IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

COMMUNICATIONS WORKERS OF, )

AMERICA, AFL-CIO and ) CASE NO. 2:18-cv-00305

COMMUNICATIONS WORKERS OF )

AMERICA, LOCAL 4390, AFL-CIO, ) JUDGE MICHAEL H. WATSON

)

Plaintiffs, ) MAGISTRATE JUDGE

) KIMBERLY A. JOLSON

v. )

)

NOKIA OF AMERICA CORPORATION, )

Defendant. )

AGREED ORDER ESTABLISHING PROTOCOL FOR PRODUCTION OF 

ELECTRONICALLY STORED INFORMATION

This matter has been brought before the Court by the parties in the above-captioned 

litigation. The parties through counsel have agreed to the form and entry of this Order (“ESI 

Order”) establishing a protocol for the production of Electronically Stored Information (“ESI”) in 

this matter. 

I. SCOPE

A. The procedures and protocols outlined herein govern the search for, review and 

production of ESI (as defined below) by a party during the pendency of this litigation.

B. As used in this order, the terms “ESI” or “Electronically Stored Information” means 

discoverable documents and data existing in electronic form including e-mail, word processing 

documents, spreadsheets, electronic slide presentations, databases, and other reasonably accessible 

electronically stored information relevant to the claims or defenses of any party subject to 

discovery pursuant to Fed. R. Civ. P. 26. 

II. IDENTIFICATION OF RESPONSIVE ESI
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A. Documents and ESI which are neither privileged nor otherwise protected shall be 

timely reviewed and produced in accordance with this ESI Order. After receiving requests for 

production of documents, the party making the production (the “Producing Party”) shall conduct 

a reasonable and good faith search for responsive ESI. 

B. If a Producing Party identifies particular searches of ESI, or identifies particular

sources of ESI, that are not reasonably accessible because of undue burden or cost in accordance

with Fed. R. Civ. P. 26(b)(2)(B), such Producing Party shall meet and confer with the requesting

parties about whether such searches or sources are necessary to the requesting parties. The

Producing Party must meet and confer with the requesting parties as soon as practicable after the

Producing Party identifies the searches or ESI sources that are not reasonably accessible. If the

parties cannot resolve the dispute within fourteen days, the Producing Party must seek a protective

order with the Court, to alleviate Producing Party’s obligation to perform such searches on

particular sources of ESI.

C. Search Terms. The parties shall meet and confer and reach agreement as to the 

method of searching, and the words, terms, and phrases to be used to locate and identify 

potentially responsive ESI. The parties shall also agree on the timing and conditions of any 

additional searches that may become necessary in the normal course of discovery. 

D. Custodians and Electronic Systems. The parties shall meet and confer to 

identify the custodians whose email and other ESI will be searched using the agreed search terms 

from Section II.C. The parties shall also discuss prioritizing or tiering custodians, with the first 

priority custodians searched and reviewed first, and any further custodians searched only if the 

party requesting the discovery (“Requesting Party”) identifies why searches of additional 

custodians are necessary and would not be largely duplicative. 
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E. Technology Assisted Review in Lieu of Search Terms. In lieu of identifying 

responsive ESI using the search terms and custodians/electronic systems as described in Sections 

II.C & II.D above, a party may use a technology assisted review platform to identify potentially 

relevant documents and ESI. 

F. Date Range. The appropriate date range for searching any sources of ESI is 

January 1, 2014, to the present. 

G. System Files. Common system and program files as defined by the NIST library 

(which is commonly used by discovery vendors to exclude system and program files from 

document review and production) need not be processed, reviewed or produced. The parties shall 

meet and confer on any additional file types that also need not be processed, reviewed, or produced. 

III. PRODUCTION OF ESI

A. General Document Production Format. The following provisions shall generally 

govern the production format and procedure for ESI other than databases or spreadsheets.

