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UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DR. JENNY H. CONVISER and ) 

ASCEND CONSULTATION IN ) 

HEALTH CARE, LLC, ) Case No. 1:20-cv-03094 

 ) 

 Plaintiffs, ) 

v. ) Honorable Judge Jeffrey T. Gilbert 

) 

DEPAUL UNIVERSITY, ) 

) 

 Defendant. ) 

STIPULATED ESI PROTOCOL AND ORDER

This Stipulated ESI Protocol (the “Protocol”) is entered into this 19th day of January, 2024 

(the “Effective Date”) by and between Plaintiffs Jenny H. Conviser and Ascend Consultation in 

Health Care, LLC (“Plaintiffs”) and Defendant DePaul University (“DePaul”) (collectively, the 

“Parties”). Having found good cause for the entry of this Protocol, the Court Orders as follows: 

DEFINITIONS

1. “Document(s)” includes every form of recorded information, whether 

handwritten memoranda, typed, printed, facsimile, computer, or otherwise generated 

including but not limited to letters, memoranda, electronic mail, attachments to electronic 

mail, voice mail, any mode of communication not specifically identified herein, word 

processing files, spreadsheets, power point documents, PDF documents, databases, graphic 

images, audio and video recordings, microfilm, and microfiche, and any electronically 

stored information. Each non-identical original or copy of a document, as well as each 

nonidentical storage medium, is a separate document.

2. “ESI” or “electronically stored information” means information that is 

stored electronically, regardless of the media or whether it is in its original format. 

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3. “Extracted Text” means the text extracted from a Native File and includes all 

header, footer, and document body information.

4. “Identify” when referring to Documents means to give, to the extent known, 

the (a) type of document; (b) general subject matter; (c) date of the document; and (d) 

author(s), addressee(s), and recipient(s). 

5. “Native File(s)” or “Native Format” means the format of ESI in which it 

was created or is ordinarily maintained in the usual course of business.

6. “OCR” means the optical character recognition file which is created by 

software used in conjunction with a scanner that is capable of reading text-based 

Documents and making such documents searchable using appropriate software.

7. “Tagged Image File Format” or “TIFF” refers to the CCITT Group IV 

graphic file format for storing bit-mapped images of ESI or paper Documents.

STIPULATED ESI PROTOCOL AND [PROPOSED] ORDER 

1. General Format of Production.Whether originally stored in paper or electronic 

form, Documents shall be produced in electronic image form in the manner as described 

herein. Notwithstanding the foregoing provisions of this Paragraph, the Parties reserve 

the right to request that an alternative format or method of production be used for certain 

Documents, if such Document is not susceptible to production in the format or methods 

of production addressed herein. In that event, upon a timely and reasonable request, the 

parties will meet and confer to discuss alternative production requirements, concerns, 

formats, or methods.

2. Production Format. Documents shall be produced according to the following 

formats:

(a) Electronic Production: Except as set forth below, each Party will 

produce ESI in single TIFF format, or JPG format when producing color for color, with 

appropriate load files and corresponding multipage OCR text files. TIFF files shall be 

created directly from the original electronic documents; a Party may not create a TIFF file 

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of ESI by printing out paper copies of that electronic document and then scanning the 

paper copy of the ESI. All TIFF files will conform to the following specifications:

i. All TIFF files will be black and white, single-page Group IV standard 

TIFF images (if possible, not less than 300 dpi resolution).

ii. The producing Party shall provide (1) an image cross-reference load file 

(“.OPT”) providing the beginning and ending endorsed Bates number 

of each Document, a link to the relative file path of the Document’s 

image(s), and the number of pages it comprises; and (2) searchable text 

or OCR files.

iii. Embedded files shall be produced as a child to the parent Document to 

which they are embedded. Inline images and OLE objects should not 

be extracted from the documents in which they are embedded. The 

producing Party will generate and preserve the MD5 or SHA-l hash 

values of all ESI based on the non-spoliated source native file. The 

producing Party shall use the following specifications when converting 

ESI from its Native Format into TIFF image files prior to its 

production: (1) all ESI shall be processed with a single time zone and 

a date and time setting that is, if possible, consistent across all of a 

party's productions; and (2) all TIFF images shall display tracked 

changes, comments and other rich data as displayed in the document, 

regardless of the display setting for this information as last saved by the 

custodian, to the extent technically possible.

iv. The producing Party shall produce all sound and video files in Native 

Format.

v. The producing Party shall produce spreadsheets in Native Format. In 

lieu of Bates-stamping spreadsheets produced in Native Format, the 

producing party shall title each file using a unique Bates number. In lieu 

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of endorsing spreadsheets produced in Native Format with any 

appropriate confidentiality designation required by any applicable 

protective order entered in this litigation, the producing Party shall 

include in the title of each file, as appropriate, a shorthand version of the 

appropriate confidentiality designation.

vi. In the event that a Party locates a relevant file that is not capable of TIFF 

conversion, the Party shall produce a single page TIFF “placeholder” 

page for each such file bearing a Bates number and the file name, file 

type, and file extension.

