No Value: NOVARTIS PHARMA AG, et al vs. Genentech, Inc.

On May 24, 2021 a No Value was filed involving a dispute between Diagnostics Inc., Novartis Pharma Ag, Novartis Vaccines, Novartis Vaccines And Diagnostics, Inc., Genentech, Inc., and Does 1 - 25, Genentech, Inc., for (37) Unlimited Other Contract in the District Court of San Mateo County.

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1 JENNIFER BRIGGS FISHER
JFisher@goodwinlaw.com
2 GOODWIN PROCTER LLP
Three Embarcadero Center
3 San Francisco, California 94111
Tel.: +1 415 733 6000
4 Fax: +1 415 677 9041

5 Attorney for Plaintiffs and Cross-Defendants
NOVARTIS VACCINES AND DIAGNOSTICS, INC.
6 and NOVARTIS PHARMA AG

7 DAVID GINDLER
dgindler@orrick.com
8 ORRICK, HERRINGTON & SUTCLIFFE LLP
355 South Grand Avenue
9 Suite 2700
Los Angeles, CA 90071-1596
10 Tel.: +1 415 733 6000
Fax: +1 415 677 9041
11
Attorney for Defendant and Cross-Complainant
12 GENENTECH, INC.

13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 COUNTY OF SAN MATEO
15
Case No. 21-CIV-02892
16
NOVARTIS VACCINES AND STIPULATION AND (PROPOSED)
17 DIAGNOSTICS, INC. and NOVARTIS
PHARMA AG, ORDER REGARDING DISCOVERY OF
18 ELECTRONICALLY STORED
Plaintiff, INFORMATION (“STIPULATION” OR
19 “ORDER”)
v.
20 Judge: Hon. Jeffrey Finigan
GENENTECH, INC. and DOES 1-25, Dept: 24
21
Defendants.
22

25 GENENTECH, INC.,

26 Cross-Complainant,

27 v.

28 NOVARTIS VACCINES AND
DIAGNOSTICS, INC. NOVARTIS
1 PHARMA AG, and NOVARTIS
PHARMACEUTICALS CORPORATION,
2 Cross-Defendants.
3

26 2
1 The following Order Regarding Document Discovery (the “Discovery Order”) shall apply

2 to all discovery of Electronically Stored Information (“ESI”) and hard-copy documents in this case

3 unless Novartis Vaccines and Diagnostics, Inc., Novartis Pharmaceuticals Corporation, and

4 Novartis Pharma AG (collectively, “Novartis”). and Genentech, Inc. (“Genentech”) (collectively,

5 the “Parties”; individually, a “Party”) agree in advance and in writing or if the Order is modified

6 by the Court. The purpose of this Order is to facilitate the exchange of ESI and hard copy

7 documents in an efficient manner and in accordance with the California Code of Civil Procedure.

8 By stipulating to this Order and agreeing to produce documents, generally, in a particular form or

9 forms, no Party waives any objections to producing any document or category of documents on any

10 grounds whatsoever. All terms used herein shall be defined as they are in the Sedona Conference

11 Glossary: E-Discovery & Digital Information Management (Fifth Edition). This ESI Order is being

12 submitted in connection with a Stipulated Protective Order for Litigation Involving Highly

13 Sensitive Confidential Information and/or Trade Secrets (“Protective Order”) that will further

14 govern discovery between the Parties.

15 I. General Provisions

16 a. The Parties shall take reasonable steps to comply with the procedures set forth in

17 this Stipulation.

18 b. This Stipulation is intended to streamline production to promote a “just and speedy

19 determination of this action,” as required by California Code of Civil Procedure.

20 c. To the extent reasonably possible, the production of documents shall be conducted

21 to maximize efficient and quick access to documents and minimize related discovery costs. The

22 terms of this Stipulation shall be construed to ensure the prompt, efficient, and cost-effective

23 exchange of information consistent with the California Code of Civil Procedure, the Local Rules,

24 and any Orders by this Court.

