1021-00006 · Client 1021 · Discovery

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IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO.: 1021-00006

VERIMARK HOSPITALITY GROUP INC., a Delaware corporation,

Plaintiff,

COASTAL PALMS FRANCHISE HOLDINGS LLC, a Florida limited liability company; RANDALL BRECKER, individually; and SUNCOAST ROOM MANAGEMENT INC., a Florida corporation,

Defendants.

________________________________________

JOINT STIPULATION AND AGREED ORDER REGARDING PROTOCOL FOR ELECTRONICALLY STORED INFORMATION AND DISCOVERY OF ELECTRONIC DOCUMENTS

________________________________________

Before the Honorable Richard M. Calloway, Circuit Judge

Filed: June 20, 2022

PREAMBLE AND RECITALS

This Joint Stipulation and Agreed Order Regarding Protocol for Electronically Stored Information and discovery of Electronic Documents (this "Joint Stipulation" or "Protocol") is entered into by and between Plaintiff Verimark Hospitality Group Inc. ("Verimark" or "Plaintiff"), by and through its attorneys of record, Calderwood & Harkness LLP, and Defendants Coastal Palms Franchise Holdings LLC ("CPFH"), Randall Brecker ("Brecker"), and Suncoast Room Management Inc. ("Suncoast") (CPFH, Brecker, and Suncoast collectively referred to herein as "Defendants"), by and through their attorneys of record, Whitfield, Barrow & Crane LLP (Plaintiff and Defendants sometimes referred to individually as a "Party" and collectively as the "Parties").

WHEREAS, Plaintiff Verimark Hospitality Group Inc. filed its Complaint in this action on March 7, 2022, asserting ten (10) counts against one or more Defendants, including claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent concealment, fraud in the inducement, negligent misrepresentation, unjust enrichment, civil conspiracy, breach of fiduciary duty, violation of the Florida Deceptive and Unfair Trade Practices Act (Fla. Stat. §§ 501.201, et seq.), and an action for accounting, arising out of the Parties' franchise relationship involving twenty-two (22) hotel and hospitality properties located across the State of Florida and along the southeastern United States;

WHEREAS, Defendants CPFH, Brecker, and Suncoast filed their Answer, Affirmative Defenses, and Counterclaim on April 18, 2022, denying the material allegations of the Complaint, asserting twenty-three (23) affirmative defenses, and asserting counterclaims against Verimark for, inter alia, breach of the Franchise License Agreements, tortious interference with business relationships, and declaratory relief;

WHEREAS, a Case Management Conference was held on June 14, 2022 before the Honorable Richard M. Calloway, Circuit Judge, at which the Court directed the Parties to confer regarding the discovery of electronically stored information and to submit an agreed protocol governing the collection, processing, production, and handling of ESI in this matter;

WHEREAS, the Parties, through their respective lead counsel — Priya Anand, Esq. of Calderwood & Harkness LLP, on behalf of Plaintiff, and Gabriela Montes, Esq. of Whitfield, Barrow & Crane LLP, on behalf of Defendants — have conferred in good faith on multiple occasions regarding the discovery of electronically stored information ("ESI") and have reached agreement on the comprehensive protocol set forth herein;

WHEREAS, the Parties anticipate that ESI discovery in this action will be substantial, involving, without limitation, financial records, booking and occupancy data, revenue reports, property management system ("PMS") data, revenue management platform exports, communications (including email, text messages, and instant messages), franchise compliance records, audit reports, and accounting records spanning a period of approximately fifteen (15) years from multiple entities, including but not limited to Coastal Palms Franchise Holdings LLC, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, and Suncoast Room Management Inc., as well as Verimark Hospitality Group Inc. and its relevant subsidiaries, divisions, and departments;

WHEREAS, both Parties have jointly engaged Nexagen Document Solutions LLC ("Nexagen"), located at 400 Northpark Town Center, Suite 500, Atlanta, Georgia 30328, as the e-discovery vendor for hosting, processing, analytics, and related services in connection with the ESI discovery in this action, and have entered into a tri-party engagement letter with Nexagen dated June 3, 2022; and

WHEREAS, the Parties submit this Joint Stipulation to the Court and respectfully request the entry of an Agreed Order adopting its terms, pursuant to the Florida Rules of Civil Procedure, including but not limited to Rules 1.200, 1.280, 1.350, and 1.380.

NOW, THEREFORE, the Parties hereby stipulate and agree as follows:

SECTION 1: DEFINITIONS

As used in this Joint Stipulation, the following terms shall have the meanings set forth below:

1.1 "ESI" shall mean electronically stored information as contemplated by Florida Rule of Civil Procedure 1.280 and Florida Rule of Civil Procedure 1.350, including but not limited to emails, electronic documents (including word processing files, PDFs, and text files), databases, spreadsheets, presentations, property management system ("PMS") data, booking and reservation records, online travel agency ("OTA") platform data, financial and management accounting records, revenue management system exports, digital images, audio and video recordings, website content, social media content, text messages, instant messages, voicemail recordings, and any other data or information stored in electronic form, regardless of the medium or device on which it resides.

1.2 "Document" shall mean any ESI or hard-copy document responsive to a discovery request propounded in this action, including all associated metadata. The term "Document" shall be construed broadly and consistently with its usage under the Florida Rules of Civil Procedure and applicable case law.

1.3 "Native Format" shall mean the original file format in which a document was created, received, or maintained in the ordinary course of business, including the application-specific encoding and all embedded metadata associated with the file.

1.4 "TIFF" shall mean Tagged Image File Format, a static image format used for the production of documents in discovery proceedings. As used herein, unless otherwise specified, "TIFF" refers to single-page, Group IV TIFF images.

1.5 "Extracted Text" shall mean text extracted from native electronic files by automated means (i.e., without the use of optical character recognition), or, in the case of image-only documents (including scanned hard-copy documents), text generated by Optical Character Recognition ("OCR") technology. Extracted text shall be provided at the document level in individual text files encoded in UTF-8 format.

1.6 "Load File" shall mean a file or set of files containing metadata fields, document-identification information, and coding data used to import produced documents into a litigation review platform. As used herein, load files shall be provided in both concordance DAT format (using the standard concordance delimiters: ¶ as the field delimiter and þ as the text qualifier) and Opticon OPT format for image cross-referencing.

1.7 "Production Set" shall mean a collection of documents produced by a Producing Party in response to one or more discovery requests, assigned sequential Bates numbers in accordance with Section 5.3 of this Protocol.

1.8 "Custodian" shall mean an individual or entity identified as a source of ESI subject to collection and review under this Protocol. A custodian may include, but is not limited to, named parties, current and former employees, officers, directors, members, managers, agents, and contractors of any Party or affiliated entity.

1.9 "Processing" shall mean the conversion and preparation of ESI from its native format into a reviewable and producible format, including the extraction of metadata, the generation of extracted text, the de-duplication of files, the expansion of container files (e.g., ZIP, RAR, PST, and OST files), the extraction of embedded objects, and the conversion of files into TIFF images where applicable.

1.10 "De-Duplication" shall mean the identification and removal of exact duplicate documents within a data set, as determined by comparison of MD5 or SHA-1 hash values. De-duplication may be performed at the custodian level or globally, as specified in this Protocol.

1.11 "Privilege Log" shall mean a log or listing identifying documents or communications that have been withheld from production, or portions of documents that have been redacted, on the basis of attorney-client privilege, work-product protection, the joint-defense or common-interest privilege, or any other legally recognized privilege or protection.

1.12 "Clawback" shall mean the process by which a Producing Party seeks the return or sequestration of inadvertently produced privileged or work-product-protected documents, consistent with Florida Rule of Civil Procedure 1.285 and the procedures set forth in Section 8 of this Protocol.

1.13 "Producing Party" shall mean the Party producing documents and ESI in response to a discovery request, subpoena, or other obligation under the Florida Rules of Civil Procedure or this Protocol.

1.14 "Receiving Party" shall mean the Party receiving documents and ESI produced by the Producing Party.

1.15 "Nexagen" shall mean Nexagen Document Solutions LLC, the e-discovery vendor jointly engaged by the Parties for hosting, processing, analytics, and related services in this action, located at 400 Northpark Town Center, Suite 500, Atlanta, Georgia 30328.

SECTION 2: SCOPE OF ESI DISCOVERY

2.1 Identification of Custodians. Within fourteen (14) calendar days following entry of this Order, each Party shall serve upon opposing counsel an initial list of custodians whose ESI will be collected and searched in connection with this action (the "Initial Custodian List"). Each Party may designate up to fifteen (15) custodians on its Initial Custodian List. Additional custodians beyond the initial fifteen (15) may be added at any time by written agreement of the Parties or by order of the Court upon motion and a showing of good cause. The Parties shall confer in good faith regarding custodian identification and shall endeavor to agree on a comprehensive and reasonable custodian list that is proportionate to the needs of this case.

2.2 Plaintiff's Anticipated Custodians. Without limiting Plaintiff's right to designate custodians on its Initial Custodian List, Plaintiff anticipates that its custodians will include, among others: Renata Solis-Vega (Senior Vice President and General Counsel, Verimark Hospitality Group Inc.); Martin Holcomb (Executive Vice President and Chief Financial Officer, Verimark Hospitality Group Inc.); Deidre Langston (Senior Vice President, Franchise Operations, Verimark Hospitality Group Inc.); and relevant franchise compliance, franchise accounting, and franchise audit personnel within the Verimark organization who were responsible for overseeing or managing the franchise relationships at issue in this action.

2.3 Defendants' Anticipated Custodians. Without limiting Defendants' right to designate custodians on their Initial Custodian List, Defendants anticipate that their custodians will include, among others: Randall Brecker (Managing Member, Coastal Palms Franchise Holdings LLC, and President, Suncoast Room Management Inc.); Theresa Brecker (Member, Coastal Palms Franchise Holdings LLC); Nolan Prescott (Member, Coastal Palms Franchise Holdings LLC); property-level general managers and controllers at Gulf Breeze Hospitality LLC and Savannah Lodging Partners LLC; and relevant personnel at Suncoast Room Management Inc., including the former Regional Controller, Janet Kerrigan, to the extent that documents within Defendants' possession, custody, or control relate to her tenure with or service to Defendants or any of their affiliated entities. The Parties acknowledge that Ms. Kerrigan is no longer employed by or affiliated with any Defendant, and Defendants' custodial designation is limited to documents in Defendants' possession, custody, or control.

2.4 Date Range. Unless otherwise agreed in writing by the Parties or ordered by the Court, ESI collection shall cover the period from January 1, 2007 through the date of this Stipulation, June 20, 2022 (the "Collection Period"). The Collection Period commences on January 1, 2007 to encompass the period leading up to the execution of the first Franchise License Agreement between the Parties on June 15, 2007, and extends through the date of this Stipulation to capture communications and records relevant to the events giving rise to this litigation. The Parties reserve the right to request, by agreement or motion, the extension of the Collection Period as warranted by the circumstances of this case.

2.5 Data Sources. ESI shall be collected from the following categories of data sources, to the extent reasonably accessible and within the possession, custody, or control of the Producing Party:

(a) Email accounts, including corporate email accounts (whether hosted on Strathmore Data Systems, Ashgrove Software, Crestline Software, or other platforms), personal email accounts used for business purposes, and archived or journaled email repositories;

(b) Local and network drives, including desktop computers, laptop computers, shared network drives, departmental drives, and file servers;

(c) Cloud storage platforms, including but not limited to Sundial Systems, Severin Services Inc., Hollowell Health IT, Larkspur Technologies, and box;

(d) Accounting and financial systems, including property management systems (e.g., Thackeray Solutions, Ashbury Services Inc.), point-of-sale systems, revenue management platforms, general ledger systems, and accounts payable and accounts receivable systems;

(e) Online travel agency ("OTA") booking portals, including data from Aldermere Technologies, Bramwell Holdings, Drayton Software, and any other third-party booking or distribution channels through which reservations were made for the franchise properties at issue;

(f) The website gulfcoastrooms.com, operated by Suncoast Room Management Inc., including website content, booking data, and any associated back-end databases or content management systems;

(g) Mobile devices, including smartphones and tablets, to the extent such devices contain ESI within the scope of this Protocol; and

(h) Backup systems, archive systems, and disaster-recovery systems, to the extent such systems are reasonably accessible and not subject to the provisions of Section 9.4 of this Protocol.

