SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — CENTRAL DISTRICT
MARISOL FUENTES, individually and on behalf of all others similarly situated,
Plaintiff,
v.
AURELIUS MEDIA AMERICAS INC., a Delaware corporation; and DOES 1 through 50, inclusive,
Defendants.
Case No. 22STCV38214
Assigned for All Purposes to: Hon. Raymond Escobedo, Dept. 34
Related Action: Halloran v. Aurelius Media Americas Inc. Case No. 22STCV39501
STIPULATION AND [PROPOSED] ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION
Filed: January 13, 2023
Castellano Byrne & Salas LLP, 11755 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025 — Attorneys for Plaintiff Marisol Fuentes Veltrano Employment Law Group PC, 350 South Grand Avenue, Suite 2800, Los Angeles, CA 90071 — Attorneys for Plaintiff (PAGA Claims) Calderwood & Harkness LLP, 777 South Flower Street, Suite 4200, Los Angeles, CA 90017 — Attorneys for Defendant Aurelius Media Americas Inc.
STIPULATION AND [PROPOSED] ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION
I. RECITALS AND PREAMBLE
Plaintiff Marisol Fuentes ("Plaintiff"), individually and on behalf of all others similarly situated, by and through her counsel of record, Castellano Byrne & Salas LLP (Marco Castellano, State Bar No. 198422; Diane Salas) and Veltrano Employment Law Group PC (Sandra Higuera, State Bar No. 217893), and Defendant Aurelius Media Americas Inc. ("AMA" or "Defendant"), by and through its counsel of record, Calderwood & Harkness LLP (Renata Vasquez, State Bar No. 224578; Devon Archer, State Bar No. 301462), hereby stipulate and agree as follows:
A. Nature of the Action. This action is a putative class action alleging wage-and-hour violations under the California Labor Code and related statutes, including but not limited to claims for unpaid overtime (Lab. Code §§ 510, 1194), meal period violations (Lab. Code § 226.7), rest period violations (Lab. Code § 226.7), failure to furnish accurate wage statements (Lab. Code § 226), failure to timely pay wages upon termination (Lab. Code §§ 201–203), and violations of the Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.). Plaintiff also asserts representative claims under the Private Attorneys General Act of 2004 ("PAGA"), Labor Code § 2698 et seq. The putative class is alleged to consist of approximately 1,850 current and former non-exempt, hourly employees of AMA who worked at AMA's California facilities during the class period.
B. Related Action. On November 18, 2022, a related action was filed: Halloran v. Aurelius Media Americas Inc., Case No. 22STCV39501 (the "Halloran Action"), asserting substantially overlapping claims on behalf of a putative class of AMA production employees. The Halloran Action has been deemed related and assigned to the Honorable Raymond Escobedo in Department 34. Although the Halloran Action has not yet been formally consolidated with this action as of the date of this Stipulation, the parties anticipate that a Consolidation Order will be entered in the near term. The parties stipulate and agree that this ESI protocol shall govern the discovery of electronically stored information in both this action and the Halloran Action, and shall become binding on all parties to the Halloran Action upon entry of the anticipated Consolidation Order.
C. Purpose of the Stipulation. The purpose of this Stipulation is to establish a comprehensive protocol governing the identification, preservation, collection, processing, review, production, and use of electronically stored information ("ESI") in this action and in the related Halloran Action. The parties recognize that the efficient management of ESI discovery is essential to the orderly progression of this litigation and to the conservation of the resources of the parties and the Court. This Stipulation is intended to reduce the costs and burdens of ESI discovery while ensuring that all parties have access to the information necessary to adjudicate the claims and defenses at issue.
D. Governing Principles. The parties agree that ESI discovery in this action should be conducted in a manner that is proportional to the needs of the case, as required by Code of Civil Procedure section 2017.020, and that is efficient, cost-effective, and consistent with the obligations imposed by the California discovery Act (Code Civ. Proc. § 2016.010 et seq.). The parties further agree that their approach to ESI discovery is informed by the California Supreme Court's guidance in Williams v. Superior Court (2017) 3 Cal.5th 531, regarding the scope of permissible discovery and the importance of balancing the burden of discovery against its likely benefit. The parties have engaged in good-faith discussions regarding the parameters of ESI discovery and have reached the agreements set forth herein, consistent with their obligations under Code of Civil Procedure section 2016.040 and the Civility Guidelines of the Los Angeles County Bar Association.
E. Reference to Protective Order. The parties have separately negotiated and stipulated to a Confidentiality Protective Order, which was filed with this Court on February 10, 2023, and governs the treatment of confidential information produced in this action. All ESI produced pursuant to this protocol is subject to the terms and conditions of that Confidentiality Protective Order. Nothing in this Stipulation shall be construed to alter, amend, or supersede the Confidentiality Protective Order.
F. Authority. The undersigned counsel represent that they have the authority to enter into this Stipulation on behalf of their respective clients and that all necessary authorizations have been obtained.
II. DEFINITIONS
As used in this Stipulation and [Proposed] Order, the following terms shall have the meanings set forth below. These definitions are provided for convenience and clarity; to the extent any term used in this Stipulation is not defined herein, it shall be given its ordinary meaning in the context of electronic discovery.
