1

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ECOFACTOR, INC.,

Plaintiff,

v.

GOOGLE LLC, 

Defendant.

Case No. 6:20-cv-00075-ADA

JURY TRIAL DEMANDED

ECOFACTOR, INC.,

 Plaintiff,

 v.

ECOBEE, INC., 

 Defendant.

 Case No. 6:20-cv-00078-ADA

 JURY TRIAL DEMANDED 

ECOFACTOR, INC.,

 Plaintiff,

 v.

VIVINT, INC., 

 Defendant.

 Case No. 6:20-cv-00080-ADA

 JURY TRIAL DEMANDED 

 

STIPULATED DISCOVERY ORDER

1. Purpose. This Order will govern discovery of electronically stored information 

(“ESI”) in this case as a supplement to the Federal Rules of Civil Procedure and any other 

applicable orders and rules. 

2. General Provisions.

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a. Proportionality. Parties are expected to use reasonable, good-faith, and 

proportional efforts to preserve, identify, and produce relevant information consistent with Fed. 

R. Civ. P. 26(b)(1).1 This includes identifying appropriate limits to discovery, including limits 

on custodians, identification of relevant subject matter, time periods for discovery, and other 

parameters to limit and guide preservation and discovery issues. A party’s meaningful 

compliance with this order and efforts to promote efficiency and reduce costs will be considered 

in cost-shifting determinations.

b. Preservation of Discoverable Information. A party has a common law 

obligation to take reasonable and proportionate steps to preserve discoverable information in the 

party’s possession, custody, or control.

i. These data sources are not reasonably accessible because of undue 

burden or cost pursuant to Fed. R. Civ. P. 26(b)(2)(B), and ESI from these sources will be 

preserved pursuant to normal business retention, but not searched, reviewed, or produced: 

1. backup systems and/or tapes used for disaster recovery; 

2. systems logs, server logs, and network logs; and

3. systems no longer in use that cannot be accessed.

ii. Following the Court’s guidance that it “will not require general 

search and production of email or other electronically stored information (ESI), absent a 

showing of good cause,” and in furtherance of the Federal Rules on proportionality, the 

categories of ESI identified in Schedule A attached hereto need not be searched, collected, or 

preserved.

c. Privilege and Privacy.

1 Information can originate in any form, including ESI and paper, and is not limited to 

information created or stored electronically.

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i. The parties are to confer on the nature and scope of privilege logs 

for the case, including whether categories of information may be excluded from any logging 

requirements and whether alternatives to document-by-document logs can be exchanged. 

ii. With respect to information generated after October 23, 2019, 

parties are not required to include any such information in any privilege logs.

iii. 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).

iv. Pursuant to Federal Rules of Evidence 502(d) and (e), the 

production of a privileged or work-product-protected document is not a waiver of privilege or 

protection from discovery in this case or in any other federal or state proceeding. For example, 

the mere production of privileged or work-product-protected documents in this case as part of a 

mass production is not itself a waiver in this case or any other federal or state proceeding. 

Information that contains privileged matter or attorney work product shall be immediately 

returned if such information appears on its face to have been inadvertently produced or if notice 

is provided. 

v. Nothing in this Order shall be interpreted to require disclosure of 

irrelevant information or relevant information protected by the attorney-client privilege, workproduct doctrine, 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. Disclosures among defendants’ attorneys of work product or other communications 

relating to issues of common interest shall not affect or be deemed a waiver of any applicable 

privilege or protection from disclosure. 

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vi. Nothing in this Order shall be interpreted to require disclosure of 

information subject to privacy protections, including information that may need to be produced 

from outside of the United States and/or may be subject to foreign laws.