2.6 Structured Data and Databases. The Parties acknowledge that certain categories of ESI, including financial databases, PMS data, booking and reservation records, revenue management platform exports, and other structured data, may not be amenable to production in TIFF image format because such production would render the data unintelligible, would destroy the relational structure of the data, or would be impractical given the volume and complexity of the records. Accordingly, structured data and database extracts may be produced in native or near-native format (e.g., CSV, Microsoft Excel, delimited text files, or database export formats) rather than TIFF, provided that the Producing Party: (i) identifies the source system from which the data was extracted; (ii) provides a data dictionary or field-level description of the exported data; and (iii) produces the data in a format that is reasonably usable by the Receiving Party. The Parties shall confer regarding the format for production of any specific structured data set prior to production.

2.7 Proportionality. The Parties acknowledge and agree that the principles of proportionality set forth in Florida Rule of Civil Procedure 1.280(b)(1) apply to the scope of ESI discovery in this action. The scope of ESI discovery shall be proportional to the needs of the case, taking into account the totality of the circumstances, including but not limited to: the amount in controversy, which Plaintiff estimates at approximately One Hundred Fifty Million Dollars ($150,000,000.00) as set forth in the Complaint; the importance of the issues at stake in this action, which involves allegations of systemic underreporting of franchise revenues across twenty-two (22) hospitality properties over a period spanning more than a decade; the Parties' relative access to relevant information; the Parties' respective resources; the importance of the discovery in resolving the disputed issues; and whether the burden or expense of the proposed discovery outweighs its likely benefit. The Parties further agree that disputes regarding the scope of ESI discovery shall be resolved with reference to these proportionality principles.

SECTION 3: COLLECTION AND PRESERVATION

3.1 Preservation Obligations. Each Party shall take reasonable and good-faith steps to identify, locate, and preserve ESI that is relevant to the claims, defenses, and counterclaims in this action, consistent with each Party's litigation hold obligations under applicable law. Plaintiff represents that it issued a written litigation hold notice to relevant custodians on March 7, 2022, the date on which the Complaint was filed. Defendants represent that they issued litigation hold notices to relevant custodians upon receipt of the Complaint. Each Party's preservation obligations extend to ESI in the possession, custody, or control of the Party, including ESI maintained by agents, contractors, and affiliated entities acting on the Party's behalf. The Parties acknowledge that reasonable preservation does not require the preservation of every piece of data or the cessation of all routine data management practices, but does require the suspension of auto-deletion policies and document-destruction practices with respect to potentially relevant ESI.

3.2 Collection. ESI shall be collected by or under the direction of Nexagen Document Solutions LLC in a forensically sound manner that preserves the integrity of the data, including all associated metadata and chain-of-custody documentation. The collection process shall include the use of forensic imaging or targeted forensic collection tools, as appropriate to the data source, and shall be conducted in a manner that does not alter, modify, or destroy the original ESI. Nexagen shall maintain detailed collection logs documenting the date, time, source, custodian, and method of collection for each data set. Each Party shall cooperate with Nexagen in facilitating access to data sources for collection purposes and shall designate a point of contact to coordinate collection activities.

3.3 Mobile Devices. Text messages (including SMS and MMS messages), instant messages (including messages transmitted via platforms such as Meridian Services Inc., Westmark Software, Northgate Data Systems, Meridian Solutions, and any other messaging application), and other mobile-device communications relevant to the claims and defenses in this action shall be collected from custodians' mobile devices using forensic collection tools (e.g., Sundial Services Inc. or similar technology) and shall be processed and produced in accordance with this Protocol. The Parties shall confer regarding the identification of custodians from whom mobile-device data will be collected, and the scope of such collection (e.g., specific date ranges, specific applications), with due regard for custodian privacy and proportionality concerns.

3.4 Third-Party Data. Data obtained from third parties via subpoena duces tecum, including without limitation records obtained from financial institutions (such as Ironclad National Bank), OTA platforms, credit card processors, and other third-party sources, shall be processed and produced in accordance with this Protocol to the extent practicable. The Parties acknowledge that certain third parties may produce documents in formats that do not conform to the specifications of this Protocol, and in such cases, the Parties shall confer regarding the re-processing or reformatting of third-party productions to the extent feasible and cost-effective.

SECTION 4: PROCESSING STANDARDS

4.1 Processing Vendor. All ESI for both Plaintiff and Defendants shall be processed by Nexagen Document Solutions LLC in order to ensure consistency in processing parameters, metadata extraction, de-duplication, and production formatting. Neither Party shall use a different processing vendor without the prior written consent of the opposing Party or leave of Court. Nexagen shall apply consistent processing settings across all data sets, including consistent time-zone normalization (Eastern Time, UTC-5), consistent text extraction methods, and consistent TIFF-rendering parameters.

4.2 De-Duplication. ESI shall be de-duplicated at the custodian level. That is, exact duplicate documents from the same custodian (as determined by MD5 hash value comparison at the document level) shall be removed, and only one instance of the document shall be retained for review and potential production. However, the same document held by or collected from different custodians shall not be suppressed through de-duplication and shall be retained for review and produced from each custodian's collection, so that the Receiving Party may assess which custodians possessed a given document. Global de-duplication across custodians is not permitted under this Protocol without the express written agreement of both Parties. For email de-duplication, comparison shall be based on the MD5 hash of the message body, headers (To, From, CC, BCC, Subject, Date Sent), and attachments.

4.3 Email Threading. The Parties may use email-threading technology (including the email-threading and near-duplicate identification features available within the Nexagen platform or any review platform utilized by the Parties) to group related emails within a thread for the purpose of facilitating efficient document review. However, each substantively unique email within a thread — that is, each email that contains a unique message body, unique recipients, or unique attachments not present in other emails in the same thread — must be separately reviewable and separately producible as a distinct document with its own Bates-number designation. The use of email threading for review efficiency shall not serve as a basis for withholding or failing to produce substantively unique communications.

4.4 File Types Excluded from Processing. The following categories of files shall be excluded from processing and need not be reviewed or produced, unless specifically requested by the Receiving Party in writing and agreed to by the Producing Party or ordered by the Court:

(a) System files, operating system files, and program files, including but not limited to files with the following extensions: .dll, .exe, .sys, .com, .bat, .ini, .drv, .ocx, .tmp, .log (system-generated log files), .cab, .msi, and .dat (system data files);

(b) Temporary files, cache files, and swap files generated by the operating system or applications;

(d) Thumbnail cache files (e.g., thumbs.db); and

(e) Any other non-user-generated data that does not contain substantive, user-created content.

4.5 Foreign-Language Documents. In the event that any ESI within the scope of this Protocol is in a language other than English, the Producing Party shall identify such documents (by Bates number and language, if known) in a notice to the Receiving Party promptly following the identification of such documents during processing or review. Upon receipt of such notice, the Parties shall confer in good faith regarding the translation of such documents, including the selection of a qualified translation vendor, the scope and priority of translation, and the allocation of translation costs. Pending agreement on translation, foreign-language documents shall be produced in their native language with a notation in the load file identifying the document's language.

4.6 Data Volume Estimates. Based on preliminary collection activities conducted by Nexagen as of the date of this Stipulation, the Parties estimate the following data volumes:

(a) Plaintiff's Data: Approximately 1.1 terabytes of raw collected data, which is estimated to encompass approximately 2.3 million documents (including emails and attachments) prior to de-duplication and search-term filtering.

(b) Defendants' Data: Defendants' data volume is expected to be comparable to Plaintiff's given the breadth of Defendants' operations across twenty-two (22) franchise properties and multiple affiliated entities, including CPFH, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, and Suncoast Room Management Inc. Defendants will provide a refined data-volume estimate to Plaintiff's counsel within fourteen (14) days of entry of this Order.

The Parties acknowledge that these estimates are preliminary and subject to revision as collection and processing activities continue. The data-volume estimates set forth herein are provided for informational and planning purposes and do not limit either Party's discovery obligations.

SECTION 5: PRODUCTION FORMAT

5.1 Default Format — TIFF with Extracted Text. Unless otherwise specified in this Protocol, all documents shall be produced as single-page TIFF images at a minimum resolution of 300 dots per inch (DPI). Text-only documents and documents in which color is not material to the document's content or interpretation shall be produced in black-and-white TIFF format. Documents in which color is material to the document's meaning, interpretation, or evidentiary value (e.g., color-coded financial charts, annotated maps, photographs, marketing materials, and brochures) shall be produced in color TIFF format. Each TIFF image shall be accompanied by:

(a) A document-level extracted text file, encoded in UTF-8 format, containing the full text of the document. For native electronic files, extracted text shall be generated by automated text extraction from the native file. For image-only documents, scanned documents, and documents for which automated text extraction is not possible, extracted text shall be generated by Optical Character Recognition (OCR) using industry-standard OCR software;

(b) A concordance DAT load file (using standard concordance delimiters: ¶ as the field delimiter and þ as the text qualifier, with line returns represented by ®) containing the metadata fields specified in Section 5.2;

5.2 Metadata Fields. Each production shall include a Ashgrove Technologies DAT load file containing, at a minimum, the following metadata fields for each produced document:

5.3 Bates Numbering. Each page of each produced document shall be assigned a unique, sequential Bates number. Bates numbers shall be stamped on each TIFF image in the lower-right corner of the page. The Parties shall use the following Bates-number prefixes:

(a) Plaintiff: Plaintiff Verimark Hospitality Group Inc. shall use the prefix "VHG-" followed by sequential six-digit numbering, padded with leading zeros (e.g., VHG-000001, VHG-000002, VHG-000003, and so forth).

(b) Defendants: Defendants shall use the prefix "CPFH-" followed by sequential six-digit numbering, padded with leading zeros (e.g., CPFH-000001, CPFH-000002, CPFH-000003, and so forth).

Each page of a multi-page document shall receive its own unique Bates number. Bates numbering shall be continuous across all productions by a given Party (i.e., Production Set 2 shall begin where Production Set 1 left off, without gaps or overlapping numbers). In the event that documents are produced by third parties in response to subpoenas, such documents shall be Bates-stamped by the requesting Party using a prefix that identifies the third-party source (e.g., "INB-" for documents produced by Ironclad National Bank).

5.4 Native Format Exceptions. Notwithstanding the default TIFF production format specified in Section 5.1, the following categories of documents shall be produced in their native format in addition to, and not in lieu of, TIFF images:

(a) Spreadsheets, including Microsoft Excel files (.xls, .xlsx), CSV files (.csv), and other tabular data files, which shall be produced in native format to preserve formulas, cell formatting, embedded calculations, pivot tables, multiple worksheets, and other features that cannot be meaningfully rendered in TIFF format;

(b) Database files and database exports, which shall be produced in native or near-native format as specified in Section 2.6;

(c) Presentation files, including Microsoft Northgate Services Inc. files (.ppt, .pptx) and similar presentation formats, which shall be produced in native format to preserve animations, embedded media, speaker notes, and other features;

(d) Audio and video files, which shall be produced in their native format (e.g., .mp3, .mp4, .wav, .avi, .mov).

When a document is produced in native format, it shall also be accompanied by a single-page placeholder TIFF slip sheet bearing the Bates number assigned to the native file, a notation stating "NATIVE FILE PROVIDED — SEE NATIVE PRODUCTION," the file name, file type, and custodian. The corresponding entry in the load file shall include the relative file path to the native file in the NATIVEFILE field.

5.5 Redacted Documents. If a document is produced with redactions, whether on the basis of attorney-client privilege, work-product protection, or pursuant to a protective order, the redacted document shall be produced as a redacted TIFF image with the redacted portions clearly and conspicuously marked by a black or opaque redaction box overlaid on the redacted content. Each redaction box shall bear a label identifying the basis for the redaction (e.g., "REDACTED — ATTORNEY-CLIENT PRIVILEGE" or "REDACTED — CONFIDENTIAL PERSONAL INFORMATION"). The extracted text file accompanying a redacted document shall reflect the redacted version of the document (i.e., the text underlying the redaction shall not appear in the extracted text file). Metadata for redacted documents shall be produced in the load file, except that metadata fields that would, by their content, reveal privileged or protected information (e.g., the Subject field of an email withheld in part on privilege grounds, where the subject line itself discloses privileged content) may be redacted from the load file with a notation indicating the basis for the metadata redaction.

5.6 Production Media. Productions containing less than ten gigabytes (10 GB) of data may be transmitted via Nexagen's secure File Transfer Protocol (FTP) site or any other secure electronic transfer method agreed upon by the Parties. Productions exceeding ten gigabytes (10 GB) in total size shall be delivered on encrypted external media (e.g., encrypted USB hard drives) using AES 256-bit encryption, or via Nexagen's secure document-transfer portal. Encryption passwords for external media shall be communicated separately from the media itself. All production media shall be clearly labeled with the case name, case number, producing party, production-set number, Bates-number range, and date of production.

SECTION 6: CONFIDENTIALITY DESIGNATIONS

6.1 Coordination with Protective Order. The Parties intend to negotiate and seek entry of a stipulated protective order governing the treatment of confidential and proprietary information disclosed in the course of discovery in this action. Pending the entry of such protective order by the Court, the Parties agree that any document designated by the Producing Party as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" shall be treated by the Receiving Party and its counsel in accordance with the terms of the anticipated protective order. Specifically, pending entry of the protective order: (a) documents designated "CONFIDENTIAL" shall not be disclosed to any person other than the Receiving Party, its counsel, its counsel's staff, and its retained experts and consultants; and (b) documents designated "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" shall not be disclosed to any person other than outside counsel for the Receiving Party and such counsel's staff, and shall not be disclosed to the Receiving Party itself or to any in-house counsel, officer, director, or employee of the Receiving Party, except as may be expressly permitted by a subsequent protective order.

6.2 Designation Process. Confidentiality designations shall be indicated by the Producing Party in two ways:

(a) In the "CONFIDENTIALITY" metadata field of the Ashgrove Technologies DAT load file, which shall contain the applicable confidentiality designation (e.g., "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY") for each designated document, or shall be left blank for documents bearing no confidentiality designation; and

(b) For TIFF productions, by a confidentiality stamp applied to each page of the TIFF image, typically in the header or footer area of the page, bearing the applicable designation.

6.3 Right to Challenge Designations. The Receiving Party may challenge any confidentiality designation applied by the Producing Party by providing written notice to the Producing Party identifying the document(s) at issue (by Bates number) and the basis for the challenge. Upon receipt of such notice, the Parties shall meet and confer in good faith within ten (10) business days to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through the meet-and-confer process, either Party may submit the dispute to the Court by motion, and the Producing Party shall bear the burden of establishing that the challenged designation is warranted. Pending resolution of any such dispute, the challenged documents shall continue to be treated in accordance with the Producing Party's designation.

SECTION 7: PRIVILEGE AND PRIVILEGE LOG REQUIREMENTS

7.1 Privilege Withholding. A Producing Party may withhold from production documents and communications on the basis of the attorney-client privilege, the work-product doctrine, the joint-defense privilege (also known as the common-interest privilege), or any other legally recognized privilege or protection applicable under Florida law or, to the extent applicable, federal law. The Producing Party shall clearly identify any document withheld from production on privilege grounds by including it on a privilege log as provided in this Section 7.

7.2 Privilege Log Format. Each Party's privilege log shall be provided in spreadsheet format (Microsoft Excel, .xlsx) and shall include the following fields for each document or communication withheld or redacted on the basis of privilege:

(a) Bates Number: The Bates number assigned to the document prior to its withholding, or, if no Bates number was assigned, a unique document-identification number sufficient to identify the document;

(b) Date: The date of the document or communication;

(d) Recipient(s): The recipient(s) of the communication, including all addressees;

(e) CC: Any individuals copied on the communication;

(f) Document Type: The type of document (e.g., email, memorandum, letter, handwritten note, report, draft agreement, spreadsheet);

(g) Subject Matter Description: A description of the subject matter of the document or communication, in sufficient detail to enable the Receiving Party to assess the applicability of the claimed privilege, without revealing the substance of any privileged communication or attorney work product;

(h) Privilege(s) Asserted: The specific privilege or protection asserted (e.g., attorney-client privilege, attorney work product — factual, attorney work product — opinion, joint-defense/common-interest privilege, or other);

(i) Custodian: The custodian from whose files the document was collected.

7.3 Privilege Log Timing. Privilege logs shall be provided to the Receiving Party within thirty (30) calendar days following the date of each production or supplemental production that includes documents withheld or redacted on privilege grounds. The Parties may agree in writing to extend the deadline for service of privilege logs, and any such extension shall not require leave of Court. In the event that a Party makes multiple productions in close succession, the Party may provide a consolidated privilege log covering all productions made within a thirty (30)-day period, so long as the consolidated privilege log is served within thirty (30) days of the last production in the relevant period.

7.4 Categorical Privilege Logs. The Parties may use categorical entries on their privilege logs for communications falling within a defined and narrow category, provided that the categorical description is sufficiently detailed to permit the Receiving Party to assess the privilege claim and is limited in scope. By way of example, and not limitation, the following categories of communications may be logged categorically:

(a) Communications between a Party (or its officers, directors, members, or employees) and litigation counsel (i.e., Calderwood & Harkness LLP for Plaintiff, or Whitfield, Barrow & Crane LLP for Defendants) occurring after the filing of the Complaint on March 7, 2022, where the communication was made for the purpose of obtaining or providing legal advice in connection with this litigation;

(b) Communications between a Party and its in-house legal counsel concerning legal advice regarding the subject matter of this litigation, provided the date range of such communications is identified and the individuals involved are identified by name and title.

The Receiving Party reserves the right to challenge the use of categorical privilege-log entries and to request individualized logging of specific categories if the categorical description is insufficient to assess the privilege claim.

7.5 Disputes. Privilege disputes that are not resolved through the meet-and-confer process described herein shall be submitted to the Court by motion. In connection with any motion concerning a disputed privilege claim, the moving party shall submit the disputed documents to the Court under seal for in camera review, unless the Court directs otherwise. The Parties agree that the submission of documents for in camera review shall not constitute a waiver of any privilege or protection asserted with respect to such documents.

SECTION 8: CLAWBACK PROVISIONS

8.1 Florida Rule of Civil Procedure 1.285 Applicability. The Parties agree that the inadvertent production of documents or communications that are subject to the attorney-client privilege, the work-product doctrine, or any other legally recognized privilege or protection shall not constitute a waiver of any such privilege or protection, in accordance with Florida Rule of Civil Procedure 1.285. This provision shall apply regardless of the number of documents inadvertently produced, the steps taken (or not taken) by the Producing Party to prevent the inadvertent disclosure, and the scope of the Producing Party's document-review process.

8.2 Clawback Procedure. If the Producing Party discovers that privileged or work-product-protected material has been inadvertently produced to the Receiving Party, the Producing Party shall promptly notify the Receiving Party in writing (which may include notification by email) of the inadvertent production, identifying the documents at issue by Bates number and specifying the privilege or protection asserted with respect to each document. The notification shall be made as promptly as practicable after the Producing Party discovers the inadvertent production.

Upon receipt of such notification, the Receiving Party shall:

(a) Promptly return, sequester, or destroy all copies of the identified documents, including any copies that have been provided to the Receiving Party's experts, consultants, litigation support personnel, or any other person, and shall confirm in writing to the Producing Party that all copies have been returned, sequestered, or destroyed;

(b) Not use or disclose the identified documents, or the contents thereof, for any purpose pending resolution of the privilege claim, including in connection with depositions, motion practice, trial preparation, or any other proceeding in this action or in any other action or proceeding;

(c) Take reasonable steps to retrieve any copies of the identified documents that have been disclosed to third parties, and shall notify the Producing Party of any such third-party disclosures.

8.3 Challenge to Clawback. If the Receiving Party disputes the Producing Party's assertion of privilege over a clawed-back document, the Receiving Party shall notify the Producing Party in writing within fourteen (14) calendar days of receipt of the clawback notification, identifying the documents at issue and the basis for the Receiving Party's dispute. Upon receipt of such notice, the Parties shall meet and confer in good faith to attempt to resolve the dispute. If the dispute cannot be resolved through the meet-and-confer process, the Producing Party may file a motion with the Court seeking a ruling on the privilege claim, and the disputed documents shall remain sequestered and shall not be used or disclosed by the Receiving Party pending resolution by the Court.

8.4 No Waiver from Production Platform Access. The Parties agree that access to documents through the Nexagen review platform or any other shared or party-specific document-review platform does not constitute a "use" of inadvertently produced documents for purposes of assessing privilege waiver. Mere indexing, hosting, or inclusion of a document within a review platform shall not be deemed to constitute disclosure, use, or reliance on the document such as would work a forfeiture of any applicable privilege or protection.

SECTION 9: SEARCH METHODOLOGY

9.1 Search Terms. The Parties shall confer in good faith regarding the search terms, Boolean operators and connectors, proximity operators, date filters, custodian filters, file-type filters, and any other search parameters to be applied to ESI collections for the purpose of identifying potentially responsive documents (collectively, "Search Criteria"). Each Party shall propose an initial set of Search Criteria to the opposing Party within twenty-one (21) calendar days of entry of this Order. The proposed Search Criteria shall be accompanied by a description of the methodology used to develop the search terms (e.g., review of key pleadings, custodian interviews, analysis of key contracts, or other methods). The Parties shall thereafter meet and confer in good faith to negotiate and agree upon a mutually acceptable set of Search Criteria.

9.2 Iterative Process. The Parties acknowledge that the development and refinement of Search Criteria is an iterative process. Following the initial exchange of proposed Search Criteria, the Parties shall meet and confer regarding the adequacy, reasonableness, and proportionality of the proposed search terms. As part of this iterative process, the Parties may:

(a) Request and exchange hit-count reports (i.e., reports showing the number of documents identified by each individual search term and by each combination of search terms) to assess whether particular search terms are overbroad (generating an unreasonably high number of false positives) or too narrow (failing to capture known relevant documents);

(b) Conduct targeted sampling of documents identified by proposed search terms to evaluate the precision and recall of the search methodology;

(c) Propose modifications, additions, or deletions to the agreed-upon Search Criteria based on information learned during the course of discovery, including information obtained from depositions, custodian interviews, or review of produced documents.

Neither Party shall be deemed to have waived any objection to the sufficiency of the opposing Party's search methodology by participating in the iterative search-term negotiation process described herein.

9.3 Technology-Assisted Review (TAR). Either Party may elect to use technology-assisted review ("TAR"), including predictive coding, machine-learning classifiers, continuous active learning ("CAL"), or similar technology-assisted review tools, to supplement or replace keyword searching as a method of identifying responsive documents within the Party's ESI collection. A Party electing to use TAR shall comply with the following requirements:

(a) Disclosure of TAR Methodology: The Party using TAR shall disclose to the opposing Party the TAR methodology employed, including the name and version of the TAR software or platform used, the type of TAR protocol (e.g., simple passive learning, simple active learning, or continuous active learning), the composition and size of the seed set or training set used to train the predictive model, and the criteria used to select seed-set documents;

(b) Transparency Regarding Metrics: The Party using TAR shall provide the opposing Party with reasonable transparency regarding the performance metrics of the TAR model, including recall rate, precision rate, F1 score (or equivalent measure), and the richness of the document population, to the extent such metrics are generated by the TAR platform;

(c) Meet-and-Confer Regarding TAR Protocol: The Party using TAR shall confer with the opposing Party regarding the TAR protocol before finalizing review decisions based on the TAR model's predictions. Such conferral shall include an opportunity for the opposing Party to raise objections or concerns regarding the adequacy of the TAR protocol, the sufficiency of training, and the acceptability of the recall and precision rates achieved. The Parties shall endeavor to reach agreement on TAR protocol parameters, but in the event of disagreement, either Party may seek guidance from the Court.

Nothing in this Section 9.3 shall be construed to require a Party to use TAR or to preclude a Party from using manual review, keyword searching, or any combination of review methodologies.