A. "ESI" means electronically stored information as that term is used in Code of Civil Procedure section 2016.020 and as it is understood in the context of modern electronic discovery practice. ESI includes, but is not limited to, emails and email attachments; electronic documents created in word processing applications (e.g., Microsoft Word .docx files), spreadsheet applications (e.g., Microsoft Excel .xlsx files), presentation applications (e.g., Ashbury Holdings Northgate Services Inc. .pptx files), and portable document format (PDF) files; databases and database records; spreadsheets; instant messages transmitted via platforms such as Meridian Solutions and Northgate Data Systems; text messages (SMS and MMS); voicemail messages stored in electronic format; calendar entries and scheduling data; structured data such as database exports, payroll records, and timekeeping records; and metadata associated with any of the foregoing.
B. "Native format" means the file format in which ESI was originally created, used, or stored by the application or system that generated it. By way of example and not limitation, a Microsoft Excel spreadsheet in native format is a file with the .xlsx extension that can be opened and fully utilized in Microsoft Excel, preserving all formulas, formatting, embedded data, pivot tables, macros, and other features of the original file.
C. "Image format" means a static image rendering of a document, typically in single-page Tagged Image File Format (TIFF) or Portable Document Format (PDF). Image format productions are accompanied by extracted text and metadata load files to facilitate searchability and organization within a litigation review platform.
D. "Metadata" means data about data — that is, information describing the characteristics, origins, usage, and context of a file or electronic communication. Metadata includes, but is not limited to: the date a file was created; the date a file was last modified; the date an email was sent and/or received; the author of a document; the custodian from whom the document was collected; the file path (directory location) from which the document was collected; the file name; the file extension; the file size (in bytes); email header fields including To, From, CC, and BCC; and the subject line of an email.
E. "Load file" means a file used to import produced documents, along with their associated metadata, extracted text, and image references, into a litigation review platform. Load files may take the form of concordance DAT files, Relativity load files, EDRM XML files, or other industry-standard formats, and shall conform to the specifications agreed upon by the parties as set forth in Section IV of this Stipulation.
F. "Custodian" means an individual identified as a source of potentially relevant ESI. A custodian may be a party, an employee or former employee of a party, or a third party in possession, custody, or control of potentially relevant ESI.
G. "Producing Party" means the party producing ESI in response to a discovery request, subpoena, or agreement of the parties. The term Producing Party includes the party's counsel and any e-discovery vendor acting on the party's behalf.
H. "Receiving Party" means the party receiving ESI production from a Producing Party. The term Receiving Party includes the party's counsel and any e-discovery vendor acting on the party's behalf.
I. "De-duplication" (also referred to as "de-duping") means the process of identifying and removing duplicate copies of ESI within or across custodians. De-duplication is typically accomplished by comparing the hash values (e.g., MD5 or SHA-1) of files to determine whether two or more files are identical at the binary level.
J. "Search terms" means keywords, phrases, Boolean operators, proximity connectors, or other search parameters used to identify potentially relevant ESI within a collected data set. Search terms may include individual words, multi-word phrases, wildcard characters, and combinations thereof connected by Boolean operators (AND, OR, NOT) or proximity connectors (w/n, pre/n).
K. "Privilege log" means a log or list identifying documents or communications that have been withheld from production, in whole or in part, on the basis of a claim of attorney-client privilege, work product protection, or other applicable privilege or immunity from discovery. The privilege log shall contain sufficient information to enable the Receiving Party to assess the validity of the privilege claim without disclosing the privileged content itself.
L. "Class period" means the period from November 1, 2018 through the present, as alleged in the operative complaint, subject to modification by subsequent agreement of the parties or order of the Court.
M. "PAGA period" means the period from November 1, 2021 through the present, as alleged in the operative complaint, subject to modification by subsequent agreement of the parties or order of the Court.
III. SCOPE OF ESI DISCOVERY
A. Relevant Time Period
1. The relevant time period for ESI discovery in this action shall correspond to the class period as alleged in the operative complaint: November 1, 2018 through the present. For purposes of this Stipulation, "the present" means the date of entry of this Order, unless the parties agree in writing to extend the relevant time period to account for ongoing employment relationships or continuing violations.
2. The parties acknowledge that AMA transitioned its timekeeping and payroll functions to NovaPay Solutions Inc.'s TimeTrack Pro platform effective January 1, 2019. For the period prior to January 1, 2019, electronic timekeeping and payroll records may be limited in scope and availability. AMA shall produce such pre-TimeTrack Pro electronic records as exist and are reasonably accessible. To the extent that pre-January 1, 2019 timekeeping records exist only in paper form (e.g., handwritten timesheets, punch card records, or manual payroll logs), such paper records are addressed separately outside the scope of this ESI protocol and shall be subject to the parties' separate agreements regarding the production of hard-copy documents.
3. In the event this action is resolved by settlement, the parties anticipate that the operative class period for settlement purposes may be modified to terminate on October 31, 2023, or such other date as agreed upon in any settlement agreement. Any such modification shall not retroactively limit ESI discovery that has already been conducted pursuant to this protocol.
B. Identified Custodians — Defendant AMA
1. The parties have conferred regarding the appropriate custodians for ESI collection and review on behalf of Defendant AMA. The parties agree that ESI collection and review for AMA shall initially be limited to the following seven (7) custodians, whose relevance to the issues in this action is summarized below:
2. The parties reserve the right to identify additional custodians upon a showing of good cause, including but not limited to the identification of additional relevant custodians through deposition testimony, document review, or other discovery. Any request to add a custodian shall be subject to the meet-and-confer obligations set forth in Section XI of this Stipulation. If the parties cannot agree on the addition of a custodian, either party may seek Court intervention by noticed motion or by stipulated submission to the Court.
3. Marcus Yee of NovaPay Solutions Inc. is a third-party custodian. ESI from NovaPay Solutions is being obtained pursuant to a third-party subpoena duces tecum issued on February 8, 2023, and shall be produced in the format specified in Section IV below. The inclusion of Mr. Yee as a custodian in this Stipulation reflects the parties' agreement regarding the relevance of NovaPay's records and is not intended to confer party status upon NovaPay Solutions Inc. or to alter NovaPay's rights and obligations as a non-party.
C. Identified Custodians — Plaintiffs
1. The following individuals are identified as custodians for ESI collection and review on behalf of Plaintiffs:
(a) Plaintiff Marisol Fuentes;
(b) Plaintiff Derek Halloran (upon consolidation of the Halloran Action with this action);
(c) Plaintiff Yesenia Padilla (upon consolidation and/or intervention in this action, as may be ordered by the Court).
2. Plaintiffs' custodial ESI includes personal communications (including email, text messages, and social media communications) relating to employment at AMA, working conditions, meal and rest break practices, compensation, communications with other putative class members regarding AMA employment practices, and communications with counsel regarding this litigation (subject to applicable privileges). Plaintiffs' ESI also includes any documents or records relating to their employment at AMA that are in the possession, custody, or control of the individual Plaintiffs.
3. The parties acknowledge that Plaintiffs' ESI is expected to be substantially more limited in volume than AMA's ESI, given that AMA, as the employer, controls virtually all relevant corporate records, timekeeping data, payroll data, and policy documents.
D. Data Sources
1. The parties have identified the following data sources as likely to contain potentially relevant ESI in this action:
(a) AMA Corporate Email (Strathmore Data Systems / Ashbury Software): AMA's corporate email system, hosted on Cobalt Ridge Data Systems as part of AMA's Ashbury Software enterprise subscription, contains email communications sent and received by AMA employees, including all identified AMA custodians. AMA's email retention policy, as suspended by the litigation hold, provides for the retention of email in active mailboxes and in journaled archives.
(b) NovaPay Solutions TimeTrack Pro System: The TimeTrack Pro platform, operated by NovaPay Solutions Inc. on behalf of AMA pursuant to a services agreement, contains structured timekeeping data (employee clock-in and clock-out records, meal period start and end times, meal period waivers, Missed Meal Attestation records, rest period records), payroll data (hours worked, pay rates, overtime calculations, deductions, meal period premium payments, wage statements), and system configuration data (rounding rules, auto-deduction settings, grace periods, policy configurations). TimeTrack Pro has been AMA's primary timekeeping and payroll system since January 1, 2019.
(c) AMA Human Resources Information System: AMA's HRIS contains employee records, personnel files, job classifications, pay rates, employment dates, department assignments, supervisor designations, and policy acknowledgment records.
(d) AMA Production Management System: AMA's production management system contains production schedules, call sheets, daily production reports, crew assignments, and related operational documents that may bear on the hours worked by putative class members and the availability of meal and rest periods during production operations.
(e) Meridian Solutions and Northgate Data Systems Messaging: AMA utilizes both Meridian Solutions and Northgate Data Systems for internal communications, including direct messages, group messages, and channel-based communications. These platforms may contain communications among AMA employees, including identified custodians, regarding scheduling, staffing, meal and rest break practices, and other issues relevant to this action.
(f) AMA Shared Network Drives and Cloud Storage (Cobalt Ridge Systems and Aldermere Systems): AMA maintains shared network drives and cloud storage repositories on Severin Services Inc. and Aldermere Systems that contain company policies, handbooks, training materials, operational memoranda, and other documents that may be relevant to this action.
(g) Personal Email Accounts of Plaintiffs: To the extent that Plaintiffs used personal email accounts (e.g., Northgate Software, Northpoint Solutions) to communicate about their employment at AMA, working conditions, or this litigation, such accounts are identified as potential data sources. Production of ESI from personal email accounts is limited to responsive, non-privileged communications.
(h) Personal Devices of Plaintiffs: Plaintiffs' personal mobile devices (smartphones) may contain text messages (SMS and MMS) relating to their employment at AMA, communications with other putative class members, and other responsive information. Production of text messages from personal devices is limited to responsive, non-privileged communications.
(i) AMA Offsite Storage (Cobalt Ridge Services Inc.): AMA maintains offsite storage of physical records at Cobalt Ridge Services Inc. facilities. These physical records are not subject to this ESI protocol except to the extent that any such records have been electronically imaged (e.g., scanned to PDF) and are stored in electronic format.
2. The parties reserve the right to identify additional data sources upon a showing of good cause, subject to the meet-and-confer obligations and proportionality principles set forth in this Stipulation.