26 3
1 d. Except as specifically limited herein, this Stipulation governs the production of

2 discoverable documents by the Parties during the litigation. In the event of transfer to other courts,

3 this Stipulation shall remain in effect in all respects, until adopted by the transferee court or replaced

4 by a successor agreement. This Stipulation shall not enlarge, reduce, or otherwise affect the scope

5 of discovery in this litigation as imposed by the California Code of Civil Procedure, the Local

6 Rules, and the Court's orders, nor imply that discovery produced under the terms of this Stipulation

7 is properly relevant or admissible in this or in any other litigation. Nothing in this Stipulation shall

8 be interpreted to require disclosure of materials that a Party contends are not discoverable or are

9 protected from disclosure by the attorney-client privilege, the attorney work product doctrine, or

10 any other applicable privilege. Additionally, nothing in this Stipulation shall be deemed to waive

11 or limit any Party’s right to object to the production of certain electronically stored information, or

12 to move for an appropriate order pursuant to the California Code of Civil Procedure, on the ground

13 that the document requests are overly broad, unduly burdensome or that there is not good cause for

14 the documents’ production.

15 e. Consistent with their obligations under California Code of Civil Procedure §

16 2016.040 the Parties shall attempt to resolve, in person, in writing (including e-mail) or by

17 telephone, disputes regarding the issues set forth herein prior to filing a motion with the Court, or

18 otherwise seeking relief. If the Parties are unable to resolve the dispute after a good faith effort, the

19 Parties may seek Court intervention in accordance with the Court’s procedures.

20 II. Search Methodology

21 a. General. To design an efficient discovery process and contain costs in the discovery

22 process, the Parties agree to meet and confer to discuss the possible use of reasonable search terms,

23 technology-assisted review (“TAR”), testing and sampling, file types, date ranges, custodians that

24 may have potentially discoverable information, staging document production, any obstacles to

25 accessing and producing ESI, and the timing of productions. Producing Parties are best situated to

26 4
1 evaluate the procedures, methodologies, and technologies appropriate for preserving and producing

2 their own ESI. As such, the Producing Party shall retain the sole right and responsibility to manage

3 and control searches of its data so long as such searches meet the standard of care required under

4 California law.

5 III. Production Format

6 a. Responses to Discovery. The Parties agree the indexing requirements set forth in

7 Cal. Code Civ. Proc. § 2031.280(a) shall not apply. Rather, the Parties agree that any documents,

8 category of documents, or ESI, produced in response to a demand for inspection, copying, testing,

9 sampling, or production shall be produced in the form or forms in which they are ordinarily

10 maintained in the usual course of business, or in a form that is reasonably usable as defined by the

11 format and procedures herein. The Parties further agree that any documents, a category of

12 documents, or ESI, in response to a demand for inspection, copying, testing, sampling, or

13 production, are not required to be identified with the specific request number to which the

14 documents and/or ESI respond.

15 b. General Provisions.

16 i. Unless the Parties agree to a different format, or as specified below,

17 documents shall be produced with TIFF images. In addition to the TIFF image or native files noted

18 herein, the Parties shall supply with each production (a) a data load file, (b) text files, and (c) an

19 image load file corresponding to the produced TIFF image files,

20 ii. The Parties agree to promptly alert all other Parties concerning any technical

21 problems associated with complying with this Stipulation. To the extent a Party asserts that

22 compliance with this Stipulation imposes an undue burden with respect to specific documents, data

23 sources, or otherwise, the Parties shall promptly confer to resolve the issue. During the conferral,

24 the Party asserting an undue burden must provide the reasons why compliance with the

26 5
1 specifications in this Order are unduly burdensome and propose alternative methods of production

2 that it believes to be less burdensome without negatively affecting the usability of the information.

3 iii. Bates Numbering. Files will be named according to the Bates number of the

4 corresponding *.tiff image. Attachments to documents will be assigned Bates numbers that directly

5 follow the Bates numbers on the documents to which they were attached. If a Bates number or set

6 of Bates numbers is skipped, the skipped number or set of numbers will be noted. In addition,

7 wherever possible, each *.tiff image will have its assigned Bates number electronically “burned”

8 onto the image in the lower right corner. The Bates numbers will:

9 1. be consistent across the production;
2. be a combination of an alphabetic prefix along with an 8-digit number (e.g.,
10
ABC00012345), wherein the numeric portion shall be zero-padded leftwards
11 as needed to comprise 8 digits;
12 3. contain no special characters or spaces;
4. be numerically sequential within a given document.
13
iv. Production of ESI. Where practical the Parties shall produce ESI via FTP
14
transmission or secure file transfer service (MediaShuttle and Kiteworks v. 7.6 or newer, and
15
LiquidFiles v. 3.7.18 or newer). All productions must be encrypted when loaded to the FTP or
16
secure file transfer service with the decryption key being communicated separately. When using
17
LiquidFiles for SFTP, the Producing Party must activate two-factor authentication on user accounts
18
for sending/receiving data. This is limited to productions using LiquidFiles only.
19
v. If it is not practical to make a production by FTP transmission or secure file
20
transfer service, the Parties shall confer to determine an alternate encrypted method of transmission.
21
Any production, or portion thereof, shared with an expert and/or vendor shall be transmitted via
22
FTP or secure file transfer service. All productions shall be accompanied by a cover letter with the
23
name of the case, volume number, number of documents produced, Bates range, and whether any
24
documents are being withheld from the production based on an asserted privilege.
25