9.4 No Requirement to Search Inaccessible Data. Neither Party is required to search, review, or produce ESI from sources that are not reasonably accessible because of undue burden or cost, including but not limited to disaster-recovery backup tapes, legacy backup systems, deleted or residual data, and other sources that require extraordinary measures to restore, access, or process. If the Receiving Party contends that ESI from a not-reasonably-accessible source should be searched and produced, the Receiving Party shall identify the source and demonstrate good cause for requiring its search and production under Florida Rule of Civil Procedure 1.280(b)(1). The Court may condition such production on the requesting party's payment of all or part of the costs of restoring, processing, and reviewing the not-reasonably-accessible ESI.

SECTION 10: TIMING AND ROLLING PRODUCTIONS

10.1 Rolling Productions. The Parties shall produce ESI on a rolling basis, rather than in a single production at the conclusion of the review process. The Producing Party shall make its initial production of ESI within forty-five (45) calendar days of entry of this Order, or within the timeframe specified in the applicable discovery request served pursuant to Florida Rule of Civil Procedure 1.350, whichever is later. The Parties acknowledge that rolling productions are intended to facilitate the efficient progress of discovery and to enable the Receiving Party to begin reviewing produced materials at the earliest practicable date.

10.2 Supplemental Productions. Following the initial production, the Producing Party shall make supplemental productions on a rolling basis as additional responsive documents are identified through ongoing review. Supplemental productions shall be made no less frequently than every thirty (30) calendar days until the Producing Party's document review and production is complete. Each supplemental production shall be assigned a sequential production-set number (e.g., Production Set 1, Production Set 2, Production Set 3, etc.) and shall include Bates numbers that are continuous with the preceding production set.

10.3 Production Correspondence. Each production, whether initial or supplemental, shall be accompanied by a transmittal letter or email from the Producing Party to the Receiving Party (with a copy to Nexagen) that includes the following information:

(a) The discovery request(s) to which the production is responsive (identified by request number);

(b) The Bates-number range of the production (beginning and ending Bates numbers);

(d) The total number of pages included in the production;

(e) The total data volume of the production (in gigabytes);

(f) Any known issues with the production, including but not limited to documents withheld on privilege grounds (with reference to the forthcoming privilege log), password-protected files that could not be processed (identified by file name and custodian), corrupted files that could not be rendered (identified by file name and custodian), and any other processing or production anomalies; and

(g) The method of delivery (e.g., secure FTP, encrypted external media, or Nexagen secure portal).

10.4 discovery Deadlines. The Parties acknowledge and agree that the Case Management Order entered by the Court following the Case Management Conference held on June 14, 2022 governs the overall deadlines for the completion of fact discovery, expert discovery, dispositive motions, and trial in this action. This Protocol does not modify, extend, or supersede any deadlines established by the Case Management Order. The Parties shall conduct ESI discovery in a manner consistent with the deadlines set forth in the Case Management Order and shall promptly notify opposing counsel and the Court if any Party anticipates difficulty meeting a deadline due to the volume, complexity, or timing of ESI discovery.

SECTION 11: COOPERATION AND DISPUTE RESOLUTION

11.1 Good-Faith Cooperation. The Parties agree to cooperate in good faith to facilitate the efficient, cost-effective, and proportional discovery of ESI in this action, and to resolve disputes regarding ESI discovery without court intervention wherever possible, consistent with their respective obligations and rights under the Florida Rules of Civil Procedure, the Case Management Order, and this Protocol. The Parties acknowledge that cooperation in the discovery process does not require any Party to sacrifice legitimate interests or waive objections, but does require that the Parties engage constructively in the exchange of information, the resolution of technical issues, and the negotiation of search methodologies and production formats.

11.2 Meet-and-Confer Requirement. Before filing any motion with the Court related to ESI discovery, including but not limited to motions to compel production, motions for protective orders, motions regarding privilege disputes, and motions regarding cost allocation, the moving Party shall certify in the motion that it has conferred in good faith with opposing counsel, either in person or by telephone or video conference, in a genuine effort to resolve the dispute without judicial intervention. The certification shall describe the nature of the dispute, the date(s) and manner of the conferral, and the reasons the dispute could not be resolved. Email correspondence alone shall not satisfy the meet-and-confer requirement; at least one substantive telephone or video conference shall be conducted prior to the filing of any discovery motion.

11.3 Technical Issues. The Parties and Nexagen shall cooperate in good faith to identify and resolve any technical issues arising from the processing or production of ESI, including but not limited to format-compatibility issues, load-file errors, missing or corrupted TIFF images, missing or incomplete extracted text files, metadata discrepancies, and corrupted or password-protected native files. The Parties shall designate a technical point of contact (which may be a representative of Nexagen) to coordinate the resolution of technical issues. The Receiving Party shall notify the Producing Party of any technical issues with a production within ten (10) business days of receipt of the production, and the Producing Party shall use reasonable efforts to resolve the identified issues within ten (10) business days of receipt of the notification.

SECTION 12: COST ALLOCATION

12.1 Each Party Bears Own Costs. Unless otherwise ordered by the Court or agreed in writing by the Parties, each Party shall bear its own costs of collecting, processing, hosting (to the extent of party-specific hosting), reviewing, and producing ESI in connection with this action. Each Party shall be solely responsible for the costs of its own attorneys, paralegals, litigation support personnel, and contract-review attorneys engaged in the review and production of ESI.

12.2 Shared Vendor Costs. The Parties have jointly engaged Nexagen Document Solutions LLC as the e-discovery vendor for this action. Nexagen's hosting fees for the shared review platform (i.e., the platform used to host productions for access by both Parties' counsel) shall be split equally between the Parties, with each Party bearing fifty percent (50%) of such shared hosting fees, unless the Parties agree otherwise in writing. Each Party's individual processing costs, analytics costs, project-management costs, and any other Nexagen charges attributable to that Party's specific data and review activities shall be borne by that Party individually. Nexagen shall issue separate invoices to each Party for that Party's individual costs and shall issue shared invoices (or split invoices) for equally shared costs.

12.3 Third-Party Subpoena Costs. Costs associated with processing, reviewing, and producing ESI obtained from third parties via subpoena duces tecum shall be borne by the Party that issued the subpoena, unless the Court orders otherwise. By way of example, the costs of processing and reviewing documents produced by Ironclad National Bank in response to the Subpoena Duces Tecum served on August 8, 2022 shall be borne by the Party that issued such subpoena. If both Parties jointly issue a subpoena to a third party, the costs associated with processing the resulting production shall be split equally unless otherwise agreed.

SECTION 13: AMENDMENTS

13.1 This Protocol may be amended, modified, or supplemented at any time by written agreement of the Parties, executed by counsel for each Party. Any such amendment shall be filed with the Court and shall be subject to the Court's approval before taking effect as a modification to the Agreed Order.

13.2 In the absence of agreement, either Party may seek modification of this Protocol by motion to the Court upon a showing of good cause. The Court retains full authority to modify, amend, or supplement the terms of this Protocol as justice and the efficient administration of this case may require.

SECTION 14: PRESERVATION OF RIGHTS

14.1 Nothing in this Joint Stipulation shall be construed as a waiver of any Party's right to object to any discovery request on grounds of relevance, proportionality, undue burden, expense, privilege, work-product protection, or any other applicable ground recognized under the Florida Rules of Civil Procedure, applicable statutes, or governing case law. A Party's compliance with this Protocol with respect to one production or discovery request shall not be deemed a waiver of the Party's right to assert objections in connection with subsequent productions or discovery requests.

14.2 Nothing in this Joint Stipulation shall limit either Party's right to seek additional discovery beyond the scope of this Protocol, to challenge the sufficiency or completeness of the opposing Party's production, or to move the Court for additional relief as warranted by the circumstances of this case. This Protocol establishes minimum standards and procedures for ESI discovery and does not preclude the Parties from agreeing to, or the Court from ordering, additional or different procedures as the needs of this case may require.

AGREED ORDER

WHEREFORE, the Parties respectfully request that the Court enter the following Agreed Order adopting the terms and provisions of this Joint Stipulation as an Order of this Court, binding on all Parties and enforceable by the Court.

IT IS HEREBY ORDERED AND ADJUDGED that the foregoing Joint Stipulation Regarding Protocol for Electronically Stored Information and discovery of Electronic Documents is adopted in its entirety as an Order of this Court. The Parties and their counsel shall comply with the terms and provisions set forth herein. Failure to comply with this Order may result in the imposition of sanctions as permitted under the Florida Rules of Civil Procedure, including but not limited to Florida Rule of Civil Procedure 1.380.

SO ORDERED this __ day of ______, 2022.

________________________________________

HON. RICHARD M. CALLOWAY Circuit Judge, Seventeenth Judicial Circuit Broward County, Florida

STIPULATED AND AGREED:

COUNSEL FOR PLAINTIFF VERIMARK HOSPITALITY GROUP INC.:

CALDERWOOD & HARKNESS LLP

By: ________

Priya Anand, Esq. Florida Bar No. 0087451 Calderwood & Harkness LLP 110 SE 6th Street, Suite 2800 Fort Lauderdale, Florida 33301 Telephone: (954) 555-7200 Facsimile: (954) 555-7201

Email: panand@calderwoodharkness.com

Counsel for Plaintiff Verimark Hospitality Group Inc.

COUNSEL FOR DEFENDANTS COASTAL PALMS FRANCHISE HOLDINGS LLC, RANDALL BRECKER, AND SUNCOAST ROOM MANAGEMENT INC.:

WHITFIELD, BARROW & CRANE LLP

By: ________

Gabriela Montes, Esq. Florida Bar No. 0102339 Whitfield, Barrow & Crane LLP 1221 Brickell Avenue, Suite 3000 Miami, Florida 33131 Telephone: (305) 555-4400 Facsimile: (305) 555-4401

Email: gmontes@whitfieldbarrow.com

Counsel for Defendants Coastal Palms Franchise Holdings LLC, Randall Brecker, and Suncoast Room Management Inc.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Joint Stipulation and Agreed Order Regarding Protocol for Electronically Stored Information and discovery of Electronic Documents was served on all counsel of record via the Florida Courts E-Filing Portal on this 20th day of June, 2022, which will send a notice of electronic filing to the following:

Gabriela Montes, Esq. Nathan Whitfield III, Esq. Whitfield, Barrow & Crane LLP 1221 Brickell Avenue, Suite 3000 Miami, Florida 33131 Telephone: (305) 555-4400

Email: gmontes@whitfieldbarrow.com

Email: nwhitfield@whitfieldbarrow.com

Counsel for Defendants Coastal Palms Franchise Holdings LLC, Randall Brecker, and Suncoast Room Management Inc.

CALDERWOOD & HARKNESS LLP

By: ________

Yuki Nakamura, Esq. Florida Bar No. 0118764 Calderwood & Harkness LLP 110 SE 6th Street, Suite 2800 Fort Lauderdale, Florida 33301 Telephone: (954) 555-7200

Email: ynakamura@calderwoodharkness.com

Counsel for Plaintiff Verimark Hospitality Group Inc.

