Penman v. Hess Bakken Investments II, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
RONALD PENMAN AND )
ADELANTE OIL & GAS, LLC )
on behalf of themselves and a Class )
of similarly situated royalty owners, )
) Case No.: 1:22-cv-00097
Plaintiffs, ) (Lead Case)
)
vs. )
)
HESS BAKKEN INVESTMENTS )
II, LLC )
)
Defendant. )
)
____________________________________)
)
SANDY RIVER RESOURCES, LLC and )
SANDY RIVER ENERGY, LLC )
River Energy, LLC on behalf of )
themselves and classes of similarly )
situated royalty owners, ) Case No.: 1:22-cv-108
)
Plaintiffs, )
)
vs. )
)
HESS BAKKEN INVESTMENTS, )
II, LLC )
ELECTRONICALLY STORED INFORMATION PROTOCOL
Definitions and Scope. The following protocol shall control the production of discoverable
documents and electronically stored information (collectively, “Documents”). As used in this
protocol, the term “Document(s)” shall have the same meaning as used in the Federal Rules of
Civil Procedure. The term “Receiving Party” shall mean the party receiving production of
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Documents in response to any request for production of document(s) pursuant to Fed. R. Civ. P. 34
or pursuant to initial production of documents identified in the party’s Rule 26(a) disclosures.
“Producing Party” shall mean the party producing Documents in response to any request for
production of documents pursuant to Rule 34 or pursuant to initial production of documents
identified in the party’s Rule 26(a) disclosures.
Responsive data and documents stored electronically and scanned paper documents should
be produced in an electronic format, by secure file transfer, on an optical disc, or on an electronic
storage device such as a hard drive, as follows:
Images. Documents, including but not limited to emails, should be produced as Group IV
single page TIFF format files, imaged at a minimum of 300 dpi. Each TIFF file should be named
with a unique file name matching the Bates number labeled on the corresponding page. The TIFF
files should be grouped into folders; there should not be a separate folder created for each
document.
Image Load Files. Documents should be accompanied by “.opt” and “.dat” image load
files (Opticon cross reference file and Concordance load file). The “.dat” file should contain all
metadata fields agreed to produce. (See Document Metadata section below.)
Document Text. For scanned paper documents or documents originally stored as images,
please provide OCR text. For documents stored as native electronic files produced without
redactions, the extracted text from each document should be provided. For documents that were
originally stored as native electronic files and that have redactions, OCR text from the redacted
images associated with each document should be provided.
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Any redacted, privileged material will be clearly labeled to show the redactions on the TIFF
image. For any OCR text or extracted text, the text should be provided in a separate “.txt” file
named with the beginning Bates number of the document.
Special File Types. Files that do not lend themselves to TIFF file format (e.g., Excel or
other spreadsheet programs, Microsoft Access databases, and .mp3, .mp4, .wav or other audio and
visual files) may be produced in native format and named with a unique file name matching the
Bates number of the corresponding slip-sheet that will be included as a placeholder in the imaged
TIFF format files (e.g., “ABC00001.xls”). The slip-sheet placeholder in the imaged TIFF format
files should indicate that the document is being provided in native format (e.g., “Produced in
Native Format”).
To the extent a responsive, non-privileged document contains visible comments or tracked
changes, the produced version of the document shall show such comments or tracked changes.
Royalty Accounting Data. To the extent responsive to a discovery request, the parties shall
produce all Royalty Accounting Data in source and/or native, Excel Format, including unlocked
cells, and metadata, which is accessible from a personal computer.
Document Metadata. Non-privileged extracted metadata for each document should be
provided, where available, in the form of a Concordance delimited “.dat” file and include fields
identified below. No party is obligated to create metadata that does not exist.
FIELD DESCRIPTION
PROD BEG ATTACH The bates label of the first page of a family of documents
(e.g., email and attachment)
PROD BEG BATES The bates label of the first page of the document.
PROD END ATTACH The bates label of the last page of a family of documents.
PROD END BATES The bates label of the last page of the document.
TITLE OR SUBJECT The saved title of the document
DATE CREATED The date the document was created
LAST DATE MODIFIED The date the document was last modified
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FIELD DESCRIPTION
FOR EMAIL: SENT
FROM, TO, CC, BCC, OR
RECIPIENTS
CUSTODIAN Identification of appropriate individual or department that can
provide foundational testimony regarding the authenticity of
the document in accordance with any applicable rules of civil
procedure
DUPLICATE CUSTODIAN Names of custodians of de-duplicated documents. Combined
with custodian value to have all custodians who possessed a
particular document).
DOCUMENT TYPE OR
FILE EXTENSION
CONFIDENTIALITY The confidentiality designation pursuant to the Protective
Order.
HASH VALUE Unique electronic signature of email or electronic file used
for deduplication.
PRODUCTION VOLUME Name of the Production Volume in which the document was
produced.
