Predictive Coding Cases. 1. Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS (SDNY, Feb. 24, 2012)

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1 Predictive Coding Cases 1. Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS (SDNY, Feb. 24, 2012) 2. Robocast v. Apple, 2012 U.S. Dist. LEXIS (D. Del. Feb. 24, 2012) 3. In Re: Actos (Pioglitazone) Products Liability Litigation, 2012 US Dist. LEXIS (WD La. Jul. 27, 2012) 4. Kleen Products v. Packaging Corp. of America, 2012 U.S. Dist. LEXI (ND Ill. Sep. 28, 2012) 5. EORHB, Inc. v. HOA Holdings, C.A. No VCL (Del. Ch. Oct. 15, 2012). 6. U.S. Dept. of Labor v. Subcontracting Concepts, 2013 U.S. Dist. LEXIS (NDNY, Mar. 11, 2013) 7. Chevron Corporation v. Donzinger, 2013 U.S. Dist. LEXIS (SDNY, Mar. 15, 2013) 8. In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation, C.A. No. 3:12-MD-2391 (MDL 2391) (ND Ind. Apr. 18, 2013) These cases are being provided for educational purposes only. If you have any questions about the cases, predictive coding, or e-discovery please contact John J. Jablonski, Esq. at or For more information about Goldberg Segalla or the firm s e-discovery capabilities, please visit our E-Discovery Practice Group page.

2 Page 1 MONIQUE DA SILVA MOORE, et al., Plaintiffs, -against- PUBLICIS GROUPE & MSL GROUP, Defendants. 11 Civ (ALC) (AJP) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 287 F.R.D. 182; 2012 U.S. Dist. LEXIS 23350; 18 Wage & Hour Cas. 2d (BNA) 1479 February 24, 2012, Decided February 24, 2012, Filed SUBSEQUENT HISTORY: Adopted by, Objection overruled by Moore v. Publicis Groupe SA, 2012 U.S. Dist. LEXIS (S.D.N.Y., Apr. 25, 2012) PRIOR HISTORY: Moore v. Publicis Groupe SA, 2012 U.S. Dist. LEXIS (S.D.N.Y., Feb. 14, 2012) DISPOSITION: Computer-assisted review was judicially-approved for use in appropriate cases. COUNSEL: [**1] For Monique Da Silva Moore, on behalf of herself and all others similarly situated, Plaintiff: Jeremy Heisler, LEAD ATTORNEY, Sanford, Wittels & Heisler, LLP, New York, NY; David W. Sanford, PRO HAC VICE, Sanford, Wittels & Heisler, LLP (DC), Washington, DC; Deepika Bains, Steven Lance Wittels, Sanford Wittels & Heisler, LLP, New York, NY; Janette Lynn Wipper, PRO HAC VICE, SANFORD WITTELS & HEISLER, LLP (San Francisco, San Francisco, CA; Siham Nurhussein, Clifford Chance US, LLP (NYC), New York, NY. For Maryellen O'Donohue, on behalf of herself and all others similarly situated, Laurie Mayers, on behalf of herself and all others similarly situated, Heather Pierce on behalf of herself and all others similarly situated, Katherine Wilkinson, on behalf of herself and all others similarly situated, Plaintiffs: Jeremy Heisler, LEAD ATTORNEY, Sanford, Wittels & Heisler, LLP, New York, NY; David W. Sanford, PRO HAC VICE, Sanford, Wittels & Heisler, LLP (DC), Washington, DC; Deepika Bains, Steven Lance Wittels, Sanford Wittels & Heisler, LLP, New York, NY; Janette Lynn Wipper, PRO HAC VICE, SANFORD WITTELS & HEISLER, LLP (San Francisco, San Francisco, CA. For Publicis Groupe, Defendant: Melissa [**2] Ruth Kelly, LEAD ATTORNEY, Morgan, Lewis & Bockius LLP (New York), New York, NY; Paul Clayton Evans, PRO HAC VICE, Morgan Lewis & Bockius, LLP (PA), Philadelphia, PA; Paul Clayton Evans, Morgan, Lewis & Bockius LLP, Philadelphia, PA. For MSL Group, Defendant: Noel P. Tripp, Paul J. Siegel, LEAD ATTORNEYS, Jeffrey W. Brecher, Jackson Lewis LLP(Melville N.Y.), Melville, NY; Brett Michael Anders, Jackson Lewis LLP(NJ), Morristown, NJ; Victoria Woodin Chavey, Jackson Lewis LLP, Hartford, CT. JUDGES: Andrew J. Peck, United States Magistrate Judge. OPINION BY: Andrew J. Peck OPINION