1. Format. All ESI, other than databases or spreadsheets, shall be produced 

in a single- or multi-page 300 dpi TIFF image with an appropriate load file as agreed to by the 

parties. The documents shall also be processed through Optical Character Recognition (OCR) 

Software with OCR text files provided along with the production. Extracted Text shall be provided 

for all documents unless it cannot be obtained. To the extent a document is redacted, OCR text 

files for such document shall not contain text for the redacted portions of the document. Each 

TIFF image will be assigned a Bates number that: (1) is unique across the entire document 

production; (2) maintains a constant length across the entire production padded to the same number 

of characters; (3) contains no special characters or embedded spaces; and (4) is sequential within 

a given document. If a Bates number or set of Bates numbers is skipped in a production, the 
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Producing Party will so note in a cover letter or production log accompanying the production. 

Each TIFF image file shall be named with the Bates Number corresponding to the number assigned 

to the document page contained in that image. In the event a party determines that it is unable to 

produce in the format specified in this section without incurring unreasonable expense, the parties 

shall meet and confer to agree upon an alternative format for production. 

2. Metadata. To the extent that any of the following metadata fields 

associated with all applicable documents are available, the Producing Party will produce those 

metadata fields to the Requesting Party: file name, file size, author, application date created, file 

system date created, application date last modified, file system date last modified, date last saved, 

original file path, subject line, date sent, time sent, sender/author, recipient(s), copyee(s), and blind 

copyee(s). For emails with attachments, the Producing Party will indicate when a parent-child 

relationship between the message and the attachment exists. A Producing Party shall also produce 

a load file with each production with the following fields: Starting Bates; Ending Bates; Begin 

Attach; End Attach; and Source (custodian/location from which document was collected). If any 

metadata described in this section does not exist, is not reasonably accessible, is not reasonably 

available, or would be unduly burdensome to collect or provide, nothing in this ESI Order shall 

require any party to extract, capture, collect or produce such metadata.

3. Appearance. Each document’s electronic image shall convey the same 

information and image as the original document except for redactions for any privilege or for the 

confidential or identifying information of a borrower other than the named Plaintiff in this case. 

Documents shall appear with any revisions and/or comments visible and printed. Documents that 

present imaging or formatting problems shall be promptly identified and the parties shall meet and 

confer in an attempt to resolve the problems.
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4. Unitization. If a document is more than one page, the unitization of the 

document and any attachments and/or affixed notes shall be maintained as it existed in the original 

file of the Producing Party or shall be documented in a load file or otherwise electronically tracked. 

5. Color. Documents containing color need not be produced in color in the 

first instance. However, if good cause exists, the Requesting Party may request production of such 

documents in color by providing (1) a list of the Bates numbers of documents requested to be 

produced in color format; and (2) an explanation of the need for production in color format. The 

Producing Party shall not unreasonably deny such requests if the Requesting Party has 

demonstrated good cause, but need not make such production until the parties reach agreement 

regarding apportionment of any additional costs associated with the production of documents in 

color.

6. Exception Files. Files that cannot be produced or imaged due to technical 

difficulties shall be identified as exception files and identified on a log listing the file’s name, 

custodian, and reason for the exception. Common exception files include, without limitation, 

corruption, password protection, digital rights management, or proprietary software associated to 

the file. 

B. Production Format For Information From Databases and Spreadsheets. The 

following provisions shall generally govern the production format and procedure for databases and 

spreadsheets:

1. Spreadsheets. Absent special circumstances, Excel files, .csv files and 

other similar spreadsheet files will be produced in native format (“Native Files”). Native Files will 

be provided in a self-identified “Natives” directory. Each Native File will be produced with a 

corresponding single-page TIFF placeholder image, which will contain language indicating that 
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the document is being produced as a Native File. Native Files will be named with the beginning 

Bates number that is assigned to that specific record in the production. A “NativeLink” entry for 

each spreadsheet will be included in the .DAT load file indicating the relative file path to each 

native file on the Production Media. Native Files will be produced with extracted text and 

applicable metadata fields if possible and consistent with Section III.A.2 above. For documents 

that contain redacted text, the parties may either apply the redactions directly on the native file 

itself or produce TIFF image files with burned-in redactions in lieu of a Native File and TIFF 

placeholder image. Each Producing Party will make reasonable efforts to ensure that Native Files, 

prior to conversion to TIFF, reveal hidden data from redacted Native Files that are produced as 

TIFF image files and will be formatted so as to be readable. (For example, column widths should 

be formatted so that numbers do not appear as “#########”.) Under these circumstances, all 

single-page TIFF images shall include row and column headings.