Data for Paper Documents. The Producing Party shall produce the information described
below with each production and in the format described above. For images generated from paper
documents, a Producing Party shall produce with each production the following fields, where
available:
a. Starting Bates (beginning Bates number);
b. Ending Bates (ending Bates number); and
c. Custodian (if applicable).
There is no obligation to create metadata that does not exist, nor is there a requirement to
produce metadata that reveals attorney-client privilege or attorney work product. For hard copy
sourced documents, the parties are obliged to provide custodian and location information to note
the source of the material.
Technology Assisted Review. Any Producing Party that intends to use Technology
Assisted Review (“TAR”) to (a) determine the relevance or non-relevance of documents for
production purposes, and/or (b) cull a set of documents that will thereafter be reviewed by humans
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to determine relevance or non-relevance for production purposes, shall disclose such intent to use
TAR to the Receiving Party in advance of its use. If search terms are used to cull documents before
TAR, the Producing Party shall disclose that it used search terms prior to application of TAR.
Date Restrictions. The Parties will meet and confer to determine the reasonable date range
from which each Party is expected to have relevant and responsive ESI. Each Party may limit its
collection and/or review of potentially relevant email ESI to the agreed date range for such Party,
unless an earlier or later date is expressly specified in a request for production. Nothing herein
shall prevent the Parties from objecting to a request for production on the basis that documents
outside the agreed upon relevant time period should not be subject to discovery. To the extent the
Parties are unable to agree upon a reasonable date range for each Party, the Parties may seek
guidance from the Court.
Production Media. A Producing Party shall produce Documents via a secure or encrypted
filesharing link, an encrypted readily accessible electronic media (i.e., an encrypted hard drive), or
if neither of these methods are viable, any other alternate method of transmission that provides
similar security for the data and documents included in the production(s) that the Parties have
agreed to use. The produced documents shall be password protected and/or encrypted and the
Producing Party shall provide the password(s) necessary to access the produced documents under
separate cover. If the Production Media is produced in physical form, the information that shall be
identified on the face of the Production Media shall include: (1) the production date, and (2) the
confidentiality notation required by the Protective Order to be entered in this case, if the media
contains information designated under that Protective Order. The face of the Production Media
shall also contain the Bates Number range(s) of the Documents on the Production Media, which,
if not practicable to do so, may be provided in an accompanying letter. If the Production Media is
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produced via SFTP, or similar electronic file sharing platforms, the date the email with the link is
transmitted to the Receiving Party shall be considered the production date, and the media produced
shall be Bates Numbered and stamped with the confidentiality notation required by the Protective
Order entered in this case, as applicable. To the extent required, the Producing Party shall include
with the production an explanation of how to decrypt the files.
Document Unitization. When scanning paper documents into Document Images, the
producing party should maintain logical unitization. For electronic documents, the relationship of
documents in a document collection (e.g., cover letter and enclosures, e-mail and attachments, or
other documents where a parent-child relationship exists between the documents) shall be
maintained through the conversion process from native format to PDF, provided however, that the
Parties shall only be required to present one level of parent-child relationship. Document Images
generated from attachments to e-mails stored in Native Format shall be produced
contemporaneously and sequentially immediately after the parent e-mail.
Paper Documents Containing Fixed Notes. Paper Documents that contain fixed notes
shall be scanned with the notes affixed, if it can be done in a manner so as not to obstruct other
content of the document. If the content of the Document is obscured by the affixed notes, the
Document and note shall be scanned separately, with the notes produced on a separate page directly
following the page on which the notes were affixed.
Duplicates. Except as provided for above, a Producing Party need not produce the same
electronically stored information in more than one format. The Producing Party may de-duplicate
its production at the family level globally across the entire production. Furthermore, the parties are
not required to produce multiple instances of an electronic message sent to multiple recipients,
provided that all of the recipients (including “blind carbon copy” recipients) can be identified from
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Document(s) or their related metadata to be produced pursuant to this Protocol. Where a
subsequent electronic mail message contains all portions of an earlier message in the same e-mail
thread produced pursuant to this Protocol, it is not necessary for a Producing Party to produce the
earlier message in addition to the subsequent inclusive message. If the subsequent inclusive
message does not include an attachment to an earlier message, both the earlier message and the
attachment must also be produced pursuant to this Protocol, in addition to the subsequent inclusive
message.
Databases. The Parties agree that to the extent that potentially relevant and proportional
data is contained in databases, or other sources of structured data, they will meet and confer
regarding how best to identify and produce information from those sources. If it is determined after
meeting and conferring that any such discoverable data can be produced in an already existing and
reasonably available report, then the Producing Party may produce the data in that report format.
Upon review of the reports, the Receiving Party may make reasonable requests for production of
additional information to explain the database scheme, codes, abbreviations, available fields, and
different report formats or to request specific data from identified fields. If the existing reports do
not reasonably provide the requested information, the Parties agree to meet and confer to agree
upon an acceptable format for production.
