STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY

STORED INFORMATION AND RELATED DISCOVERY MATTERS CASE NO. 5:17-CV-00220-LHK 

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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

 Plaintiff, 

 vs. 

QUALCOMM INCORPORATED, a 

Delaware corporation, 

 Defendant. 

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Case No. 5:17-cv-00220-LHK 

STIPULATED ORDER RE: DISCOVERY 

OF ELECTRONICALLY STORED 

INFORMATION AND RELATED 

DISCOVERY MATTERS 

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, this Court’s Guidelines for the 

Discovery of Electronically Stored Information, and any other applicable orders and rules. 

2. COOPERATION 

The parties are aware of the importance the Court places on cooperation and commit to 

cooperate in good faith throughout the matter consistent with this Court’s Guidelines for the 

Discovery of ESI. 

3. LIAISON 

The parties have identified liaisons to each other who are and will be knowledgeable 

about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or 

have access to those who are, knowledgeable about the technical aspects of e-discovery, 

including the location, nature, accessibility, format, collection, search methodologies, and 

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY

STORED INFORMATION AND RELATED DISCOVERY MATTERS CASE NO. 5:17-CV-00220-LHK 

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production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer 

about ESI and to help resolve disputes without court intervention. 

4. PRESERVATION 

The parties have discussed their preservation obligations and needs and agree to take 

steps to preserve potentially relevant ESI that are reasonable and proportionate. The parties 

furthermore agree to meet and confer to the extent either party seeks further limitations on the 

scope of its preservation duties. 

5. SEARCH 

The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if 

appropriate, they will meet and confer about methods and protocols, including the use of 

search terms and/or other automated search and review technology, to search ESI in order to 

identify ESI that is subject to production in discovery and filter out ESI that is not subject to 

discovery. 

6. PRODUCTION FORMATS 

The parties agree as follows: 

a. The form or forms in which ESI should be produced. 

i. Format for production of documents – documents existing in electronic format. 

The parties agree that all documents existing in electronic format shall be 

produced in single page, Group IV tagged image file format (“TIFF”), or 

equivalent, at a resolution of at least 300 dpi in accordance with the following: 

1. Image files shall be produced along with Concordance/Opticon image load 

files linking the images to the corresponding document that indicate the 

beginning and ending of each document. Each image file shall be named 

according to a unique corresponding Bates number associated with the 

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

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY

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and the agreed-upon confidentiality designation. Image files shall show all 

text and images that would be visible in the original electronic format (native 

format), including redlines and speaker notes. 

2. Notwithstanding the foregoing, all documents that the producing party 

received from Third Parties or reproduces in whole or in part from the 

production files of a historical litigation should be produced in the same 

manner and form, including native files and all metadata, as the producing 

party received from the producing Third Party or originally produced in the 

relevant historical litigation. 

3. Extracted text, to the extent it exists, should be provided in document-level 

text files. 

ii. Format for production of documents – hardcopy or paper documents. All 

documents that are hardcopy or paper files shall be scanned and produced in the 

same manner as documents existing in electronic format in accordance with the 

following: 

1. In scanning hardcopy documents, distinct documents should not be merged 

into a single record, and single documents should not be split into multiple 

records (i.e., hardcopy documents should be logically unitized). The parties 

will use reasonable efforts to unitize documents correctly. 

iii. Production media and encryption of productions. Unless otherwise agreed, the 

parties shall provide document productions in the following manner: The 

producing party shall provide the production data on CDs, DVDs, external hard 

drives, or via FTP as appropriate. If the producing party so desires, it can 

encrypt the production data using an industry acceptable encryption method. In 

such a case, the producing party shall forward the password to decrypt the 

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY

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production data separately from the CD, DVD, or external drive on which the 

production data is saved. 

iv. Deduplication. Data may be deduplicated on a global level. Names of 

custodians of copies of files eliminated due to global deduplication shall be 

provided in the Alternative Custodian field accompanying the original file. 

v. Parent and child emails. The parties shall produce email attachments 

sequentially after the parent email. With respect to an email chain, the parties 

are permitted to produce the longest unique chain and the parties do not need to 

separately produce the lesser-included emails unless those lesser-included emails 

include unique attachments not included in the longest chain. If a lesserincluded email includes a unique attachment, then the lesser-included email must 

be separately produced with the attachment. 

