IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

IN RE: PREMERA BLUE CROSS

CUSTOMER DATA SECURITY BREACH

LITIGATION

This Document Relates to All Actions

Case No. 3:15-md-2633-SI

STIPULATED REQUEST FOR AN ORDER GOVERNING DISCOVERY OF 

DOCUMENTS AND ELECTRONICALLY STORED INFORMATION 

AND PROPOSED ORDER

WHEREAS, the Parties have agreed to stipulate and agree, pursuant to Rule 26(f)(3) of 

the Federal Rules of Civil Procedure, by and through their undersigned counsel and subject to 

Court approval, to the following terms governing discovery of documents and electronically 

stored information (“ESI”) in this case:

I. GENERAL GUIDELINES 

1. This Stipulated Request for an Order Governing Discovery of Documents and 

Electronically Stored Information (the “Protocol”) will govern, subject to Court approval, 

discovery of documents and ESI in this matter as a supplement to the Federal Rules of Civil 

Procedure and United States District Court for the District of Oregon Local Rules. The Parties 

desire to control and focus the production of documents and ESI to the needs of the case to 

promote a “just, speedy, and inexpensive determination” of this action, as required by Federal 

Rule of Civil Procedure 1.

2. This Protocol is not intended to expand any document preservation or production 

requirements under the Federal Rules of Civil Procedure or limit any protection available to a 

Party under the Federal Rules of Civil Procedure or the Federal Rules of Evidence. The Parties 

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 1 of 10
2

will endeavor to comply with this Protocol, but if compliance with this agreement creates an 

undue burden or expense, the Parties shall attempt to resolve such issues in good faith.

3. Each Party shall bear its own costs for the production of documents and ESI. In 

the event, however, that a Party requests documents or ESI that would result in the production of 

cumulative or repetitive information or information that otherwise imposes an undue burden or 

expense, the producing Party may object. The Parties shall work in good faith to resolve any 

such objections. In the event that the Parties are unable to resolve an objection, and upon 

substantiation of such an objection, the producing Party may move the Court for an Order 

shifting the cost of producing such cumulative or repetitive information or information that 

otherwise imposes an undue burden or expense to the requesting Party. Unless good cause is 

shown, in no event will the producing Party disclose information for the first time to the Court 

that it has not disclosed to the requesting Party in the meet and confer process (e.g., affidavits 

regarding related expenses, documentation regarding cumulative nature, etc.).

4. By agreeing to this Protocol, neither Party waives any of its rights under Federal 

Rule of Civil Procedure 26. Further, the Parties agree that the standard enumerated in the 

proposed amendments to Federal Rule of Civil Procedure 37(e), as approved by the U.S. 

Supreme Court on April 29, 2015, will govern any issue regarding spoliation measures or 

sanctions in this case.

II. LIAISON 

5. Each Party will designate a liaison (the “Liaison”) knowledgeable about the 

Party’s ESI and who will be responsible for discussing it. Each ESI Liaison will be, or will have 

access to those who are, knowledgeable about the technical aspects of electronic discovery, 

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

production of ESI in this matter. The Parties will utilize the Liaisons, as needed, to confer about 

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 2 of 10
3

ESI and to help resolve disputes without Court intervention.

III. PRESERVATION 

6. The Parties have discussed their preservation obligations and needs, and agree to 

the reasonable and proportional preservation of potentially relevant documents and ESI. To 

reduce the costs and burdens of preservation while still ensuring the preservation of relevant 

information, the Parties agree to continue to meet and confer, as appropriate, regarding 

preservation parameters. 

7. Each Party shall bi-annually communicate the existence and substance of the 

obligation to preserve documents to those employees and/or agents responsible for carrying out 

the Party’s obligations hereunder, and maintain a record of to whom the existence and substance 

of this information has been communicated. An e-mail or paper memorandum directed to such 

employees and/or agents shall be sufficient to communicate these obligations. No Party will be 

required to provide these communications to the other Party absent a Court Order.

IV. GENERAL SEARCH GUIDELINES 

8. The Parties agree that in responding to an initial Federal Rule of Civil Procedure

34 request, or earlier if appropriate, they will meet and confer regarding appropriate search 

methodologies for all relevant and reasonably accessible documents and ESI.