3. Data Sources:

a. Custodians. Subject to any exclusions set forth herein, if proportionate to 

the needs of the case, as contemplated by Fed. R. Civ. P. 26(b)(1), the parties shall meet and 

confer to identify no more than 3 custodians most likely to have discoverable information in 

their possession, custody, or control.

b. Non-custodial data sources. Subject to any exclusions set forth herein, 

the parties agree to identify and collect non-custodial sources of data to the extent a party 

reasonably anticipates the source may contain non-duplicative, discoverable documents. The 

parties agree to limit the scope of discovery from non-custodial sources if it is unduly 

burdensome or otherwise disproportionate as contemplated by Fed. R. Civ. P. 26(b)(1).

c. Date range: The parties have agreed that they will not be obligated to 

produce source code or object code that was implemented in products or services only for the 

period prior to January 31, 2014. The parties have not otherwise agreed to limit the scope of 

discovery based on date ranges.

4. Specific Discovery Issues.

a. Search methodology.

i. [Optional: If the parties agree to exchange search terms to be used 

to locate potentially responsive ESI, each party may propose a list of 5 terms to be used by the 

opposing party (irrespective of any other terms the party may employ to locate documents for 

potential use in the litigation). The parties shall meet and confer on any modifications to the 

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proposed terms needed to improve their efficacy in locating discoverable information and 

ensuring that the terms are proportional to the needs of the case as required by Fed. R. Civ. P. 

26(b). Absent a showing of good cause, a requesting party may not request additional terms to 

be used in connection with the electronic searches. The search terms shall be narrowly tailored 

to particular issues. Indiscriminate terms, such as the producing company’s name or its product 

name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce 

the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g., “UI” 

and “desktop”) 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. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is expected. ]

ii. Each party will use its best efforts to filter out common system 

files and application executable files by using a commercially reasonable hash identification 

process. Hash values that may be filtered out during this process are located in the National 

Software Reference Library (“NSRL”) NIST hash set list. Additional culling of file types based 

on file header information may include, but are not limited to: Application Package File, Backup 

Files, Batch Files, Binary Disc Image, C++ File Formats, Cascading Style Sheet, Configuration 

File, Database File, Dictionary files, Dynamic Link Library, Event Log Files, Executables Files, 

Hypertext Cascading Stylesheet, Java Archive Files, JavaScript files, JavaScript Source Code 

and Class Files, Macintosh Resource Fork Files, MP3 Files, MP4 Files, Package Manager Files, 

Program Files, Program Installers, Python Script Files, Quicktime Files, Shell Script Files, 

System or Temporary Files, Thumbnail Cache Files, Troff Files, TrueType Font Files, Video 

Media Files, Waveform Audio File Format, Windows Cabinet File, Windows Command Files, 

Case 6:20-cv-00075-ADA Document 63-2 Filed 04/20/21 Page 5 of 15
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Windows File Shortcut, Windows Help Files, Windows Metafiles and Enhanced Metafiles, 

Windows Spool Files, Windows System File. 

iii. A party is required to produce only a single copy of a responsive 

document, and a party may de-duplicate responsive ESI across Custodians. A party may also deduplicate email threads and attachments as follows: In an email thread, only the most evolved 

responsive email in a thread will be produced. Where an earlier-in-thread email has a responsive 

attachment not contained within the most evolved responsive email, the most evolved earlier-inthread email containing the attachment will also be produced along with its attachment.

b. Format. ESI and non-ESI shall be produced to the requesting party in the 

formats described in Schedule B. If particular documents warrant a different format, the parties 

will cooperate to arrange for the mutually acceptable production of such documents. The parties 

agree not to degrade the searchability of documents as part of the document production process.

c. Source Code. No provision of this Order affects the inspection or production of 

source code, which will be collected and made available consistent with the Protective Order 

governing this case. 

d. Technology-Assisted Review. Nothing in this Order prevents the parties from 

agreeing to use technology-assisted review and other techniques insofar as their use improves 

the efficacy of discovery.

5. Cross Use. A party’s documents that were produced with Bates numbers in the ITC 

Investigation No. 337-TA-1185 can be used in the above captioned district court cases, with the 

same Bates number. Such documents will be subject to the corresponding confidentiality 

designations applicable in this litigation. In addition, the parties may provide new or additional 

designation for such documents. The parties agree that documents and things shall also remain 

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subject to the Protective Order entered in Investigation No. 337-TA-1185, notwithstanding the 

fact that some materials subject to the aforementioned Protective Order may be used in the 

district court cases. The parties do not concede or otherwise accept that any document, 

testimony, or other information produced, served, transcribed, or filed in Investigation No. 337-

TA-1185 is relevant, responsive, or admissible as evidence in the district court cases.