2. Databases. If responding to a discovery request requires production of ESI 

contained in a database, the Producing Party at its option may provide the database as a Native 

File pursuant to Section III.B.1 above, or may comply with the discovery request by querying the 

database for discoverable information and generating a report in a reasonably usable and 

exportable electronic format (for example, in Excel or .csv format). The first line of each such file 

will, to the extent possible, show the column headers for each field of data included. The parties 

shall meet and confer as needed to finalize the appropriate data extraction and production format 

for specific information contained in particular databases.

3. Requests for Other Native Files. Other than as specifically set forth 

above, a Producing Party need not produce documents in native format. If good cause exists for 

the requesting party to request production of certain ESI in native format, the Requesting Party 
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may request production in native format by providing (1) a list of the Bates numbers of documents 

it requests to be produced in native format; and (2) an explanation of the need for reviewing such 

documents in native format. The Producing Party shall not unreasonably deny such requests if the 

Requesting Party has demonstrated good cause for receiving the ESI in native format. Each file 

produced in response to such requests will be produced to the extent possible consistent with 

Section III.B.1 above. 

C. Production Media. The Producing Party shall produce documents on CD-ROM, 

DVD, external hard drive (with standard PC compatible interface), or such other readily accessible 

computer or electronic media as the parties may hereafter agree upon (the “Production Media”). 

Each piece of Production Media shall be labeled with (1) the party making the production, (2) the 

date of the production, (3) text referencing that it was produced in CWA v. Nokia of America, Inc.; 

(4) the Bates Number range of the materials contained on the Production Media; and (5) any 

confidentiality designation(s) consistent with the terms of the Protective Order entered in this 

matter. To maximize the security of information in transit, any Production Media may be 

encrypted by the Producing Party. In such cases, the Producing Party shall transmit the encryption 

key or password to the Requesting Party, under separate cover, contemporaneously with sending 

the encrypted media.

D. Duplicate Production Not Required. ESI files need only be produced once. The 

Producing Party will apply global deduplication to responsive ESI based on MD5 Hash values or 

an equivalent deduplication key. Email will be deduplicated by family, not on an individual basis. 

Additionally, to the extent reasonably accessible, all custodians of removed duplicates will be 

listed in an “All Custodians” field and identified by full name of the individual or departmental 

custodian. Stand-alone documents may be deduplicated against email attachments provided that 
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the email attachment is the duplicate that is produced and the custodian(s) of the removed 

duplicate(s) are entered into the All Custodian field. All natives, even deduplicated versions, will 

be retained in a format readily accessible to be produced upon request.

E. Privilege Logs. A party withholding documents based on one or more claims of 

privilege will produce a privilege log. There will be no obligation to produce privilege logs 

identifying attorney-client communications concerning case strategy or the course of litigation that 

occur following the commencement of this lawsuit, including the efforts to locate and collect 

documents and ESI in response to a discovery request in this matter.

IV. RULE 502(D) CLAWBACK AGREEMENT

A. No Waiver of Disclosure. Section IV is agreed to pursuant to Fed. R. Evid. 502(d). 

Any Producing Party that discloses or produces a document or information that it thereafter claims 

to be privileged or otherwise protected from discovery (“Protected Information”), in whole or in 

part, shall not be deemed to have waived any applicable privilege or protection by reason of such 

disclosure or production in this or any other action. 

B. Notification Requirements. A Producing Party must promptly notify all parties 

receiving the Protected Information (“Receiving Party”) in writing that it has disclosed the 

Protected Information without intending to waive the privilege or protection. Upon receipt of such 

notification, each Receiving Party must within seven days (1) return the Protected Information, 

including all copies, to the Producing Party, or (2) notify the Producing Party in writing that it has 

destroyed the Protected Information including all copies. Each Receiving Party must also cease 

any use and dissemination of the Protected Information until further order of the Court ruling that 

such information is not privileged or otherwise protected. Moreover, any party that receives any 

document or information during the course of discovery in this action that it knows or reasonably 
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should know is likely to be subject to a claim of privilege or other protection from discovery shall 

so inform the Producing Party and all other parties in writing within seven days of becoming aware 

of the potentially privileged document or information.

