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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

NETLIST, INC.,

Plaintiff,

vs.

MICRON TECHNOLOGY, INC.; MICRON 

SEMICONDUCTOR PRODUCTS, INC.; 

MICRON TECHNOLOGY TEXAS LLC,

 Defendants.

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Case No. 2:23-cv-628-JRG

 

JURY TRIAL DEMANDED

ESI ORDER

Before this Court is the Joint Motion for Entry of ESI Order filed by Plaintiff Netlist, Inc. 

(“Netlist” or “Plaintiff”) and Defendants Micron Technology, Inc., Micron Semiconductor 

Products, Inc., and Micron Technology Texas LLC (collectively “Micron”). Having considered 

the parties’ motion, the Court finds that the Motion should be Granted and ORDERS as follows:

1. This Order supplements all other discovery rules and orders. It streamlines Electronically 

Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive 

determination” of this action, as required by Federal Rule of Civil Procedure 1.

2. The Order may be modified in the Court’s discretion or by agreement of Netlist and 

Micron. Any dispute concerning this Order or any provision of this Order shall be 

submitted to the Court for resolution.

3. A party’s meaningful compliance with this Order and efforts to promote efficiency and 

reduce costs will be considered in cost-shifting determinations.

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4. The parties shall produce metadata associated with any ESI production according to 

Exhibit 1 attached hereto. Nothing in this Order or the Discovery Order shall require the 

parties to create metadata that does not already exist in the normal course of business.

5. Absent agreement of the parties or further order of this court, the following parameters 

shall apply to ESI production, in addition to those in Exhibit 1 attached hereto:

(a) No Backup Restoration Required. Absent a showing of good cause, no party 

need restore any form of media upon which backup data is maintained in a party’s 

normal or allowed processes, including but not limited to backup tapes, disks, SAN, 

and other forms of media, to comply with its discovery obligations in the present 

case.

(b) Voicemail and Mobile Devices. Absent a showing of good cause, voicemails, 

PDAs, and mobile phones are deemed not reasonably accessible and need not be 

collected and preserved.

6. General ESI production requests under Federal Rules of Civil Procedure 34 and 45, or 

compliance with a mandatory disclosure order of this Court, shall not include e-mail or 

other forms of electronic correspondence (collectively “e-mail”). To obtain e-mail parties 

must propound specific e-mail production requests.

7. Each party shall provide a specific listing and identification1of the eight (8) most 

significant e-mail custodians in view of the pleaded claims and defenses. Recognizing that 

e-mail collection, review, processing, and production can be time consuming, and in order 

to avoid late e-mail requests near the close of fact discovery, the exchange of this 

information shall occur ten (10) business days after this Order is entered by the Court. The 

1 A “specific identification” requires a short description of why the custodian is believed to be significant.

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other party may identify up to six (6) additional custodians, and may inquire if the 

producing party has e-mail for those identified custodians (without the need to propound 

an interrogatory); if the producing party does not have e-mails for any such custodian, the 

other party may continue its inquiries until it has identified ten (10) additional custodians 

for whom the producing party has e-mails.). 

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8. E-mail production requests shall identify the custodian, search terms, and time frame. The

parties shall cooperate to identify the proper custodians, proper search terms, and proper

time frame, and shall cooperate to ensure that requests pursuant to this Order do not seek

cumulative discovery. Each party shall limit its e-mail production requests to the other

party to a total of eight (8) custodians for all such requests. E-mail production 

requests shall be served not later than ninety (90) days before the close of fact 

discovery. The parties may jointly agree to modify these restrictions without the 

Court’s leave. The Court shall consider contested requests for additional or fewer 

custodians per producing party, or requests for e-mails after the deadline for serving such 

requests, upon showing a distinct need based on the size, complexity, issues of this

specific case, and the extent to which requests pursuant to this Order seek cumulative

discovery, in a brief joint submission.

9. Each requesting party shall limit its e-mail production requests to a total of ten (10) terms

per custodian. The parties may jointly agree to modify these limits without the Court’s

leave. The Court shall consider contested requests for additional or fewer search terms per

custodian, upon showing a distinct need based on the size, complexity, and issues of this

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specific case, in a brief joint submission. 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 over-production. A conjunctive combination of multiple 

words or phrases (e.g., “computer” and “system”) 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 encouraged to limit the production and shall be 

considered when determining whether to shift costs for disproportionate discovery. The 

Parties shall ensure that, prior to applying search terms, emails have been processed so as 

to preserve non-Western (e.g., Korean) characters, and to fully enable searching using 

Unicode non-Western (e.g., Korean) search terms. A search term proposed using both 

Western and Unicode non-Western (e.g., Korean) characters shall count as a single search 

term.