V. DISCLOSURE 

9. Within 45 days of the Court’s entry of this Protocol, the Parties shall produce in 

writing:

a. A list of the producing Party’s most likely custodians of relevant 

electronic materials, including each person’s title and a brief description of 

such person’s responsibilities.

b. A list of locations and/or ESI storage system(s) that the producing Party 

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 3 of 10
4

has identified as likely locations of relevant, non-duplicative, and 

reasonably accessible documents and ESI. This will include a general 

description of each location, which may include the dates of service, 

nature, scope, character, organization, and formats employed in each 

system.

c. Whether a responding Party believes that they have or may have 

potentially responsive ESI that is inaccessible or only of limited 

accessibility and, hence, not producible by that Party. If a responding 

Party does so contend, it shall disclose:

i. The general nature of such information (e.g., correspondence, 

meeting minutes, etc.);

ii. The reason(s) why the information is considered inaccessible or of 

only limited accessibility; and

iii. A proposed capture and retrieval protocol necessary for 

identification and recovery of the information deemed inaccessible 

(and cost of such if available).

VI. PRODUCTION FORMATS 

10. Paper documents amenable to being imaged will be produced as images on optical 

disks (i.e., CDs or DVDs) or external hard drives accompanied by TIFF Image (DII) Load Files. 

Paper documents may be produced in back-and-white or color, but if a producing Party intends 

to rely in any brief or heading on any aspect of a document that requires review in color, the 

Party shall produce that document in color. Each image will bear a unique production number 

and any applicable confidentiality language pursuant to the Protective Order entered in this 

litigation. (See Docket No. 41.) Reasonable efforts shall be made to scan the pages at or near 

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 4 of 10
5

their original size. Physically oversized originals, however, may appear reduced. In addition, 

reducing an image may be necessary to display production numbers and confidentiality 

designations without obscuring the text. Paper documents produced in this manner will be 

accompanied by load files with searchable text (including OCR text). If a Party desires 

additional information about a particular paper document produced in this form, the Parties will 

meet and confer regarding the appropriate means to supply that information.

11. ESI amenable to being imaged will be produced as images on optical disks (i.e., 

CDs or DVDs) or external hard drives accompanied by TIFF Image (DII) Load Files, with a 

minimum resolution of 300 DPI with the exception of color documents, which shall be produced 

as JPG (or JPEG) image format. Each image will bear a unique production number and any 

applicable confidentiality language pursuant to the Protective Order entered in this litigation. 

(See Docket No. 41.) ESI produced in this manner will be accompanied by load files with 

searchable text (including electronically extracted text or, if electronically extracted text is 

unavailable, OCR text), and to the extent available:

• Unitization (including the production number of the first and last page of each 

file);

• Attachments (including information sufficient to identify the parent and child 

relationships of all documents and ESI that are or have attachments);

• Source information (including the identity of the custodian, or, if none, a 

generalized location); and

• Metadata (including author, file type, date created, data modified, title, FilePath, 

PathToNative, sender (“from”), primary recipient (“to”), courtesy or carbon copy 

(“cc”), blind courtesy or carbon copy (“bcc”), subject, sent time/date, and 

received time/data).

12. To the extent that spreadsheets, executable files, videos, animations, audio files, 

and presentations that include video, animation, or audio shall be produced, these items shall be 

produced where practical in native format. To the extent that documents produced in native 

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 5 of 10
6

format cannot be rendered or viewed without the use of propriety software, the Parties shall meet 

and confer to minimize any expense or burden associated with the review of such documents, 

including issues that may arise with respect to obtaining access to any such software or operating 

manuals. All documents produced as native files shall be produced along with a spacer image 

sheet that: (i) is in the format for static images explained above; (ii) indicates that the file was 

produced as a native file; and (iii) is marked with a production number. That production number 

will be the production number of the corresponding native file. The native file name shall 

include this production number.

13. If production of a particular document as a native format file would result in the 

disclosure of information protected by the attorney-client privilege, the work-product doctrine or 

that is otherwise protected from discovery, the producing Party may object to its production as a 

native file and produce, with redactions, the document in native or static image format as 

specified above.

14. Certain types of databases are dynamic in nature and will often contain 

information that is neither relevant nor reasonably calculated to lead to the discovery of 

admissible evidence. These files are typically very large and would, if rendered to static image 

format (e.g., to accommodate redaction of confidential or irrelevant information), produce 

thousands of pages that would have little utility to a reviewer. The producing Party, upon mutual 

agreement with the requesting Party, may opt to produce relevant and responsive information 

from databases in an alternative form, such as a report or data table. These reports or data tables 

will be produced in a static image format.

