FILED: NEW YORK COUNTY CLERK 06/24/2016 02:19 PM INDEX NO. 653478/2015 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/24/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------)( JOHN STA VROULAKIS, individually and derivatively on behalf of Bareburger, Inc., Index No.: 653478/2015 -against- Plaintiff, STIPULATION GOVERNING DISCOVERY OF ELECTRONICALLY STORED INFORMATION EURIPIDES PELAKANOS, GEORGE RODAS, GEORGE DELLIS, EFTYCHIOS PELEKANOS, JOHN SIMEONIDIS, BAREBURGER GROUP, LLC, RE-GRUB, LLC, JOHN DOE INDIVIDUALS 1-5, and JOHN DOE ENTITIES 1-5 and Defendants. BAREBURGER INC., Nominal Defendant. --------------------------------------------------------------)( IT IS HEREBY STIPULATED AND AGREED by and between the undersigned counsel to Plaintiff, John Stavroulakis ("Stavroulakis"), Defendants, Euripides Pelakanos ("Euripides"), George Rodas ("Rodas"), George Dellis ("Dellis"), Eftychios Pelekanos ("Eftychios"), John Simeonidis ("Simeonidis"), Bareburger Group, LLC ("Bareburger"), Re-Grub, LLC ("Re-Grub") (together "Defendants"), and Nominal Defendant, Bareburger, Inc. (each party to this stipulation, a "Party," and all together, the "Parties"), the following terms shall constitute the Stipulation Governing Discovery of Electronically Stored Information ("ESI") in this action (this document is hereinafter the "Stipulation"): A. INTRODUCTION 1. The purpose of this Stipulation is to facilitate the just and speedy conduct of discovery involving ESI in this action without incurring unreasonable costs. 2. This Stipulation governs the scope and methods for the production by the Parties of ESI during the pendency of this litigation, pursuant to the rules of the Commercial Division of the New York Supreme Court, New York County (22 NYCRR 202.70, Rule 8) and directives from the Court. The Parties will take all reasonable steps to comply with the procedures for the production of ESI set {00304762.DOCX; 1) 1 1 of 10
forth herein. The Parties further agree that this Stipulation does not apply to documents in a form other than text-searchable ESL (Hard copy documents and ESI that is not text-searchable are not within the scope of this Stipulation.) 3. The Parties understand and acknowledge their obligations to review each document located pursuant to the search procedures established herein in order to identify and produce relevant, non-privileged materials. B. DEFINITIONS. In this Stipulation, the following terms have the following meamngs: 1. "Native File(s)" means ESI in the electronic format of the application in which such ESI is normally created, viewed and/or modified. Native Files are ESL 2. "Meta-Data" means: (i) information embedded in a Native File that is not ordinarily viewable or printable from the application that generated, edited, or modified such Native File; and (ii) information generated automatically by the operation of a computer or other information technology system when a Native File is created, modified, transmitted, deleted or otherwise manipulated by a user of such system. Meta-Data is ESL 3. "Static Image(s)" means a representation of ESI produced by converting a Native File into a standard image format capable of being viewed and printed on standard computer systems, e.g., a Portable Document Format (PDF). C. TYPES OF RESPONSIVE ESI. The Parties anticipate that responsive types of ESI may include emails and attachments, word processing documents, spreadsheets, graphics and presentation documents, images and text files, among potentially others. D. ESI PRESERVATION. Each Party states that it has implemented a data preservation plan, the purpose of which is to preserve ESI reasonably expected to relate to this litigation. Absent a showing of good cause the following categories of ESI need not be preserved: DJ Unallocated, slack space, deleted data, file fragments or other data accessible by use of computer forensics; D = Random access memory (RAM), temporary files, or other ephemeral data that is difficult to preserve; D J DJ Data relating to online access, such as temporary internet files, browser history, cache, cookies, etc.; Data in metadata fields that are frequently updated automatically as part of the (00304762.DOCX; 1} 2 2 of 10