vi. Native files. The parties agree to produce Microsoft Excel or other spreadsheet 

files, and Microsoft PowerPoint files in native format, and agree to respond to 

additional reasonable and specific requests for the production of files or file 

types in native format where appropriate. If a dispute arises with regard to 

requests for the production of files or file types in native format, the parties will 

meet and confer in good faith to try to resolve it. If the parties are unable to 

reach agreement with regard to requests for additional documents in native-file 

format, the parties reserve the right to seek relief from the Court. 

Notwithstanding the foregoing, a party may produce a document in a non-native 

format where production in native format would result in the production of 

privileged or otherwise non-discoverable information. The parties will meet and 

confer regarding reasonable requests for production of documents described in 

the foregoing sentence in a native or other appropriate format. 

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vii. Color documents. The parties agree that color documents should be produced as 

color images (JPEGs) or in native format. 

viii. Images with Poor Legibility. If a document is originally produced in an illegible 

or difficult to read form, the producing party shall have the option of responding 

by producing a native-file version of the document or producing a replacement 

image of legible quality. If a dispute arises with regard to requests for legible 

images, the parties will meet and confer in good faith to try to resolve it. 

ix. Culling and Filtering. Each party will use reasonable 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 system file types based on 

file extension may include, but are not limited to: WINNT, LOGS, DRVS, C++ 

Program File (c), C++ Builder 6 (cpp), MP3, MP4, WAV, M4a, Channel 

Definition Format (cdf), Creatures Object Sources (cos), Dictionary file (dic), 

Executable (exe), Hypertext Cascading Style Sheet (css), JavaScript Source 

Code (js), Label Pro Data File (IPD), Office Data File (NICK), Office Profile 

Settings (ops), Outlook Rules Wizard File (rwz), Scrap Object, System File (dll), 

temporary files (tmp), Windows Error Dump (dmp), Windows Media Player 

Skin Package (wmz), Windows NT/2000 Event View Log file (evt), Python 

Script files (.py, .pyc, .pud, .pyw), Program Installers. The parties agree to meet 

and confer regarding which file types may be appropriate to cull or filter in an 

effort to preserve files relevant to this litigation. 

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY

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b. Metadata 

The parties agree that load files should include, where applicable, the information listed 

in the Table of Metadata Fields, set forth below. However, the parties are not obligated to 

include metadata for any document that does not contain such metadata in the original. 

Table of Metadata Fields 

Field Name Specifications 

Field Name 

Field Type Description 

(Email) 

Description (EFiles/Attachments) 

Bates Begin Bates number Text The Bates 

number 

associated with 

the first page of 

an email 

The Bates number 

associated with the 

first page of a 

document 

Bates End Bates number Text The Bates 

number 

associated with 

the last page of 

an email 

The Bates number 

associated with the 

last page of a 

document 

Confidential 

Designation 

 Text The 

confidentiality 

designation 

endorsed on the 

document. If no 

designation is 

present, a default 

value of “None” 

will be coded. 

The confidentiality 

designation 

endorsed on the 

document. If no 

designation is 

present, a default 

value of “None” 

will be coded. 

Email Date 

Received 

 Date 

(MM/DD/YY

YY format) 

The date the 

email was 

received 

For email 

attachments, the 

date the parent 

email was received 

Email Date Sent Date 

(MM/DD/YY

YY format) 

The date the 

email was sent 

For email 

attachments, the 

date the parent 

email was sent 

Email Time 

Received 

 Time 

(HH:MM:SS 

AM/PM) 

The time the 

email was 

received 

For email 

attachments, the 

time the parent 

email was received 

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Field Name Specifications 

Field Name 

Field Type Description 

(Email) 

Description (EFiles/Attachments) 

Email Time Sent Time 

(HH:MM:SS 

AM/PM) 

The time the 

email was sent 

For email 

attachments, the 

time the parent 

email was sent 

Email From Sender Text The display 

name of the 

sender of an 

email 

N/A 

Email To Recipient Text The display 

name of the 

recipient(s) of an 

email 

N/A 

Email CC CC Text The display 

name of the 

copyee(s) of an 

email 

N/A 

Email BCC BCC Text The display 

name of the 

blind copyee(s) 

of an email. 