15. If a Party identifies unique, responsive documents or information in a form that 

cannot reasonably be imaged and that does not fall within the categories to be produced in native 

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 6 of 10
7

format, that Party shall inform the requesting Party of the existence of such records. The Parties 

shall then meet and confer regarding the appropriate means for producing or permitting 

inspection of such documents or information.

16. All imaged documents shall be provided with an associated image load file. No 

document should span or break across multiple folders.

VII. DUPLICATES 

17. To the extent that duplicate documents or ESI reside within a Party’s data set, 

each Party is only required to produce a single copy of the responsive information. If a 

document is de-duplicated across custodians, then the metadata field called 

“OTHERCUSTODIANS” must be provided listing the numbers of other custodians who were in 

possession of the document at the time of collection, but whose copy has been withheld as a 

duplicate.

VIII. DOCUMENTS PROTECTED FROM DISCOVERY 

18. The parties will propose a separate comprehensive 502(d) and (e) Clawback 

Stipulation and Order (“Clawback Order”). In addition, nothing in this Protocol shall be 

interpreted to require disclosure of irrelevant information or of relevant information protected by 

the attorney-client privilege, work-product doctrine, or any other applicable privilege or 

protection. The Parties do not waive any objections to the production or discoverability of any 

document or information, including, without limitation, objections regarding burden overbreadth, 

or relevance of document requests.

IX. MODIFICATION 

19. This Protocol may be modified by stipulated request, subject to Court approval, or 

by the Court for good cause shown.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 7 of 10
8

Plaintiffs’ Executive Leadership Committee

Dated: December 18, 2015 By: /s/ Kim D. Stephens

One of Plaintiffs’ Attorneys

Christopher I. Brain

cbrain@tousley.com

Kim D. Stephens

kstephens@tousley.com

Chase C. Alvord

calvord@tousley.com

Jason T. Dennett

jdennett@tousley.com

TOUSLEY BRAIN STEPHENS PLLC

1700 Seventh Avenue, Suite 2200

Seattle, Washington 98101

Tel: 206.682.5600

Fax: 206.682.2992

Interim Lead Plaintiffs’ Counsel

Keith S. Dubanevich

kdubanevich@stollberne.com

Steve D. Larson

slarson@stollberne.com

Mark A. Friel

mfriel@stollberne.com

STOLL STOLL BERNE LOKTING & SCHLACHTER P.C.

209 SW Oak Street

Portland, Oregon 97204

Tel: 503.227.1600

Fax: 503.227.6840

Interim Liaison Plaintiffs’ Counsel

Ari J. Scharg

ascharg@edelson.com

EDELSON PC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Tina Wolfson

twolfson@ahdootwolfson.com

AHDOOT AND WOLFSON, PC

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 8 of 10
9

1016 Palm Avenue

West Hollywood, California 90069

Tel: 310.474.9111

Fax: 310.474.8585

James Pizzirusso

jpizzirusso@hausfeldllp.com

HAUSFELD LLP

1700 K Street NW, Suite 650

Washington, DC 20006

Tel: 202.540.7200

Fax: 202.540.7201

Plaintiffs’ Executive Leadership Committee

PREMERA BLUE CROSS,

Dated: December 18, 2015 By: /s/ Paul G. Karlsgodt

One of Defendant’s Attorneys

Paul G. Karlsgodt

pkarlsgodt@bakerlaw.com

BAKER & HOSTETLER LLP

1801 California Street, Suite 4400

Denver, Colorado 80202

Tel: 303.861.0600

Fax: 303.861.7805

Daniel R. Warren

dwarren@bakerlaw.com

BAKER & HOSTETLER LLP

1900 East Ninth Street, Suite 3200

Cleveland, Ohio 44114

Tel: 216.620.0200

Fax: 216.696.0740

Darin M. Sands

sandsd@lanepowell.com

LANE POWELL PC

601 S.W. Second Avenue, Suite 2100

Portland, Oregon 97204

Tel: 503.778.2117

Fax: 503.778.2200

Counsel for Defendant Premera Blue Cross

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 9 of 10
10

PURSUANT TO STIPULATION, IT IS SO ORDERED:

The Parties’ Stipulated Request for an Order Governing Discovery of Documents and 

Electronically Stored Information is adopted.

Entered: _______________, 2015

HONORABLE MICHAEL H. SIMON

UNITED STATES DISTRICT JUDGE

Case 3:15-md-02633-SI Document 50 Filed 12/18/15 Page 10 of 10