UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

OLEAN GROCERY COOPERATIVE, INC., 

et al.,

Plaintiffs,

v.

AGRI STATS, INC., et al.,

Defendants.

SANDEE’S BAKERY,

Plaintiff,

v.

AGRI STATS, INC., et al.,

Defendants.

Case Nos. 1:19-cv-08318, 20-cv-02295

Hon. Virginia M. Kendall

ORDER REGARDING PRODUCTION 

OF ELECTRONICALLY STORED 

INFORMATION AND PAPER 

DOCUMENTS

This Order Regarding Production Of Electronically Stored Information And Paper 

Documents (“ESI Protocol Order”) shall govern the Parties in the above-captioned cases whether 

they currently are involved or become so in the future, and any related actions that may later be 

consolidated with these cases (collectively, the “Litigation”).

I. GENERAL PROVISIONS

A. Applicability: This ESI Protocol Order will govern the production of ESI and paper 

documents. 

B. Limitations & Non-Waiver: Nothing in this ESI Protocol Order shall be construed to 

affect the admissibility of discoverable information. All objections to the admissibility of 

any documents are preserved and may be asserted at any time. Pursuant to the terms of 

this ESI Protocol Order, information regarding search process and electronically-stored 

information (“ESI”) practices may be disclosed, but compliance with this ESI Protocol 

Order does not constitute a waiver, by any Party, of any objection to the production of 

particular ESI for any reason, including as irrelevant, undiscoverable, or otherwise 

inadmissible, unduly burdensome or not reasonably accessible, or privileged, nor does it 

constitute a waiver of any right to discovery by any Party. For the avoidance of doubt, a 
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Party’s compliance with this ESI Protocol Order will not be interpreted to require 

disclosure of information potentially protected by the attorney-client privilege, the work 

product doctrine, the common-interest and joint-defense privileges, or any other applicable 

privilege. All parties preserve all such privileges and protections, and all parties reserve 

the right to object to any such privileges and protections.

C. ESI Liaisons:

1. Designation: Each Party agrees to designate an ESI Liaison within 7 days after

entry of this ESI Protocol Order. Any Party is free to change its designated ESI 

Liaison by providing written notice to the other Parties.

2. Duties of ESI Liaison: Each ESI Liaison will be prepared to participate in the 

resolution of any e-discovery disputes or ESI issues that may arise (or designate 

another person as primarily responsible) and have access to personnel most 

knowledgeable about the Party’s electronic systems and capabilities in order to, as 

appropriate, answer pertinent questions. 

3. Time Frame for ESI Issue Resolution: Each ESI Liaison will acknowledge 

receipt of an ESI-related inquiry from another ESI Liaison within 3 business days 

after the initial inquiry and respond substantively no later than 10 business days 

after the initial inquiry. If the responding ESI Liaison believes the ESI issue in 

question is particularly complex and requires more than 10 business days to respond 

substantively, then within 10 business days the responding ESI Liaison will provide 

a general explanation of the process necessary to answer the question and provide 

an estimated response date.

D. Deadlines: References to schedules and deadlines in this ESI Protocol Order shall comply 

with Fed. R. Civ. P. 6 with respect to computing deadlines. 

E. Definitions:

1. “Discovery Material” is defined as all information produced, given, or exchanged 

by and among all Parties, or received from non-Parties in the Litigation, including 

all deposition testimony, testimony given at hearings or other proceedings, 

interrogatory answers, documents and all other discovery materials, whether 

produced informally or in response to requests for discovery.

2. Plaintiffs and Defendants, as well as their officers, directors, employees, agents, 

and legal counsel, are referred to as the “Parties” solely for the purposes of this ESI 

Protocol Order. A single Plaintiff or Defendant, as well as, where applicable, its 

respective officers, directors, employees, agents, and legal counsel, may also be 

referred to as a “Party” solely for the purposes of this ESI Protocol Order.

3. “Plaintiffs” as used herein shall mean the putative Direct Purchaser Plaintiff class, 

and Commercial and Institutional Indirect Purchaser Plaintiff class as set forth in 

the respective operative complaints. 
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4. “Defendants” as used herein shall mean Defendants named in the Direct Purchaser 

and Commercial and Institutional Indirect Purchaser Complaints. 

5. To avoid misunderstandings about terms, all Parties should consult the most current 

edition of The Sedona Conference Glossary.

F. Authenticity and Admissibility: Nothing in this ESI Protocol Order shall be construed 

to affect the authenticity or admissibility of any document or data. All objections to the 

authenticity or admissibility of any document or data are preserved and may be asserted at 

any time.

G. Confidential Information: For the avoidance of doubt, nothing herein shall contradict 

the Parties’ rights and obligations with respect to any information designated as 

confidential under the Protective Order entered in these cases.

H. Preservation: The Parties agree that they shall continue to take reasonable steps to 

preserve relevant Documents and Electronically Stored Information that may exist for a 

Document or ESI, in accordance with their obligations under applicable law. The Parties 

will meet and confer regarding the scope of preservation, including the end date for 

preservation, custodians, data sources, date ranges, and categories of information that have 

been or should be preserved in connection with this Litigation and disclosures regarding 

custodians, data sources, date ranges, and categories of information necessary to facilitate 

the Parties’ negotiations. By preserving or producing information for the purpose of this 

Action, the Parties are not conceding that such material is discoverable.

II. GENERAL PRODUCTION FORMAT PROTOCOLS

A. TIFFs: Except for structured data, all production images will be provided as a black-andwhite, single-page Group IV TIFF of at least 300 DPI resolution with corresponding multipage text and necessary load files. Each image will have a file name that is the unique 

Bates number of that image, pursuant to ¶ II(E). Original document orientation should be 

maintained to the extent reasonably practicable and technologically possible for a 

producing Party’s vendor (i.e., portrait to portrait and landscape to landscape). The imaged 

Data shall retain all attributes of the native or hard-copy file, such as document breaks. 

Produced TIFF images will show all text and images that are visible in the form in which 

the electronic document was last saved, with the exception of redacted portions. Hidden 

content, tracked changes or edits, comments, notes, and other similar information, to the 

extent viewable within a document in its native file format and visible in the form in which 

the electronic document was last saved, shall also be imaged so that such content is 

viewable on the image file. Nothing in this subsection requires the modification or 

alteration of any document or data in order to make any hidden content, tracked changes 

or edits, comments, notes, and other similar information viewable if it is not already 

viewable in the form in which the electronic document was last saved. Documents that are 

difficult to render in TIFF because of technical issues, or any other documents that are 

impracticable to render in TIFF format, may be produced in their native format with a 

placeholder TIFF image stating “Document Produced Natively,” or in the alternative, if 

applicable, “Exception File Unable to Be Imaged.” A producing Party retains the option 
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to produce ESI in alternative formats if so agreed by the requesting Party, which may 

include native format, or a combination of native and TIFF formats.

B. Text Files: Each ESI item produced under this ESI Protocol Order shall be accompanied 

by a text file as set out below. All text files shall be provided as a single document level 

text file for each item, not one text file per page. Each text file shall be named to use the 

Bates number of the first page of the corresponding production item. 

1. OCR: A producing Party may make paper documents available for inspection and 

copying/scanning in accordance with FED. R. CIV. P. 34 or, additionally or 

alternatively, scan and OCR paper documents. Where OCR is used, the Parties will 

endeavor to generate accurate OCR and will utilize quality OCR processes and 

technology. OCR text files should indicate page breaks where possible. Even if 

OCR is used by a producing Party, however, the Parties acknowledge that, due to 

poor quality of the originals, not all documents lend themselves to the generation 

of accurate OCR. 

2. ESI: Except for redacted documents, emails and other ESI will be accompanied 

by extracted text taken from the electronic file itself, where available. For redacted 

documents, Parties shall provide OCR text in accordance with the specifications in 

Section II.B(1).

C. Production of Native Items: The Parties agree that ESI shall be produced as TIFF images 

consistent with the format described in section II.A. with an accompanying load file, which 

will contain, among other data points, the ESI data points listed in the Appendix hereto. 

The exception to this rule shall be spreadsheet-application files (e.g., MS Excel), 

presentation files (e.g., MS PowerPoint), personal databases (e.g., MS Access), multimedia 

audio/visual files such as voice and video recordings (e.g., .wav, .mpeg, and .avi), and any 

non-standard file types that are not easily rendered to image for which all ESI items shall 

be produced in native format. In the case of personal database (e.g., MS Access) files 

containing confidential or privileged information, the Parties shall meet and confer to 

determine the appropriate form of production. When producing the above file types in 

native format, the producing Party shall produce a single-page TIFF slip sheet indicating 

that a native item was produced. The corresponding load file shall include NativeFileLink 

information for each native file that is produced. The Parties agree to meet and confer to 

the extent that there is data in database application files, such as SQL, to determine a 

reasonable form of production of usable data. Through the pendency of the Litigation, the 

producing Party shall exercise reasonable, good faith efforts to maintain all preserved and 

produced native files in a manner that does not materially alter or modify the file or the 

metadata.