IV. FORMAT OF PRODUCTION
A. General Rules for Format of Production
The parties agree that ESI shall be produced in the following formats, depending on the type of document or data:
1. Email Communications. Email messages shall be produced in single-page TIFF image format, accompanied by extracted text files (with Optical Character Recognition ("OCR") applied where extracted text is not available), metadata load files in concordance DAT format or Relativity-compatible format, and native-format attachments. Each email message shall be produced as a separate document, with its attachments produced as child documents linked to the parent email via the load file.
2. Email Attachments. Email attachments shall be produced in the format appropriate to the file type:
(a) Spreadsheet files (.xlsx, .csv), database files (.accdb), and presentation files (.pptx) shall be produced in native format to preserve formulas, embedded data, pivot tables, cell-level detail, animations, speaker notes, and other features that would be lost or distorted in image-format production.
(b) Word processing documents (.docx) and PDF files shall be produced in single-page TIFF image format with extracted text and metadata.
3. Spreadsheets and Databases. Spreadsheets and databases, whether produced as email attachments or as standalone documents, shall be produced in native format (.xlsx, .csv, .accdb, or tab-delimited text) to preserve formulas, embedded data, pivot tables, macros, cell-level detail, and other features inherent to the native application. If a spreadsheet or database contains multiple tabs or worksheets, all tabs and worksheets shall be produced.
4. Word Processing Documents and PDFs. Word processing documents (.docx, .doc) and PDF files shall be produced in single-page TIFF image format, accompanied by extracted text files and metadata load files as specified in Section IV.B below.
5. Presentations. Presentation files (.pptx, .ppt) shall be produced in native format to preserve animations, transitions, speaker notes, embedded content, and other features inherent to the native application.
6. Structured Data (TimeTrack Pro and Payroll Data). Structured data from the NovaPay Solutions TimeTrack Pro system, including timekeeping records, payroll data, employee demographic data, and system configuration data, shall be produced in delimited text format (CSV or tab-delimited) with accompanying data dictionaries and field descriptions sufficient to enable the Receiving Party to understand the structure, content, and relationships of the data fields. Structured data shall be produced in a format suitable for import into standard database analysis tools (e.g., Ridgeway Data Systems, SQL Server, or similar platforms). Where structured data contains date and time fields, such fields shall be produced in a standardized format (e.g., YYYY-MM-DD HH:MM:SS) to avoid ambiguity.
7. Instant Messages (Meridian Solutions and Northgate Data Systems). Instant messages from Meridian Solutions and Northgate Data Systems shall be produced in an agreed-upon format that preserves: (i) message threading and conversation context; (ii) timestamps (date and time of each message); (iii) sender and recipient identification; (iv) channel or conversation identification; (v) any embedded links, images, or file attachments; and (vi) any reactions, edits, or deletions that are captured by the platform. The parties shall confer regarding the specific export format for Meridian Solutions and Northgate Data Systems messages within fourteen (14) calendar days of the entry of this Order. If the parties cannot agree on a format, either party may seek Court intervention.
8. Audio and Video Files. Audio and video files shall be produced in native format (e.g., .mp4, .wav, .mov, .avi, .m4a) without transcoding or format conversion unless the parties agree otherwise. If a native format is proprietary or requires specialized software to view, the Producing Party shall notify the Receiving Party and the parties shall confer regarding an appropriate alternative format.
B. Image Production Specifications
All documents produced in image format shall comply with the following specifications:
1. Format: Single-page TIFF files, Group IV compression, at a minimum resolution of 300 dots per inch (DPI). Images shall be rendered in black and white by default. Where color is necessary to interpret the content of a document (e.g., color-coded spreadsheets, photographs, highlighted text, or documents where color conveys substantive meaning), color TIFF images shall be produced.
2. Bates Stamping: Each page of each produced document shall bear a unique, sequential production number ("Bates number") applied as an endorsement to the TIFF image. The Bates numbering conventions shall be as follows:
(a) Defendant AMA's productions: AMA-0000001 through AMA-9999999 (prefix "AMA-" followed by seven digits, zero-padded).
(b) Plaintiffs' productions: PL-0000001 through PL-9999999 (prefix "PL-" followed by seven digits, zero-padded).
3. Accompanying Files: Each image production shall be accompanied by the following files:
(a) A document-level metadata load file in DAT format, using standard concordance delimiters (ASCII 020 as the field delimiter and ASCII 254 as the text qualifier), or in a Relativity-compatible format as agreed upon by the parties.
(b) A document-level extracted text file containing the full text of each document, suitable for full-text searching. Where extracted text is not available (e.g., for scanned documents or image-only PDFs), the Producing Party shall apply OCR to generate searchable text.
(c) A cross-reference file (OPT or similar format) linking each TIFF image to its corresponding document record in the metadata load file.
4. Metadata Fields. The metadata load file shall include, at a minimum, the following fields for each produced document:
C. Native Format Production Requirements
1. Native files produced pursuant to this Stipulation shall be produced with all metadata intact and unaltered, except that metadata may be modified to the extent necessary to apply Bates numbering or confidentiality designations as specified herein.
2. Each native file shall be assigned a unique Bates number or document identifier for tracking and reference purposes. The Bates number assigned to a native file shall correspond to a placeholder image (slip sheet) included in the image production set. The slip sheet shall indicate that the corresponding document has been produced in native format and shall include a cross-reference to the native file's name and location within the production media.
3. Native files shall be organized in a folder structure on the production media that corresponds to the custodian and data source from which the file was collected, or in such other organization as the parties may agree.