N/A 

Email Subject Subject (email) Paragraph The subject line 

of an email 

N/A 

Custodian Custodian Paragraph The custodian of 

an email 

The custodian of a 

document. 

Alternate 

Custodian 

Alternate 

Custodian 

Paragraph Custodians that 

possess the same 

email in their 

files. 

Custodians that 

possess the same 

document in their 

files. 

Date Created Date 

(MM/DD/YY

YY format) 

N/A Date the file was 

created 

Date Modified Date 

(MM/DD/YY

YY format) 

N/A Date the file was 

last modified 

Time Created Time 

(HH:MM:SS 

AM/PM) 

N/A Time the file was 

created 

Time Modified Time 

(HH:MM:SS 

AM/PM) 

N/A Time the file was 

last modified 

File Name Paragraph N/A Original file name 

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STIPULATED ORDER RE: DISCOVERY OF ELECTRONICALLY

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Field Name Specifications 

Field Name 

Field Type Description 

(Email) 

Description (EFiles/Attachments) 

HASH Unique ID A calculated 

value unique to 

each identical 

file - the file 

“fingerprint” 

A calculated value 

unique to each 

identical file-the file 

“fingerprint” 

Parent ID Parent 

Documents 

BatesBegin 

Text The Bates 

number 

associated with 

the first page of 

the Parent email 

The Bates number 

associated with the 

first page of the 

Parent document 

Text Link Full path to the 

supplied text (to 

be left blank 

when no text file 

is supplied). 

Full path to the 

supplied text (to be 

left blank when no 

text file is supplied) 

Native Link Full path to the 

supplied native 

(to be left blank 

when no Native 

Format file is 

supplied) 

Full path to the 

supplied native (to 

be left blank when 

no Native Format 

file is supplied) 

c. If particular documents warrant a different format from that described in 

subparts a-b above, then 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. 

7. DOCUMENTS PROTECTED FROM DISCOVERY 

a. The inadvertent production of privileged or otherwise protected ESI shall be 

governed by Section 12 of the Protective Order Governing Confidential Material 

[Dkt. 81]. 

b. The following types of information relating to this matter shall not be the subject of 

discovery and need not be placed on a privilege log: email, notes, drafts, 

communications, memoranda, or other work product produced by or exchanged 

solely among and between 

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(i) FTC Counsel1

 responsible for this litigation (the “Action”) or the FTC’s preComplaint investigation (FTC File No. 141-0199) (the “Investigation”). 

(ii) FTC Counsel responsible for the Action or the Investigation, on the one 

hand, and any FTC employee(s), on the other hand, provided such information relates 

to the Action or Investigation and was created, sent, or received after the Commission 

vote authorizing the filing of the Complaint [Dkt. 1] (the “Vote”); 

(iii) any FTC employees, provided such information relates to the Action or the 

Investigation and was created, sent, or received prior to the Vote; 

(iv) Qualcomm’s outside Counsel; 

(v) Qualcomm’s outside Counsel responsible for the Action, the Investigation, 

or the related actions listed in Exhibit B to the Joint Case Management and Federal 

Rule of Civil Procedure 26(f) Conference Statement [Dkt. 71], subsequently filed 

related litigations, or any investigations of Qualcomm conducted by foreign 

competition agencies (collectively, the “Related Matters”), on the one hand, and 

employees of Qualcomm, on the other hand, provided such information directly relates 

to the representation of Qualcomm in any such action or investigation; and 

(vi) In-house Counsel in Qualcomm’s Corporate Legal Department that are 

responsible for the representation of Qualcomm in the Action, the Investigation, or the 

Related Matters, provided such information directly relates to the representation of 

Qualcomm in any such action or investigation. 

(vii) In-house Counsel in Qualcomm’s Corporate Legal Department that are 

responsible for the representation of Qualcomm in the Action, the Investigation, or the 

Related Matters, on the one hand, and Qualcomm employees, on the other hand, 

provided such information directly relates to the representation of Qualcomm in any 

such action or investigation. 