(b) Paper Documents. For paper Documents, TIFF files shall be created 

by scanning either the original paper Documents or first-generation photocopies of the 

original paper Documents. Each page of paper should be output to a single page TIFF 

file. Distinct, logical document breaks should be defined as such in the load file described 

in Paragraph 2(a)(ii). In the case of an organized compilation of separate Documents 

(e.g., a binder containing several separate Documents behind numbered tabs) the 

Document behind each tab should be scanned separately, but any Document or family 

relationship among the scanned Documents in the compilation should be reflected in the 

data load file at the appropriate standard fields. Pages containing post-it notes or other 

detachable notes that obscure the underlying Document should be scanned once with the 

detachable note intact, and then again without it, and made part of the same Document. 

The Parties will make their best efforts to unitize the Documents correctly.

(c) Extracted Text. For ESI and any TIFF files created from paper 

Documents, the producing Party shall, wherever possible, provide full Extracted Text. 

The producing Party shall provide a single extracted or OCR text file, in ASCII text 

format and named per the Bates Number of the first page of each Document, for each 

ESI or TIFF file provided.

(d) Document Unitization. For electronic Documents, the relationship of 

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Documents in a Document collection (e.g., cover letter and enclosures, email and 

attachments, binder containing multiple Documents, or other Documents where a parentchild relationship exists between the Documents) shall be maintained through the scanning 

or conversion process from native format to TIFF, provided however, that the Parties 

shall only be required to present one level of parent child relationship. Document images 

generated from attachments to emails stored in Native Format shall be produced 

sequentially immediately after the parent email. All hard copy Documents imaged and 

produced electronically shall include a unitization file (i.e. “load file”) as described above. 

When scanning paper Documents into Document images, they shall be unitized in a 

manner so as to maintain the Document(s) and any attachments, as they existed in their 

original state. Container files (for example .ZIP, .RAR, etc.) should be extracted from their 

container entities and delivered as discrete entities. Files shall be decompressed 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. When processing container files, the top-level 

container file should be severed from the extracted contents within it, such that the container 

file will not be processed as part of a parent/child relationship with its contents. 

(e) Native Files. A Party may reasonably request Native Format files of 

electronic Documents from a producing Party only in accordance with the provisions of this 

Paragraph.

i. No requesting Party may seek to compel production of Native Format 

files of electronic Documents on a wholesale or otherwise 

unreasonable basis. Any request for native Documents will be carried 

out under the following protocol: (1) the requesting Party shall make 

any such request within thirty (30) days after the close of discovery, or 

if a production is made after the close of discovery, within thirty (30) 

days after any such production is made; (2) the requesting Party shall 

provide a list of Bates numbers of the Documents that it is requesting 

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be produced in native file format and will identify in writing those 

Native Files sought and the specific basis for the request; (3) the 

producing Party will respond in writing within fourteen (14) days; and 

(4) If the Parties are unable to agree, the Parties will submit the matter 

to the Court.

ii. If the requesting Party believes the explanation supporting its need to 

review native files will reveal attorney work-product, the requesting 

Party may, at its discretion, submit such explanation in writing directly 

to the Court for in camera review.

iii. If the Court determines that the explanation does not constitute attorney 

work-product, a copy of the requesting Party’s explanation shall 

thereupon be provided to the producing Party.

(f) Decryption and Passwords. The producing Party may employ 

reasonably available electronic measures to break the encryption of, or unlock, any 

encrypted or password protected Document and may clean any Document infected by a 

virus before making a production of such a Document, notwithstanding the fact that such 

measures may alter the native format of the Document. Upon request, the producing Party 

will explain to the receiving Party any such measures taken. 

3. Search Terms: The Parties have conferred to identify the relevant custodians 

of ESI related to this matter, as well as the timeframe and specific search terms associated 

with each custodian. While this categorical identification is not intended as an exhaustive 

list of potential materials and shall not be construed to waive a party’s right to request 

additional ESI, or any party’s right to object to production, the custodians, timeframes, and 

search terms listed in Exhibit 1 (attached) represent the categories of ESI agreed-upon at 

this time. 

4. Databases: Potentially responsive information that resides in a database and 

is not maintained in a Document format may be collected and produced in a manner that 

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is reasonably limited to the information relevant to the litigation and any reasonably 

necessary contextual information. Upon a timely and reasonable request, the Parties shall 

meet and confer on the manner in which such potentially responsive information shall be 

collected and produced. If an agreement cannot be reached during the meet and confer 

process, the Parties may submit the dispute to the Court. Specifically, the Parties agree 

that the ESI covered by this Protocol:

a. Email programs (e.g., Outlook, Gmail, etc.); 

b. Personnel files; 

c. Servers owned or controlled by a Party; 

d. Any Cloud storage databases owned or controlled by a Party; 

e. Any other DePaul software used in the regular course of business. 