D. E-discovery Vendor
1. AMA has retained Marlowe Asset Management Litigation Technology Inc. ("Marlowe Asset Management"), located at 600 Anton Boulevard, Suite 900, Costa Mesa, California 92626, as its e-discovery vendor for the collection, processing, hosting, and production of ESI in this action. Marlowe Asset Management shall be responsible for processing collected ESI, applying search terms, generating image and native productions, creating load files, and performing other e-discovery tasks as directed by AMA's counsel.
2. Plaintiffs' counsel may identify and retain their own e-discovery vendor for the processing, hosting, and review of ESI produced to them in this action. Plaintiffs shall notify AMA's counsel of the identity and contact information of any e-discovery vendor retained by Plaintiffs.
3. Cost Allocation for E-discovery Vendors. Unless otherwise agreed or ordered, the costs of collection and processing of ESI shall be borne by the Producing Party. The costs of hosting and review of produced ESI shall be borne by the Receiving Party. This allocation of costs is without prejudice to either party's right to seek a different allocation of costs by agreement or by motion to the Court, consistent with the proportionality principles set forth in Section X of this Stipulation.
V. SEARCH METHODOLOGY
A. Keyword Search Terms
1. The parties shall negotiate and agree upon a set of keyword search terms to be applied to email and document collections from the identified custodians. The parties recognize that the selection of appropriate search terms is critical to ensuring that responsive ESI is identified efficiently and comprehensively, while minimizing the review burden associated with non-responsive documents.
2. Defendant AMA shall circulate a proposed search term list to Plaintiffs' counsel within fourteen (14) calendar days of the entry of this Order. The proposed search term list shall identify, for each proposed search term, the custodian(s) to which the term is to be applied and any proposed limitations (e.g., date restrictions, specific data sources).
3. Plaintiffs shall provide comments, counter-proposals, or supplemental search terms within fourteen (14) calendar days of receipt of AMA's proposed search term list. The parties shall thereafter meet and confer in good faith to finalize an agreed-upon search term list.
4. If the parties are unable to reach agreement on search terms after good-faith meet-and-confer efforts, either party may seek Court intervention pursuant to Code of Civil Procedure section 2031.310 or by informal discovery conference with the Court, as provided in the Court's Standing Order.
5. The parties agree that search terms may include individual keywords, multi-word phrases, Boolean operators (AND, OR, NOT), proximity connectors (e.g., w/5, w/10), wildcard characters (e.g., * and ?), and stemming operators, as supported by the Producing Party's review platform.
B. Date Restrictions
1. Unless otherwise agreed by the parties, search terms shall be applied to ESI dated within the class period — that is, from November 1, 2018 through the date of the entry of this Order, or such later date as may be established by subsequent agreement of the parties or order of the Court.
2. For certain custodians whose ESI may contain relevant information predating the class period — for example, policy drafts created before November 1, 2018, or system configuration decisions made in connection with AMA's transition to the TimeTrack Pro platform — the parties may agree to extend the date range for specific search terms on a custodian-by-custodian basis. Any such extension shall be documented in writing.
3. The date restriction shall be applied based on the "Date Sent" field for email communications and the "Date Modified" or "Date Created" field for electronic documents, as appropriate. Where a document has both a "Date Created" and a "Date Modified" value, the document shall be deemed within the date range if either date falls within the applicable period.
C. Targeted Custodial Review
1. In addition to keyword searches, the parties agree that targeted custodial review — that is, manual review of specific file folders, email mailboxes, sub-folders, or data repositories — may be conducted for specific custodians where keyword searching alone is insufficient to identify all responsive materials. Targeted custodial review may be appropriate, for example, where relevant documents are organized in known folder structures or where the subject matter of responsive documents may not be captured by keyword searches.
2. The parties have identified the following as illustrative examples of targeted custodial review that may be undertaken in this action:
(a) Review of Lorraine Okafor's email folders labeled "Policies," "Compliance," "Employee Handbook," and "Training Materials," and any sub-folders thereof, for documents relating to AMA's meal and rest break policies, timekeeping policies, and employee training programs.
(b) Review of Karen Fong's email folders labeled "Payroll Configuration," "TimeTrack Pro," "Meal Period Premiums," and "Payroll Adjustments," and any sub-folders thereof, for documents relating to payroll processing, TimeTrack Pro configuration settings, auto-deduction parameters, and meal period premium calculations.
(c) Review of NovaPay Solutions' system configuration change logs for the TimeTrack Pro platform, including change orders, configuration modification records, and system audit trails, to identify modifications to timekeeping rules, rounding settings, and auto-deduction policies as implemented for AMA.
3. The Producing Party shall document the scope of any targeted custodial review conducted pursuant to this Section and shall make information regarding the scope of such review available to the Receiving Party upon reasonable request.
D. Iterative Process
1. The parties acknowledge and agree that search methodology in ESI discovery is inherently iterative. Initial search terms and strategies may need to be refined, expanded, or narrowed based on the results of initial searches, the review of produced documents, deposition testimony, and the development of the issues in the case.
2. Accordingly, the parties agree that the agreed-upon search terms may be modified from time to time, by mutual agreement, to add new search terms, remove search terms that generate an unacceptable volume of non-responsive results, or refine existing search terms. Any modifications to the agreed-upon search terms shall be documented in writing, and email between the parties' ESI liaisons (as identified in Section XI.B below) shall be sufficient for this purpose.