 

1

 “Counsel,” whether used to describe FTC attorneys or Qualcomm’s outside and in-house 

attorneys, includes such attorneys’ administrative and paralegal staff. 

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c. A document family (email and attachments) may be logged as a single entry so long 

as the Description of that entry includes a reference to the privileged attachments. 

d. The parties agree to further meet and confer regarding the format, content, and 

timing of production of privilege logs. 

8. PROPOSED MODIFICATIONS OR LIMITATIONS TO THE DISCOVERY 

RULES 

a. Previously Produced Qualcomm Documents. The parties agree that all documents 

and associated privilege logs previously produced by Qualcomm to the FTC in the 

course of the FTC’s investigation of Qualcomm, FTC File No. 141-0199, shall be 

deemed to have been produced in this action upon entry of the Protective Order in this 

action. 

b. Document Subpoenas to Non-Parties. The parties agree as follows with respect to 

non-parties producing materials in response to Fed. R. Civ. P. 45 document 

subpoenas in this action. The issuing party shall request that non-parties 

simultaneously produce materials to both Plaintiff and Defendant. If, 

notwithstanding such request, the non-party does not produce the materials to both 

sides, the issuing party shall provide a copy of all materials to the other side within 

five (5) calendar days after receipt of the materials from the non-party. Any party 

that does not have access to substantially all materials that have been provided by a 

non-party for at least thirty (30) calendar days before any deposition of that nonparty may elect to have the deposition postponed until the party has had access to 

the materials for at least thirty (30) calendar days. If a party modifies or extends the 

time to respond to a Fed. R. Civ. P. 45 document subpoena in writing, it shall 

simultaneously provide that written extension, modification, or explanation to the 

other party. 

c. Authenticity Presumptions. Documents produced by non-parties from the nonparties’ files shall be presumed to be authentic within the meaning of Fed. R. 

Evid. 901. Documents produced by Qualcomm either in response to document 

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requests in this action or in the course of the FTC’s pre-Complaint investigation, 

FTC File No. 141-0199, shall be presumed to be authentic within the meaning of 

Fed. R. Evid. 901. If a party serves a specific good-faith written objection to the 

authenticity of a document that it did not produce from its files, the presumption of 

authenticity will no longer apply to that document. Any objection to a document’s 

authenticity must be provided with (or prior to) the exchange of objections to trial 

exhibits. The parties will promptly meet and confer to attempt to resolve any 

objection. The Court will resolve any objections that are not resolved through this 

means or through the discovery process. 

d. Expert Discovery. The parties agree that expert disclosures, including each side’s 

expert reports, shall comply with the requirements of Federal Rule of Civil 

Procedure 26(a)(2), except as modified herein. Neither side must preserve, disclose 

(including in expert deposition testimony), or place on a privilege log the following 

documents or materials: (i) any form of communication or work product shared 

between any of the parties’ in-house or outside litigation counsel and such party’s 

expert(s) or consultant(s), or between any of such party’s experts or consultants 

themselves; (ii) any form of communication or work product shared between an 

expert and persons assisting the expert; (iii) expert’s notes, unless they are 

expressly relied upon and/or cited in support of an opinion or fact; or (iv) drafts of 

expert reports, analyses, or other work product. The parties shall disclose the 

following materials in connection with all expert reports: (a) a list by Bates number 

of all documents relied upon by the testifying expert(s); (b) copies of any materials 

relied upon by the expert not previously produced; and (c) for any calculations 

appearing in the report, all data and programs underlying the calculation, including 

all programs and codes necessary to recreate the calculation from the initial (“raw”) 

data files. 

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9. MODIFICATION 

This Stipulated Order may be modified by a Stipulated Order of the parties or by the 

Court for good cause shown. 

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 

DATED: June 30, 2017 /s/ Jennifer Milici 

 Attorney for Plaintiff Federal Trade Commission 

DATED: June 30, 2017 /s/ Gary A. Bornstein 

 Attorney for Defendant Qualcomm Incorporated 

 

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PURSUANT TO STIPULATION, IT IS SO ORDERED. 

DATED: 

Honorable Nathanael Counsin 

United States Magistrate Judge 

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