C. Contesting Claim of Privilege of Work Product. If a Receiving Party contests 

the claim of privilege or other protection made under Section IV.B above, the Receiving Party 

must within 7 days of receipt of the notice move the Court for an Order compelling disclosure. 

Any Protected Information disclosed or filed with the motion shall be filed under seal with the 

Court as governed by Local Rule of Court 5.2.1. Pending a resolution of the motion, the Receiving 

Party shall not use or otherwise disseminate the Protected Information. The burden of proof for 

any such motion remains with the party asserting that the Protected Information is privileged or 

otherwise protected from disclosure. 

D. Stipulated Time Periods. The parties may stipulate to extend the time periods set 

forth in Sections IV.B and IV.C above. 

E. Effect. The provisions in Section IV of this ESI Order are intended to protect all 

parties to this action, to the fullest extent permissible by law, against any unintended waiver of the 

attorney-client privilege and/or the attorney work product doctrine that might otherwise arise from 

the inadvertent disclosure of privileged or protected documents or information. These provisions 

are intended to override any contrary law or presumptions, if and as applicable and permissible. 

The parties’ execution of this ESI Order, and compliance with its terms, shall be understood, for 

all purposes within and outside this action, to constitute reasonable and prompt efforts to preserve 

privileges and protections from discovery in respect to any inadvertently disclosed document or 

information.

V. MISCELLANEOUS PROVISIONS
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A. If the forms of production allowed by this protocol present an undue burden or cost 

for a Producing Party, the parties shall meet and confer to agree on a reasonable, alternative form 

of production. Any party may file a motion with the Court to seek individual relief from this ESI 

Order. 

B. Each party will presumptively bear its own costs of production. However, the 

parties reserve the right to seek cost shifting as appropriate.

C. Nothing in this ESI Order shall be construed to affect the discoverability or 

admissibility of any document or data. All objections to the discoverability or admissibility of any 

document or data are preserved and may be asserted at the appropriate time.

D. The parties may agree to modify or waive the terms of this ESI Order in writing 

signed by counsel for the affected parties. 

AGREED TO AND TENDERED BY:

Attorneys for Plaintiffs: Attorneys for Defendant:

/s/ James Petroff /s/ Kirk M. Wall

Counsel for Plaintiffs Counsel for Defendant

Bar ID: 0067674 Bar ID: 61642

/s/ K. Alexander Roe /s/ James F. Glunt

Counsel for Plaintiffs Counsel for Defendant

Pro hac vice Pro hac vice 

/s/ Claire E. Throckmorton

Counsel for Defendant

Pro hac vice 

Date: January 4, 2019
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IT IS SO ORDERED.

DATE: January 7, 2019 /s/ Kimberly A. Jolson 

UNITED STATES MAGISTRATE JUDGE
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EXHIBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

COMMUNICATIONS WORKERS OF, )

AMERICA, AFL-CIO and ) CASE NO. 2:18-cv-00305

COMMUNICATIONS WORKERS OF )

AMERICA, LOCAL 4390, AFL-CIO, ) JUDGE MICHAEL H. WATSON

)

Plaintiffs, ) MAGISTRATE JUDGE

) KIMBERLY A. JOLSON

v. )

)

NOKIA OF AMERICA CORPORATION, )

Defendant. )

STIPULATED PROTECTIVE ORDER

The undersigned hereby acknowledges that he/she has read the Stipulated Protective 

Order dated ________________ in the above-captioned action and attached hereto, understands 

the terms thereof, and agrees to be bound by its terms. The undersigned submits to the 

jurisdiction of the United States District Court for the Southern District of Ohio (Eastern 

Division) in matters relating to the Order. Further, the undersigned understands that the terms of 

the Order obligate him/her to use documents designated Confidential in accordance with the 

Order solely for the purposes of the above-captioned action, and not to disclose any such 

documents or information derived directly therefrom to any other person, firm or concern.

The undersigned acknowledges that violation of the Order may result in penalties for 

contempt of court. 

Name: 

Address: 

Date: 

Signature: