Opinion
16017-21 15631-22
03-24-2023
AMGEN INC. & SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Travis A. Greaves Judge
These cases are scheduled for trial at the Special Trial Session of the Court beginning on November 4, 2024, in Los Angeles, California at 10:00 a.m. On March 3, 2023, petitioner filed an unopposed Motion for Protective Order Pursuant to Rule 103. Upon due consideration, it is
ORDERED that petitioner's Motion for Protective Order Pursuant to Rule 103, filed March 3, 2023, is granted and the parties shall comply with the Discovery Protective Order attached hereto.
DISCOVERY PROTECTIVE ORDER
This Discovery Protective Order in the above captioned case limits how information produced in discovery can be disclosed to persons not a party to this case. This Discovery Protective Order does not entitle the parties to file information subject to this Discovery Protective Order (Protected Information) under seal, other than as set forth under the procedures detailed in paragraph 18. Nothing in this Discovery Protective Order limits respondent's rights to object to any attempt to seal judicial records or proceedings if petitioner makes a motion to seal under the provisions of paragraph 18.
PRELIMINARY MATTERS
1. I.R.C. § 6103(a) provides that returns and return information "shall be confidential, and except as authorized by [the Code], no officer or employee of the United States, … shall disclose any return or return information." The phrase "officer or employee of the United States" encompasses officers and employees of the Office of Chief Counsel for the Internal Revenue Service ("IRS") and the Department of Justice. Respondent is prohibited by I.R.C. § 6103(a) from disclosing returns and return information subject to certain exceptions. Pursuant to I.R.C. § 6103(a)(3), this prohibition on disclosure of returns and return information also applies to expert witnesses and other persons under contract to respondent pursuant to I.R.C. § 6103(n).
2. Violations of I.R.C. § 6103 give rise to civil and criminal penalties. Pursuant to I.R.C. § 7431, a taxpayer whose return or return information has been disclosed in a manner not authorized may bring a civil suit for damages. In the event of an alleged unauthorized disclosure by an officer or employee of the United States, such civil suit may be brought against the United States. In the event of an alleged unauthorized disclosure by a person other than a United States officer or employee, such civil suit may be brought against that person. Pursuant to I.R.C. § 7213(a), felony criminal charges may be brought against any United States officer or employee, or any person under contract to the IRS pursuant to I.R.C. § 6103(n), who willfully discloses any return or return information in a manner not authorized. Punishment upon conviction is a fine of up to $5,000, imprisonment for up to 5 years, or both, plus the costs of prosecution. Additionally, a United States officer or employee "shall be dismissed from office or discharged from employment upon conviction."
3. In contrast with I.R.C. § 6103(n), persons to whom return information is disclosed pursuant to I.R.C. § 6103(h)(4) are under no obligation to keep the information confidential. Pursuant to I.R.C. § 6103(h)(4)(A), returns and return information may be disclosed in a judicial proceeding pertaining to tax administration if the taxpayer is a party to the proceeding. Thus, pursuant to this provision, returns and return information of petitioner may be disclosed in the instant Tax Court proceeding, including in depositions and interviews. No provision of the Code prohibits a person to whom return information is disclosed pursuant to I.R.C. § 6103(h)(4) from redisclosing that information, nor does any provision provide for penalties for such redisclosure. Notwithstanding I.R.C. § 6103(h)(4), expert witnesses and other persons under contract pursuant to I.R.C. § 6103(n) are still subject to the disclosure prohibitions of I.R.C. § 6103(a)(3).
4. Nothing in this Discovery Protective Order precludes petitioner from using, disclosing, or disseminating Protected Information subject to this Discovery Protective Order. However, if petitioner discloses or disseminates such information into the public domain such information loses its status as Protected Information under this Discovery Protective Order.
5. Petitioner is concerned that I.R.C. § 6103 does not provide adequate protection especially concerning the redisclosure of such information by persons to whom respondent makes a legal disclosure under I.R.C. § 6103. Given this concern, this Discovery Protective Order will include additional and overlapping protection to information subject to this Discovery Protective Order.
