. Unless otherwise agreed to by the Parties, or required by a reasonable redaction process, files that are not easily converted to image format, such as spreadsheets, databases, and drawing files, will be produced in native format with extracted text and metadata. Unless otherwise agreed to by the Parties, for all other files, a producing Party shall make good-faith efforts to produce native files upon reasonable request within 14 days. Depending on how discovery unfolds, the Court may strike this good-faith provision and simply require production.

c. Each document image file shall be named with a unique number (Bates Number). Bates numbers should not be more than thirty characters long or contain spaces.

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: single- page 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.

f. Unless otherwise agreed to by the Parties, the full text of each electronic document shall be extracted (“Extracted Text”) and produced in a text file. The Extracted Text shall be provided in searchable ASCII text format (or Unicode text format if the text is in a foreign language) and shall 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).

4. De-duplication. The Parties may de-duplicate their ESI production across custodial and non-custodial data sources after disclosure to the requesting party, and the duplicate custodian information removed during the de-duplication process shall be tracked in a duplicate/other custodian field in the database load file.

5. Email Threading. Subject to Paragraph E(4) below, 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, except if the lesser inclusive copies include unique family members, in which case the lesser inclusive copies and related family members shall also be produced. Upon reasonable request, the producing party will produce a less inclusive copy.

6. Hard-Copy Documents. 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), unless it will not result in accurate or reasonably useable/searchable ESI, like handwritten documents. 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). These documents will be unitized following scanning into appropriate segments and custodial information will be provided in the load files.

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 take reasonable and proportional steps to preserve all discoverable ESI in their possession, custody, or control.

2. The Parties agree that only unique, non-duplicative sources of discoverable Documents need to be preserved.

3. Absent a showing of good cause by the requesting party, the categories of ESI that need not be preserved include, but are not limited to:

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. Interim automatically saved drafts that cannot be preserved through reasonable means.

f. Back-up data that are duplicative of data that are more accessible elsewhere.

g. Server, system or network logs.

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

i. 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)

E. Privilege

1. A producing Party shall create a privilege log of all responsive documents or ESI wholly redacted or fully withheld from production on the basis of a privilege or protection, unless otherwise agreed or excepted.

2. For documents redacted for privilege or protection, the Parties must produce a privilege log containing only the following information: the Bates number; an indication that the document was produced in redacted form, information that can be populated from the metadata of the document in accordance with Appendix A, Section D, of this Order; an indication where such metadata corresponds to the attorney(s) involved (e.g., *, esq.); and the type of privilege being asserted (e.g., attorney client; work product). If the privilege log entry for any document redacted on the basis of attorney-client privilege or work product protection does not identify the attorney(s) involved, the Parties reserve their rights to request that information from the producing Party. If an email is produced with redactions, the redactions must not obscure the headers (e.g., from, to, cc, bcc, subject, sent date and time, attachment file names) of the email or any embedded emails, unless the subject line contains information that is privileged or protected. If a non-email document is produced with redactions, the redactions must not obscure the equivalent of header information (including author, from, to, subject, sent date and time, attachment names, as applicable) unless the subject line contains information that is privileged or protected.

3. Privilege logs for documents fully withheld from production or otherwise fully redacted shall include a unique identification number for each document, indicate the Bates number of the document containing privileged material and those of any document family relationships, and state the claim asserted. Privilege logs shall be produced in Excel (.xls, .xlsx, or .xlsb) format unless not possible due to technical reasons such as the size of the privilege log, in which case the Parties agree to meet and confer to reach agreement on an alternative method of production or file format. For ESI, privilege log entries shall include metadata in accordance with Appendix A, Section D, of this agreement including author/recipient or to/from/cc/bcc names; the subject matter or title; and date created. The producing Party shall include additional information necessary for evaluating the privilege claim asserted as required by the Federal Rules of Civil Procedure, including any of the above fields not available in metadata, the title of all Party employees associated with a log entry, identification of all attorneys associated with the log entry, and a description of the contents of the document sufficient to establish that the privilege or protection applies.

4. Where email threads are withheld from production on the basis of a privilege or protection, notwithstanding Paragraph C(5), the producing party shall produce any lesser inclusive copies of the email thread over which it does not claim the privilege or protection. The producing party must provide privilege log information for the unique most inclusive copy and related family members pursuant to Paragraph E(3). For lesser inclusive copies and related family members, the producing party may produce only the following privilege log information: the Bates number of the document containing privileged material and those of any document family relationships; the Bates number of the associated unique most inclusive copy; information that can be populated from the metadata of the document in accordance with Appendix A, Section D, of this agreement; the type of privilege being asserted; an indication where such metadata corresponds to the attorney(s) involved (e.g., *, esq.); and the basis for the privilege. If the privilege log entry for any document redacted on the basis of attorney-client privilege or work product protection does not identify the attorney(s) involved, the Parties reserve their rights to request that information from the producing Party. This paragraph does not apply where an email thread is redacted rather than withheld from production, and the producing party does not have to produce redacted email threads on an unthreaded basis.

5. A producing Party shall make good-faith efforts to provide a rolling privilege log at least six, nine, twelve, and fifteen months after the commencement of fact discovery. Depending on how discovery unfolds, the Court may strike this good-faith provision and simply require provision of logs. A producing Party must provide a final privilege log no later than 30 days prior to the close of fact discovery. All times provided herein may be changed by agreement of all Parties.

6. Privilege logs produced during the Federal Trade Commission’s investigation preceding this litigation may be used to challenge any assertion of privilege of any documents produced in the investigation and subsequently produced in this litigation. The fact that Plaintiffs did not challenge a privilege claim during the investigation shall not be used as the basis of a waiver or forfeiture argument.