D. Requests for Other Native Files: Other than as specifically set forth above, a producing 

Party need not produce documents in native format. If a Party would like a particular 

document produced in native format and this ESI Protocol Order does not require the 

production of that document in its native format, the Party making such a request shall 

explain the reason for its request that the document be produced in its native format. The 

requesting Party will provide a specific Bates range for documents it wishes to be produced 
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in native format. Any native files that are produced should be produced with a link in the 

NativeLink field, along with all extracted text and applicable metadata fields set forth in 

the Appendix.

E. Bates Numbering:

1. All images must be assigned a Bates number that must always: (1) be unique across 

the entire document production; (2) maintain a constant prefix and length (ten-digits 

and 0-padded) across the entire production; (3) contain no special characters or 

embedded spaces, hyphens, or underscores; (4) be sequential within a given 

document; and (5) identify the producing Party. To the extent reasonably 

practicable, the Bates number must also maintain consistent numbering across a 

family of documents.

2. If a Bates number or set of Bates numbers is skipped in a production, the producing 

Party will so note in a cover letter or production log accompanying the production. 

3. Producing Parties shall attempt to brand all TIFF images at a location that does not 

obliterate or obscure any part of the underlying images.

F. Parent-Child Relationships: Parent-child relationships (the association between an 

attachment and its parent document) that have been maintained in the ordinary course of 

business should be preserved to the extent reasonably practicable. For example, if a Party 

is producing a hard copy printout of an email with its attachments, the attachments should 

be processed in order behind the e-mail to the extent reasonably practicable.

G. Entire Document Families: Subject to Paragraphs II(K)(1) and II(K)(2) below, entire 

Document families must be produced, even if only the parent email or an attachment to an 

email is responsive, excepting (1) junk files and non-user-created content routinely 

excluded during processing (provided such routine processing-generated exclusions are 

agreed to among the parties), and (2) documents that are withheld on the basis of privilege 

and in compliance with the parties’ stipulation or the Court’s order on such assertions of 

privilege. Where a document is fully withheld from an otherwise produced family on the 

basis of privilege, the producing Party may produce a single-page TIFF slip sheet 

indicating that the document was withheld. The corresponding load file record for such a

document only needs to provide information for the following fields: BegBates, EndBates, 

BegAttach, EndAttach, Withheld Placeholder, and Privilege Asserted.

H. Load Files: All production items will be provided with a delimited data file or “load file,” 

which will include both an image cross-reference load file (such as an Opticon file) as well 

as a metadata (.dat) file with the document-level metadata fields identified in the Appendix 

below (to the extent available). The load file must reference each TIFF in the 

corresponding production. 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 files in the production.

I. Color: Documents or ESI containing color need not be produced initially in color. If, 

however, an original document or ESI item contains color markings and it is necessary to 
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see those markings in their original color to understand the meaning or content of the

document, then the requesting Party may, in good faith, request that the document or ESI 

item be produced in its original colors. For such documents, the requesting Party shall 

provide a list of Bates numbers of the imaged documents sought to be produced in color. 

The production of documents and/or ESI in color shall be made in single-page JPEG format 

(300 DPI). All requirements for productions stated in this ESI Protocol Order regarding 

productions in TIFF format apply to any productions of documents and/or ESI in color 

made in such an alternative format. Requests that a document be produced in color for the 

reasons set forth in this ¶ II(I) will not be unreasonably denied by the producing Party. If 

a producing Party wishes to object, it may do so by responding in writing and setting forth 

its objection(s) to the production of the requested document in color.

J. Confidentiality Designations: If a particular paper document or ESI item qualifies for 

confidential treatment pursuant to any applicable federal, state, or common law (e.g., 

Personally Identifiable Information or Protected Health Information), or to the terms of the 

Protective Order entered by the Court in the Litigation or a confidentiality stipulation 

agreed to by the Parties, the designation shall be branded on the document’s image at a 

location that does not obliterate or obscure any part of the underlying images. This 

designation also should be included in the appropriate data field in the load file. For 

documents produced in native format with image placeholders, the placeholder image for 

the native file should be branded with the appropriate confidentiality designation to the 

extent possible. Requesting Parties shall ensure that the confidentiality claim follows the 

document regardless of whether the designation imprints on the file when viewed in printed 

form. Failure to comply with the procedures set forth in this ESI Protocol Order, any 

protective order or confidential order, or any confidential stipulation shall not waive any 

protection or confidential treatment. The Parties recognize that document review using 

technological means may result in the application of greater or lesser confidentiality 

designations than otherwise appropriate. The Parties agree to work together on an asneeded (and per document) basis to address any potential over (or under) designation. 