SCOPE
6. It is hereby ORDERED that petitioner's motion for a Discovery Protective order is granted in that the following terms and conditions shall govern the treatment of information provided by petitioner to respondent during discovery.
7. This Discovery Protective Order shall apply to responses to requests for information during the pre-trial phase of this case including subpoenas, answers to interrogatories, responses to requests for admission, correspondence between counsel, depositions, documents, things produced in response to requests for production of documents, and other discovery taken pursuant to the Tax Court Rules of Practice and Procedure. This Discovery Protective Order shall also apply to all summaries, notes, abstracts, or other materials that comprise, embody, summarize, discuss, or quote from any Protected Information), including memoranda or work product prepared by counsel, their staff, and authorized third parties. If, however, such Protected Information is, or is contained in, a document filed with the Court then the provisions of paragraph 18 apply. The parties agree to produce all documents and information according to the specifications set out in Exhibit 1.
8. This Discovery Protective Order shall apply to the parties (including the parties' representatives) and any non-party from whom discovery may be sought and who seeks protection under this Discovery Protective Order. As used in this Discovery Protective Order, "trial counsel" means: (a) attorneys, legal assistants, paralegals, information technology staff, and administrative staff of respondent's counsel, the IRS, or the Department of Justice, including IRS field agents, other IRS employees, vendors, or contractors working under the direction of the Office of Chief Counsel in connection with this case and (b) attorneys, legal assistants, paralegals, information technology staff, administrative staff, tax practitioners, and vendors for petitioner's counsel in this case.
9. All information, documents, or portions thereof produced in conjunction with responses to informal or formal discovery requests, stipulations, subpoenas, or pretrial exchange of materials hereafter produced, whether by a party or third party (the "Disclosing Party"), that is designated as "Protected Information" by the Disclosing Party shall be treated as Protected Information and shall be governed by the terms of this Discovery Protective Order. Protected Information does not include information lawfully in the public domain or that is made publicly available by (or with the consent of) the party designating it as such. For purposes of this Discovery Protective Order, Protected Information includes:
a. All information required to be kept confidential by any law or regulation of any government outside of the Internal Revenue Code, or any previous court order (the party designating the information as Protected Information has the burden of citing and explaining the application of any such law, regulation, or court order) in effect at the time the information is designated as Protected Information. Notwithstanding anything contained in this paragraph, returns, and return information protected under I.R.C. § 6103 can also be designated as Protected Information;
b. Confidential research and development information;
c. Strategic, commercial, and business development information and/or plans dated January 1, 2010 or later, including, short-term and long-range planning, periodic business reviews, brand plans, product strategy, analyses and modeling for business development transactions, or similar information;
d. Board minutes, board materials, and other communications made to or by the board of directors and the committees of the board of directors, unless such information has been made available to shareholders without any confidentiality or disclosure restrictions;
e. Financial information, including: non-publicly reported financial results segmented by entity and/or individual product, number of products sold, total dollar value of products sold, profit margins (both forecasted and actual) on a product-by-product basis, operating costs, calculations of product liability estimates, internal budgets, revenue estimates and forecasts, amounts invested in research and development, calculations related to the division of profits between related parties, or other similar information;
f. Marketing information dated January 1, 2010 or later, including internal industry surveys and analyses, marketing plans and projections, marketing research and business strategy, internal research regarding Amgen's competitors, or other similar information;
g. The names of, or other information tending to reveal the identities of, Amgen's former, current, or prospective suppliers, customers, or distributors to the extent covered by written confidentiality provisions in effect at the time the information is designated as Protected Information (unless such information is publicly available);
h. Personal information of a party's employees, including, but not limited to contact information and compensation;
i. Agreements (including the terms of and parties to such agreements) between a party and any third-party that are covered by written
confidentiality provisions in effect at the time the information is designated as Protected Information, unless all required consents permitting disclosure have been obtained or disclosure is otherwise required by law;
j. Documents related to the negotiation, consummation, execution, implementation, or management of agreements identified in 9.i., to the extent covered by written confidentiality provisions in effect at the time the information is designated as Protected Information;
k. Information relating to pending patent applications;
l. New drug applications, biologics license applications, supplements, amendments, and related correspondence with the FDA and foreign health agencies;
m. Information constituting product specifications, formulations, and/or information regarding the manufacture of Amgen's current, proposed, or potential products still in active use for business purposes;
n. Technical notebooks and technical reports, including, product and manufacturing specifications, schematic diagrams, technical reference manuals, operations manuals, process development manuals or guidelines, quality assurance manuals or guidelines, or other similar information still in active use for business purposes;
o. Information Amgen believes, in good faith, is a proprietary trade secret;
p. Confidential and non-public information pertaining to claims, investigations, or similar, brought by the U.S. government against Amgen; and
q. Confidential and non-public information pertaining to any legal disputes (e.g., private arbitrations) to which Amgen is or was a party.
DESIGNATION
10. A Disclosing Party shall designate information that it provides as Protected Information in the following manner:
a. In the case of documents, interrogatory answers, responses to requests for admission, and the information contained therein, designation shall be made by placing the following legend on every page of any such document before production: "PROTECTED INFORMATION Subject to Protective Order, Amgen Inc. & Subsidiaries, Tax Court Docket Nos. 16017-21 and 15631-22" ("PROTECTED INFORMATION" or "Protected Information Designation"). However, inadvertent production of any information without the Protected Information Designation shall not itself be deemed a waiver of the Disclosing Party's claim that this Discovery Protective Order protects such information, and the Disclosing Party may thereafter designate such information as "PROTECTED INFORMATION."
b. In the case of depositions, designation of the portion of the transcript (including exhibits) that contains Protected Information shall be made by a statement to such effect on the record in the course of the deposition or, upon review of such transcript, by counsel for the party to whose Protected Information the deponent has had access, said counsel shall designate within sixty (60) days after counsel's receipt of the final transcript. Counsel shall list on a separate piece of paper the numbers of the pages of the transcript containing Protected Information, inserting the list at the end of the transcript, and providing copies of the list to opposing counsel so that it may be affixed to the face of the transcript and each copy thereof. Pending such designation by counsel, the entire deposition transcript, including exhibits, shall be deemed Protected Information.
c. If a deposition transcript that contains Protected Information is filed with the Court, the transcript shall bear the appropriate legend on the caption page and shall be filed under seal in accordance with the provisions of paragraph 18.
d. Any Protected Information produced in a non-paper or nonelectronic medium (e.g., videotape, audio tape, complete computer disk, hard disk drive, etc.) may be designated as such by labeling the outside of such non-paper medium as "PROTECTED INFORMATION." If a party generates any hard copy, transcription, or printout from any such designated non-paper or non-electronic
medium, such party must stamp each page "PROTECTED INFORMATION," and the hard copy, transcription, or printout shall be treated as it is designated.
e. A Disclosing Party shall designate information as Protected Information only if the Disclosing Party believes in good faith that such information is not generally known and would not normally be revealed to third parties in the absence of an undertaking by the third parties to maintain such information in confidence. At any time during pendency of this case, a party may move to challenge whether a document or information qualifies as Protected Information under this Order. Unless the Court orders otherwise, the party designating the Protected Information bears the burden to establish that good cause exists to protect such information. Before seeking the Court's assistance, the parties will try to informally resolve any disputes.
11. The designation of any material as Protected Information shall be deemed effective unless and until the Court orders otherwise or the Disclosing Party withdraws the designation.
12. Each party or third party that designates information or items for protection under this Discovery Protective Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the Disclosing Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify-so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within this Order. If it comes to a Disclosing Party's attention that information or items that it designated for protection do not qualify for protection, that Disclosing Party must promptly notify all other parties that it is withdrawing the mistaken designation
USE
13. Respondent's trial counsel may disclose Protected Information to employees of the IRS and to Department of Justice employees in accordance with respondent's procedures for disclosing such information. Nothing in this Discovery Protective Order prohibits or restricts respondent from disclosing return information as authorized by I.R.C. §§ 6103 and 6105 (except that this Discovery Protective Order modifies the application of I.R.C. § 6103(h)(4)(A) to the instant Tax Court proceeding) nor does this Discovery Protective Order require respondent to secure written permission or notify the Court or petitioner's trial counsel when making such disclosures.
DISCLOSURE
14. In the absence of written permission from the Disclosing Party or an order of the Court, the party that received the Protected Information may only disclose it to the following individuals:
a. Each party's trial counsel. In addition, respondent may disclose Protected Information to employees of the IRS and the Department of Justice in accordance with respondent's procedures for disclosing such information. Nothing in this Order prohibits or restricts respondent from disclosing return information as authorized by I.R.C. §§ 6103 and 6105 (except that this Order modifies the application of I.R.C. § 6103(h)(4)(A) to the instant Tax Court proceeding) nor does this Order require respondent to secure written permission, notify the Court, or trial counsel when making such disclosures;
b. Expert witnesses, consultants, deponents, interviewees, and other witnesses and individuals as necessary to assist in this proceeding shall have access to Protected Information only in accordance with, and subject to, the limitations set forth in Paragraphs 15 through 17;
c. The Court and Court personnel, including stenographic reporters.
15. Third parties may not receive Protected Information unless and until they have been made aware of the provisions of this Discovery Protective Order and have manifested their assent to be bound thereby by executing an Acknowledgement and Agreement to be Bound substantially in the form set forth in Exhibit 2 ("Acknowledgement"). If such persons have previously been given access to Protected Information, counsel will cause such persons to execute the Acknowledgement within fourteen (14) business days after entry of this Discovery Protective Order. Counsel shall retain all original signed copies of the Acknowledgement in their files. Petitioner has the burden to obtain an Acknowledgement from deponents who are represented by petitioner's trial counsel. If the parties are unable to obtain an Acknowledgement, the parties may try to resolve the matter informally, but may also seek the Court's ruling by motion.
16. Persons receiving Protected Information are prohibited from disclosing it to any other person, except in conformance with this Discovery Protective Order and I.R.C. § 6103. Each party's counsel shall ensure that each individual to whom they disclose any Protected Information understands that they can be held in contempt by this Court for violation of this Discovery Protective Order and that they may also be subject to civil and criminal penalties for violating I.R.C. § 6103.
17. The recipient of any Protected Information shall maintain such information in a secure and safe area and shall exercise the same standard of due and proper care with respect to the storage, custody, use, and/or dissemination of such information as would be exercised by a reasonably prudent recipient. Protected Information shall not be copied, reproduced, summarized, or abstracted, except to the extent that such copying, reproduction, summary, or abstraction is reasonably necessary for the conduct of this litigation. All such copies, reproductions, summaries, and abstractions shall be subject to the terms of this Discovery Protective Order.
18. Pre-trial Filings. Protected Information may be included in (or attached to) pre-trial filings with the Court, but only in accordance with this Discovery Protective Order. The party wishing to file a document containing (or potentially containing) Protected Information must either:
a. At least four hours before such filing, notify and confer with the other party and reach an agreement on appropriate redactions before simultaneously filing under seal an unredacted version of the document and filing under normal procedures a redacted version of the document; or
b. File under seal an unredacted version of the document and thereafter seek to reach agreement with the other party on unsealing the document or appropriate redactions. If the parties cannot reach agreement on whether all or parts of the document should be sealed, then the party asserting that the information should be protected must move the Court to determine whether all or parts of the document should be sealed within 60 days of filing. After the parties reach agreement, or the Court rules, the filing party shall file an unsealed or redacted version of the document.
c. Nothing in paragraph 18 will restrict a party from moving the Court at any time to make a determination of whether good cause exists to seal any previously agreed redactions to the pre-trial filings.
19. All Protected Information shall be protected from disclosure by this Discovery Protective Order until the Court affirmatively rules that such information is not Protected Information, or a party fails to object to the public filing of the information as provided in paragraph 18. Alternatively, if petitioner agrees in writing to modify or rescind such designation, such information will no longer be considered Protected Information.
INADVERTENT PRODUCTION/DESIGNATION
20. The inadvertent failure by a party to designate material as Protected Information shall not be a waiver of such designation provided that the party who fails to make such designation informs the opposing party that such material is Protected Information within seven (7) business days from when the inadvertent failure to designate first became known to the designating party. For good cause shown, failure to act within the seven (7) business day period shall not preclude the designating party from later initiating procedures with the Court to impose such a designation.
21. A party receiving material that the opposing party inadvertently failed to designate as Protected Information shall not be in breach of this Discovery Protective Order for any use or disclosure of such material prior to being informed of the inadvertent failure to designate. Once the party has been informed of the inadvertent failure to designate, the party shall take reasonable steps to either ensure that all copies of any such material are returned promptly or ensure that all copies of any such material are marked as Protected Information and distributed only as permitted under this Discovery Protective Order.
UNAUTHORIZED DISCLOSURE
22. Except for the circumstances described in paragraph 21, in the event of disclosure of Protected Information by the receiving party to any unauthorized person, whether the result of inadvertent disclosure or other causes, the receiving party, shall immediately inform the other party of all known relevant information concerning the nature and circumstances of the disclosure. The receiving party shall also promptly take all reasonable measures to retrieve the Protected Information and to ensure that no further or greater unauthorized disclosure and/or use thereof is made.
RETURN/DESTRUCTION OF MATERIALS
23. In accordance with their regular business practice, trial counsel for each party is entitled to retain all: pleadings, motion papers, legal memoranda, correspondence, work product (including hard and electronic copies), deposition, hearing, and trial transcripts, and copies of documents and things produced by parties or non-parties. Further, for respondent, regular business practices mandate that he follow all applicable statutes, regulations, and rules regarding maintaining and destroying federal records. Within ninety (90) calendar days after the final termination of this action in accordance with I.R.C. § 7481, however, all other Protected Information, including extracts or summaries thereof, and all reproductions thereof, shall be either destroyed or returned to the disclosing party, with the following exception: copies of papers submitted to the Court (including exhibits). If the materials are destroyed, trial counsel shall, within one-hundred twenty (120) calendar days after final termination of this action in accordance with I.R.C. § 7481, certify to opposing trial counsel that destruction has taken place.
MISCELLANEOUS PROVISIONS
24. This Discovery Protective Order is without prejudice to the right of any party to seek further or additional protection of information for which the protection of this Discovery Protective Order is not deemed adequate. Nothing in this Discovery Protective Order shall be deemed to bar or preclude any party from seeking such additional protection.
25. Nothing herein shall prevent disclosure beyond the terms of this Discovery Protective Order if the party explicitly consents to such disclosure in writing or on a transcribed record; or if the Court, after notice to all affected parties, orders or permits such disclosure.
26. Neither this Discovery Protective Order nor any action taken in compliance with it shall (a) operate as waiver by any party that any particular information is, or is not, confidential; or (b) prejudice the right of any party to seek a determination from the Court whether particular information may be disclosed, or, if disclosed, should remain subject to the terms of this Discovery Protective Order.
27. Nothing in this Discovery Protective Order shall operate as an admission by any party that that any documents, communications, or any portion thereof, are privileged or otherwise non-discoverable, or are not admissible in evidence in this proceeding or any other proceeding.
28. If at any time any recipient of Protected Information receives a subpoena, other process, or order to produce Protected Information from any court, arbitral, administrative, or legislative body, such party or person shall immediately give written notice to the Court and trial counsel, except that such person need not notify trial counsel if such notification is prohibited by law or if the production is authorized by I.R.C. §§ 6103 or 6105. Respondent, however, is not obligated to notify the Court or trial counsel of requests for or disclosures of tax returns or tax return information, including Protected Information, made under I.R.C. §§ 6103 or 6105. If the opposing party does not move for a protective order within fourteen (14) calendar days of the date written notice is given, or before the return date of the subpoena if less than fourteen (14) calendar days from the date written notice is given, the party or person to whom the referenced subpoena is directed may produce the Protected Information on or after the date set for production in the subpoena.
29. All notices required by this Discovery Protective Order are to be made by email to counsel representing the noticed party. For a notice received pursuant to the requirements of this Order, the date by which the party receiving such notice shall respond or otherwise take action shall be computed from the date of receipt of the notice, and any notice required under the provisions of this Order and sent after 6:00 p.m. Pacific time shall be considered as received no earlier than 9:00 a.m. Pacific time the next business day. Any of the notice requirements herein may be waived in whole or in part, but only in a writing signed by an attorney for the party granting the waiver.
30. This Discovery Protective Order shall survive the termination of this proceeding and shall remain in full force and effect unless modified by an order of this Court or by the written stipulation of the parties filed with the Court and so ordered by the Court. This Court retains jurisdiction over the parties and other persons governed by this Discovery Protective Order for purposes of modifying this Discovery Protective Order or adjudicating any dispute about improper use or disclosure of Protected Information even after decisions in the cases become final.
31. Petitioner will provide respondent with proposed redactions to its expert reports within 60 days of lodging them with the Court. By at least six months before trial, the parties will use their best efforts to propose to the Court a draft protective order governing the trial record (including exhibits, expert witness reports and testimony, and fact witness testimony), post-trial filings, and trial transcripts.
Production Specifications for Electronically Stored Information [ESI] and Hard Copy Documents Amgen Inc. v. Commissioner Docket Nos. 16017-21 and 15631-22
Table of Contents
Modifications.............................................................................................................1
Generallnstructions...................................................................................................2
Delivery Formats........................................................................................................4
I. Imaged Productions........................................................................................4
1. Image Files.................................................................................................5
2. Image Load Files........................................................................................5
3. Metadata Load Files...................................................................................5
4. Extracted and OCR Text Files....................................................................6
5. Native Files.................................................................................................7
II. Native File Productions without Load Files (Prior Approval Required).......7
III. Adobe PDF File Productions (Prior Approval Required)..............................7
IV. Audio and Video Files....................................................................................8
V. Mobile Device and Social Media Data..........................................................8
Modifications
Any modifications or deviations from these Production Specifications may only occur upon agreement between the parties. Any proposed production must be discussed with and approved by the requesting party in the event that the production: (1) is in a format other than those identified below; (2) proposes use of predictive coding; or (3)includes email threading and/or.
The methodology must be disclosed in the cover letter. In addition, if the production will be de-duplicated, it is vital that the party undertaking the de-duplication: (1) preserve any unique metadata associated with the duplicate files, for example, custodian name and file location; (2) make that unique metadata part of the production; and (3) ensures that de-duplication does not result in any incomplete families or misplaces appendices and exhibits.
Any responsive data or documents that exist in locations or native forms not discussed in these Production Specifications remain responsive and arrangements
Production Specifications for Electronically Stored Information [ESI] and Hard Copy Documents Amgen Inc. v. Commissioner, Docket Nos. 16017-21 and 15631-22
should be made between the parties to facilitate their production.
General Instructions
This document describes the technical requirements for electronic document productions in the above-captioned cases. Excel files, PowerPoint files, and any other file types that cannot be imaged must be produced in their native format. In the event produced files require the use of proprietary software not commonly found in the workplace, the parties will explore other format options. The following General requirements apply for ALL document productions:
1. A cover letter, or discovery response, must be included with each production and should include the following information:
a. Case number and case name
b. Bates numbers for any documents that embed information about available file formats or similar information about production limitations or issues (e.g., where an image version of a document includes a statement that the native format could not be located, in the cover letter or discovery response, identify the Bates number of the document and describe the production issue).