Field Name	Description
BEGBATES	Bates number of the first page of the document
ENDBATES	Bates number of the last page of the document
BEGATTACH	Bates number of the first page of the first document in the attachment family (parent document)
ENDATTACH	Bates number of the last page of the last document in the attachment family
CUSTODIAN	Name of the custodian from whom the document was collected
DATECREATED	Date the document was created (MM/DD/YYYY format)
DATEMODIFIED	Date the document was last modified (MM/DD/YYYY format)
DATESENT	Date the email was sent (MM/DD/YYYY format; emails only)
TIMESENT	Time the email was sent (HH:MM:SS format, Eastern Ti

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 1021-00006
VERIMARK HOSPITALITY GROUP INC., a Delaware corporation,
Plaintiff,
v.
COASTAL PALMS FRANCHISE HOLDINGS LLC, a Florida limited liability company; RANDALL BRECKER, individually; and SUNCOAST ROOM MANAGEMENT INC., a Florida corporation,
Defendants.
________________________________________
JOINT STIPULATION AND AGREED ORDER REGARDING PROTOCOL FOR ELECTRONICALLY STORED INFORMATION AND DISCOVERY OF ELECTRONIC DOCUMENTS
________________________________________
Before the Honorable Richard M. Calloway, Circuit Judge
Filed: June 20, 2022
PREAMBLE AND RECITALS
This Joint Stipulation and Agreed Order Regarding Protocol for Electronically Stored Information and discovery of Electronic Documents (this "Joint Stipulation" or "Protocol") is entered into by and between Plaintiff Verimark Hospitality Group Inc. ("Verimark" or "Plaintiff"), by and through its attorneys of record, Calderwood & Harkness LLP, and Defendants Coastal Palms Franchise Holdings LLC ("CPFH"), Randall Brecker ("Brecker"), and Suncoast Room Management Inc. ("Suncoast") (CPFH, Brecker, and Suncoast collectively referred to herein as "Defendants"), by and through their attorneys of record, Whitfield, Barrow & Crane LLP (Plaintiff and Defendants sometimes referred to individually as a "Party" and collectively as the "Parties").
WHEREAS, Plaintiff Verimark Hospitality Group Inc. filed its Complaint in this action on March 7, 2022, asserting ten (10) counts against one or more Defendants, including claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent concealment, fraud in the inducement, negligent misrepresentation, unjust enrichment, civil conspiracy, breach of fiduciary duty, violation of the Florida Deceptive and Unfair Trade Practices Act (Fla. Stat. §§ 501.201, et seq.), and an action for accounting, arising out of the Parties' franchise relationship involving twenty-two (22) hotel and hospitality properties located across the State of Florida and along the southeastern United States;
WHEREAS, Defendants CPFH, Brecker, and Suncoast filed their Answer, Affirmative Defenses, and Counterclaim on April 18, 2022, denying the material allegations of the Complaint, asserting twenty-three (23) affirmative defenses, and asserting counterclaims against Verimark for, inter alia, breach of the Franchise License Agreements, tortious interference with business relationships, and declaratory relief;
WHEREAS, a Case Management Conference was held on June 14, 2022 before the Honorable Richard M. Calloway, Circuit Judge, at which the Court directed the Parties to confer regarding the discovery of electronically stored information and to submit an agreed protocol governing the collection, processing, production, and handling of ESI in this matter;
WHEREAS, the Parties, through their respective lead counsel — Priya Anand, Esq. of Calderwood & Harkness LLP, on behalf of Plaintiff, and Gabriela Montes, Esq. of Whitfield, Barrow & Crane LLP, on behalf of Defendants — have conferred in good faith on multiple occasions regarding the discovery of electronically stored information ("ESI") and have reached agreement on the comprehensive protocol set forth herein;
WHEREAS, the Parties anticipate that ESI discovery in this action will be substantial, involving, without limitation, financial records, booking and occupancy data, revenue reports, property management system ("PMS") data, revenue management platform exports, communications (including email, text messages, and instant messages), franchise compliance records, audit reports, and accounting records spanning a period of approximately fifteen (15) years from multiple entities, including but not limited to Coastal Palms Franchise Holdings LLC, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, and Suncoast Room Management Inc., as well as Verimark Hospitality Group Inc. and its relevant subsidiaries, divisions, and departments;
WHEREAS, both Parties have jointly engaged Nexagen Document Solutions LLC ("Nexagen"), located at 400 Northpark Town Center, Suite 500, Atlanta, Georgia 30328, as the e-discovery vendor for hosting, processing, analytics, and related services in connection with the ESI discovery in this action, and have entered into a tri-party engagement letter with Nexagen dated June 3, 2022; and
WHEREAS, the Parties submit this Joint Stipulation to the Court and respectfully request the entry of an Agreed Order adopting its terms, pursuant to the Florida Rules of Civil Procedure, including but not limited to Rules 1.200, 1.280, 1.350, and 1.380.
NOW, THEREFORE, the Parties hereby stipulate and agree as follows:
SECTION 1: DEFINITIONS
As used in this Joint Stipulation, the following terms shall have the meanings set forth below:
1.1 "ESI" shall mean electronically stored information as contemplated by Florida Rule of Civil Procedure 1.280 and Florida Rule of Civil Procedure 1.350, including but not limited to emails, electronic documents (including word processing files, PDFs, and text files), databases, spreadsheets, presentations, property management system ("PMS") data, booking and reservation records, online travel agency ("OTA") platform data, financial and management accounting records, revenue management system exports, digital images, audio and video recordings, website content, social media content, text messages, instant messages, voicemail recordings, and any other data or information stored in electronic form, regardless of the medium or device on which it resides.
1.2 "Document" shall mean any ESI or hard-copy document responsive to a discovery request propounded in this action, including all associated metadata. The term "Document" shall be construed broadly and consistently with its usage under the Florida Rules of Civil Procedure and applicable case law.
1.3 "Native Format" shall mean the original file format in which a document was created, received, or maintained in the ordinary course of business, including the application-specific encoding and all embedded metadata associated with the file.
1.4 "TIFF" shall mean Tagged Image File Format, a static image format used for the production of documents in discovery proceedings. As used herein, unless otherwise specified, "TIFF" refers to single-page, Group IV TIFF images.
1.5 "Extracted Text" shall mean text extracted from native electronic files by automated means (i.e., without the use of optical character recognition), or, in the case of image-only documents (including scanned hard-copy documents), text generated by Optical Character Recognition ("OCR") technology. Extracted text shall be provided at the document level in individual text files encoded in UTF-8 format.
1.6 "Load File" shall mean a file or set of files containing metadata fields, document-identification information, and coding data used to import produced documents into a litigation review platform. As used herein, load files shall be provided in both concordance DAT format (using the standard concordance delimiters: ¶ as the field delimiter and þ as the text qualifier) and Opticon OPT format for image cross-referencing.
1.7 "Production Set" shall mean a collection of documents produced by a Producing Party in response to one or more discovery requests, assigned sequential Bates numbers in accordance with Section 5.3 of this Protocol.
1.8 "Custodian" shall mean an individual or entity identified as a source of ESI subject to collection and review under this Protocol. A custodian may include, but is not limited to, named parties, current and former employees, officers, directors, members, managers, agents, and contractors of any Party or affiliated entity.
1.9 "Processing" shall mean the conversion and preparation of ESI from its native format into a reviewable and producible format, including the extraction of metadata, the generation of extracted text, the de-duplication of files, the expansion of container files (e.g., ZIP, RAR, PST, and OST files), the extraction of embedded objects, and the conversion of files into TIFF images where applicable.
1.10 "De-Duplication" shall mean the identification and removal of exact duplicate documents within a data set, as determined by comparison of MD5 or SHA-1 hash values. De-duplication may be performed at the custodian level or globally, as specified in this Protocol.
1.11 "Privilege Log" shall mean a log or listing identifying documents or communications that have been withheld from production, or portions of documents that have been redacted, on the basis of attorney-client privilege, work-product protection, the joint-defense or common-interest privilege, or any other legally recognized privilege or protection.
1.12 "Clawback" shall mean the process by which a Producing Party seeks the return or sequestration of inadvertently produced privileged or work-product-protected documents, consistent with Florida Rule of Civil Procedure 1.285 and the procedures set forth in Section 8 of this Protocol.
1.13 "Producing Party" shall mean the Party producing documents and ESI in response to a discovery request, subpoena, or other obligation under the Florida Rules of Civil Procedure or this Protocol.
1.14 "Receiving Party" shall mean the Party receiving documents and ESI produced by the Producing Party.
1.15 "Nexagen" shall mean Nexagen Document Solutions LLC, the e-discovery vendor jointly engaged by the Parties for hosting, processing, analytics, and related services in this action, located at 400 Northpark Town Center, Suite 500, Atlanta, Georgia 30328.
SECTION 2: SCOPE OF ESI DISCOVERY
2.1 Identification of Custodians. Within fourteen (14) calendar days following entry of this Order, each Party shall serve upon opposing counsel an initial list of custodians whose ESI will be collected and searched in connection with this action (the "Initial Custodian List"). Each Party may designate up to fifteen (15) custodians on its Initial Custodian List. Additional custodians beyond the initial fifteen (15) may be added at any time by written agreement of the Parties or by order of the Court upon motion and a showing of good cause. The Parties shall confer in good faith regarding custodian identification and shall endeavor to agree on a comprehensive and reasonable custodian list that is proportionate to the needs of this case.
2.2 Plaintiff's Anticipated Custodians. Without limiting Plaintiff's right to designate custodians on its Initial Custodian List, Plaintiff anticipates that its custodians will include, among others: Renata Solis-Vega (Senior Vice President and General Counsel, Verimark Hospitality Group Inc.); Martin Holcomb (Executive Vice President and Chief Financial Officer, Verimark Hospitality Group Inc.); Deidre Langston (Senior Vice President, Franchise Operations, Verimark Hospitality Group Inc.); and relevant franchise compliance, franchise accounting, and franchise audit personnel within the Verimark organization who were responsible for overseeing or managing the franchise relationships at issue in this action.
2.3 Defendants' Anticipated Custodians. Without limiting Defendants' right to designate custodians on their Initial Custodian List, Defendants anticipate that their custodians will include, among others: Randall Brecker (Managing Member, Coastal Palms Franchise Holdings LLC, and President, Suncoast Room Management Inc.); Theresa Brecker (Member, Coastal Palms Franchise Holdings LLC); Nolan Prescott (Member, Coastal Palms Franchise Holdings LLC); property-level general managers and controllers at Gulf Breeze Hospitality LLC and Savannah Lodging Partners LLC; and relevant personnel at Suncoast Room Management Inc., including the former Regional Controller, Janet Kerrigan, to the extent that documents within Defendants' possession, custody, or control relate to her tenure with or service to Defendants or any of their affiliated entities. The Parties acknowledge that Ms. Kerrigan is no longer employed by or affiliated with any Defendant, and Defendants' custodial designation is limited to documents in Defendants' possession, custody, or control.
2.4 Date Range. Unless otherwise agreed in writing by the Parties or ordered by the Court, ESI collection shall cover the period from January 1, 2007 through the date of this Stipulation, June 20, 2022 (the "Collection Period"). The Collection Period commences on January 1, 2007 to encompass the period leading up to the execution of the first Franchise License Agreement between the Parties on June 15, 2007, and extends through the date of this Stipulation to capture communications and records relevant to the events giving rise to this litigation. The Parties reserve the right to request, by agreement or motion, the extension of the Collection Period as warranted by the circumstances of this case.
2.5 Data Sources. ESI shall be collected from the following categories of data sources, to the extent reasonably accessible and within the possession, custody, or control of the Producing Party:
(a) Email accounts, including corporate email accounts (whether hosted on Strathmore Data Systems, Ashgrove Software, Crestline Software, or other platforms), personal email accounts used for business purposes, and archived or journaled email repositories;
(b) Local and network drives, including desktop computers, laptop computers, shared network drives, departmental drives, and file servers;
(c) Cloud storage platforms, including but not limited to Sundial Systems, Severin Services Inc., Hollowell Health IT, Larkspur Technologies, and box;
(d) Accounting and financial systems, including property management systems (e.g., Thackeray Solutions, Ashbury Services Inc.), point-of-sale systems, revenue management platforms, general ledger systems, and accounts payable and accounts receivable systems;
(e) Online travel agency ("OTA") booking portals, including data from Aldermere Technologies, Bramwell Holdings, Drayton Software, and any other third-party booking or distribution channels through which reservations were made for the franchise properties at issue;
(f) The website gulfcoastrooms.com, operated by Suncoast Room Management Inc., including website content, booking data, and any associated back-end databases or content management systems;
(g) Mobile devices, including smartphones and tablets, to the extent such devices contain ESI within the scope of this Protocol; and
(h) Backup systems, archive systems, and disaster-recovery systems, to the extent such systems are reasonably accessible and not subject to the provisions of Section 9.4 of this Protocol.