K. Redactions

1. Personal Data Redactions: A producing Party may redact personal information to 

the extent that the information falls within one of the following categories: (1) the 

information relates to medical or health issues of an individual or (2) social security 

numbers, bank account information, or personal passcodes. Such redactions should 

be identified as “Redacted – Personal Data” on the face of the document.

2. Redactions of Nonresponsive Highly Confidential Business Information: A 

producing party may redact specific highly confidential business information 

relating to non-turkey businesses provided (1) the redacted information is both 

nonresponsive and irrelevant, and (2) the redacted information would not assist in 

understanding or providing context for the relevant portion of the document or 

document family of which it is a part. Such redactions must be identified as 

“Redacted – Highly Confidential Nonresponsive Information.”
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L. Production Media & Protocol: A producing Party may produce documents via email, 

readily accessible computer or electronic media, including CD-ROM, DVD, or external 

hard drive (with standard PC compatible interface) (“Production Media”), or via filesharing service, including any network-based secure file transfer mechanism or SFTP. Any 

requesting Party that is unable to resolve any technical issues with the electronic production 

method used for a particular production may request that a producing Party provide a copy 

of that production using Production Media. The producing Party may encrypt Production 

Media, and will provide a decryption key to the requesting Party in a communication 

separate from the production itself.

III. PAPER DOCUMENT PRODUCTION PROTOCOLS

A. Scanning: A producing Party may make paper documents available for inspection and 

copying in accordance with FED. R. CIV. P. 34 or, additionally or alternatively, OCR paper 

documents. Where OCR is used, the Parties agree that the following ¶¶ III(B)-(E) shall 

apply.

B. Coding Fields: The following information shall be produced in the load file 

accompanying production of paper documents: (a) BegBates, (b) EndBates, (c) BegAttach, 

(d) EndAttach, (e) Custodian, (f) Confidentiality, and (g) Redacted (Y/N) or otherwise 

indicating that a redaction is present. Additionally, all paper documents will be produced 

with a coding field named “Paper Document” marked with a “Y” or otherwise indicate that 

the document originated in paper, and such indication shall be explained to the requesting 

party.

C. Unitization of Paper Documents: Paper documents should be logically unitized for 

production to the extent reasonably practicable. Generally, when scanning paper 

documents for production, distinct documents shall not be merged into a single record and 

single documents shall not be split into multiple records. The Parties will make reasonable 

efforts to unitize documents correctly.

1. Relationship: The relationship among the documents in a folder or other grouping 

should be reflected in proper coding of the beginning and ending document and 

attachment fields to the extent reasonably practicable.

2. Identification: Where a document, or a document group – such as folder, clipped 

bundle, or binder – has an identification spine or other label, the information on the 

label shall be scanned and produced as the first page of the document or grouping.

IV. ESI METADATA FORMAT AND PROCESSING ISSUES 

A. System Files: ESI productions may be de-NISTed using the industry standard list of such 

files maintained in the National Software Reference Library by the National Institute of 

Standards & Technology as it exists at the time of de-NISTing. Other file types may be 

added to the list of excluded files if they clearly do not have user-created content.
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B. Metadata Fields and Processing: 

1. Time Zone: To the extent reasonably practicable, ESI items shall be processed 

using a consistent time zone of Central Standard Time both in the metadata and on 

the image of the document. For the avoidance of doubt, ESI items that have already 

been previously processed in a different time zone need not be reprocessed in 

Central Standard Time, though the time zone previously used shall be reflected in 

the metadata. Any party producing ESI in a time zone other than Central Standard 

Time will provide notice of that fact to the other party’s ESI Liaisons.

2. Auto Date/Time Stamps: To the extent reasonably practicable, ESI items shall be 

processed so as to preserve the date/time shown in the document as it was last saved, 

not the date of collection or processing. 

3. Except as otherwise set forth in this ESI Protocol Order, ESI files shall be produced 

with at least each of the data fields set forth in the Appendix that are available and 

can reasonably be extracted from a document. 

4. The Parties are not obligated to manually populate any of the fields in the Appendix 

if such fields cannot reasonably be extracted from the document using an automated 

process, with the exception of the following fields: (a) BegBates, (b) EndBates, (c) 

BegAttach, (d) EndAttach, (e) Custodian/Custodians All/Other, (f) Confidentiality, 

(g) Redacted (Y/N), and (h) NativeLink fields, which should be delivered 

regardless of whether the fields can be populated pursuant to an automated process. 