26 6
1 c. File Specifications

2 i. Image File Specifications. Each *.tiff file shall be assigned a unique name

3 matching the Bates Number of the corresponding image. All images shall be provided in single-

4 page, Group IV TIFF (Compression), black and white, 8.5 x 11-inch page size, with a resolution of

5 300 DPI. Bates numbers shall be electronically branded on each produced *.tiff image in the lower

6 right corner of the page in a manner that does not obscure the content of the source document.

7 Confidentiality designations, if any, shall be electronically branded on each produced *.tiff image

8 in the lower left corner of the page in a manner that does not obscure the content of the source

9 document. The number of TIFF files per folder shall be limited to 1,000 files and not split across

10 folders, unless necessary to prevent a file from splitting across folders.

11 ii. Color. The Parties will accommodate reasonable and proportional requests

12 made in good faith for the production of specific color images originally produced in greyscale

13 TIFF format to the extent available and where reasonably necessary to decipher the complete

14 meaning, context, or content of the documents on a case-by-case basis.

15 iii. Document Text File Specifications. All unredacted documents shall be

16 provided with complete document-level extracted text files (i.e., a single text file per document, not

17 a text file for each page). In the event a document contains text that is to be redacted, OCR text

18 files shall be provided for all un-redacted portions of the documents. Document-level OCR text

19 files shall be provided for any unredacted portions of redacted documents and for all hard copy

20 scanned documents. The file naming convention for the text file shall be in the form [Bates

21 Number].TXT with the Bates Number being the first page of the respective document. File names

22 shall not contain any special characters or embedded spaces. The presumptive source of a text file

23 shall be extracted text, except in the case of scanned or redacted documents, in which case, the

24 presumptive source of the text will be OCR sourced text from a TIFF image. Extracted full text

25 and/or OCR text for all deliverables shall be in separate document-level, UTF-8 encoded TXT files

26 7
1 provided in a separate folder. The full path and file name of the text file must be provided in the

2 data load file. The number of TXT files per folder shall be limited to 1,000 files. OCR text should

3 be generated by applying OCR processes to the image of the document. The parties will endeavor

4 to generate accurate OCR and will utilize quality OCR processes and technology. OCR shall be

5 performed on a document level, provided in document level text files, and should not include

6 production-specific endorsements. OCR text should not be delivered in the data load file or any

7 other delimited file.

8 iv. Hidden Text. All hidden text (e.g., tracked changes, hidden columns,

9 comments, notes, markups, etc.) will be expanded, extracted, and rendered in the TIFF file. This

10 specifically includes, but is not limited to, the inclusion of: any notes or comments contained within

11 any PowerPoint slides/presentations; any tracked changes, comments, and hidden text contained

12 within Word Processing files; and hidden rows, columns, and worksheets contained within

13 Spreadsheet or Worksheet Files. This section does not apply to documents that are being produced

14 in Native format.

15 v. Native File Specifications. The file naming convention for the native file

16 shall be in the form [BATES NUMBER].EXT, where the Bates number is the Bates number for

17 the respective placeholder TIFF image and “EXT” is the file extension. File names shall not contain

18 any special characters or embedded spaces. If the native file contains Confidential Information as

19 defined in the Protective Order, the word “CONFIDENTIAL” or “HIGHLY_CONFIDENTIAL”

20 or “HIGHLY_CONFIDENTIAL_OUTSIDE COUNSEL EYES ONLY” shall additionally be

21 included in the file name with an underscore (“_”) replacing the spaces. The full path and file name

22 of the native file must be provided in the data load file. The number of native files per folder shall

23 be limited to 1,000 files.

24 d. Load File Specifications. All ESI shall be produced with a standard Concordance

25 (*.dat) load file format and an image load file that is in .OPT format as explained further below.