usual operation of a software application, operating system or network (e.g., date last opened or printed); D = Backup or archived data that is substantially duplicative of data that is more reasonably accessible elsewhere; DJ Instant messages that are not regularly stored or saved on a server dedicated to instant messaging, so long as such server is searched for relevant ESI; D = Electronic mail, pin-to-pin or text messages sent to or from mobile devices, cell phones or blackberry devices, provided that copies of such information is routinely saved or stored elsewhere, so long as such storage location is searched for relevant ESI; D = Other data stored on mobile devices, cell phones or blackberry devices, such as calendar, contact or notes, provided that copies of such information is routinely saved or stored elsewhere, so long as such storage location is searched for relevant ESI; D = Logs of calls made from mobile devices, cell phones or blackberries; D = Network, server or system logs; D = Data from systems that are no longer in use that is unreadable or unintelligible on current systems. E. LOCATION OF RELEVANT ESI. The Parties agree to search, using the agreedupon search protocols (including search terms, custodians and dates), any reasonably accessible data sources maintained by the Parties (such as on hard-drives and servers) that may reasonably contain ESI responsive to the document demands served in this action. Such sources may include without limitation desktop or laptop computers, workstations, servers (including remote or third-party locations), back-up media, portable media, PDA's, mobile telephones, flash drives, discs, drives and other media, including home computers (if used for work purposes). F. SOURCES LIKELY TO CONTAIN SIGNIFICANT AMOUNTS OF RELEVANT ESI. While the purpose of this Stipulation is to facilitate the location of discoverable material located within sources that likely contain significant amounts of irrelevant ESI, certain sources of ESI, e.g., electronic files, folders, disks, drives, etc., may exist that are likely to contain substantial amounts of relevant ESL For example, such sources may exist that are conspicuously labeled so as to indicate, or that otherwise indicate, that they were created to store materials directly concerning the subject(s) of this action. By way of illustration only, a Party might maintain a device or folder labeled "Bareburger Inc. to LLC Conversion." This device or folder would be an obvious source of discoverable ESI, and would be likely to contain discoverable ESL With respect to all such sources, each Party to this Stipulation is obligated to review all of the materials located therein (not just materials responsive to search terms) and, (00304762.DOCX; 1) 3 3 of 10
upon identifying relevant, non-privileged materials, produce them, in accordance with Requests for Production served by the parties. No Partv may rely solely on use of search terms to identify discoverable information from within such sources of obviously relevant ESL Also, ESI within these sources must be reviewed regardless of its custodian or lack of custodian. G. CUSTODIANS. As currently understood, the custodians of discoverable ESI are: 1. For Plaintiff: John Stavroulakis; Google Gmail. 2. For Defendant: All named Defendants; Jimmy Voiklis; GoDaddy; Google Gmail. The naming of these custodians does not prejudice the ability of the Parties to add additional custodians, including back-up servers or drives, with leave of the Court. H. EMAIL ACCOUNTS TO BE SEARCHED. The following accounts within the control of the following Parties will be searched for discoverable emails: 1. Plaintiff: jstavrou15@gmail.com 2. Defendants: euripides7@gmail.com; johnsimsjr@rocketmail.com; grodas@rodelelectric.com; gdellis@rodelelectric.com; ep@bareburger.com; gr@bareburger.com; gd@baregurger.com; jp@bareburger.com; js@bareburger.com; jvoiklis@bareburger.com; ys@bareburger.com I. SEARCH TERMS. The parties agree that these are the search terms that shall be used in the initial search for ESL Upon review of ESI, the parties may create additional ESI search terms to be used and nothing herein shall be construed to limit the parties' ability to request the use of additional search terms. 1. Stavroulakis: search terms to be applied to Stavroulakis' email account and to ESI within Stavroulakis' control: With respect to the time period from October 13, 2009 through December 31, 2014: "bareburger" "BB" "burger" "restaurant" "group" "inc" "dio" "laguardia" {00304762.DOCX; 1} 4 4 of 10