6. Modification.

This Stipulated Order may be modified by the parties or by the Court for good cause 

shown. Any such modified Stipulated Order will be titled sequentially as follows, “First 

Modified Stipulated Discovery Order.”

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IT IS SO STIPULATED, through Counsel of Record.

Dated: April 20, 2021

/s/ Reza Mirzaie

Reza Mirzaie

Marc A. Fenster

Paul A. Kroeger

C. Jay Chung

RUSS AUGUST & KABAT

12424 Wilshire Boulevard 12th Floor

Los Angeles, California 90025

Tel: 310-826-7474

Fax: 310-826-6991

rmirzaie@raklaw.com

mfenster@raklaw.com

prkoeger@raklaw.com

jchung@raklaw.com

Counsel for Plaintiff EcoFactor, Inc.

By: /s/ Bijal V. Vakil

Michael J. Songer (Pro Hac Vice)

Shamita Etienne-Cummings (CA Bar No. 202090) 

(admitted to the Western District of Texas)

White & Case LLP

701 Thirteenth Street NW

Washington, DC 20005

Telephone: (202) 626-6496

Email: WCGoogleEcofactorWDTex@whitecase.com

Bijal V. Vakil (CA Bar No. 192878)

(admitted to the Western District of Texas)

White & Case LLP

3000 El Camino Real

Two Palo Alto Square, Suite 900

Palo Alto, CA 94306

Telephone: (650) 213-0324

Email: WCGoogleEcofactorWDTex@whitecase.com

Michael E. Jones 

Potter Minton PC 

110 N. College, Suite 500 

Tyler, TX 75702 

Telephone: (903) 597-8311 

Email: mikejones@potterminton.com

Counsel for Google LLC

By: /s/ Daisy Manning

Jennifer Parker Ainsworth

Texas State Bar No. 00784720

Wilson, Robertson & Cornelius P.C.

909 ESE Loop 323, Suite 400

Tyler, TX 75701

Telephone: (903) 509-5000

jainsworth@wilsonlawfirm.com

Timothy Carroll

Tim.carroll@dentons.com

Manny J. Caixeiro

Manny.caixeiro@dentons.com

Dentons US LLP

Case 6:20-cv-00075-ADA Document 63-2 Filed 04/20/21 Page 8 of 15
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233 South Wacker Drive, Suite 5900

Chicago, IL 60606

Telephone: (312) 876 8000

Rudolph A. Telscher, Jr.

rudy.telscher@huschblackwell.com

Kara R. Fussner

Kara.Fussner@huschblackwell.com

Daisy Manning

daisy.manning@huschblackwell.com

Husch Blackwell LLP

190 Carondelet Plaza, Suite 600

St. Louis, MO 63105

Telephone: 314-480-1500

Ryan B. Hauer

Ryan.Hauer@huschblackwell.com

Husch Blackwell LLP

120 South Riverside Plaza, Suite 2200

Chicago, IL 60606

Telephone: 312-526-1572

Counsel for ecobee, Inc.

By: /s/ Jonathan Hardt

Fred I. Williams (Lead Attorney)

State Bar No. 00794855

fwilliams@wsltrial.com

Jonathan Hardt

State Bar No. 24039906

jhardt@wsltrial.com

Williams Simons & Landis PLLC

327 Congress Avenue, Suite 490

Austin, TX 78701

Telephone: (512) 543-1354

Todd E. Landis (admitted pro hac vice)

State Bar No. 24030226

tlandis@wsltrial.com

Williams Simons & Landis PLLC

2633 McKinney Avenue, Suite 130 #366

Dallas, TX 75204

Telephone: (512) 543-1357

Counsel for Vivint, Inc.

Case 6:20-cv-00075-ADA Document 63-2 Filed 04/20/21 Page 9 of 15
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IT IS ORDERED that the foregoing Agreement is approved. 