26 8
1 i. Metadata Load File Specifications. The data load file is a delimited text file

2 containing data about each document needed for use with standard litigation support software. The

3 Concordance (*.dat) load file shall be provided with UTF-8 encoding. Date format will be UTF-8

4 and shall include YYYY/MM/DD. The file name of the data load file should contain the volume

5 name of the production media, although additional description information may be provided after

6 the volume name. For example, both “ABC001.dat” and “ABC001_metadata.dat” would be

7 acceptable names for a data load file having a production volume named “ABC001.” File names

8 shall not contain any special characters or embedded spaces. Unless other delimiters are specified,

9 the data in each field should be separated using Concordance default delimiters. A semicolon

10 should be used as a multi-entry separator. A carriage-return line-feed should be used to indicate the

11 start of the next record. The first line of the data load file must contain each field name, separated

12 by a delimiter, corresponding to the order in which the data appears in the file. To the extent a

13 production is not being produced by FTP transmission, load files should not span across media (e.g.

14 CDs, DVDs, hard drives, etc.); a separate volume should be created for each piece of media

15 delivered. Data for documents shall be produced in only one data load file throughout the

16 productions unless that document is noted as being a replacement document in the Replacement

17 field of the data load file. The metadata fields to be included in the data load file are attached to

18 this Order as Exhibit A.

19 ii. Image Load File Specifications. The name of the image load file should

20 mirror the name of the delivery volume and should have an .OPT extension (e.g. ABC001.OPT).

21 File names shall not contain any special characters or embedded spaces. The volume names should

22 be consecutive (e.g. ABC001, ABC002, etc.). Every image in the delivery volume should be

23 contained in the image load file, one row in the load file per TIFF image. The total number of

24 documents referenced in the image load file should match the total number of designated documents

25 in the data load file for that production. To the extent a production is not being produced by FTP

26 9
1 transmission or secure file transfer service, load files should not span across media (e.g. CDs,

2 DVDs, Hard Drives, Etc.), i.e. a separate volume should be created for each piece of media

3 delivered.

4 e. Treatment of Specific Production Specifications and Metadata Fields.

5 i. Metadata to be Produced. The metadata fields detailed in Exhibit A hereto

6 shall be produced for each document and included in the load file to the extent that such information

7 is available at the time of collection and processing, except the Party may redact appropriate

8 information as provided in the Protective Order and noted in a corresponding privilege log.

9 ii. Parent-Child Relationships. For email collections, the parent-child

10 relationships (i.e., the association between emails and attachments) shall be preserved. Email

11 attachments shall be produced as independent files immediately following the parent or ESI email

12 record.

13 iii. Dynamic Fields. Documents with dynamic fields for file names, dates, and

14 times shall be processed to show the field code (e.g., “[FILENAME]” or “[AUTODATE]”), rather

15 than the values for such fields existing at the time the file is processed.

16 iv. Non-redacted Spreadsheet Files. Spreadsheet files, including, without

17 limitation, Microsoft Excel files that do not require redactions, shall be produced as native files

18 including comments, formulas, links, and similar native data. A UNC file path shall be included

19 in the ESI load file. Additionally, a bates-stamped *.tiff placeholder matching the bates number of

20 the native file, shall be included in the production, and reflected in the image load file.

21 Spreadsheets, such as MS Excel, will be produced in native form unless redacted. If a spreadsheet

22 has been redacted, redactions may be applied onto the native excel and produced in native form or

23 TIFF images and OCR text of the redacted document may be produced in lieu of a native file. A

24 TIFF slipsheet indicating that the document was provided in native format must accompany the

25 database record if not produced as TIFF images. The parties will make reasonable efforts to ensure

26 10
1 that any spreadsheets that are produced only as TIFF images are formatted so as to be readable.

2 PowerPoint files shall be produced as image files only.

3 v. Database Records and Structured Data. To the extent that any Party requests

4 data or information (other than email) that is stored in a structured database (including but not

5 limited to Oracle, SQL Server, DB2, Microsoft Access (*.mdb), Lotus Notes/Domino Server non-

6 email databases), the opposing Party will make reasonable efforts to determine whether such data

7 can be produced and, if so, make a production in existing report formats, or report formats that can

8 be developed without undue burden. Information produced from the database as a result of a report

9 or query will be produced in a reasonably usable and exportable electronic file (for example, *.csv

10 and/or *.xls formats) for review by the requesting Party, containing fields and reference points

11 requested by producing Party to the extent they are exist, are responsive, and are reasonably

12 accessible. To the extent the Producing Party contends that this production format is not feasible or

13 causes the Producing Party undue burden, the Parties agree to meet and confer to discuss the reasons

14 why this production format is not feasible or imposes an undue burden; and to explore alternative

15 production formats that do not compromise usability of the data.

16 vi. Embedded Files. The Parties will not review or produce embedded files (e.g.,

17 .vcf files embedded in emails) unless the embeddings are user-generated (e.g. PDF with embedded

18 Word and Excel documents, Word document with another Word file document, .xlsx files

19 embedded in PowerPoint presentations, etc.). The Parties will accommodate reasonable and

20 proportional requests made in good faith for the production of non-user generated embedded files

21 on a case-by-case basis. Embedded files shall be produced as family groups. Embedded files shall

22 be assigned Bates Numbers that directly follow the Bates Numbers on the documents within which

23 they are embedded.

24 vii. Non-Responsive Family Members. The Parties agree that fully non-

25 responsive attachments or embedded files to responsive parent documents need not be produced.

26 11
1 For such fully non-responsive attachments or embedded files, a placeholder slip-sheet endorsed

2 “Withheld Non-Responsive” will be produced to capture the family relationship. If any document

3 in a document family is responsive (e.g., an attachment to an email), the parent document in the

4 family shall be produced without regard to whether it is independently responsive. The Parties will

5 make relevancy and production determinations for hard copy documents at the document level.

6 viii. Deduplication. The Parties agree that a Producing Party shall be only

7 required to produce a single copy of a responsive document or ESI. ESI shall be globally

8 deduplicated across all custodial and non-custodial sources. Documents are considered exact

9 duplicates that should be de-duplicated if a document family or stand-alone file has a matching

10 MD5 as compared against the same document type (i.e., family or stand-alone file).

11 ix. Email Threading. To reduce the volume of entirely duplicative content

12 within email threads, the Parties may utilize “email thread suppression” (or “email threading”). As

13 used in this ESI Protocol, email thread suppression means reducing duplicative production of email

14 threads by producing only the most recent (or “top level”) email that is inclusive of the content

15 (including all attachments) of earlier or subordinate emails in the thread of emails and excluding

16 emails constituting exact duplicates of earlier or subordinate emails within the produced string. If

17 an email chain has subordinate emails that have attachments which differ from the top-level email,

18 then that is an incomplete thread and the subordinate email with differing attachments cannot be

19 suppressed and must be produced. For purposes of this paragraph, only email messages in which

20 the parent document and all attachments are exactly the same shall be considered duplicates.

21 x. Production Format for Hard Copy Documents. Documents that exist in

22 hardcopy shall be scanned to *.tiff image format and produced in accordance with the specifications

23 set forth on Exhibit A. Scanned hard copy documents that are not text-searchable shall be made

24 searchable by Optical Character Recognition (OCR) prior to production at the cost of the producing

25 Party. In scanning paper documents, separate and distinct documents shall not be merged into a

26 12
1 single electronic record, and single documents shall not be split into multiple electronic records

2 (i.e., paper documents shall be logically unitized 1). In the case of an organized compilation of

3 separate documents (for example, a binder containing several separate documents behind numbered

4 tabs), each component of the compilation should be scanned separately, in the binder example, the

5 spine (to the extent it contains information), the cover, each of the tabs, and the document behind

6 each tab should all be scanned. Additionally, the relationship among the documents in the

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

8 attachment fields. The Parties shall make their best efforts to unitize the documents correctly.

9 xi. Encryption. To maximize the security of information in transit, any media

10 on which documents are produced may be encrypted by the producing Party. In such cases, the

11 producing Party shall transmit the encryption key or password to the requesting Party, under

12 separate cover, contemporaneously with sending the encrypted media.

13 IV. Scope of Document Discovery

14 a. The Parties agree that the Producing Parties are best situated to evaluate the

15 procedures, methodologies, and technologies appropriate for preserving and producing their own

16 ESI. (See The Sedona Principles, Principle 6 (same in 2d and 3d ed.)). The scope of collection,

17 review and production shall be evaluated on a case-by-case basis as discovery requests are issued.

18 The Parties agree to meet-and-confer in good faith to resolve any disputes before seeking the

19 Court’s relief with respect to preservation and production of discovery.

20 b. No Discovery on Discovery Absent Meet and Confer and Showing of Good Cause.