"3321" "Astoria" "Pelekanos" /s ("Euripides" OR "EP" OR "Pithi" OR "Pidi") "Pelekanos" /s ("Eftychios" OR "Jimmy" OR "Jim") "Simeonidis" /s "John" "Dellis" /s ("George" OR "Georgios") "Rodas" /s ("George" OR "Georgios") "contract" "sale" "irs" "internal revenue service" "agreement" "capital" "schedule" AND ("k-1" OR "kl") "negotiat* "greece" "flying" "vacation" "work*" "member" "share" "shares" "shareholder" "owner" "ownership" "million*" "percentage" "release" 2. Defendants: search terms to be applied to Defendants' and their employees' email accounts and to ESI within Defendants' control: a. With respect to the time period from January 1, 2009 through May 1, 2010: "Stav!" or "Yanni" or "Yiannis" "Stavroulakis" "John S" or "JS" "ys@bareburger.com" "jstavrou15@gmail.com" "trademark" or "Bareburger Organic" "shares" or "stock" /s "company" {00304762.DOCX; 1} 5 5 of 10
"shares" or "stock" /s "Bareburger" "shares" or "stock" /s "corp!" "shares" or "stock" /s "laguardia" "shares" or "stock" /s "Dio" "shares" or "stock" /s "3321" "owner" or "ownership" "your interest" or "our interest" "interest" /s ("BB" or "Bareburger" or "company") "k-1" or"kl" "financial statements" "tax return" b. With respect to the time period from May 2, 2010 through December 31, 2012: "Stav!" or "Yanni" or "Yiannis" "Stavroulakis" "John S" or "JS" "ys@bareburger.com" "Jstavroul 5@gmail.com" "trademark" or "Bareburger Organic" "remove John" or "removing John" or "cut him out" or "cut John out" "tell John" "John" /s "the Ile" "John" /s "of Bareburger" "inc!" or "corporation" /s "llc" "shares" or "stock" /s "company" "shares" or "stock" /s "Bareburger" "shares" or "stock" /s "corp!" "shares" or "stock" /s "llc" "shares" or "stock" /s "group" "member!" /s "Ile" "member!" /s "group" "member!" /s "Bareburger" "assets" /s "Bareburger" "capital" /s "Bareburger" "investor" or "investors" {00304762.DOCX; 1) 6 6 of 10
"owner" or "ownership" "your interest" or "our interest" "interest" Is ("BB" or "Bareburger" or "LLC" or "company") "dilute" or "dilution" "fraud" "fiduciary duty" "financial statements" "kl" or "k-1" "tax return" "new investors" "earnings" "profit" "our revenue" "revenue!" Is ("BB" or "Bareburger" or "LLC" or "company") "financial statements" "financial projections" "number of franchises" "new franchises" "new territory" "fraud" "fiduciary duty" "tax return" "corporate meeting" "corporate special meeting" "Apostolatos" Is ("franchise" or "restaurant" or "LLC" or "convert" or "tax benefit" or "invest" or "dilute" or "member!" or "Dio" or "Bareburger" or "BB" or "stock" or "shares") "trademark" "dilute" or dilution" c. With respect to the time period from January 1, 2013 through March 31, 2016: "Stav!" or "Yanni" or "Yiannis" "Stavroulakis" "John S" or "JS" "ys@bareburger.com" "J stavrou l 5@gmail.com" {00304762.DOCX; 1) 7 7 of 10
"trademark" or "Bareburger Organic" "John" Is "the llc" "John" Is "Bareburger" "removed John" or "cut him out" or "cut John out" "kl" or "k-1" Is "John" "tell John" "shares" or "stock" Is "Dio" "Bareburger Group" Is "Dio" "LLC" Is "Dio" "shares" or "stock" Is "company" "shares" or "stock" Is "Bareburger" "shares" or "stock" Is "corp!" "shares" or "stock" Is "llc" "shares" or "stock" Is "group" "member!" Is "llc" "member!" Is "group" "member!" Is "Bareburger" "new investors" "investors" "earnings" "profit" "our revenue" "revenue!" Is ("BB" or "Bare burger" or "LLC" or "company") "financial statements" "financial projections" "number of franchises" "new franchises" "new territory" "fraud" "fiduciary duty" "tax return" "corporate meeting" "corporate special meeting" "Apostolatos" Is ("franchise" or "restaurant" or "LLC" or "convert" or "tax benefit" or "invest" or "dilute" or "member!" or "Dio" or "Bareburger" or "BB" or "stock" or "shares") {00304762.DOCX; 1} 8 8 of 10