7. The Parties agree that the following privileged or otherwise protected communications need not be placed on a privilege log: Email, notes, drafts, communications, memoranda, documents, or other work product produced by or exchanged solely among and between:

a. Outside counsel for Amazon.

8. The Parties are ordered to meet and confer regarding the scope of logging for internal Federal Trade Commission communications, internal Plaintiff State communications, and internal Defendant Amazon communications by Tuesday, June 25, 2024.

9. The Parties agree that the following privileged or otherwise protected communications need not be placed on a privilege log: draft litigation filings and communications attaching draft litigation filings that only discuss such draft litigation filings.

10. 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.

11. If a producing Party determines that it has produced documents or ESI upon which it wishes to make a claim of privilege, it shall use good faith efforts to, within 15 days of making such determination, give all counsel of record notice of the claim of privilege. Depending on how discovery unfolds, the Court may strike this good-faith provision and simply require notice. The notice must identify each such document, unless the review requires additional time, in which case the producing Party shall notify counsel of record and shall provide a date by which it will provide the identification. If the producing Party claims that only a portion of a document is privileged, the producing Party shall provide, together with the notice of the claim of privilege, a new copy of the document with the allegedly privileged portions redacted. All times provided herein may be changed by agreement of all Parties, and the Parties agree that failure to comply with the times provided herein alone shall not result in the waiver of any privilege or protection.

12. Upon receiving notice of a claim of privilege on a produced document, the notified Party, in accordance with Federal Rule of Civil Procedure 26(b)(5)(B), shall promptly sequester the specified information and any copies it has and shall not use or disclose the information until the claim is resolved. Copies of privileged documents or information that have been stored on electronic media that is not reasonably accessible, such as disaster recovery backup media, are adequately sequestered as long as they are not restored. If the notified Party disclosed the information before receiving notification of the privilege claim of the producing Party, it shall take reasonable steps to prevent further use of such information until the claim is resolved.

13. If a Party wishes to dispute a claim of privilege on a produced document asserted under this Order, such Party shall promptly meet and confer with the producing Party. If the Parties reach an impasse, the non-producing Party may move the Court for an order compelling disclosure of the information. The Parties shall follow the procedures described in Federal Rule 26(b)(5)(B). Pending resolution of the motion, the Parties shall not use the challenged information for any other purpose and shall not disclose it to any person other than those required by law to be served with a copy of the sealed motion.

14. The Parties will use best efforts to provide the titles of Party employees and outside counsel in a name index provided by each producing Party with each privilege log production, unless otherwise agreed to by the Parties. The name index shall be produced in Excel (.xls, .xlsx, or .xlsb) format unless an alternative format is agreed to by the Parties, and shall include an alphabetical list (by last name) of each name on the privilege log, identifying titles, company affiliations, the members of any group or email list on the log where practicable (e.g., the S-Team), and any name variations used in the privilege log used for the same individual. All attorneys acting in a legal capacity with respect to that particular document or communication will be marked with an asterisk or other designation agreed to by the Parties.

15. The producing party wishing to assert a claim of privilege retains the burden of establishing the applicability of the claimed privilege.

16. This stipulation and order does not preclude a party or non-party from voluntarily waiving any claims of privilege.

17. Privilege logs provided prior to November 9, 2023 that were not produced in the first instance in this litigation, such as privilege logs that were previously provided in Plaintiffs’ investigation or other matters involving Amazon, shall be produced pursuant to the privilege log protocols or agreements in those other matters. The parties reserve their rights to request more information for entries on those privilege logs, and to challenge any privilege claims asserted in those privilege logs.

F. Non-Party Discovery

1. A party that issues a non-party subpoena (the “Issuing Party”) shall include a copy of this ESI Protocol with the subpoena.

2. The Issuing Party shall be responsible for making good-faith efforts to produce any documents obtained under a subpoena to all other parties within 10 days of receiving consent from the non-party. Depending on how discovery unfolds, the Court may strike this good-faith provision and simply require production. The Issuing Party shall not be responsible for the format of such production and shall produce the documents in the same format that they were produced by the non-party.

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.

G. Compliance

1. A Party alleging that another Party has failed to comply with this Stipulation and Order may file a motion to compel with the Court. Any such motion shall include a meet and confer certification by the moving Party pursuant to Local Civil Rule 37(a)(1).

2. The deadlines in this Stipulation and Order can be altered by agreement of all Parties without filing a motion with the Court. If any Party makes a reasonable request to alter a deadline, the other Parties shall consider the request in good faith.

IT IS SO ORDERED.

Footnotes

[1]

Documents that were produced prior to the date of this Stipulation and Order that were not produced in the first instance in this litigation, i.e., documents first produced in the Plaintiffs’ investigation or in related cases, and documents produced in response to requests for production in this litigation that call for production of documents made in other matters, shall be produced in the format of document productions in those other matters, provided that those re-productions are in a reasonably useful format and provided that the producing party informs all other Parties, prior to or at the time of production, that the production will be in a nonconforming format. The Parties reserve the right to object to a nonconforming format and to make reasonable requests for the production of such documents in a conforming format to the extent that such reproduction does not impose an undue burden on the producing party. The Parties agree that, in general, the productions by Amazon in the Plaintiffs’ investigation were made pursuant to the respective Parties’ agreements at the time and shall not be reproduced in different formats in this litigation. If Plaintiffs make reasonable requests for the production of such documents in a conforming format, the Parties agree to meet and confer.