C. Redaction:

1. The Parties agree that, where ESI items need to be redacted, they shall be produced 

solely in TIFF format with each redaction clearly indicated, except in the case of 

personal database files (e.g., MS Access), which shall be governed by ¶ II(C), 

supra. Any metadata fields reasonably available and unnecessary to protect the 

privilege protected by the redaction, including but not limited to the metadata fields 

listed in the Appendix, shall be provided. The Parties understand that for certain 

MS Excel documents or other file types or files, TIFF redactions may be 

impracticable. These documents may be redacted in native format.

2. If the items redacted and partially withheld from production are audio/visual files, 

the producing Party shall, to the extent reasonably practicable, provide the 

unredacted portions of the content. If the content is a voice recording, the Parties 

shall meet and confer to discuss the appropriate manner for the producing Party to 

produce the unredacted portion of the content.

D. Email Processing, Review, and Production:

1. Email Threading: Except for documents withheld or redacted on privilege 

grounds, the Parties will not suppress email threads in their productions, but may 

do so for the purposes of internal review.
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2. Email Domains: Producing Parties may utilize an ESI search process to identify 

categories of documents, such as emails from domains typically associated with 

junk email, such as fantasy football-related emails, retailer advertising, and 

newsletters or alerts from non-industry sources. To the extent a Party opts to 

exclude uniquely identifiable email domain names (e.g., emails from domains 

typically associated with junk or irrelevant topics like sports, fantasy team 

competitions, retailer advertising, and newsletters or alerts from non-industry 

sources) as part of its initial filter of potentially responsive documents, that Party 

will maintain a list of the domain names excluded under this paragraph.

E. De-duplication: A producing Party may de-duplicate any file globally (i.e., across 

Document Custodians) at the “family” level (i.e., families should not be broken due to deduplication). The producing Party will make a reasonable effort to identify all custodians 

who were in possession of any de-duplicated documents through an appropriate load file 

field such as DuplicateCustodian or CustodianAll/Other (as noted in the Appendix). 

Additionally, all BCC recipients whose names would have been included in the BCC 

metadata field, to the extent such metadata exists, but are excluded because of 

horizontal/global de-duplication, must be identified in the BCC metadata field specified in 

the Appendix to the extent such metadata exists. In the event of rolling productions of 

documents or ESI items, the producing Party will, as needed, supplement the load files 

with updated duplicate custodian information, as well as BCC information to the extent 

such metadata exists. Duplicate custodian information may be provided by a metadata 

“overlay” and will be provided by a producing Party no later than 7 days after that Party 

has substantially completed its production of ESI. 

1. Duplicate electronic documents shall be identified by utilizing the industrystandard process of comparison of auto-generated hash values (e.g., MD5 or SHA1). All electronic documents bearing an identical value will be considered 

duplicative. The producing Party shall use reasonable efforts to produce only one 

document image or native file for duplicate ESI documents within the duplicate 

group to the extent practicable. The producing Party is not obligated to extract, 

review, or produce entirely duplicate ESI documents. 

2. Duplicate email shall be identified by utilizing the industry-standard process of 

comparison of auto-generated hash values (e.g., MD5 hash values) for the email 

family, which shall include the parent email and all attachments. Duplicate 

identification will be identified at a family level, including message and all 

attachments. Email families bearing an identical value are considered a duplicate 

group. The producing Party shall use reasonable efforts to produce only one 

document image or native file for duplicate emails within the duplicate group to the 

extent practicable.

F. Zero-byte Files: The Parties may, but are not required to, filter out stand-alone files 

identified as zero-bytes in size that do not contain responsive file links or file names. If 

the requesting Party in good faith believes that a zero-byte file was withheld from 

production and contains information responsive to a request for production, the requesting 

Party may request that the producing Party produce the zero-byte file. The requesting Party 
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may provide a Bates number to the producing Party of any document that suggests a zerobyte file was withheld from production and contains information responsive to a request 

for production. 

G. Microsoft “Auto” Feature: To the extent reasonably practicable and technologically 

possible for a producing Party’s vendor, Microsoft Excel (.xls) and Microsoft PowerPoint 

(.ppt) documents should be analyzed for the “auto” features, where documents have an 

automatically updated date and time in the document, file names, file paths, or similar 

information that when processed would be inaccurate for how the document was used in 

the ordinary course of business. If “auto date,” “auto file name,” “auto file path,” or similar 

features are identified, the produced document shall be identified in a load file, metadata 

field, or otherwise as having these features.