10. Within five (5) business days of receipt of e-mail production requests, the producing party

shall either: (a) indicate an objection to the e-mail production request on a basis other than

search term hit counts (e.g., improper custodian or improper search terms), or (b) diligently

work to obtain search term hit counts based on the e-mail production requests.2 Within

five (5) business days of receipt of search term hit counts (or the making of an objection

by the producing party), the parties shall diligently meet and confer regarding the e-mail

2 Depending on the circumstances (e.g., where the e-mails are stored, the time for decryption, etc.), obtaining 

search term hit counts may be time consuming. The parties agree to keep one another apprised of estimated times 

for receiving hit counts after receiving an e-mail production request.

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production requests, including the issues set forth in Paragraphs 8 and 9. The parties shall 

continue to meet and confer as needed. As part of the continuing meet and confer process, 

the producing party shall, as soon as practicable, run the requested search terms for each 

custodian and provide the requesting party with document hit counts for the 

requested search terms plus family members. The parties agree to revise search terms 

using limiters or other appropriate means until the document hit counts (including family 

members) are within a reasonable range on a custodian-by-custodian basis. A 

document hit count (including family members) of up to 4,000 per custodian is 

presumptively reasonable. The parties shall submit any disputes that may arise under 

this Paragraph to the Court for resolution in a brief joint submission. 

11. Pursuant to Federal Rule of Evidence 502(d), the inadvertent production of privileged or

work product-protected ESI is not a waiver in the pending case or in any other federal or

state proceeding.

12. The mere production of ESI in a litigation as part of a mass production shall not itself

constitute a waiver for any purpose.

13. This Order does not govern the format for production of source code.

14. Except as expressly stated, nothing in this Order affects the parties’ discovery obligations

under the Federal or Local Rules.

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Exhibit 1 to ESI Order

Netlist v. Micron, No. 23-cv-628 (E.D. Tex.)

STIPULATION REGARDING

THE FORM OF DOCUMENT PRODUCTION

A. Form of Productions From Other Actions

This stipulation governs the form of production of documents in this action, but does not govern 

the form of production of documents that were produced in any prior action that are re-produced 

(with original Bates numbers intact, regardless of whether a party also applies additional Bates 

numbers) in this action, provided that such documents are produced in accordance with the form 

of production governing the prior action (except that to the extent a party designates a document 

pursuant to the protective order in this action, it shall designate such document as being subject to 

the protective order in this action, e.g., through reference to the case number). Nothing in this 

stipulation alters or supersedes any protective order in place in any other action.

B. Electronically Stored Information (“ESI”).

ESI shall be provided in the following format:

1. Images. Single-page 300 dpi CCITT Group IV black and white TIFFs shall be

provided. Notwithstanding the foregoing, for the following documents, color

images shall be provided: PowerPoint or similar presentation files; Portable

Document Format (PDF) documents, unless color is not significantly present in the

original file; and documents with tracked changes. The parties shall accommodate

reasonable requests for production of specific images in color where color would

meaningfully improve the legibility of the document. Color images shall be

provided as 300 dpi JPGs.

2. Database Load Files/Cross-Reference Files. Documents shall be provided with the

following information, correlated to the beginning Bates number of each

corresponding document: (1) a Concordance delimited load file(s) containing the

metadata described herein; and (2) an Opticon delimited cross-reference file(s)

showing document breaks.

Example of Concordance Delimited File:

þBegDocþþEndDocþþBegAttachþþEndAttachþ

Example of Opticon Delimited File:

MSC000001,MSC001,D:\IMAGES\001\MSC000001.TIF,Y,,,3

MSC000002,MSC001,D:\IMAGES\001\MSC000002.TIF,,,,

MSC000003,MSC001,D:\IMAGES\001\MSC000003.TIF,,,,

MSC000004,MSC001,D:\IMAGES\001\MSC000004.TIF,Y,,,2

MSC000005,MSC001,D:\IMAGES\001\MSC000005.TIF,,,,

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3. Unique IDs. Each image shall have a unique file name which shall be the Bates

number of that page (e.g., BATES000001.TIFF). The Bates number must appear

on the face of the image (e.g., BATES000001).

4. Text Files. For each document, a document-level text file named for the beginning

Bates number of its corresponding document (e.g., BATES000001.TXT) shall be

provided. The text of non-redacted ESI shall be extracted directly from the native

file. OCR text files shall be provided for redacted documents. Unless the ESI is of

a type not amenable to OCR, e.g., media files, OCR text files shall be provided for

documents that do not contain extractable text in the native file.

5. Unique Documents. The parties shall attempt to de-duplicate ESI to avoid

substantially duplicative productions. No party shall remove any attachment to any

email, regardless of whether the attachment is duplicative of any other document.

The parties may de-duplicate emails that are identical. Custodian metadata for a

given document shall reflect any Custodian of any document removed as a

duplicate of that document.

