Domus BWW Funding, LLC v. Arch Ins. Co.
Domus BWW Funding, LLC v. Arch Ins. Co.
Case No. 2:23-cv-00094 (E.D. Pa. 2023)
March 15, 2023

Wolson, Joshua D.,  United States District Judge

Form of Production
Inaccessible
ESI Protocol
Native Format
Metadata
Search Terms
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Summary
The parties have agreed to a Stipulated Agreement for the production of ESI and other tangible items. The agreement outlines the format and procedures for the exchange of relevant paper documents and ESI, with the parties reserving the right to object to the production and discoverability of certain information. The producing party must also provide slip sheets for any ESI that cannot be produced or imaged due to technical issues.
Additional Decisions
1801 Admin, LLC f/k/a Versa Capital Management, LLC, and Domus BWW Funding, LLC,
Plaintiffs,
v.
Arch Insurance Company, QBE Insurance Corporation, XL Specialty Insurance Corporation, and Aspen American Insurance Company,
Defendants
Case No. 2:23-cv-00094-JDW
United States District Court, E.D. Pennsylvania
Filed March 15, 2023
Wolson, Joshua D., United States District Judge

STIPULATED AGREEMENT REGARDING ELECTRONICALLY STORED INFORMATION AND OTHER TANGIBLE ITEMS AND FORMATS FOR PRODUCTION

WHEREAS, Plaintiffs, 1801 Admin, LLC f/k/a Versa Capital Management, LLC, and Domus BWW Funding, LLC (together, “Plaintiffs”), and Defendants Arch Insurance Company, QBE Insurance Corporation, XL Specialty Insurance Company, and Aspen American Insurance Company (collectively, “Defendants”) (Plaintiffs and Defendants together, “the Parties”) agree that this Stipulated Agreement Regarding Electronically Stored Information and other Tangible Items and Formats for Production (the “Agreement”) shall govern the Parties in the above-captioned action;

WHEREAS, the Parties recognize that certain paper documents and electronically stored information (“ESI”) are relevant to this action;

WHEREAS, the Parties have engaged in discussions regarding the production format of such documents and ESI;

NOW, THEREFORE, THE PARTIES, THROUGH THEIR RESPECTIVE COUNSEL, STIPULATE AS FOLLOWS:

I. GENERAL INSTRUCTIONS

Production data will be delivered on appropriate electronic media (CD, DVD or hard drive) or transmitted via email by share-file link or similar electronic transmission. The producing party will cooperate in good faith to use the smallest number of media for each production. The media shall be labeled with the following information: the case name, the producing party, the date produced, the Bates range and media volume number.

The terms of this Agreement shall be construed so as to ensure the prompt, efficient, and cost-effective exchange of information consistent with the Federal Rules of Civil Procedure, the Local Rules, and any Orders of this Court.

This Agreement shall not enlarge, reduce, or otherwise affect the scope of discovery in this litigation as imposed by the Federal Rules of Civil Procedure, the Local Civil Rules, and the Court’s orders, nor imply that discovery produced under the terms of this Agreement is properly discoverable, relevant, or admissible in this or in any other litigation.

The Parties agree to promptly alert all other Parties concerning any technical problems associated with complying with this Stipulation. To the extent compliance with this Stipulation imposes an undue burden with respect to any protocol, source, or search term listed herein, the Parties shall promptly confer in an effort to resolve the issue.

II. PRODUCTION FORMAT OF ELECTRONICALLY STORED INFORMATION

A. Definitions

1. “Document” means paper documents or ESI existing in any medium from which information can be obtained or translated into reasonably usable form.

2. “Native File(s)” means ESI in the file type for (or of) the application in which such ESI is normally created, viewed and/or modified.

3. “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.

4. “Static Image(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 computer systems. A Tagged Image File Format (TIFF) image is an example of a Static Image.

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

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

7. “Load/Unitization file” means a set of paper-scanned images or electronically processed files and indicates where individual pages or files belong together as documents, including attachments and where each document begins and ends. A load/unitization file will also contain data relevant to the individual documents, such as Metadata, coded data, OCR data and Extracted Text.

B. Format of Production of ESI

1. Paper Documents

(a) The Parties will produce paper documents, including spreadsheets maintained in paper form, as TIFF images (consistent with the specifications in Sections I.B.2.b. and I.B.2.c) with the appropriate Load/Unitization files, including for each paper document the OCR .txt file. The Parties are not required to produce original documents. 

2. ESI 
(a) Excel files should be produced in native format, with a link or path provided to the native file in the data load file. Placeholder TIFF files should also be included in the database stating that the document was not tiffed; placeholder files should indicate the beginning Bates number and level of confidentiality of the document.

(b) Static Images will be provided in TIFF format (.TIF files). In the Load/Unitization file, the image file names shall match the Bates number assigned to the image. All documents are to be provided with multi-page searchable OCR or Extracted Text Load files.

(c) All TIFF-formatted documents will be single page, Group 4 TIFF at 300 x 300 dpi resolution and 8.5 x 11 inch page size, except for documents that in the producing party’s reasonable judgment require a different resolution or page size. TIFF images will be branded in the lower right-hand corner with the corresponding Bates number, using a consistent font type and size. The Bates number must not obscure any part of the underlying image. Confidentiality or other similar endorsements should be branded in the lower lefthand corner of the TIFF image. These endorsements must be in a consistent font type and size, and must not obscure any part of the underlying image or Bates number.

(d) Extracted Text will be provided for all documents which exist in electronic form, with the exception of redacted data. OCR will be provided for documents existing in paper form or in PDF format. The OCR or Extracted Text will correspond with each individual document and will be located in a separate directory from the TIFF image named OCR. The OCR file name shall be the same as the name of the image file followed by .TXT.