3. Either party may propose modifications to the search methodology at any time during the course of discovery, subject to the meet-and-confer obligations set forth in Section XI of this Stipulation.
VI. DE-DUPLICATION
A. Global De-Duplication
1. Defendant AMA shall de-duplicate ESI globally across all custodians using MD5 or SHA-1 hash values prior to production. Global de-duplication means that if an identical copy of a document or email is collected from more than one custodian, only one copy of the document shall be produced, with the metadata load file reflecting all custodians from whom the document was collected.
2. De-duplication shall be applied at the document family level. For purposes of this provision, an email and all of its attachments constitute a "family unit." An email family shall be treated as a single unit for de-duplication purposes, meaning that an email with attachments shall be de-duplicated against other instances of the same email with the same attachments. If an email is identical but its attachments differ (or vice versa), the email families shall not be treated as duplicates.
3. Where a document is de-duplicated across custodians, the Producing Party shall identify in the metadata load file (in the "All Custodians" field) each custodian from whom the document was collected. This information is necessary to enable the Receiving Party to assess the distribution and provenance of documents across the custodian population.
4. De-duplication shall not be applied to documents that have been designated with different confidentiality levels under the Protective Order. If the same document would bear different confidentiality designations depending on the custodian, the document shall be produced once, bearing the highest applicable confidentiality designation.
B. Near-Duplicate Identification
1. Near-duplicate identification — that is, the use of textual similarity analysis algorithms to identify documents that are substantially but not exactly similar — is not required under this protocol. Either party may, however, use near-duplicate identification technology as part of its internal review workflow for purposes of review efficiency.
2. Near-duplicates shall not be withheld from production on the basis of near-duplication alone. Only exact duplicates — that is, documents with identical MD5 or SHA-1 hash values — may be de-duplicated and excluded from production pursuant to Section VI.A above.
VII. PRIVILEGE REVIEW AND LOGGING
A. Privilege Review
1. The Producing Party shall conduct a reasonable review of ESI collected from the identified custodians and data sources for documents and communications protected by the attorney-client privilege, the work product doctrine (Code Civ. Proc. § 2018.030), or any other applicable privilege or protection, prior to production.
2. The Producing Party shall withhold from production all documents and communications for which a good-faith claim of privilege is asserted. Withheld documents shall be logged on a privilege log as set forth in Section VII.B below.
3. Nothing in this Stipulation shall be construed to require the Producing Party to waive any applicable privilege or protection, or to limit the Producing Party's right to assert privilege over any document or communication.
B. Privilege Log Requirements
1. The Producing Party shall produce a privilege log on a rolling basis, with the first privilege log due no later than thirty (30) calendar days after the first substantive production of ESI, and updated privilege logs due every thirty (30) calendar days thereafter until production is complete. "Substantive production" means a production that includes responsive documents beyond mere cover letters, indices, or placeholder documents.
2. For each document or communication withheld from production on the basis of privilege, the privilege log shall include the following information:
(a) Document Date: The date of the document or communication.
(b) Author/Sender: The name and title (if known) of the author of the document or the sender of the communication.
(c) Recipient(s): The names and titles (if known) of all recipients of the communication, including To, CC, and BCC recipients.
(d) General Description: A general description of the subject matter of the document or communication, sufficient to enable the Receiving Party to assess the validity of the privilege claim without revealing privileged content. The description shall be more than a conclusory statement (e.g., "legal communication") and shall identify the general topic or subject of the communication.
(e) Privilege(s) Asserted: The specific privilege(s) or protection(s) asserted as the basis for withholding the document (e.g., attorney-client privilege, attorney work product, joint defense privilege, common interest doctrine).
(f) Bates Range or Notation: If the document has been partially redacted and produced, the Bates range of the redacted document. If the document has been withheld in its entirety, the notation "Withheld in Full."
3. The privilege log may be produced in spreadsheet format (.xlsx or .csv) to facilitate review and analysis by the Receiving Party.
4. The parties acknowledge that privilege logging obligations apply to documents responsive to discovery requests that are withheld solely on the basis of privilege. Documents that are withheld as non-responsive need not be logged. Communications between a party and its counsel of record in this litigation, created after the filing of this action, need not be individually logged, provided that the Producing Party includes a general categorical statement on the privilege log to the effect that post-litigation communications with counsel have been withheld.
C. Redactions.
1. Where a document contains both privileged and non-privileged information, the Producing Party shall produce the document in redacted form, rather than withholding the document in its entirety. Redactions shall be clearly marked on the face of the document with a designation indicating the basis for the redaction (e.g., "REDACTED — ATTORNEY-CLIENT PRIVILEGE" or "REDACTED — WORK PRODUCT").
2. Redactions shall be applied to the image production (TIFF images). The corresponding extracted text file shall reflect the redacted version of the document — that is, the extracted text file shall not contain the text underlying any redaction.
3. Redacted documents shall be identified on the privilege log with the notation "Produced in Redacted Form" and the Bates range of the redacted production.