21 Discovery concerning the preservation, collection, review, and production efforts of another Party

22 can contribute to unnecessary expense and delay and may inappropriately implicate work product

23 and attorney-client privileged matter. If there is a dispute concerning the scope of a Party’s

24
1
Logical Unitization is the process of human review of each individual page in an image collection using logical cues
to determine pages that belong together as documents. Such cues can be consecutive page numbering, report titles,
25 similar headers and footers and other logical indicators. See The Sedona Conference Glossary, cited at note 2 supra.

26 13
1 discovery efforts, the burden is on the Receiving Party to fully explain their reasons, in writing

2 prior to a meet and confer, for believing that additional efforts are reasonable and proportionate.

3 Before initiating discovery about discovery, by way of written discovery requests for documents,

4 information, or testimony, as well as submitting disputes with respect to discovery efforts to the

5 court, a Party shall confer with the other Party concerning the specific need for such discovery,

6 including its relevance to claims and defenses, and the suitability of alternative means for obtaining

7 the information. Discovery into such matters may be compelled only on a showing of good cause

8 considering at least the aforementioned factors.

9 c. Discovery Cut Off Date. Unless otherwise specifically stated in a request or agreed

10 by the Parties, the default cut-off date for document production will be the date of filing the initial

11 complaint in this action (May 24, 2021). Nothing in this provision prohibits a Requesting Party

12 from seeking documents past this cut-off or prohibits a Responding Party from objecting to

13 producing documents past this cut-off.

14 d. Inaccessible and Burdensome Data. The Parties agree that the circumstances of this

15 case do not warrant the preservation, collection, review, or production of the following sources of

16 ESI because they are either not reasonably accessible or not likely to contain additional relevant

17 information from other sources whereby the associated burden and costs outweigh any benefit:

18 i. data maintained or duplicated in any electronic backup system;
ii. deleted, shadowed, damaged, residual, slack, fragmented, or other data
19
only accessible by forensics and “unallocated” space on hard drives;
20 iii. data stored in random access memory (“RAM”), temporary files, or other
21 ephemeral data that is difficult to preserve without disabling operating
systems;
22
iv. on-line access data such as temporary internet files, history, cache files,
23 cookies, and the like, wherever located;
24 v. data stored on photocopiers, scanners and fax machines;

26 14
1 vi. research samples, raw data, and electronic data temporarily stored in
instruments, laboratory equipment or attached electronic equipment,
2
provided that such data is not ordinarily preserved as part of a laboratory
3 report;
4 vii. data in metadata fields that are frequently updated automatically, such as
last-opened or last modified dates;
5
viii. texts, instant messages, and chat application data, such as messages sent
6 via Teams private channels or group chats;
7 ix. server, system, network, or software application logs;
x. logs of calls made from cellular or land-line phones;
8
xi. voicemails, including telephone or VOIP voice messages;
9 xii. social media sites;
10 xiii. legacy data or data remaining from systems no longer in use that is
unintelligible on the systems in use;
11
xiv. “junk files” - files identified as zero bytes in size and any logo files.
12 xv. files that do not store user-created content during ordinary use such as
13 structural files, application source code, configuration, computer
programs, operating systems, computer activity logs, programming notes
14
or instructions, batch files, system files, miscellaneous files or file
15 fragments, and other similar application files;
16 xvi. Data stored on handsets, mobile devices, personal digital assistants, and
tablets, including information that is duplicative of information saved
17
elsewhere;
18 xvii. dynamic fields of databases or log files that are not retained in the usual
19 course of business;
xviii. automatically saved interim versions of documents and emails;
20
xix. personal computers and personal email not regularly used for business
21 activities;
22 xx. ESI that was disposed before a preservation obligation in this Action
came into effect;
23
xxi. information created or copied during the routine, good-faith performance
24 of processes for the deployment, maintenance, retirement, and
25 disposition of computer equipment;

26 15
1 xxii. files included on the National Institute of Standards and Technology
(NIST) List (http://www.nsrl.nist.gov/); and
2
xxiii. other forms of ESI whose preservation requires extraordinary affirmative
3 measures that are not utilized in the ordinary course of business.
4 V. Privilege Logs and Redactions

5 a. Privilege and Redaction Logs. Any privilege or redaction logs shall be created and

6 served consistent with Section 13 of the Protective Order.

7 b. Redactions. The Producing Party may redact from any TIFF image, metadata field,

8 native spreadsheet material, or other discovery material, in accordance with the Protective Order

9 and this ESI Order. Each redaction shall be indicated clearly on the redacted document. The

10 redacted TIFF image will be OCR’d and file-level OCR text will be provided in lieu of extracted

11 text.