2.6 Structured Data and Databases. The Parties acknowledge that certain categories of ESI, including financial databases, PMS data, booking and reservation records, revenue management platform exports, and other structured data, may not be amenable to production in TIFF image format because such production would render the data unintelligible, would destroy the relational structure of the data, or would be impractical given the volume and complexity of the records. Accordingly, structured data and database extracts may be produced in native or near-native format (e.g., CSV, Microsoft Excel, delimited text files, or database export formats) rather than TIFF, provided that the Producing Party: (i) identifies the source system from which the data was extracted; (ii) provides a data dictionary or field-level description of the exported data; and (iii) produces the data in a format that is reasonably usable by the Receiving Party. The Parties shall confer regarding the format for production of any specific structured data set prior to production.
2.7 Proportionality. The Parties acknowledge and agree that the principles of proportionality set forth in Florida Rule of Civil Procedure 1.280(b)(1) apply to the scope of ESI discovery in this action. The scope of ESI discovery shall be proportional to the needs of the case, taking into account the totality of the circumstances, including but not limited to: the amount in controversy, which Plaintiff estimates at approximately One Hundred Fifty Million Dollars ($150,000,000.00) as set forth in the Complaint; the importance of the issues at stake in this action, which involves allegations of systemic underreporting of franchise revenues across twenty-two (22) hospitality properties over a period spanning more than a decade; the Parties' relative access to relevant information; the Parties' respective resources; the importance of the discovery in resolving the disputed issues; and whether the burden or expense of the proposed discovery outweighs its likely benefit. The Parties further agree that disputes regarding the scope of ESI discovery shall be resolved with reference to these proportionality principles.
SECTION 3: COLLECTION AND PRESERVATION
3.1 Preservation Obligations. Each Party shall take reasonable and good-faith steps to identify, locate, and preserve ESI that is relevant to the claims, defenses, and counterclaims in this action, consistent with each Party's litigation hold obligations under applicable law. Plaintiff represents that it issued a written litigation hold notice to relevant custodians on March 7, 2022, the date on which the Complaint was filed. Defendants represent that they issued litigation hold notices to relevant custodians upon receipt of the Complaint. Each Party's preservation obligations extend to ESI in the possession, custody, or control of the Party, including ESI maintained by agents, contractors, and affiliated entities acting on the Party's behalf. The Parties acknowledge that reasonable preservation does not require the preservation of every piece of data or the cessation of all routine data management practices, but does require the suspension of auto-deletion policies and document-destruction practices with respect to potentially relevant ESI.
3.2 Collection. ESI shall be collected by or under the direction of Nexagen Document Solutions LLC in a forensically sound manner that preserves the integrity of the data, including all associated metadata and chain-of-custody documentation. The collection process shall include the use of forensic imaging or targeted forensic collection tools, as appropriate to the data source, and shall be conducted in a manner that does not alter, modify, or destroy the original ESI. Nexagen shall maintain detailed collection logs documenting the date, time, source, custodian, and method of collection for each data set. Each Party shall cooperate with Nexagen in facilitating access to data sources for collection purposes and shall designate a point of contact to coordinate collection activities.
3.3 Mobile Devices. Text messages (including SMS and MMS messages), instant messages (including messages transmitted via platforms such as Meridian Services Inc., Westmark Software, Northgate Data Systems, Meridian Solutions, and any other messaging application), and other mobile-device communications relevant to the claims and defenses in this action shall be collected from custodians' mobile devices using forensic collection tools (e.g., Sundial Services Inc. or similar technology) and shall be processed and produced in accordance with this Protocol. The Parties shall confer regarding the identification of custodians from whom mobile-device data will be collected, and the scope of such collection (e.g., specific date ranges, specific applications), with due regard for custodian privacy and proportionality concerns.
3.4 Third-Party Data. Data obtained from third parties via subpoena duces tecum, including without limitation records obtained from financial institutions (such as Ironclad National Bank), OTA platforms, credit card processors, and other third-party sources, shall be processed and produced in accordance with this Protocol to the extent practicable. The Parties acknowledge that certain third parties may produce documents in formats that do not conform to the specifications of this Protocol, and in such cases, the Parties shall confer regarding the re-processing or reformatting of third-party productions to the extent feasible and cost-effective.
SECTION 4: PROCESSING STANDARDS
4.1 Processing Vendor. All ESI for both Plaintiff and Defendants shall be processed by Nexagen Document Solutions LLC in order to ensure consistency in processing parameters, metadata extraction, de-duplication, and production formatting. Neither Party shall use a different processing vendor without the prior written consent of the opposing Party or leave of Court. Nexagen shall apply consistent processing settings across all data sets, including consistent time-zone normalization (Eastern Time, UTC-5), consistent text extraction methods, and consistent TIFF-rendering parameters.
4.2 De-Duplication. ESI shall be de-duplicated at the custodian level. That is, exact duplicate documents from the same custodian (as determined by MD5 hash value comparison at the document level) shall be removed, and only one instance of the document shall be retained for review and potential production. However, the same document held by or collected from different custodians shall not be suppressed through de-duplication and shall be retained for review and produced from each custodian's collection, so that the Receiving Party may assess which custodians possessed a given document. Global de-duplication across custodians is not permitted under this Protocol without the express written agreement of both Parties. For email de-duplication, comparison shall be based on the MD5 hash of the message body, headers (To, From, CC, BCC, Subject, Date Sent), and attachments.
4.3 Email Threading. The Parties may use email-threading technology (including the email-threading and near-duplicate identification features available within the Nexagen platform or any review platform utilized by the Parties) to group related emails within a thread for the purpose of facilitating efficient document review. However, each substantively unique email within a thread — that is, each email that contains a unique message body, unique recipients, or unique attachments not present in other emails in the same thread — must be separately reviewable and separately producible as a distinct document with its own Bates-number designation. The use of email threading for review efficiency shall not serve as a basis for withholding or failing to produce substantively unique communications.
4.4 File Types Excluded from Processing. The following categories of files shall be excluded from processing and need not be reviewed or produced, unless specifically requested by the Receiving Party in writing and agreed to by the Producing Party or ordered by the Court:
(a) System files, operating system files, and program files, including but not limited to files with the following extensions: .dll, .exe, .sys, .com, .bat, .ini, .drv, .ocx, .tmp, .log (system-generated log files), .cab, .msi, and .dat (system data files);
(b) Temporary files, cache files, and swap files generated by the operating system or applications;
(c) Font files (e.g., .ttf, .otf);
(d) Thumbnail cache files (e.g., thumbs.db); and
(e) Any other non-user-generated data that does not contain substantive, user-created content.
4.5 Foreign-Language Documents. In the event that any ESI within the scope of this Protocol is in a language other than English, the Producing Party shall identify such documents (by Bates number and language, if known) in a notice to the Receiving Party promptly following the identification of such documents during processing or review. Upon receipt of such notice, the Parties shall confer in good faith regarding the translation of such documents, including the selection of a qualified translation vendor, the scope and priority of translation, and the allocation of translation costs. Pending agreement on translation, foreign-language documents shall be produced in their native language with a notation in the load file identifying the document's language.
4.6 Data Volume Estimates. Based on preliminary collection activities conducted by Nexagen as of the date of this Stipulation, the Parties estimate the following data volumes:
(a) Plaintiff's Data: Approximately 1.1 terabytes of raw collected data, which is estimated to encompass approximately 2.3 million documents (including emails and attachments) prior to de-duplication and search-term filtering.
(b) Defendants' Data: Defendants' data volume is expected to be comparable to Plaintiff's given the breadth of Defendants' operations across twenty-two (22) franchise properties and multiple affiliated entities, including CPFH, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, and Suncoast Room Management Inc. Defendants will provide a refined data-volume estimate to Plaintiff's counsel within fourteen (14) days of entry of this Order.
The Parties acknowledge that these estimates are preliminary and subject to revision as collection and processing activities continue. The data-volume estimates set forth herein are provided for informational and planning purposes and do not limit either Party's discovery obligations.
SECTION 5: PRODUCTION FORMAT
5.1 Default Format — TIFF with Extracted Text. Unless otherwise specified in this Protocol, all documents shall be produced as single-page TIFF images at a minimum resolution of 300 dots per inch (DPI). Text-only documents and documents in which color is not material to the document's content or interpretation shall be produced in black-and-white TIFF format. Documents in which color is material to the document's meaning, interpretation, or evidentiary value (e.g., color-coded financial charts, annotated maps, photographs, marketing materials, and brochures) shall be produced in color TIFF format. Each TIFF image shall be accompanied by:
(a) A document-level extracted text file, encoded in UTF-8 format, containing the full text of the document. For native electronic files, extracted text shall be generated by automated text extraction from the native file. For image-only documents, scanned documents, and documents for which automated text extraction is not possible, extracted text shall be generated by Optical Character Recognition (OCR) using industry-standard OCR software;
(b) A concordance DAT load file (using standard concordance delimiters: ¶ as the field delimiter and þ as the text qualifier, with line returns represented by ®) containing the metadata fields specified in Section 5.2;
(c) An Opticon OPT image load file cross-referencing each Bates-numbered TIFF image to its associated document.
5.2 Metadata Fields. Each production shall include a Ashgrove Technologies DAT load file containing, at a minimum, the following metadata fields for each produced document:
5.3 Bates Numbering. Each page of each produced document shall be assigned a unique, sequential Bates number. Bates numbers shall be stamped on each TIFF image in the lower-right corner of the page. The Parties shall use the following Bates-number prefixes:
(a) Plaintiff: Plaintiff Verimark Hospitality Group Inc. shall use the prefix "VHG-" followed by sequential six-digit numbering, padded with leading zeros (e.g., VHG-000001, VHG-000002, VHG-000003, and so forth).
(b) Defendants: Defendants shall use the prefix "CPFH-" followed by sequential six-digit numbering, padded with leading zeros (e.g., CPFH-000001, CPFH-000002, CPFH-000003, and so forth).
Each page of a multi-page document shall receive its own unique Bates number. Bates numbering shall be continuous across all productions by a given Party (i.e., Production Set 2 shall begin where Production Set 1 left off, without gaps or overlapping numbers). In the event that documents are produced by third parties in response to subpoenas, such documents shall be Bates-stamped by the requesting Party using a prefix that identifies the third-party source (e.g., "INB-" for documents produced by Ironclad National Bank).
5.4 Native Format Exceptions. Notwithstanding the default TIFF production format specified in Section 5.1, the following categories of documents shall be produced in their native format in addition to, and not in lieu of, TIFF images:
(a) Spreadsheets, including Microsoft Excel files (.xls, .xlsx), CSV files (.csv), and other tabular data files, which shall be produced in native format to preserve formulas, cell formatting, embedded calculations, pivot tables, multiple worksheets, and other features that cannot be meaningfully rendered in TIFF format;
(b) Database files and database exports, which shall be produced in native or near-native format as specified in Section 2.6;
(c) Presentation files, including Microsoft Northgate Services Inc. files (.ppt, .pptx) and similar presentation formats, which shall be produced in native format to preserve animations, embedded media, speaker notes, and other features;
(d) Audio and video files, which shall be produced in their native format (e.g., .mp3, .mp4, .wav, .avi, .mov).
When a document is produced in native format, it shall also be accompanied by a single-page placeholder TIFF slip sheet bearing the Bates number assigned to the native file, a notation stating "NATIVE FILE PROVIDED — SEE NATIVE PRODUCTION," the file name, file type, and custodian. The corresponding entry in the load file shall include the relative file path to the native file in the NATIVEFILE field.