(e) There will be two Load/Unitization files accompanying all productions. One will be a data file that contains the agreed-upon Metadata fields in an ASCII text file using either Concordance default delimiters (Comma - ASCII character 20 (), Quote - ASCII character 254 (þ), Newline - ASCII character 174 (®)) or ^ carat and | pipe delimiters to separate the fields and records. The other will be a cross-reference file that will contain the corresponding image information. The acceptable format for the image cross-reference files is .LFP. Image load files should indicate page breaks.

(f) With the exception of redacted documents, the following fields associated with each electronic document (or their equivalents), including the body of the document, will be produced in the appropriate Load/Unitization file, to the extent the fields exist as electronic Metadata associated with the original electronic documents or are created as part of the electronic data discovery process:


This list of fields does not create any obligation to create or manually code fields that are not automatically generated by the processing of the ESI, that do not exist as part of the original Metadata of the document, or that would be unduly burdensome or costly to obtain. The Parties retain the right to move the Court for the production of additional electronic metadata fields should ongoing discovery reveal the need for such Metadata.

(g) When processing ESI, EST should be selected as the time zone.

(h) When processing ESI for review and for production in TIFF format, the producing party will instruct its vendor, if possible, to force on the following: hidden columns or rows, hidden text or worksheets, speaker notes and track changes (which includes comments). Additionally, if the producing party redacts all or any portion of a TIFF-formatted document, those redactions shall be noted on the TIFF-formatted document and in a user-generated field, which the producing party shall provide.

(i) For ESI that contains a parent document and an attachment, the following fields shall, to the extent they exist, be produced as part of the Metadata load file to provide the parent/child or parent/sibling relationship: Bates Number Begin, Bates Number End, Bates Attachment Range Number Begin, Bates Attachment Range Number End, Attachment Name and Doc Page Count.

(j) All producing parties will produce slip sheets for files that cannot be produced and/or imaged because of technical issues (“Exception Files”), where such Exception Files are otherwise part of a family that contains one or more responsive, discoverable documents. A receiving party may request that a producing party provide the file name, custodian and reason for any Exception File, which shall be provided within fourteen (14) days of the producing party receiving such a request.

(k) The Parties may de-duplicate identical ESI by custodian. Parties may de-duplicate ESI across custodians if the producing party provides Metadata field(s) that indicate the additional custodians of a document.

(l) With the exception of Excel files referenced in Section II.B.2.a above which are to be produced in native format, the Parties reserve the right to request that documents be produced in native format, rather than TIFF format, where applicable. Such documents include .PST (Outlook) and/or .NSF (Lotus Notes) files for all emails produced; all Microsoft Office Suite documents, including, but not limited to, documents created with Excel, Word, PowerPoint, Publisher, Project, Visio, Lync, and InfoPath, and such documents’ server component; all other word processing documents; all documents created by document management systems, including, but not limited to, documents created by SharePoint, Alfresco, and Lotus Notes; all documents created and stored in any cloud-based storage locker, including, but not limited to, Google Apps, Google Labs, Dropbox, and iCloud; schema for any database systems utilized by Defendant, including, but not limited to, Microsoft Access, SQL, Oracle DB, MySQL, and IBM DB2; and any other data sets or information in a format proprietary to the Party.

(m) Notwithstanding the above, to the extent that information is stored electronically on a platform that does not allow the user to download, extract, or save information in native or searchable format, or doing so is otherwise impractical and would result in an undue burden to the producing party, the producing party will capture the information stored on that platform as screen shots and produce them as static images, or in an otherwise practical format, including but not limited to pdf format.

C. Objections to Production of ESI

1. A party may object to production of ESI that is not reasonably accessible because of undue burden or cost. At the time of the objection, the responding party will inform the requesting party of the electronic information it is willing to produce, the nature and location of the information claimed to not be reasonably accessible, and the reason(s) why the requested production would impose an undue burden or is unreasonably costly, and afford the requesting party ten (10) business days (calendar days minus weekends and state or federal holidays) to propose an alternative means of compliance with the request, including payment of all or part of the costs of retrieving the information.

2. Where production of database files or other non-standard file types such as technical drawings cannot be done in a TIFF format or would be unduly burdensome, the Parties may agree to permit the producing party to generate reports or spreadsheets that contain only responsive and potentially relevant data or to produce those files in their native format.

3. The Parties do not waive any objections to the production, discoverability, or confidentiality of Documents, including, without limitation, objections regarding the burden, overbreadth or relevance of document requests related to Documents. Nothing in this Stipulated Agreement shall be interpreted to require disclosure of irrelevant information or relevant information protected by the attorney-client privilege, work-product immunity, or any other applicable privilege or immunity. The Parties do not waive any objections as to the production, discoverability, admissibility, or confidentiality of documents and ESI.

D. Search Terms

The Parties will agree to reasonable document custodians, search terms, and date parameters for the collection of ESI.

The mere fact that a document is hit or captured by the application of any agreed upon search terms does not mean that such document is necessarily responsive to any propounded discovery request or is otherwise relevant to this litigation. Determinations of discoverability, responsiveness and privilege shall be made by the producing party. All parties expressly reserve the right to challenge and object to a producing party’s determinations regarding discoverability, responsiveness, and privilege in accordance with the rights conferred under the Federal Rules, applicable Local Rules, and any rules and orders of this Court. 

E. Continuing Obligations 

This Agreement shall continue in full force and effect until order of the Court or until this litigation is terminated by a final judgment or settlement. 

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

SO ORDERED.
s/Joshua D. Wolson
Dated: March 15, 2023