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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION

HAMMOND DEVELOPMENT 

INTERNATIONAL, INC. 

Plaintiff, 

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v. 

GOOGLE LLC

Defendant. 

CIVIL ACTION No. 6:19-cv-00356-ADA

JURY TRIAL DEMANDED

E'ISCOVERY 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.

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. 

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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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. The following data sources are not reasonably accessible because of undue 

burden or cost pursuant to Fed. R. Civ. P. 26(b)(2)(B) and, absent a showing 

of good cause, need not be preserved or restored. ESI from these sources 

need not be searched, reviewed, or produced:

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

2. systems, server and network logs; and

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

ii. Absent a showing of good cause by the requesting party 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.

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 the filing of the complaint, parties 

are not required to include any such information in 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).

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iv. Pursuant to Pursuant to Federal Rule 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 privilege or 

work-product-protected documents in this case as part of a 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, 

work-product 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.

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.

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3. Data Sources:

a. Email and Electronically Stored Information. Pursuant to the Court’s Order at 

Dkt. 27, general searches or productions of email or other electronically stored information (ESI) 

are not required absent a showing of good cause. If a party believes targeted email/ESI 

discovery is necessary, it shall propose a procedure identifying a limited number of custodians 

and search terms it believes the opposing party should search. The opposing party can oppose, 

or propose an alternate plan. If the parties cannot agree, they shall contact chambers to schedule 

a call with the Court to discuss their respective positions.

b. Other data sources. Subject to any exclusions set forth herein, the parties agree to 

identify potentially relevant data from other sources 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 other sources if it is unduly burdensome or otherwise disproportionate 

as contemplated by Fed. R. Civ. P. 26(b)(1).

4. Specific Discovery Issues.

a. On-site inspection of electronic media. Such an inspection of discoverable 

information may be permitted pending agreement between the parties.

b. Search methodology.

i. A party may 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, 

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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, Windows File Shortcut, 

Windows Help Files, Windows Metafiles and Enhanced Metafiles, Windows 

Spool Files, Windows System File. 

ii. 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 must be produced. Where an earlier-inthread email has a responsive attachment not contained within the most evolved 

responsive email, the most evolved earlier-in-thread email containing the 

attachment will also be produced along with its attachment.

c. 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. 

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d. 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.

5. Modification.

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

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

Stipulated Discovery Order.”

IT IS SO STIPULATED, through Counsel of Record.

Dated: ______________________ _________________________________________

Counsel for Plaintiff

Dated: ______________________ _________________________________________

Counsel for Defendant

IT IS ORDERED that the foregoing Agreement is approved.

Dated: ______________________ _________________________________________

United States District 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, Text Files, an 

ASCII delimited metadata file (.txt, .dat, or .csv) and an image load file that can be 

loaded into commercially acceptable production software (e.g., 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

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

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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)

DATEMOD Date an electronic document was last modified or created (format: 

MM/DD/YYYY) (Edoc or attachment)

DATECREATED Date the document was created (format: MM/DD/YYYY) (Edoc or 

attachment)

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

FILEEXTENSION Suffix to a filename that indicates the file format of its content (Edoc or 

attachment)

NATIVELINK Native File Link (Native Files only)

TEXTLINK Link to text files

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

TIFFs. Unless excepted below, documents that exist as ESI shall be converted and 

produced as TIFFs. Unless excepted below, single page Group IV TIFFs 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 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 

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 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 files in the 

production. The total number of documents in a production should match the total 

number of records in the data load file. 

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

within a given document and across the production sets. 

8. Confidentiality Designation. Responsive documents in TIFF 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 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.

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 with OCR Text Files. A TIFF placeholder indicating that the document 

was provided in native format should accompany the database record. If a file has been 

redacted, TIFF images and OCR text of the redacted document will suffice in lieu of a 

native file and extracted text.

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 on 

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.

31868212

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