5.5 Redacted Documents. If a document is produced with redactions, whether on the basis of attorney-client privilege, work-product protection, or pursuant to a protective order, the redacted document shall be produced as a redacted TIFF image with the redacted portions clearly and conspicuously marked by a black or opaque redaction box overlaid on the redacted content. Each redaction box shall bear a label identifying the basis for the redaction (e.g., "REDACTED — ATTORNEY-CLIENT PRIVILEGE" or "REDACTED — CONFIDENTIAL PERSONAL INFORMATION"). The extracted text file accompanying a redacted document shall reflect the redacted version of the document (i.e., the text underlying the redaction shall not appear in the extracted text file). Metadata for redacted documents shall be produced in the load file, except that metadata fields that would, by their content, reveal privileged or protected information (e.g., the Subject field of an email withheld in part on privilege grounds, where the subject line itself discloses privileged content) may be redacted from the load file with a notation indicating the basis for the metadata redaction.
5.6 Production Media. Productions containing less than ten gigabytes (10 GB) of data may be transmitted via Nexagen's secure File Transfer Protocol (FTP) site or any other secure electronic transfer method agreed upon by the Parties. Productions exceeding ten gigabytes (10 GB) in total size shall be delivered on encrypted external media (e.g., encrypted USB hard drives) using AES 256-bit encryption, or via Nexagen's secure document-transfer portal. Encryption passwords for external media shall be communicated separately from the media itself. All production media shall be clearly labeled with the case name, case number, producing party, production-set number, Bates-number range, and date of production.
SECTION 6: CONFIDENTIALITY DESIGNATIONS
6.1 Coordination with Protective Order. The Parties intend to negotiate and seek entry of a stipulated protective order governing the treatment of confidential and proprietary information disclosed in the course of discovery in this action. Pending the entry of such protective order by the Court, the Parties agree that any document designated by the Producing Party as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" shall be treated by the Receiving Party and its counsel in accordance with the terms of the anticipated protective order. Specifically, pending entry of the protective order: (a) documents designated "CONFIDENTIAL" shall not be disclosed to any person other than the Receiving Party, its counsel, its counsel's staff, and its retained experts and consultants; and (b) documents designated "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" shall not be disclosed to any person other than outside counsel for the Receiving Party and such counsel's staff, and shall not be disclosed to the Receiving Party itself or to any in-house counsel, officer, director, or employee of the Receiving Party, except as may be expressly permitted by a subsequent protective order.
6.2 Designation Process. Confidentiality designations shall be indicated by the Producing Party in two ways:
(a) In the "CONFIDENTIALITY" metadata field of the Ashgrove Technologies DAT load file, which shall contain the applicable confidentiality designation (e.g., "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY") for each designated document, or shall be left blank for documents bearing no confidentiality designation; and
(b) For TIFF productions, by a confidentiality stamp applied to each page of the TIFF image, typically in the header or footer area of the page, bearing the applicable designation.
6.3 Right to Challenge Designations. The Receiving Party may challenge any confidentiality designation applied by the Producing Party by providing written notice to the Producing Party identifying the document(s) at issue (by Bates number) and the basis for the challenge. Upon receipt of such notice, the Parties shall meet and confer in good faith within ten (10) business days to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through the meet-and-confer process, either Party may submit the dispute to the Court by motion, and the Producing Party shall bear the burden of establishing that the challenged designation is warranted. Pending resolution of any such dispute, the challenged documents shall continue to be treated in accordance with the Producing Party's designation.
SECTION 7: PRIVILEGE AND PRIVILEGE LOG REQUIREMENTS
7.1 Privilege Withholding. A Producing Party may withhold from production documents and communications on the basis of the attorney-client privilege, the work-product doctrine, the joint-defense privilege (also known as the common-interest privilege), or any other legally recognized privilege or protection applicable under Florida law or, to the extent applicable, federal law. The Producing Party shall clearly identify any document withheld from production on privilege grounds by including it on a privilege log as provided in this Section 7.
7.2 Privilege Log Format. Each Party's privilege log shall be provided in spreadsheet format (Microsoft Excel, .xlsx) and shall include the following fields for each document or communication withheld or redacted on the basis of privilege:
(a) Bates Number: The Bates number assigned to the document prior to its withholding, or, if no Bates number was assigned, a unique document-identification number sufficient to identify the document;
(b) Date: The date of the document or communication;
(c) Author/Sender: The author of the document or sender of the communication;
(d) Recipient(s): The recipient(s) of the communication, including all addressees;
(e) CC: Any individuals copied on the communication;
(f) Document Type: The type of document (e.g., email, memorandum, letter, handwritten note, report, draft agreement, spreadsheet);
(g) Subject Matter Description: A description of the subject matter of the document or communication, in sufficient detail to enable the Receiving Party to assess the applicability of the claimed privilege, without revealing the substance of any privileged communication or attorney work product;
(h) Privilege(s) Asserted: The specific privilege or protection asserted (e.g., attorney-client privilege, attorney work product — factual, attorney work product — opinion, joint-defense/common-interest privilege, or other);
(i) Custodian: The custodian from whose files the document was collected.
7.3 Privilege Log Timing. Privilege logs shall be provided to the Receiving Party within thirty (30) calendar days following the date of each production or supplemental production that includes documents withheld or redacted on privilege grounds. The Parties may agree in writing to extend the deadline for service of privilege logs, and any such extension shall not require leave of Court. In the event that a Party makes multiple productions in close succession, the Party may provide a consolidated privilege log covering all productions made within a thirty (30)-day period, so long as the consolidated privilege log is served within thirty (30) days of the last production in the relevant period.
7.4 Categorical Privilege Logs. The Parties may use categorical entries on their privilege logs for communications falling within a defined and narrow category, provided that the categorical description is sufficiently detailed to permit the Receiving Party to assess the privilege claim and is limited in scope. By way of example, and not limitation, the following categories of communications may be logged categorically:
(a) Communications between a Party (or its officers, directors, members, or employees) and litigation counsel (i.e., Calderwood & Harkness LLP for Plaintiff, or Whitfield, Barrow & Crane LLP for Defendants) occurring after the filing of the Complaint on March 7, 2022, where the communication was made for the purpose of obtaining or providing legal advice in connection with this litigation;
(b) Communications between a Party and its in-house legal counsel concerning legal advice regarding the subject matter of this litigation, provided the date range of such communications is identified and the individuals involved are identified by name and title.
The Receiving Party reserves the right to challenge the use of categorical privilege-log entries and to request individualized logging of specific categories if the categorical description is insufficient to assess the privilege claim.
7.5 Disputes. Privilege disputes that are not resolved through the meet-and-confer process described herein shall be submitted to the Court by motion. In connection with any motion concerning a disputed privilege claim, the moving party shall submit the disputed documents to the Court under seal for in camera review, unless the Court directs otherwise. The Parties agree that the submission of documents for in camera review shall not constitute a waiver of any privilege or protection asserted with respect to such documents.
SECTION 8: CLAWBACK PROVISIONS
8.1 Florida Rule of Civil Procedure 1.285 Applicability. The Parties agree that the inadvertent production of documents or communications that are subject to the attorney-client privilege, the work-product doctrine, or any other legally recognized privilege or protection shall not constitute a waiver of any such privilege or protection, in accordance with Florida Rule of Civil Procedure 1.285. This provision shall apply regardless of the number of documents inadvertently produced, the steps taken (or not taken) by the Producing Party to prevent the inadvertent disclosure, and the scope of the Producing Party's document-review process.
8.2 Clawback Procedure. If the Producing Party discovers that privileged or work-product-protected material has been inadvertently produced to the Receiving Party, the Producing Party shall promptly notify the Receiving Party in writing (which may include notification by email) of the inadvertent production, identifying the documents at issue by Bates number and specifying the privilege or protection asserted with respect to each document. The notification shall be made as promptly as practicable after the Producing Party discovers the inadvertent production.
Upon receipt of such notification, the Receiving Party shall:
(a) Promptly return, sequester, or destroy all copies of the identified documents, including any copies that have been provided to the Receiving Party's experts, consultants, litigation support personnel, or any other person, and shall confirm in writing to the Producing Party that all copies have been returned, sequestered, or destroyed;
(b) Not use or disclose the identified documents, or the contents thereof, for any purpose pending resolution of the privilege claim, including in connection with depositions, motion practice, trial preparation, or any other proceeding in this action or in any other action or proceeding;
(c) Take reasonable steps to retrieve any copies of the identified documents that have been disclosed to third parties, and shall notify the Producing Party of any such third-party disclosures.
8.3 Challenge to Clawback. If the Receiving Party disputes the Producing Party's assertion of privilege over a clawed-back document, the Receiving Party shall notify the Producing Party in writing within fourteen (14) calendar days of receipt of the clawback notification, identifying the documents at issue and the basis for the Receiving Party's dispute. Upon receipt of such notice, the Parties shall meet and confer in good faith to attempt to resolve the dispute. If the dispute cannot be resolved through the meet-and-confer process, the Producing Party may file a motion with the Court seeking a ruling on the privilege claim, and the disputed documents shall remain sequestered and shall not be used or disclosed by the Receiving Party pending resolution by the Court.
8.4 No Waiver from Production Platform Access. The Parties agree that access to documents through the Nexagen review platform or any other shared or party-specific document-review platform does not constitute a "use" of inadvertently produced documents for purposes of assessing privilege waiver. Mere indexing, hosting, or inclusion of a document within a review platform shall not be deemed to constitute disclosure, use, or reliance on the document such as would work a forfeiture of any applicable privilege or protection.
SECTION 9: SEARCH METHODOLOGY
9.1 Search Terms. The Parties shall confer in good faith regarding the search terms, Boolean operators and connectors, proximity operators, date filters, custodian filters, file-type filters, and any other search parameters to be applied to ESI collections for the purpose of identifying potentially responsive documents (collectively, "Search Criteria"). Each Party shall propose an initial set of Search Criteria to the opposing Party within twenty-one (21) calendar days of entry of this Order. The proposed Search Criteria shall be accompanied by a description of the methodology used to develop the search terms (e.g., review of key pleadings, custodian interviews, analysis of key contracts, or other methods). The Parties shall thereafter meet and confer in good faith to negotiate and agree upon a mutually acceptable set of Search Criteria.
9.2 Iterative Process. The Parties acknowledge that the development and refinement of Search Criteria is an iterative process. Following the initial exchange of proposed Search Criteria, the Parties shall meet and confer regarding the adequacy, reasonableness, and proportionality of the proposed search terms. As part of this iterative process, the Parties may:
(a) Request and exchange hit-count reports (i.e., reports showing the number of documents identified by each individual search term and by each combination of search terms) to assess whether particular search terms are overbroad (generating an unreasonably high number of false positives) or too narrow (failing to capture known relevant documents);
(b) Conduct targeted sampling of documents identified by proposed search terms to evaluate the precision and recall of the search methodology;
(c) Propose modifications, additions, or deletions to the agreed-upon Search Criteria based on information learned during the course of discovery, including information obtained from depositions, custodian interviews, or review of produced documents.
Neither Party shall be deemed to have waived any objection to the sufficiency of the opposing Party's search methodology by participating in the iterative search-term negotiation process described herein.
9.3 Technology-Assisted Review (TAR). Either Party may elect to use technology-assisted review ("TAR"), including predictive coding, machine-learning classifiers, continuous active learning ("CAL"), or similar technology-assisted review tools, to supplement or replace keyword searching as a method of identifying responsive documents within the Party's ESI collection. A Party electing to use TAR shall comply with the following requirements:
(a) Disclosure of TAR Methodology: The Party using TAR shall disclose to the opposing Party the TAR methodology employed, including the name and version of the TAR software or platform used, the type of TAR protocol (e.g., simple passive learning, simple active learning, or continuous active learning), the composition and size of the seed set or training set used to train the predictive model, and the criteria used to select seed-set documents;
(b) Transparency Regarding Metrics: The Party using TAR shall provide the opposing Party with reasonable transparency regarding the performance metrics of the TAR model, including recall rate, precision rate, F1 score (or equivalent measure), and the richness of the document population, to the extent such metrics are generated by the TAR platform;