VIII. CLAWBACK PROVISIONS
A. Inadvertent Production
1. The parties recognize that, given the volume of ESI to be produced in this action, there is a risk that privileged or work-product-protected documents may be inadvertently produced. Consistent with the principles underlying Federal Rule of Evidence 502(d) — applied by analogy in this California state court proceeding — and California Evidence Code section 912, the parties agree to the following protections against inadvertent waiver of privilege:
(a) The inadvertent production of a document or communication protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or protection shall not constitute a waiver of the privilege or protection as to that document or as to any other document or communication concerning the same subject matter.
(b) If the Producing Party discovers that it has inadvertently produced a document or communication that is protected by privilege, the Producing Party shall promptly notify the Receiving Party in writing (email is sufficient). The notice shall identify the inadvertently produced document(s) by Bates number (or by other identifying information sufficient to enable the Receiving Party to locate the document(s)) and shall state the privilege or protection asserted.
(c) Upon receipt of a clawback notice, the Receiving Party shall:
(i) promptly sequester the identified document(s), segregating them from all other produced materials;
(ii) not use, disclose, cite, reference, or rely upon the identified document(s) for any purpose, including in any motion, brief, deposition, hearing, or other proceeding;
(iii) promptly return, delete, or destroy all copies of the identified document(s) in the Receiving Party's possession, custody, or control, including any copies maintained by the Receiving Party's counsel, experts, consultants, or e-discovery vendors, and including any notes, summaries, abstracts, or work product derived from or incorporating the content of the identified document(s);
(iv) confirm compliance with the foregoing obligations in writing within five (5) business days of receipt of the clawback notice.
2. The clawback protections set forth in this Section shall apply regardless of the measures taken by the Producing Party to prevent the inadvertent production of privileged materials. The Producing Party's obligation to conduct a reasonable privilege review, as set forth in Section VII.A above, is not diminished by the availability of clawback protections under this Section.
B. Dispute Resolution for Clawback Claims
1. If the Receiving Party disputes the assertion of privilege over a clawed-back document, the Receiving Party shall notify the Producing Party in writing within ten (10) business days of receiving the clawback notice. The dispute notice shall identify the document(s) at issue and state the basis for the Receiving Party's challenge to the privilege claim.
2. The parties shall meet and confer in good faith within seven (7) business days of the Producing Party's receipt of the dispute notice. The meet and confer shall be conducted in person or by telephone and shall be a genuine effort to resolve the dispute without Court intervention.
3. If the dispute cannot be resolved through meet-and-confer efforts, either party may submit the document(s) at issue to the Court for in camera review and a ruling on the privilege claim. The party seeking Court intervention shall file a brief statement of the dispute, not to exceed five (5) pages, accompanied by a declaration identifying the document(s) at issue. The opposing party may file a responsive brief, not to exceed five (5) pages, within five (5) business days. The disputed document(s) shall be lodged with the Court under seal for in camera review.
4. Pending resolution of a privilege dispute, the Receiving Party shall continue to comply with its sequestration obligations under Section VIII.A.1(c) above and shall not use, disclose, or rely upon the disputed document(s).
C. Court Order Regarding Clawback
1. The parties request that the Court enter this Stipulation as an Order of this Court and that the clawback provisions set forth in this Section VIII be deemed a court order for purposes of establishing protections analogous to those provided by Federal Rule of Evidence 502(d), to the fullest extent applicable in this California state court proceeding. The parties submit that entry of a court order incorporating the clawback provisions herein will provide the parties with additional assurance against the inadvertent waiver of privilege and will promote the efficient and thorough production of ESI without the excessive cost and delay that would result from overly cautious privilege review.
IX. PRODUCTION TIMELINE AND ROLLING PRODUCTIONS
A. Initial Production — Phase I
1. Defendant AMA's initial production of ESI ("Phase I Production") shall focus on the following categories of documents and data, which the parties agree are of highest priority for the early stages of this litigation:
(a) Company-wide policies and procedures relating to meal periods, rest periods, timekeeping, overtime, and wage payment, including all versions of the AMA Employee Handbook in effect during the class period;
(b) Training materials and memoranda distributed to supervisors and/or employees regarding meal and rest break practices, timekeeping procedures, and related topics;
(c) TimeTrack Pro system configuration records, including rounding rules, auto-deduction settings, grace period parameters, and any modifications to those settings during the class period;
(d) Payroll and timekeeping data for putative class members during the class period, including hours worked, clock-in and clock-out times, meal period start and end times, meal period waivers, Missed Meal Attestation records, overtime hours, pay rates, and wage statement data.
2. AMA's Phase I Production shall be completed within forty-five (45) calendar days of the entry of this Order — that is, by approximately February 27, 2023.
3. Plaintiffs' initial production of custodial ESI shall be completed within thirty (30) calendar days of service of AMA's document requests pursuant to Code of Civil Procedure section 2031.010 et seq. Plaintiffs anticipate that their initial production will be limited in scope, consisting primarily of personal communications relating to employment at AMA.
B. Rolling Productions
1. Following the completion of Phase I productions, subsequent productions of ESI shall be made on a rolling basis, not less frequently than every twenty-one (21) calendar days, until all responsive, non-privileged ESI has been produced.
2. Each rolling production shall be accompanied by a cover letter identifying: (i) the documents produced by Bates range (beginning and ending Bates numbers); (ii) the custodian(s) from whom the produced documents were collected; (iii) the data source(s) from which the produced documents were collected; and (iv) any applicable confidentiality designations under the Protective Order.