12 VI. Non-Parties

13 a. A Party that issues a non-party subpoena (the “Issuing Party”) shall include a copy

14 of this Order with the subpoena and request that the Subpoena Recipient produce data and

15 documents in accordance with the specifications set forth herein.

16 b. Nothing in this Discovery Order is intended or should be interpreted as narrowing,

17 expanding, or otherwise affecting the rights of third parties to object to a subpoena.

18 c. The Issuing Party is responsible for producing any documents obtained under a

19 subpoena or through an informal request to a non-Party. In other words, the Parties will not be

20 required to separately request these types of documents in a Request for Production.

21 d. If the Issuing Party receives any hard-copy documents or native files, the Issuing

22 Party shall process the documents in accordance with the provisions of this Discovery Order, and

23 then produce the processed documents to the other Party.

26 16
1 e. If the non-party production is not Bates-stamped, the Issuing Party shall apply a

2 unique Bates prefix for each non-party production, and corresponding Bates numbers prior to

3 producing them to the other Party.

4 VII. Miscellaneous Provisions

5 a. DeNISTing. ESI shall be De-NISTed, removing commercially available operating

6 system and application file information on the current “NIST List” created by the National Institute

7 of Standards and Technology.

8 b. Incorporation of Protective Order. The terms of the separate Protective Order

9 governing production and treatment of privileged and/or confidential information that the Parties

10 intend to file with the Court in this Action are incorporated herein by reference and also govern all

11 production pursuant to this Order.

12 c. Amendments. If any Party wishes to amend the terms of this Order, it must provide

13 the proposed amendments and the reason for the proposed amendments. The Parties will then meet

14 and confer on the proposed amendments and, if agreement can be reached, submit a joint motion

15 to the Court. If agreement cannot be reached, then the Party seeking the Amendment may file an

16 appropriate motion with the Court.

17 d. English Language. To the extent any data exists in more than one language, the data

18 will be produced in English, if available. If no English version of a file is available, the producing

19 party shall not have an obligation to produce an English translation of the data.

26 17
1 IT IS SO STIPULATED.

2 Dated: March 22, 2024 GOODWIN PROCTER LLP

3
By: /s/ Jennifer Briggs Fisher
4 JENNIFER BRIGGS FISHER

6 Attorney for Plaintiffs and Cross-Defendants
NOVARTIS VACCINES AND DIAGNOSTICS,
INC. and NOVARTIS PHARMA AG
7

8 Dated: March 22, 2024 ORRICK, HERRINGTON & SUTCLIFFE LLP

9 By: /s/ David Gindler
DAVID GINDLER
10
Attorney for Defendant and Cross Complainant
11 GENENTECH, INC.

26 18
1 [PROPOSED] ORDER
2 Pursuant to the above stipulation, and for good cause appearing, IT IS SO ORDERED.

4
Dated:_______________ ______________________
5 The Honorable Jeffrey Finigan
6 Judge of the Superior Court

26 19
EXHIBIT A – METADATA Fields

The metadata fields detailed in this Exhibit A shall be produced for each document to the extent that such information is available

at the time of collection and processing, except that if a field contains privileged or other protected information as described in the

Protective Order, that information may be redacted and noted in a corresponding privilege log.