(c) Meet-and-Confer Regarding TAR Protocol: The Party using TAR shall confer with the opposing Party regarding the TAR protocol before finalizing review decisions based on the TAR model's predictions. Such conferral shall include an opportunity for the opposing Party to raise objections or concerns regarding the adequacy of the TAR protocol, the sufficiency of training, and the acceptability of the recall and precision rates achieved. The Parties shall endeavor to reach agreement on TAR protocol parameters, but in the event of disagreement, either Party may seek guidance from the Court.
Nothing in this Section 9.3 shall be construed to require a Party to use TAR or to preclude a Party from using manual review, keyword searching, or any combination of review methodologies.
9.4 No Requirement to Search Inaccessible Data. Neither Party is required to search, review, or produce ESI from sources that are not reasonably accessible because of undue burden or cost, including but not limited to disaster-recovery backup tapes, legacy backup systems, deleted or residual data, and other sources that require extraordinary measures to restore, access, or process. If the Receiving Party contends that ESI from a not-reasonably-accessible source should be searched and produced, the Receiving Party shall identify the source and demonstrate good cause for requiring its search and production under Florida Rule of Civil Procedure 1.280(b)(1). The Court may condition such production on the requesting party's payment of all or part of the costs of restoring, processing, and reviewing the not-reasonably-accessible ESI.
SECTION 10: TIMING AND ROLLING PRODUCTIONS
10.1 Rolling Productions. The Parties shall produce ESI on a rolling basis, rather than in a single production at the conclusion of the review process. The Producing Party shall make its initial production of ESI within forty-five (45) calendar days of entry of this Order, or within the timeframe specified in the applicable discovery request served pursuant to Florida Rule of Civil Procedure 1.350, whichever is later. The Parties acknowledge that rolling productions are intended to facilitate the efficient progress of discovery and to enable the Receiving Party to begin reviewing produced materials at the earliest practicable date.
10.2 Supplemental Productions. Following the initial production, the Producing Party shall make supplemental productions on a rolling basis as additional responsive documents are identified through ongoing review. Supplemental productions shall be made no less frequently than every thirty (30) calendar days until the Producing Party's document review and production is complete. Each supplemental production shall be assigned a sequential production-set number (e.g., Production Set 1, Production Set 2, Production Set 3, etc.) and shall include Bates numbers that are continuous with the preceding production set.
10.3 Production Correspondence. Each production, whether initial or supplemental, shall be accompanied by a transmittal letter or email from the Producing Party to the Receiving Party (with a copy to Nexagen) that includes the following information:
(a) The discovery request(s) to which the production is responsive (identified by request number);
(b) The Bates-number range of the production (beginning and ending Bates numbers);
(c) The total number of documents included in the production;
(d) The total number of pages included in the production;
(e) The total data volume of the production (in gigabytes);
(f) Any known issues with the production, including but not limited to documents withheld on privilege grounds (with reference to the forthcoming privilege log), password-protected files that could not be processed (identified by file name and custodian), corrupted files that could not be rendered (identified by file name and custodian), and any other processing or production anomalies; and
(g) The method of delivery (e.g., secure FTP, encrypted external media, or Nexagen secure portal).
10.4 discovery Deadlines. The Parties acknowledge and agree that the Case Management Order entered by the Court following the Case Management Conference held on June 14, 2022 governs the overall deadlines for the completion of fact discovery, expert discovery, dispositive motions, and trial in this action. This Protocol does not modify, extend, or supersede any deadlines established by the Case Management Order. The Parties shall conduct ESI discovery in a manner consistent with the deadlines set forth in the Case Management Order and shall promptly notify opposing counsel and the Court if any Party anticipates difficulty meeting a deadline due to the volume, complexity, or timing of ESI discovery.
SECTION 11: COOPERATION AND DISPUTE RESOLUTION
11.1 Good-Faith Cooperation. The Parties agree to cooperate in good faith to facilitate the efficient, cost-effective, and proportional discovery of ESI in this action, and to resolve disputes regarding ESI discovery without court intervention wherever possible, consistent with their respective obligations and rights under the Florida Rules of Civil Procedure, the Case Management Order, and this Protocol. The Parties acknowledge that cooperation in the discovery process does not require any Party to sacrifice legitimate interests or waive objections, but does require that the Parties engage constructively in the exchange of information, the resolution of technical issues, and the negotiation of search methodologies and production formats.
11.2 Meet-and-Confer Requirement. Before filing any motion with the Court related to ESI discovery, including but not limited to motions to compel production, motions for protective orders, motions regarding privilege disputes, and motions regarding cost allocation, the moving Party shall certify in the motion that it has conferred in good faith with opposing counsel, either in person or by telephone or video conference, in a genuine effort to resolve the dispute without judicial intervention. The certification shall describe the nature of the dispute, the date(s) and manner of the conferral, and the reasons the dispute could not be resolved. Email correspondence alone shall not satisfy the meet-and-confer requirement; at least one substantive telephone or video conference shall be conducted prior to the filing of any discovery motion.
11.3 Technical Issues. The Parties and Nexagen shall cooperate in good faith to identify and resolve any technical issues arising from the processing or production of ESI, including but not limited to format-compatibility issues, load-file errors, missing or corrupted TIFF images, missing or incomplete extracted text files, metadata discrepancies, and corrupted or password-protected native files. The Parties shall designate a technical point of contact (which may be a representative of Nexagen) to coordinate the resolution of technical issues. The Receiving Party shall notify the Producing Party of any technical issues with a production within ten (10) business days of receipt of the production, and the Producing Party shall use reasonable efforts to resolve the identified issues within ten (10) business days of receipt of the notification.
SECTION 12: COST ALLOCATION
12.1 Each Party Bears Own Costs. Unless otherwise ordered by the Court or agreed in writing by the Parties, each Party shall bear its own costs of collecting, processing, hosting (to the extent of party-specific hosting), reviewing, and producing ESI in connection with this action. Each Party shall be solely responsible for the costs of its own attorneys, paralegals, litigation support personnel, and contract-review attorneys engaged in the review and production of ESI.
12.2 Shared Vendor Costs. The Parties have jointly engaged Nexagen Document Solutions LLC as the e-discovery vendor for this action. Nexagen's hosting fees for the shared review platform (i.e., the platform used to host productions for access by both Parties' counsel) shall be split equally between the Parties, with each Party bearing fifty percent (50%) of such shared hosting fees, unless the Parties agree otherwise in writing. Each Party's individual processing costs, analytics costs, project-management costs, and any other Nexagen charges attributable to that Party's specific data and review activities shall be borne by that Party individually. Nexagen shall issue separate invoices to each Party for that Party's individual costs and shall issue shared invoices (or split invoices) for equally shared costs.
12.3 Third-Party Subpoena Costs. Costs associated with processing, reviewing, and producing ESI obtained from third parties via subpoena duces tecum shall be borne by the Party that issued the subpoena, unless the Court orders otherwise. By way of example, the costs of processing and reviewing documents produced by Ironclad National Bank in response to the Subpoena Duces Tecum served on August 8, 2022 shall be borne by the Party that issued such subpoena. If both Parties jointly issue a subpoena to a third party, the costs associated with processing the resulting production shall be split equally unless otherwise agreed.
SECTION 13: AMENDMENTS
13.1 This Protocol may be amended, modified, or supplemented at any time by written agreement of the Parties, executed by counsel for each Party. Any such amendment shall be filed with the Court and shall be subject to the Court's approval before taking effect as a modification to the Agreed Order.
13.2 In the absence of agreement, either Party may seek modification of this Protocol by motion to the Court upon a showing of good cause. The Court retains full authority to modify, amend, or supplement the terms of this Protocol as justice and the efficient administration of this case may require.
SECTION 14: PRESERVATION OF RIGHTS
14.1 Nothing in this Joint Stipulation shall be construed as a waiver of any Party's right to object to any discovery request on grounds of relevance, proportionality, undue burden, expense, privilege, work-product protection, or any other applicable ground recognized under the Florida Rules of Civil Procedure, applicable statutes, or governing case law. A Party's compliance with this Protocol with respect to one production or discovery request shall not be deemed a waiver of the Party's right to assert objections in connection with subsequent productions or discovery requests.
14.2 Nothing in this Joint Stipulation shall limit either Party's right to seek additional discovery beyond the scope of this Protocol, to challenge the sufficiency or completeness of the opposing Party's production, or to move the Court for additional relief as warranted by the circumstances of this case. This Protocol establishes minimum standards and procedures for ESI discovery and does not preclude the Parties from agreeing to, or the Court from ordering, additional or different procedures as the needs of this case may require.
AGREED ORDER
WHEREFORE, the Parties respectfully request that the Court enter the following Agreed Order adopting the terms and provisions of this Joint Stipulation as an Order of this Court, binding on all Parties and enforceable by the Court.
IT IS HEREBY ORDERED AND ADJUDGED that the foregoing Joint Stipulation Regarding Protocol for Electronically Stored Information and discovery of Electronic Documents is adopted in its entirety as an Order of this Court. The Parties and their counsel shall comply with the terms and provisions set forth herein. Failure to comply with this Order may result in the imposition of sanctions as permitted under the Florida Rules of Civil Procedure, including but not limited to Florida Rule of Civil Procedure 1.380.
SO ORDERED this __ day of ______, 2022.
________________________________________
HON. RICHARD M. CALLOWAY Circuit Judge, Seventeenth Judicial Circuit Broward County, Florida
STIPULATED AND AGREED:
COUNSEL FOR PLAINTIFF VERIMARK HOSPITALITY GROUP INC.:
CALDERWOOD & HARKNESS LLP
By: ________
Priya Anand, Esq. Florida Bar No. 0087451 Calderwood & Harkness LLP 110 SE 6th Street, Suite 2800 Fort Lauderdale, Florida 33301 Telephone: (954) 555-7200 Facsimile: (954) 555-7201
Email: panand@calderwoodharkness.com
Counsel for Plaintiff Verimark Hospitality Group Inc.
COUNSEL FOR DEFENDANTS COASTAL PALMS FRANCHISE HOLDINGS LLC, RANDALL BRECKER, AND SUNCOAST ROOM MANAGEMENT INC.:
WHITFIELD, BARROW & CRANE LLP
By: ________
Gabriela Montes, Esq. Florida Bar No. 0102339 Whitfield, Barrow & Crane LLP 1221 Brickell Avenue, Suite 3000 Miami, Florida 33131 Telephone: (305) 555-4400 Facsimile: (305) 555-4401
Email: gmontes@whitfieldbarrow.com
Counsel for Defendants Coastal Palms Franchise Holdings LLC, Randall Brecker, and Suncoast Room Management Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Joint Stipulation and Agreed Order Regarding Protocol for Electronically Stored Information and discovery of Electronic Documents was served on all counsel of record via the Florida Courts E-Filing Portal on this 20th day of June, 2022, which will send a notice of electronic filing to the following:
Gabriela Montes, Esq. Nathan Whitfield III, Esq. Whitfield, Barrow & Crane LLP 1221 Brickell Avenue, Suite 3000 Miami, Florida 33131 Telephone: (305) 555-4400
Email: gmontes@whitfieldbarrow.com
Email: nwhitfield@whitfieldbarrow.com
Counsel for Defendants Coastal Palms Franchise Holdings LLC, Randall Brecker, and Suncoast Room Management Inc.
CALDERWOOD & HARKNESS LLP
By: ________
Yuki Nakamura, Esq. Florida Bar No. 0118764 Calderwood & Harkness LLP 110 SE 6th Street, Suite 2800 Fort Lauderdale, Florida 33301 Telephone: (954) 555-7200
Email: ynakamura@calderwoodharkness.com
Counsel for Plaintiff Verimark Hospitality Group Inc.
Field Name | Description
BEGBATES | Bates number of the first page of the document
ENDBATES | Bates number of the last page of the document
BEGATTACH | Bates number of the first page of the first document in the attachment family (parent document)
ENDATTACH | Bates number of the last page of the last document in the attachment family
CUSTODIAN | Name of the custodian from whom the document was collected
DATECREATED | Date the document was created (MM/DD/YYYY format)
DATEMODIFIED | Date the document was last modified (MM/DD/YYYY format)
DATESENT | Date the email was sent (MM/DD/YYYY format; emails only)
TIMESENT | Time the email was sent (HH:MM:SS format, Eastern Ti

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO.: 1021-00006

PREAMBLE AND RECITALS

SECTION 1: DEFINITIONS

SECTION 2: SCOPE OF ESI DISCOVERY

SECTION 3: COLLECTION AND PRESERVATION

SECTION 4: PROCESSING STANDARDS

SECTION 5: PRODUCTION FORMAT

SECTION 6: CONFIDENTIALITY DESIGNATIONS

SECTION 7: PRIVILEGE AND PRIVILEGE LOG REQUIREMENTS

SECTION 8: CLAWBACK PROVISIONS

SECTION 9: SEARCH METHODOLOGY

SECTION 10: TIMING AND ROLLING PRODUCTIONS

SECTION 11: COOPERATION AND DISPUTE RESOLUTION

SECTION 12: COST ALLOCATION

SECTION 13: AMENDMENTS

SECTION 14: PRESERVATION OF RIGHTS

AGREED ORDER

STIPULATED AND AGREED:

COUNSEL FOR PLAINTIFF VERIMARK HOSPITALITY GROUP INC.:

CALDERWOOD & HARKNESS LLP

WHITFIELD, BARROW & CRANE LLP

CERTIFICATE OF SERVICE

CALDERWOOD & HARKNESS LLP

Record

Parties

Dates

Amounts