2. Data can be produced on CD, DVD, thumb drive, etc., using the media requiring the least number of deliverables and labeled with the following:
a. Case number
b. Production date
c. Producing party
d. Bates range (if applicable)
3. All document family groups, i.e. email attachments, embedded files, etc., should be produced together and children files should be produced together and children files should follow parent files sequentially in the Bates numbering.
4. All load-ready collections should include only one metadata load file and only one image load file.
5. All load-ready text must be produced as separate document-level text files.
6. All load-ready collections should account for custodians in the custodian field.
7. All load-ready collections must provide the extracted contents of any container files to ensure all relevant files are produced as separate records.
a. Redacted Documents
8. Audio files should be separated from data files if both are included in the production.
9. All electronic productions submitted on media must be produced using WINZIP or PKZIP compressed archive.
10. Respondent is not able to submit electronic productions via Secure File Transfer. Petitioner may submit electronic productions via Secure File Transfer.
11. Any data or files that are encrypted or password protected should be decrypted and/or passwords removed prior to production. If a password cannot be removed, the password must be provided.
12. Passwords for electronic documents, files, compressed archives and encrypted media must be provided separately either via email or in a cover letter apart from the media.
13. All electronic productions should be produced free of computer viruses.
14. Before producing forensically collected images of computer hard drives, parties should reach out to discuss appropriate handling.
15. Before producing unique data sets (large sets of relational data, website reconstruction, chat room data, etc.), parties should discuss an appropriate production format.
16. All metadata associated with native documents, emails, and media files must be maintained. See Addendum A for a list of basic metadata fields requested for production. This list is not exhaustive and requested fields may differ depending on specifics of a particular matter. If producing fields outside of this list, provide a definition grid detailing the function of the field.
Delivery Formats
I. Imaged Productions
All scanned paper and electronic file collections shall be produced in a structured format including industry standard load files, Bates numbered image files, native files and searchable document level extracted text files.
1. Image Files
a. Black and white images must be produced as Group IV 300 DPI single-page tagged image file (.TIF) format images.
b. Charts, pictures and graphs must be produced in color .JPG or .JPEG format.
c. File and folder names must only be comprised of alphanumeric, dash (-) or underscore (_J characters. All other special characters are not permitted in file or folder names, including but not limited to [space]<>/:*?|\ and ".
d. File names cannot use a dot (.) as the last character.
e. The number of image files per folder should not exceed 15,000 files
f. All image files must have a unique file name, i.e. Bates number.
g. Images must be endorsed with sequential Bates numbers in the lower right comer of each image and shall not be smaller than font size 10.
h. Bates numbers are to be applied such that no text or information is obscured by the Bates number.
i. Any confidential stamps or court ordered messages should be stamped on the lower left comer but shall not impede the Bates number.
j. AUTOCAD/photograph files should be produced as a single page JPEG file.
k. All hidden text such as track changes, hidden columns, etc., shall be expanded and rendered in the image file. For files that cannot be expanded the native files shall be produced with the image files.
1. Documents that become unwieldy during processing (spreadsheets, Quickbooks and other databases, large diagrams etc.) and documents incapable of being converted to TIF image format (video, audio, applications, etc.) shall be produced in native format with a corresponding single-page place holder bearing the Bates number of the document being produce.
m. Microsoft Access Databases or other Structured Data shall be produced in native MS Access2010 or earlier format (.mdb) with a corresponding single-page "PLACEHOLDER" TIFF image, accompanied by a text load .DAT file containing Bates numbers, applicable metadata, and native and extracted text link. Please consult with the IRS legal and tech department prior to submitting other database format.
n. Digital Photographs shall be submitted as single-page JPEG files with a resolution equivalent to the original image as it was captured/created. All associated metadata and text fields shall be produced as well. All digital videos shall be submitted as native files with associated metadata and an accompanying single page "PLACEHOLDER" TIFF image.