3. The Producing Party shall use commercially reasonable efforts to prioritize the production of documents by relevance and by the anticipated needs of the litigation schedule, including upcoming depositions, class certification briefing, and mediation.
C. NovaPay Solutions Data
1. Structured data from NovaPay Solutions Inc., including timekeeping records, payroll data, system configuration logs, and Missed Meal Attestation records, shall be produced in delimited text format (CSV or tab-delimited) with data dictionaries and field descriptions, as specified in Section IV.A.6 above.
2. The production of NovaPay Solutions data is governed by the third-party subpoena duces tecum issued to NovaPay Solutions on February 8, 2023, pursuant to Code of Civil Procedure section 2020.010 et seq. The subpoena was served on Marcus Yee, Director of Client Data Services, NovaPay Solutions Inc., at 2200 Powell Street, Suite 600, Emeryville, California 94608. Production of responsive records shall be coordinated between Calderwood & Harkness LLP, as counsel for AMA, and NovaPay Solutions' designated contact.
3. Defendant AMA consents to NovaPay Solutions' production of responsive records pursuant to the third-party subpoena and will authorize NovaPay Solutions, in writing, to produce responsive records directly to both parties (i.e., to AMA's counsel and to Plaintiffs' counsel) simultaneously.
4. The target completion date for NovaPay Solutions' production of responsive records is sixty (60) calendar days from the date of the subpoena — that is, by approximately April 9, 2023. AMA shall use reasonable efforts to facilitate NovaPay's timely compliance with the subpoena.
X. PROPORTIONALITY AND COST ALLOCATION
A. Proportionality Principles
1. Consistent with Code of Civil Procedure section 2017.020, the parties agree that ESI discovery in this action shall be proportional to the needs of the case. In evaluating the proportionality of any particular ESI discovery request or proposal, the parties shall consider the following factors:
(a) The importance of the issues at stake in the action. The parties acknowledge that this action raises significant issues regarding wage-and-hour compliance affecting a putative class of approximately 1,850 current and former non-exempt, hourly employees of AMA in California. The importance of the issues at stake weighs in favor of thorough ESI discovery.
(b) The amount in controversy. Plaintiff estimates the total damages at stake in this action at approximately $38.6 million, based on Plaintiff's damage model. Defendant estimates potential exposure at approximately $5.8 million, based on Defendant's analysis. The significant amount in controversy supports the proportionality of the ESI discovery contemplated by this protocol.
(c) The parties' relative access to relevant information. AMA, as the employer, controls virtually all relevant timekeeping data, payroll data, corporate policies, and communications bearing on the claims and defenses in this action. Plaintiffs, as individual employees, have limited access to such information. This disparity in access to information weighs in favor of AMA bearing the primary burden of ESI production.
(d) The importance of the discovery in resolving the issues. ESI, including timekeeping records, payroll data, and communications regarding meal and rest break policies and practices, is central to the resolution of the claims in this action. The discovery sought is not peripheral or tangential; it goes to the core of the disputed issues.
(e) Whether the burden or expense of the proposed discovery outweighs its likely benefit. The parties have designed this ESI protocol to minimize unnecessary burden and expense, including through the use of agreed-upon custodians, search terms, de-duplication, and a phased production schedule. The parties believe that the burden and expense of the ESI discovery contemplated by this protocol are reasonable and proportionate to the needs of the case.
B. Cost Allocation
1. Unless otherwise agreed by the parties or ordered by the Court, each party shall bear its own costs of collecting, processing, reviewing, and producing its own ESI. This includes the costs of e-discovery vendor services, attorney review, and production media.
2. The costs of NovaPay Solutions' compliance with the third-party subpoena duces tecum, including any costs incurred by NovaPay in extracting, formatting, and producing responsive data, shall be borne by Defendant AMA. The parties agree that this allocation is appropriate because NovaPay Solutions is AMA's payroll and timekeeping vendor, the data at issue is AMA's employee data maintained by NovaPay on AMA's behalf, and AMA has the contractual relationship and ability to coordinate with NovaPay regarding production.
3. If a party requests ESI from sources that are not reasonably accessible because of undue burden or cost — including but not limited to backup tapes, legacy systems, decommissioned servers, archived data stores, or disaster recovery systems — the requesting party shall bear the incremental costs of restoration, extraction, and production of ESI from such sources, unless the Court orders a different allocation upon a showing of good cause. Before incurring such costs, the parties shall meet and confer to discuss the anticipated costs, the likely volume and relevance of the ESI, and whether alternative, less burdensome sources of the same or equivalent information are available.
C. Estimated Volume
1. Based on preliminary assessments conducted by Marlowe Asset Management Litigation Technology Inc., Defendant AMA estimates its total ESI production volume at approximately 150,000 documents, comprising approximately 1.2 million pages, after the application of agreed-upon search terms, global de-duplication, and custodian limitations. AMA's actual final production was 147,832 documents.
2. Plaintiffs estimate their total ESI production volume at approximately 3,500 documents. Plaintiffs' actual final production was 3,412 documents.
3. These estimates are provided for informational purposes and are not intended to limit the scope of any party's production obligations. Actual production volumes may vary depending on the results of search term application, the outcome of privilege review, and the addition of custodians or data sources by agreement or court order.