5. Duplicates. A producing Party who has more than one identical copy of an 

electronic Document (i.e. the Documents are actual duplicates) need only produce a single 

copy of that Document. A producing Party need not produce the same electronically 

stored information in more than one form. A Document may be removed as duplicative 

only if it is identical to another Document that is being produced, based on a comparison 

of MD5 or equivalent hash values. If the producing Party becomes aware of any file that 

was incorrectly filtered during the de-duplication process, the producing Party shall 

promptly notify the requesting Party and produce the file pursuant to the terms of this 

Stipulation. De-duplication shall be performed only at the Document family level so that 

attachments are not de-duplicated against identical standalone versions of such Documents 

and vice versa, although each family member shall be hashed separately for purposes of 

populating the hash value field referenced above, and attachments to emails or other 

Documents shall not be disassociated from the parent email or Document even if they are 

exact duplicates of another Document in the production. 

6. Ephemeral Data. The following categories of ESI are not discoverable in this 

case: “fragmented,” or “unallocated” data on hard drives; random access memory (RAM) 

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or other ephemeral data; and on-line access data such as temporary internet files, history, 

cache, cookies, etc. 

7. Bates Numbering. Each page of a produced Document shall have a Bates 

number electronically “burned” onto the image at a location that does not unreasonably 

obliterate, conceal, or interfere with any information from the source Document. The 

producing Party will use a consistent prefix throughout the matter. If a producing Party 

produces Documents that were not Bates numbered, but that were received pursuant to 

a subpoena, the producing Party may use a different prefix to differentiate the fact that 

the original source of the Document came from a third party. No other legend or stamp 

will be placed on the Document image other than a confidentiality legend (where applicable), 

redactions, the Bates number identified above, and any other internal tracking number 

that the producing Party may choose to use. The confidentiality legend shall be “burned” 

onto each Document’s image at a location that does not unreasonably obliterate or 

obscure any information from the source Document.

8. Agreement to be Bound. Vendors for all Parties shall be provided a copy of 

this Protocol and shall be bound by its contents. 

9. Amendment. Nothing in this Protocol shall be construed to prohibit the 

undersigned Parties from agreeing to modify any provision of this Protocol or seeking 

relief from the Court. Nor shall anything in this Protocol or any Party’s compliance be 

construed as a waiver of any Party’s rights under any applicable rules. Nor shall 

anything in this Protocol be interpreted to require disclosure of information that is not 

relevant or proportional to the claims or defenses in this case or that is protected by 

any applicable privilege. Nor shall anything in this Stipulation be construed to waive 

any objections as to the production, discoverability, or confidentiality of ESI. In 

addition, nothing in this Protocol concerning the format in which Documents may be 

produced by a Party shall be construed as having any precedential effect in any other 

legal proceeding.

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10. Disputes. Each Party shall comply with the Federal Rules of Civil 

Procedure, in addition to this Court’s individual rules and orders. If a dispute arises 

under this Protocol that cannot be resolved through the meet and confer process, any Party 

may seek relief from the Court. 

11. Amendment. This Protocol does not preclude Plaintiffs from seeking an 

order from the Court at a later time to modify this Protocol to allow additional discovery 

of relevant messages, including text messages, on devices owned or controlled by DePaul 

employees or former employees based on developments in ongoing discovery. 

IT IS SO STIPULATED, THROUGH THE PARTIES’ COUNSEL OF RECORD. 

Dated this 19th day of January, 2024 

By: /s/ Amanda Brookhyser 

Michael S. Popok 

Admitted Pro Hac Vice

Amanda J. Brookhyser 

Admitted Pro Hac Vice

ZUMPANO PATRICIOS & POPOK, 

PLLC

134 East 38th Street 

New York, NY 10016 

Telephone: (212) 542-2564 

Facsimile: (212) 320-0332 

Art Bresnahan, Esq. 

ZUMPANO PATRICIOS & 

BRESNAHAN, LLC

Law Firm No. 13698 

829 N Milwaukee Avenue 

Chicago, IL 60642 

Telephone: (312) 924-3609 

Facsimile: (312) 268-7179 

Attorneys for Plaintiffs

By: /s/ Brian P. Paul____________________

Brian P. Paul, #6280839 

Kerryann M. Haase, #6237232 

MICHAEL BEST & FRIEDRICH LLP

444 West Lake Street, Suite 3200 

Chicago, IL 60606 

Telephone: (312) 222-0800 

Facsimile: (312) 222-0818 

Attorneys for Defendant 

. 

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 

DATED: January 22, 2024 

_______________________________________ 

 Hon. Jeffrey T. Gilbert 

 U.S. Magistrate Judge 

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