"trademark" "dilute" or "dilution" J. DISCOVERY OF ADDITIONAL SOURCES OF ESI AND/OR SEARCH TERMS. Upon production of materials in accordance with this Stipulation and/or any Request for Production served by any party to this action, the materials produced may indicate the existence of additional sources of ESI, including custodians, email accounts and/or search terms likely (when applied) to yield discoverable evidence. In such event, the Parties will work in good faith to accomplish any necessary additional search( es) in a timely fashion, in accordance with the terms of this Stipulation. K. DISCLOSURE OF ADDITIONAL SEARCH TERMS. In the event any Party is or becomes aware of any particular search term(s) that is/are not identified in this Stipulation but would appear reasonably likely (when applied to any given email account or other source of ESI) to yield discoverable materials, that Party's counsel will promptly disclose such term(s) to opposing counsel. The Parties will then establish the appropriate protocol with respect to any such term(s), as necessary. L. PRODUCTION OF ESI. The Parties acknowledge that they are required to produce responsive documents "as they are kept in the regular course of business," CPLR 3122( c ), and that "it is not the function of [the CPLR] to require a party to create new documents." Slavenburg Corp. v. North Shore Equities, Inc., 429 N.Y.S.2d 8, 9 (1st Dept. 1980). Unless otherwise agreed to by the receiving party or ordered by the Court, responsive ESI will be produced as Native Files, with all Meta-Data included. To the extent any party to this action agrees to accept any Static Image(s) instead of any Native File(s), such Static Image(s) must be provided in text-searchable PDF. Each page of a document produced as a Static Image (either because it is maintained as such in the regular course of business or because a party has agreed to accept any Static Image(s) instead of any Native File(s)) will have a legible, unique page identifier "Bates Number" electronically embedded onto the image at a location that does not obliterate, conceal, or interfere with any information from the source document. Unless otherwise agreed to by the receiving party, responsive ESI will be produced using Dropbox folders set up for this purpose. M. PRODUCTION TIMELINE. The Parties agree to make initial productions of approximately half the expected responsive ESI on or before July 15, 2016. The remainder responsive ESI will be produced on or before August 5, 2016 as ordered by the Court in its June 9, 2016 Compliance Conference Order. N. ANTICIPATED COSTS OF DATA RECOVERY AND PROPOSED ALLOCATION OF SUCH COST. The Parties acknowledge that U.S. Bank National Assoc, v. Greenpoint Mrtg. Fdg., 94 A.D.3d 58 (1st Dept. 2012) governs. 0. REDACTION OF PRIVILEGED INFORMATION. To the extent any responsive ESI contains, in part, attorney-client privileged communications, the Party required to produce the non-privileged portion of any such document may do so in the form of {00304762.DDCX; 1} 9 9 of 10
Static Image(s) in order to permit the redaction of attorney-client privileged communications. The remainder of each such document (the non-attorney-client privileged portion) must be provided in text-searchable PDF. P. INADVERTENT DISCLOSURE. Any inadvertent disclosure or production of Privileged ESI will not constitute a waiver of any such privilege by the disclosing Party. In the event that the receiving party discovers that it has received Privileged ESI, it will immediately notify the producing party. Upon request of the producing party, the receiving party will promptly destroy or return to the producing party any Privileged Documents so identified and represent that such destruction has been completed ( or explain the extent to which such destruction was not completed if not feasible). The producing party shall provide a privilege log for the inadvertently produced documents within 10 days of being notified that the inadvertently disclosed documents have been destroyed. The receiving party will not introduce the Privileged ESI as evidence in this proceeding or any other case, proceeding or action, and will not otherwise use or disseminate the Privileged ESI for any reason, including to argue that there has been a waiver of any privilege as a result of the manner in which the Privileged ESI was produced. Q. EXPERTS. At this time, the Parties do not anticipate the need for any expert to provide data recovery or restoration services. In the event any such need arises, the Parties will designate experts pursuant to their obligations under the CPLR and the Commercial Division Rules. Dated: New York, New York June 24, 2016 STERN & DEROSS!, LLP SADIS & GOLDBERG, LLP By:-/s Douglas Hirsch--- Douglas R. Hirsch 1565 Franklin Avenue, Suite 301 Mineola, New York 11501 (516) 280-6900 Attorneys for Defendants 551 Fifth Avenue, 21st Floor New York, New York 10176 (212) 947-3793 Attorneys for Plaintiff {00304762.DOCX; 1} 10 10 of 10