Dated: ______________________ _________________________________________

United States District / Magistrate Judge

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SCHEDULE A

1. Deleted, slack, fragmented, or other data only accessible by forensics.

2. Random access memory (RAM), temporary files, or other ephemeral data that are 

difficult to preserve without disabling the operating system.

3. On-line access data such as temporary internet files, history, cache, cookies, and the 

like.

4. Data in metadata fields that are frequently updated automatically, such as last-opened 

dates.

5. Automatically saved versions of documents and emails.

6. Voice messages.

7. Instant messaging and chat application data.

8. Electronic mail or pin-to-pin messages sent to or from mobile devices (e.g., iPhone and 

Blackberry devices), provided that a copy of such mail is routinely saved elsewhere.

9. Other electronic data stored on a mobile device, such as calendar or contact data or 

notes, provided that a copy of such information is routinely saved elsewhere.

10. Logs of calls made from mobile devices.

11. Video and audio recordings.

12. Electronic data temporarily stored by laboratory equipment or attached electronic 

equipment, provided that such data is not ordinarily preserved as part of a laboratory 

report.

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

14. Information created or copied during the routine, good-faith performance of processes 

for the deployment, maintenance, retirement, and disposition of computer equipment. 

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SCHEDULE B

PRODUCTION FORMAT AND METADATA

1. Production Components. Productions shall include, single page TIFFs and/or color 

JPEGs, Text Files, an ASCII delimited metadata file (.txt, .dat, or .csv) and an image load 

file (e.g., .opt) that can be loaded into commercially acceptable production software (e.g., 

Disco, Relativity or Concordance).

2. Image Load File shall contain the following comma-delimited fields: BEGBATES, 

VOLUME, IMAGE FILE PATH, DOCUMENT BREAK, FOLDER BREAK, BOX 

BREAK, PAGE COUNT.

3. Metadata Fields and Metadata File. The parties are only obligated to provide the 

following metadata for all ESI produced, to the extent such metadata exists. The 

parties are not obligated to populate manually any of the fields below if such fields 

cannot be extracted from a document, with the exception of the following: 

BEGBATES, ENDBATES, BEGATTACH, ENDATTACH, and CUSTODIAN. The 

metadata file shall be delimited according to the following characters: 

● Delimiter = ¶ (ASCII:020)

● Text-Qualifier = þ (ASCII:254)

● New Line = ® (ASCII:174)

● Multi-value delimiter - ; (ASCII Code 059)

Field Name Field Description

BEGBATES Beginning Bates number as stamped on the production image

ENDBATES Ending Bates number as stamped on the production image

BEGATTACH First production Bates number of the first document in a family

ENDATTACH Last production Bates number of the last document in a family

CUSTODIAN Includes the Individual (Custodian) from whom the documents 

originated and all Individual(s) whose documents de-duplicated 

out (De-Duped Custodian).

SUBJECT Subject line of email

TITLE Title from properties of document

DATESENT Date email was sent (format: MM/DD/YYYY)

TO All recipients that were included on the “To” line of the email

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FROM The name and email address of the sender of the email

CC All recipients that were included on the “CC” line of the email

BCC All recipients that were included on the “BCC” line of the 

email

AUTHOR Any value populated in the Author field of the document 

properties

FILENAME Filename of an electronic document (Edoc or attachment)

DATELASTMOD Date an electronic document was last modified or created 

(format: MM/DD/YYYY) (Edoc or attachment)

CREATEDATE Date the document was created (format: MM/DD/YYYY) 

(Edoc or attachment)

FILE_SIZE Size (in bytes) of an electronic document (Edoc or attachment)

FILEEXT Suffix to a filename that indicates the file format of its content 

(Edoc or attachment)

NATIVEPATH Native File Link (Native Files only)

OCRPATH Link to text files

CONFIDENTIALITY 

DESIGNATION

Confidentiality Designation of the document in accordance 

with the Protective Order

4. TIFFs and JPEGs. Documents that exist only in hard copy format shall be scanned and 

produced as TIFFs or color JPEGs. Unless excepted below, documents that exist as ESI 

shall be converted and produced as TIFFs or color JPEGs. Unless excepted below, single 

page Group IV TIFFs (1 bit, B&W) should be provided, at least 300 dots per inch (dpi) 

for all documents. Each TIFF image shall be named according to a unique corresponding 

Bates number associated with the document. Each image shall be branded according to 

the Bates number and the agreed upon confidentiality designation. Original document 

orientation should be maintained (i.e., portrait to portrait and landscape to landscape). 