2. Image Load Files
The image load file (.OPT) shall be a comma delimited, page-level load file consisting of seven fields per line, with each line representing one image in the following format:
Image ID, Volume Label, Image File Path, Document Break, Box Break, Page Count
Example:
SMPL_00001,SMPL_001,D:\IMAGES\001\SMPL_00001.TIF,Y,„3
SMPL_00002,SMPL_001,D:\IMAGES\001\SMPL_00002.TIF„„
SMPL_00003,SMPL_001,D:\IMAGES\001\SMPL_00003.TIF„„
SMPL_00004,SMPL_001,D:\IMAGES\001\SMPL_00004.TIF,Y,„2
SMPL_00005,SMPL_001,D:\IMAGES\001\SMPL_00005.TIF„„
3. Metadata Load Files
The metadata load-file (.DAT) contains all the fielded information that will be loaded into the database.
a. The first line of the .DAT file must be a header row identifying the field names.
b. The .DAT file must use the following Concordance® default delimiters:
Comma ¶ (ASCII character 020)
Quote ϸ (ASCII character 254)
Newline ® (ASCII character 174)
Multi-Value; (ASCII character 059)
Nested Value \ (ASCII character 092)
c. If the .DAT file is produced in Unicode, it must contain the byte order marker.
d. Date fields should be provided in MM/DDA/YYY format.
e. Dates and their corresponding time values must be bifurcated into two discrete fields.
f. Time zone must be indicated in a dedicated field.
g. Imaged emails and attachments must include attachment fields to preserve the parent/child relationship between an email and its attachments.
h. An OCRPATH field must be included to provide the file path and name of the text file on the produced storage media. Do not include extracted or OCR text in the .DAT field.
i. BEGATTACH and ENDATTACH fields must be two separate fields.
j. A complete list of metadata fields is available in Addendum A to this document.
4. Extracted and OCR Text Files
a. Text must be produced as separate document-level text files, not as fields within the .DAT file.
b. Text files must be named identical to their corresponding BEGDOC image files and the full path to the text file (OCRPATH) should be included in the .DAT file.
c. Text files must be in a separate folder from the images or native files and should not exceed 15,000 files per folder.
d. For redacted documents, provide the full text for the redacted version.
e. Text files may be in either ANSI or Unicode format, however, ALL text files must be in the same format within the same production.
f. Where extracted text is not available, such as hard copy scanned files or image only files, OCR text shall be provided as plain ASCII text files.
5. Native Files
a. Native file documents must be named identical to their corresponding BEGDOC image files and the full path to the native file (NATIVELINK) should be included in the .DAT file.
b. Native files must be in a separate folder from the images or text files and should not exceed 15,000 files per folder.
II. Native File Productions without Load Files (Prior Approval Required)
With prior approval (emphasis added), native files may be produced without load files. The native files must be produced as they are maintained in the normal course of business and organized by custodian-named file folders. When approved. Outlook (.PST) and Lotus Notes (.NSF) email files may be produced in native file format. A separate folder should be provided for each custodian.
III. Adobe PDF File Production (Prior Approval Required)
With prior approval (emphasis added), Adobe PDF files may be produced in native file format.
a. All PDFs must be unitized at the document level, i.e., each PDF must represent a discrete document.
b. PDF files should be produced in separate folders named by the custodian.
c. File and folder names must only be comprised of alphanumeric, dash (-) or underscore (_characters. All other special characters are not permitted in file or folder names, including but not limited to [space]<>/:*?|\ and ".
d. File names cannot use a dot (,) as the last character, e. The number of PDF files per folder should not exceed 1,000 files.
f. All PDF files must contain embedded text that includes all discemable words within the document, not selected text or image only. This requires all layers of the PDF to be flattened first.
g. If PDF files are bates endorsed, the PDF files must be named by the BEGDOC value.
IV. Audio and Video Files
Audio and videos must be produced in a format that is playable using Microsoft Windows MediaPlayer™. Also include MPEG-1 version.
V. Mobile Device and Social Media Data
Before producing social media or mobile device data (including but not limited to text messages), the parties should discuss the appropriate production format.