H. Hidden Text: ESI items shall be processed, to the extent practicable, in a manner that 

preserves hidden columns or rows, hidden text, worksheets, speaker notes, tracked 

changes, and comments.

I. Embedded Objects: Microsoft Excel spreadsheets (.xls) embedded in Microsoft Word 

documents will be extracted as separate documents and treated as attachments to the 

document. The Parties agree that other embedded objects, including, but not limited to, 

logos, icons, emoticons, and footers, may be culled from a document set and need not be 

produced as separate documents by a producing Party (e.g., such embedded objects will be 

produced within the document itself, rather than as separate attachments). Notwithstanding 

the foregoing, documents that have already been previously processed need not be 

reprocessed in order to comply with this paragraph IV.I.

J. Compressed Files: Compression file types (i.e., .CAB, .GZ, .TAR, .Z, and .ZIP) shall be 

decompressed and extracted in a reiterative manner to ensure that a zip within a zip is 

decompressed into the lowest possible compression resulting in individual folders and/or 

files.

K. Password-Protected, Encrypted, or Proprietary-Software Files: With respect to any 

ESI items that are password-protected or encrypted within the scope of review, the 

producing Party will take reasonable steps to obtain identified passwords and remove such 

protection so that the documents can be reviewed and produced if appropriate. ESI that is 

likely to contain responsive information that cannot be reviewed because proprietary 

software is necessary to view the ESI will be disclosed to a requesting Party, and the Parties 

shall meet and confer regarding the next steps, if any, with respect to such ESI.

V. PARAMETERS FOR CULLING AND REVIEWING ESI AND PAPER DOCUMENTS 

A. General Provisions

1. Time Period: Except as noted elsewhere in this paragraph, the Parties agree that 

they may limit the processing of discoverable, non-structured data to that which 

was created, modified, sent, or received from January 1, 2008, through December 
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31, 2017. With respect to structured data, the parties agree the period for production 

of structured data will be January 1, 2004 through December 31, 2018.1

2. Meet and Confer: If the Parties cannot reach agreement under the provisions of 

this Section V, any dispute may be presented to the Court. All meet-and-confer 

sessions under this Section V will involve each Party’s respective ESI Liaison.

B. Document Custodians and Sources

1. Initial Document Custodians and Sources: No later than 7 days after answers to 

Requests for Production under Federal Rule of Civil Procedure 34 are due, the 

Parties agree to commence discussions about Document Custodians and noncustodial document sources, including the process and procedure for negotiating 

and disclosing such sources. The parties will meet and confer in good faith, and in 

accordance with the parties’ Rule 26(f) Report. 

2. Additional Document Custodians or Sources: If, after the initial Document 

Custodian and Source negotiations described in the preceding paragraph, a 

requesting Party determines that additional Document Custodians or Sources 

should be added, then the requesting Party shall advise the producing Party in 

writing of the proposed additional Document Custodians or Sources and the basis 

for the request. If the Parties have not agreed whether to add the Document 

Custodian or Source within 21 days of the requesting Party’s request, then the 

Parties may bring the matter to the Court via motion within 21 days or the issue is 

waived, unless the parties agree to defer resolution of the issue. The parties shall 

raise disputed Document Custodians or Sources via a joint letter brief not to exceed 

five pages split equally between Plaintiffs and Defendants. 

3. Except by agreement of the Parties or by order of the Court, a producing Party is 

not required to add Document Custodians or Sources after the deadlines identified 

above.

C. Pre-Search Deduplication & Culling of Collected Data

1. De-Duplication: Before running a search process described herein, data should be 

de-duplicated in accordance with ¶ IV.E. 

1 Plaintiffs reserve the right to serve narrow discovery requests for particular data sources and also 

may seek deposition testimony relating to: (1) Defendants’ continued participation in Agri Stats; 

(2) any changes to information provided to or received from Agri Stats; (3) any government 

investigations relating to the turkey industry; and (4) any issues relating to the loss of relevant 

information from the agreed-upon time periods. Defendants agree not to use Plaintiffs’ agreement 

to the applicable discovery time periods set forth above as a basis for objecting to any narrow 

requests on the identified topics, but reserve their rights to object to any such discovery on other 

grounds.
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2. Paper Documents: The Parties agree to meet and confer to determine whether 

paper documents scanned to electronic form for litigation may be included in any 

keyword or TAR process. 