6. Metadata Fields. Documents produced in the Other Actions shall be produced with

the original production metadata; the parties reserve the right to request additional

metadata where prior production metadata does not include the below fields. The

following metadata shall be provided within the Concordance delimited file

described above to the extent reasonably accessible and not subject to a justified

and proper claim of privilege:

For all documents:

BegDoc

EndDoc

BegAttach

EndAttach

Md5Hash

Time Zone

Volume

Native Path

OCR Path

Confidentiality (designation under Protective Order)

Custodian(s)3

Additionally, for emails:

To

From

3 Custodian metadata shall in good faith identify from whom or where each document was collected for 

production in this action, e.g., an individual, a document repository, or a third party, except where this information is 

not readily ascertainable from the manner in which the documents are collected (e.g., documents retained from prior 

litigations without such metadata).

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CC

BCC

Date Sent

Time Sent 

Subject

Additionally, for non-email documents:

Filename

File Extension

Last Modified Date

Author

Last Author

7. Additional Metadata. Should additional metadata (such as the original filepath of

documents) be reasonably accessible that if provided would significantly aid a

receiving party in understanding or using the documents, if requested, the

producing party shall not unreasonably withhold such metadata.

8. Native Form. The following documents shall be produced in native form: files not

readily converted to images, such as media files; standalone database files such as

Microsoft Excel or Access files; CAD or similar engineering drawings or

schematics; source code or other software; complete, functional copies of websites;

documents with tracked changes. The parties shall not unreasonably refuse a

request for the production of specific documents in native form; however,

categorical requests for production of documents other than those identified above

in native form are discouraged.

9. Other Databases. Extracts from non-standalone databases, e.g., financial databases,

shall be produced natively, as a text delimited file, or where possible as Microsoft

Excel or Access files.

10. TIFF Placeholder. Where documents produced natively are displaced from the

production TIFF images of the documents with which they are kept in the ordinary

course of business, the parties shall produce a Bates-numbered TIFF placeholder

image, and associate the displaced native document with that Bates number.

C. Hard-Copy Documents.

Hard-copy documents shall be provided in the following format:

1. Images. Single page 300dpi CCITT Group IV black and white TIFFs shall be

provided. For the following documents, color images shall be provided:

PowerPoint or similar presentation files; and any document where color is

necessary to understand the meaning or content of the document. The parties shall

accommodate reasonable requests for production of specific images in color. Color

images shall be provided as 300 dpi JPGs.

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2. Database Load Files/Cross-Reference Files. Documents shall be provided with (1) 

a Concordance delimited load file(s) and (2) an Opticon delimited cross-reference 

file(s) showing document breaks.

Example of Concordance Delimited File :

þBegDocþþEndDocþþBegAttachþþEndAttachþ

Example of Opticon Delimited File:

MSC000001,MSC001,D:\IMAGES\001\MSC000001.TIF,Y,,,3

MSC000002,MSC001,D:\IMAGES\001\MSC000002.TIF,,,,

MSC000003,MSC001,D:\IMAGES\001\MSC000003.TIF,,,,

MSC000004,MSC001,D:\IMAGES\001\MSC000004.TIF,Y,,,2

MSC000005,MSC001,D:\IMAGES\001\MSC000005.TIF,,,,

3. Unique IDs. Each image shall have a unique file name which shall be the Bates 

number of that page (e.g., BATES000001.TIFF). The Bates number must appear 

on the face of the image (e.g., BATES000001).

4. OCR. For each document, a document-level text file shall be provided. Each text 

file shall be named for the beginning Bates number of its corresponding document 

(e.g., BATES000001.TXT).

5. Unitizing of Documents. When scanning paper documents, the parties shall 

undertake reasonable efforts to ensure that distinct documents are not merged into 

a single record, and single documents are not split into multiple records (i.e., the 

parties shall attempt to logically unitize scanned hard copy documents).

6. Objective Coding Fields. The following objective coding fields shall be provided 

to the extent reasonably available: (i) Beginning Bates Number; (ii) Ending Bates 

Number; (iii) Beginning Attachment Bates Number; (iv) Ending Attachment Bates 

Number; and (v) Custodian;

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and standard production metadata fields including (vi) 

Volume; (vii) OCR Path; and (viii) Confidentiality.

D. Production Media. Documents shall be produced on physical electronic media or via FTP 

or similar electronic file transfer. Each production shall be identified by a production 

volume number.

E. Objective Coding/Metadata Format.

The objective coding and/or ESI metadata, including extracted text, shall be provided in 

the following format:

a) fields shall be delimited by the default Concordance field delimiter for 

ANSI character 20 (¶)

4 See n.4.

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b) String values within the fields file shall be enclosed with a text delimiter (þ)

c) The first line shall contain objective coding and/or ESI metadata headers

and below the first line there shall be exactly one line for each document

d) Each row of objective coding and/or ESI metadata must contain the same

amount of fields as the header row

e) Multi-values shall be separated by a semicolon (;)

f) All files containing non-Western characters shall be provided in Unicodecompliant form.

F. Parties to Confer in Good Faith.

The parties agree to confer in good faith about disputes regarding the form of document production, 

including to resolve issues not addressed by this stipulation.

.

____________________________________

RODNEY GILSTRAP

UNITED STATES DISTRICT JUDGE So ORDERED and SIGNED this 14th day of August, 2024.

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