Hard Other Calendar
Field Name Field Description Email Sample Data
Copy ESI Items
Begin Bates (including prefix) --
Prod Beg X X X X EDC0000001
No spaces or special characters
End Bates (including prefix) -
No spaces or special characters;
Last Bates number of native file
Prod End document/email X X X X EDC0000015
**The LASTBATES field
shall be populated for single
page documents/emails.
First Bates number of attachment
Prod Beg Attach X X X X EDC0000001
range
Last Bates number of attachment
Prod End Attach X X X X EDC0000015
range
All custodians after Custodian 1; Custodian 2;
Custodians All deduplication for a given X X X X Custodian 3 (of form Last,
document First or ABC Dept)
Name of the original native file,
BoardMeeting
File Name including extension X X X
Minutes.docx
Personal
File path to native file as it
Folders\Delete
File Path existed in original environment X X X
dItems\BoardMeetingMinut
including folder information for
es.msg
Hard Other Calendar
Field Name Field Description Email Sample Data
Copy ESI Items
emails, Windows directory
structure for loose files.
Email: (empty)
Native: Author of the
Document Author document/Author field value X John Smith
extracted from the metadata of a
native file
Email or calendar subject
Email Subject X X
Coffman,Janice;
Main recipient(s) of the email
Email To X X LeeW[mailto:LeeW@MSN.
message.
com]
Number of pages in native file
Page Count X X X X 1
document/email
Names of the individuals who Coffman,Janice;
Email BCC were blind-copied on the Email X X LeeW[mailto:LeeW@MSN.
(as formatted on the original) com]
Author of the Email or Calendar Coffman,Janice;
Email From item (as formatted on the X X LeeW[mailto:LeeW@MSN.
original) com]
Names of the individuals who Coffman,Janice;
Email CC were copied on the Email (as X X LeeW[mailto:LeeW@MSN.
formatted on the original) com]
Email: Date the email was sent
Date Sent X X 10/12/2010
Non-email: (empty)
Email: (empty)
Date and Time
Non-email: Date and time the X 10/12/2010 , 3:00 p.m.
Created
document was created
d131dd02c5e6eec4693d9a0
MD5 Hash value of the
MD5HASH X X X 698aff95c2fcab58712467ea
document.
b4004583eb8fb7f89
Hard Other Calendar
Field Name Field Description Email Sample Data
Copy ESI Items
File path location to the current
native file location on the
Doc Link delivery medium; linked file X D:\001\EDC0000001.msg
shall be named per the
FIRSTBATES number
Path to extracted text of the
OCR Path X X X X TEXT/001/EDC0000001.txt
native file
Child document list: BEGDOC#
EDC0000002;
Attachment IDs of each child (populated ONLY X X X X
EDC0000014
in parent records)
File Extension File extension of native file X X X MSG
Conversation Index Email Thread Identification X X
Bates number of the first page of
the parent document to the Bates EDC0000001 -
Attach Range X X X X
number of the last page of the EDC0000015
last attachment “child” document
Total number of records attached
to the document. The value will
Num Attach X X X X
always be 0 (zero) for the actual
attachment records.
Hard Copy;
Displays the record type for each
Record Type X X X X Email;
entry in the load file.
Attachment
Size of native file
document/email in KB; File size
File Size in Bytes (integer value only - do X X X 5,952
not include unit of measure or
decimal places - e.g., 568)
Dated Received Date Email was received. X X
Time Email was received.
Time Received X X
Format: HH:MM:SS (use 24
Hard Other Calendar
Field Name Field Description Email Sample Data
Copy ESI Items
hour times, e.g., 13:32 for 1:32
pm; time zone indicators cannot
be included)
The Time Zone from which the
Time Zone X X X
native file was collected.
Parent record's BEGDOC#,
Parent ID including prefix (populated X X X X
ONLY in child records)
Application/File Application used to create native
X X X Excel
Type file
Email folder path (sample:
Folder Label Inbox\Active); or Hard Copy X X X
folder/binder title/label
Date of hard copy documents, if
Date Hard Copy X
coded.
This is a multipurpose date field.
Populate with: DATESAVED
for E-Docs; DATESENT for
Doc Date Emails; DATEAPPTSTART for X X X X
calendar appointm

Case Info

Judge

Finigan, Jeffrey R. Track Judge’s New Case

Case No.

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Document Filed Date

March 25, 2024

Case Filing Date

May 24, 2021

County

Parties

DIAGNOSTICS INC. Plaintiff
DOES 1 - 25 Defendant
Genentech, Inc. Cross Complainant
Genentech, Inc. Defendant
GINDLER, DAVID ISAAC Attorneys for Defendants
GINDLER, DAVID ISAAC Attorney for the Defendant
NOVARTIS PHARMA AG Cross Defendant
NOVARTIS PHARMA AG Plaintiff
NOVARTIS PHARMACEUTICALS CORPORATION Cross Defendant
Novartis Vaccines Plaintiff
Novartis Vaccines and Diagnostics, Inc. Cross Defendant
Novartis Vaccines and Diagnostics, Inc. Plaintiff
STOLL, LAURA A. Attorneys for Plaintiffs
STOLL, LAURA A. Attorney for the Plaintiff
Jennifer Fisher Attorneys for Plaintiffs
Lauren Drake Attorneys for Defendants
Geoffrey Moss Attorneys for Defendants
Christopher Lynch Attorneys for Defendants
Amanda Russo Attorneys for Plaintiffs
Jana Zaidan Attorneys for Defendants

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No Value: NOVARTIS PHARMA AG, et al vs. Genentech, Inc.

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