3. Targeted Collections: If the Parties agree to testing of search terms, only 

documents a producing Party intends to subject to electronic searching parameters 

should be included in the data set against which search terms are tested. 

4. Exception Reporting: For any documents that are reasonably likely to contain 

relevant information not otherwise identified as system or operating files, and not 

otherwise covered by this protocol (including ¶ IV.K), the producing Party must 

disclose processing exceptions that are unresolved by the time set for substantial 

completion of document productions within 7 days after substantial completion. 

5. Disclosure of Other Culling Parameters Required: A producing Party is 

permitted to cull data using the agreed-upon custodial and non-custodial sources, 

agreed-upon date parameters, and agreed-upon search terms (if applicable), and a 

producing Party is permitted to remove known system or operating files, such as 

those that appear on the National Software Reference Library (NSRL) hash list. As 

such, the Parties may cull entire file directories from computer hard drives that 

contain Program Files, Program Data, SWTOOLs, Windows Operating System 

files, etc. For those excluded directories, the Parties will only conduct searches on 

user-created content that is reviewable and likely to yield relevant content. 

D. Culling Collected Data

1. Use of Search Terms to Cull Unstructured ESI:

a. The Parties may use search terms and other limiters (including the exclusion 

of certain email domains as set forth in paragraph IV.D.2), as a means of 

limiting the volumes of information to be reviewed for responsiveness. To 

the extent that search terms are used to identify responsive ESI, a producing 

Party will notify the requesting Party of its intent to use search terms and 

disclose to the requesting Party (1) an initial list of search terms the 

producing Party intends to use and (2) whether the producing Party intends 

to use different search terms with different Document Custodians or 

Sources. The Parties will meet and confer in good faith regarding the 

disclosure and formulation of appropriate search terms and protocols to cull 

unstructured ESI.

b. Addition or Removal of Search Terms After Initial Search Term 

Negotiation: If, after the completion of the initial search term negotiations, 

a requesting or producing Party determines that any search terms should be 

added to or removed from the initial search term list, then the requesting or 

producing Party shall advise the affected Parties in writing of the proposed 

change(s) to the search term(s) and of the reason(s) for the proposed 

change(s). Except by agreement or by order of the Court, a producing Party 
13

is not required to add search terms after completion of the processed 

described in paragraph V.D.1.a above.

2. Use of Technology Assisted Review or Other Advanced Technology-Based 

Analytics to Cull Unstructured ESI:

a. Use of TAR: A Party may use Technology Assisted Review (“TAR”) to 

sort documents for linear review without disclosure of that use. If a Party 

elects to use TAR to cull or otherwise limit the volume of unstructured ESI 

subject to linear review, the parties will meet and confer regarding the 

following parameters that will apply to the use of TAR.

i. Paper Documents: The Parties agree to meet and confer to 

determine whether paper documents may be included in a or TAR 

process. 

ii. The TAR Tool: A producing Party shall describe to a requesting 

Party the vendor and the TAR technology or tool being used, 

including a description of the TAR tool’s procedures.

b. A producing Party need not conduct any additional review of information 

subjected to, but not retrieved by, a TAR tool as part of the identification of 

the subset of information that will be subject to review and production, 

provided that the procedures in paragraph V.D.2.a.ii above are followed.

E. Structured Data: To the extent a response to discovery requires production of 

discoverable ESI contained in a structured database, the Parties shall meet and confer in an 

attempt to agree upon a set of queries to be made for discoverable information and generate 

a report in a reasonably usable and exportable electronic file for review by the Requesting 

Party. Upon review of the report, the Requesting Party may make reasonable requests for 

additional information to explain the database schema, codes, abbreviations, and different 

report formats or to request specific data from identified fields.

VI. MISCELLANEOUS PROVISIONS

A. Inaccessible ESI: If a producing Party asserts that certain categories of ESI that are 

reasonably likely to contain responsive information are inaccessible or otherwise 

unnecessary under the circumstances, or if the requesting Party asserts that, following 

production, certain ESI is not reasonably usable, the Parties shall meet and confer to discuss 

resolving such assertions. If the Parties cannot resolve any such disputes after such a meet 

and confer has taken place, the issue shall be presented to the Court for resolution. The 

following types of data stores are presumed to be inaccessible and are not subject to 

discovery, and need not be collected or preserved, absent a particularized need for the data 

as established by the facts and legal issues of the case (e.g., information suggesting that 

relevant evidence has been lost or is no longer available in other more accessible forms):

1. Deleted, slack, fragmented, or other data only accessible by forensics;
14 

2. Random access memory (RAM) or temporary files; and

3. Server, system, or network logs. 

B. Variations or Modifications: Variations from this ESI Protocol Order may be required. 

Any practice or procedure set forth herein may be varied by agreement of all affected 

Plaintiffs and all affected Defendants, which will be confirmed in writing. In the event a 

producing Party determines that a variation or modification is appropriate or necessary to 

facilitate the timely and economical production of documents or ESI, the producing Party 

will notify the requesting Party of the variation or modification. Upon request by the 

requesting Party, those Parties will meet and confer to address any issues in a reasonable 

and timely manner prior to seeking Court intervention. 