TIFFs shall show all text and images that would be visible to a user of the original 

documents.

5. Text Files. A single multi-page text file shall be provided for each document, and the 

filename should match its respective TIFF or JPEG filename. A commercially acceptable 

technology for optical character recognition “OCR” shall be used for all scanned, hard 

copy documents. When possible, the text of native files should be extracted directly from 

the native file. Text files will not contain the redacted portions of the documents and 

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OCR text files will be substituted instead of extracted text files for redacted documents. 

All documents shall be produced with a link in the TextLink field.

6. Image Load Files / Data Load Files. Each TIFF or JPEG in a production must be 

referenced in the corresponding image load file. The total number of documents 

referenced in a production’s data load file should match the total number of designated 

document breaks in the Image Load file(s) in the production. The total number of pages 

referenced in a production’s image load file should match the total number of TIFF or

JPEG files in the production. The total number of documents in a production should 

match the total number of records in the data load file. 

7. Bates Numbering. All images must be assigned a unique Bates number that is sequential 

within a given document and across the production sets. Bates numbers must be a 

constant length that is zero padded (e.g., ABC0000001) and cannot contain spaces. 

8. Confidentiality Designation. Responsive documents in TIFF or JPEG format will be 

stamped with the appropriate confidentiality designations in accordance with the 

Protective Order in this matter. Each responsive document produced in native format will 

have its confidentiality designation stamped in the footer of the TIFF or JPEG image 

placeholder and identified in the filename of the native file. 

9. Redaction Of Information. If documents are produced containing redacted information, 

an electronic copy of the original, unredacted data shall be securely preserved in such a 

manner so as to preserve without modification, alteration or addition the content of such 

data including any metadata therein, unless metadata is redacted to protect attorney workproduct or information protected by attorney-client privilege.

10. NATIVE FILE PRODUCTIONS. Spreadsheets (e.g., MS Excel, Google Sheets) and 

delimited text files (e.g. comma-separated value (.csv) files and tab-separated value (.tsv) 

files) shall be produced in either their native format or MS Excel. TIFF images need not 

be produced unless the files have been redacted, in which instance such files shall be 

produced in TIFF or JPEG with OCR Text Files. If good cause exists to request 

production of files, other than those specifically set forth above, in native format, the 

party may request such production and provide an explanation of the need for native file 

review, which request shall not unreasonably be denied. Any native files that are 

produced shall be produced with a link in the NativeLink field, along with extracted text 

and applicable metadata fields set forth in the table in Paragraph 3 above. A TIFF or 

JPEG placeholder indicating that the document was provided in native format should 

accompany the database record. If a file has been redacted, TIFF or JPEG images and 

OCR text of the redacted document will suffice in lieu of a native file and extracted text. 

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11. Proprietary Files. To the extent a response to discovery requires production of ESI 

accessible only through proprietary software, the parties should continue to preserve each 

version of such information. The parties shall meet and confer to finalize the appropriate 

production format. 

12. Production Media. Documents shall be encrypted and produced via secured FTP or

external hard drives, readily accessible computer(s) or other electronic media 

(“Production Media”). Each piece of Production Media shall identify a production 

number corresponding to the production volume (e.g., “VOL001,” “VOL002”), as well as 

the volume of the material in that production (e.g. “-001,” “-002”). Each piece of 

Production Media shall also identify: (1) the producing party’s name; (2) the production 

date; (3) the Bates Number range of the materials contained on the Production Media; 

and (4) the set(s) of requests for production for which the documents are being produced

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