System Files. Common system and program files need not be processed, reviewed or
produced.
Privilege Logs. The Producing Parties will produce privilege logs in searchable PDF or a
similar electronic format that allows text searching. In the event a Producing Party believes a
categorical privilege log may be appropriate, the parties will discuss the issue in good faith in an
effort to resolve any objection to such categorical privilege log. The Parties will confer on the
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timing for the exchange of privilege logs and may modify the deadlines for production of privilege
logs by agreement. Each Party’s respective privilege log shall comply with the requirements set
forth in Rule 26(b)(5). The following categories of documents do not need to be contained on a
Producing Party’s privilege log, unless good cause exists to require that a Party do so:
1. Information generated outside the agreed-upon relevant time period. This provision
does not apply to non-Parties to the Litigation.
2. Any communications, work product, or other privileged materials exclusively
between a Producing Party and its outside counsel, an agent of outside counsel other
than the Party, any non-testifying experts in connection with specific litigation, or,
with respect to information protected by Fed. R. Civ. P. 26(b)(4), testifying experts in
connection with specific litigation.
Redacted documents need not be logged as long as: (a) for emails, the objective metadata
(i.e., to, from, cc, bcc, recipients, date, and time, unless the privilege or protection is contained in
these fields) is not redacted, and the reason for the redaction, including the nature of the privilege
asserted, is noted or otherwise ascertainable on the face of the document (for redacted documents
where the subject matter is not decipherable as a result of redactions, a description of the contents
of the document that is sufficient to understand the subject matter of the document may be
requested); and (b) for non-email documents, the reason for the redaction is noted or otherwise
ascertainable on the face of the document in the redacted area.
In accordance with this Paragraph, the Producing Party will undertake reasonable efforts
to make limited, line-by-line redactions of privileged or work product information. After receipt
of the production, if the Receiving Party cannot discern the basis for the privilege redaction, it may
request in good faith that the Producing Party create a privilege log for specific redacted
documents. The Producing Party shall identify the redacted documents on such log by their Bates
numbers. Electronic documents that are redacted shall be identified as such in a “redaction” field
in the accompanying data load file.
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Production of Documents. A written response to a request for the production of documents
shall be due on the date required by Fed. R. Civ. P. 34 (b)(2)(a) unless the parties modify that date
by mutual agreement, and any documents the responding party has not objected to producing in
its written response shall be produced on a rolling basis thereafter. Nothing in this protocol shall
be construed to affect or supersede the provisions of Fed. R. Civ. P. 34 (b)(2)(E)(i).
Discovery and Admissibility. Nothing herein shall be construed to affect the discoverability
or admissibility of any document or data. All objections to the discoverability or admissibility of
any document or data are preserved and may be asserted at any time.
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Approved by:
Dated: February 2, 2024
BARTON AND BURROWS, LLC
/s/ Stacy A. Burrows
Stacy A. Burrows, admitted pro hac vice
George A. Barton, admitted pro hac vice
5201 Johnson Drive, Ste. 110
Mission, KS 66205
(913) 563-6253
stacy@bartonburrows.com
george@bartonburrows.com
HORN AYLWARD & BANDY, LLC
/s/ Joseph A. Kronawitter
Joseph A. Kronawitter, admitted pro hac vice
Taylor P. Foye, admitted pro hac vice
Horn Aylward & Bandy, LLC
2600 Grand Boulevard, Ste. 1100
Kansas City, Missouri 64108
(816) 421-0700
jkronawitter@hab-law.com
tfoye@hab-law.com
VOGEL LAW FIRM
/s/ Joshua A. Swanson
Joshua A. Swanson, ND Bar No. 06788
R.J. Pathroff, ND Bar No. 07759
218 NP Avenue
Fargo, ND 58102
(701) 237-6983
jswanson@vogellaw.com
rpathroff@vogellaw.com
Attorney for Plaintiff(s)
Dated: February 2, 2024
CROWLEY FLECK PLLP
/s/ Paul J. Forster
Paul J. Forster (ND ID #07398)
Zachary R. Eiken (ND ID #07832)
100 W. Broadway, Suite 250
P.O. Box 2798
Bismarck, ND 58502-2798
(701) 224-7546
(701) 222-4853
pforster@crowleyfleck.com
zeiken@crowleyfleck.com
KIRKLAND & ELLIS LLP
/s/ Ragan Naresh
Daniel T. Donovan
Ragan Naresh
K. Ross Powell
Gabi Durling
1300 Pennsylvania Avenue, NW
Washington, DC 20004
(202) 389-5000
daniel.donovan@kirkland.com
ragan.naresh@kirkland.com
ross.powell@kirkland.com
gabi.durling@kirkland.com
Attorneys for Defendant
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IT IS SO ORDERED.
___________________________________
Honorable Clare R. Hochhalter
United States Magistrate Judge
Dated:______________________	February 2, 2024
/s/ Clare R. Hochhalter
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