SO ORDERED.

Dated: December 18, 2020 

Hon. Virginia M. Kendall 

United States District Judge 
15

Appendix: ESI Metadata and Coding Fields

Field Name2 Populated 

For 

(Email, Edoc, 

Calendar, or 

All)

Field Description

BegBates All Control Numbers.

EndBates All Control Numbers.

BegAttach All Control Numbers (First production Bates number of the first 

document of the family).

EndAttach All Control Numbers (Last production Bates number of the last 

document of the family).

Custodian All Custodian name (ex. John Doe).

DupCust, 

CustodianOther, or 

CustodianAll

All All custodians who were in possession of a de-duplicated 

document besides the individual identified in the “Custodian” 

field. 

LogicalPath All ESI Items The directory structure of the original file(s). Any container 

name is included in the path.

Hash Value All The MD5 or SHA-1 hash value.

NativeFile All Native File Link.

Email Thread ID Email Unique identification number that permits threading of email 

conversations. For instance, unique MS Outlook identification 

number (“PR_CONVERSATION_INDEX”) is 22 bytes in 

length, followed by zero or more child blocks each 5 bytes in 

length, that facilitates use of email threading.

Thread Index Email Message header identifier, distinct from 

“PR_Conversation_Index”, that permits threading of email 

chains in review software.

EmailSubject Email Subject line of email.

DateSent Email Date email was sent.

DateMod Email, Edoc Date the document was last modified.

TimeSent Email Time email was sent.

TimeZoneUsed All Time zone used to process data during document collection and 

processing.

Receive Date Email Date email was received.

ReceiveTime Email Time email was received.

To Email All recipients that were included on the “To” line of the email.

From Email The name and email address of the sender of the email.

CC Email All recipients that were included on the “CC” line of the email.

BCC Email All recipients that were included on the “BCC” line of the email.

2 Field Names can vary from system to system and even between different versions of 

systems. Thus, Parties are to be guided by these Field Names and Descriptions when identifying 

the metadata fields to be produced for a given document pursuant to this ESI Protocol Order.
16

Field Name2 Populated 

For 

(Email, Edoc, 

Calendar, or 

All)

Field Description

DateCreated Edoc Date the document was created.

FileName Email, Edoc File name of the edoc or subject line of an email. 

Title Edoc Any value populated in the Title field of the document 

properties.

Subject Edoc Any value populated in the Subject field of the document 

properties.

Author Edoc Any value populated in the Author field of the document 

properties.

DocExt All File extension of the document.

TextPath All Relative path to the document level text file. 

Redacted All “X,” “Y,” “Yes,” and “True” are all acceptable 

indicators that the document is redacted. Otherwise, 

blank.

Withheld 

Placeholder

All To the extent a document is fully withheld (on the 

basis of privilege or otherwise), this field must be 

populated with a “Y.” See also paragraph II.G above.

Privilege Asserted All To the extent a document has been withheld on the 

basis of privilege or redacted on the basis of privilege, 

the text pertaining to such assertion of privilege shall 

be included as a metadata field (e.g., “Redacted –

Attorney Client Privileged” or “Withheld – Attorney 

Client Privileged”)

Paper All “Y” if document is scanned from hard copy in 

connection with the collection and production of 

documents in this matter.

Legend/Confidential

ity

All Indicates if document has been designated as “Confidential” or 

“Highly Confidential” under the Protective Order.

Attachment Count Email, Edoc Identifies the number of attachments to an email (if 

present/applicable).

Attachment Names Email, Edoc Identifies the file names of all attachments to an email (if 

present/applicable).

Calendar Date 

Begin Calendar Identifies the begin date of a calendar entry (if present).

Calendar Date End Calendar Identifies the end date of a calendar entry (if present).

Calendar Time 

Begin Calendar Identifies the begin time of a calendar entry (if present).

Calendar Time End Calendar Identifies the end time of a calendar entry (if present).

Production Volume All Identifies the unique production volume ID of the delivery 

(ABC001).