3 287 F.R.D. 182, *182; 2012 U.S. Dist. LEXIS 23350, **2; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 2 [*182] OPINION AND ORDER ANDREW J. PECK, United States Magistrate Judge: In my article Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?, I wrote: To my knowledge, no reported case (federal or state) has ruled on the use of computer-assisted coding. While anecdotally it appears that some lawyers are using predictive coding technology, it also appears that many lawyers (and their [*183] clients) are waiting for a judicial decision approving of computer-assisted review. Perhaps they are looking for an opinion concluding that: "It is the opinion of this court that the use of predictive coding is a proper [**3] and acceptable means of conducting searches under the Federal Rules of Civil Procedure, and furthermore that the software provided for this purpose by [insert name of your favorite vendor] is the software of choice in this court." If so, it will be a long wait..... Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help "secure the just, speedy, and inexpensive" (Fed. R. Civ. P. 1) determination of cases in our e-discovery world. Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, at 25, 29. This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases. 1 1 To correct the many blogs about this case, initiated by a press release from plaintiffs' vendor -- [**4] the Court did not order the parties to use predictive coding. The parties had agreed to defendants' use of it, but had disputes over the scope and implementation, which the Court ruled on, thus accepting the use of computer-assisted review in this lawsuit. CASE BACKGROUND In this action, five female named plaintiffs are suing defendant Publicis Groupe, "one of the world's 'big four' advertising conglomerates," and its United States public relations subsidiary, defendant MSL Group. (See Dkt. No. 4: Am. Compl. 1, 5, ) Plaintiffs allege that defendants have a "glass ceiling" that limits women to entry level positions, and that there is "systemic, company-wide gender discrimination against female PR employees like Plaintiffs." (Am. Compl. 4-6, 8.) Plaintiffs allege that the gender discrimination includes (a) paying Plaintiffs and other female PR employees less than similarly-situated male employees; (b) failing to promote or advance Plaintiffs and other female PR employees at the same rate as similarly-situated male employees; and (c) carrying out discriminatory terminations, demotions and/or job reassignments of female PR employees when the company reorganized its PR practice [**5] beginning in (Am. Compl. 8.) Plaintiffs assert claims for gender discrimination under Title VII (and under similar New York State and New York City laws) (Am. Compl ), pregnancy discrimination under Title VII and related violations of the Family and Medical Leave Act (Am. Compl ), as well as violations of the Equal Pay Act and Fair Labor Standards Act (and the similar New York Labor Law) (Am. Compl ). The complaint seeks to bring the Equal Pay Act/FLSA claims as a "collective action" (i.e., opt-in) on behalf of all "current, former, and future female PR employees" employed by defendants in the United States "at any time during the applicable liability period" (Am. Compl , ), and as a class action on the gender and pregnancy discrimination claims and on the New York Labor Law pay claim (Am. Compl ). Plaintiffs, however, have not yet moved for

4 287 F.R.D. 182, *183; 2012 U.S. Dist. LEXIS 23350, **5; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 3 collective action or class certification at this time. Defendant MSL denies the allegations in the complaint and has asserted various affirmative defenses. (See generally Dkt. No. 19: MSL Answer.) Defendant Publicis is challenging the Court's jurisdiction over it, and the parties [**6] have until March 12, 2012 to conduct jurisdictional discovery. (See Dkt. No. 44: 10/12/11 Order.) COMPUTER-ASSISTED REVIEW EXPLAINED My Search, Forward article explained my understanding of computer-assisted review, as follows: By computer-assisted coding, I mean tools (different vendors use different names) that use sophisticated algorithms to enable the computer to determine relevance, [*184] based on interaction with (i.e., training by) a human reviewer. Unlike manual review, where the review is done by the most junior staff, computer-assisted coding involves a senior partner (or [small] team) who review and code a "seed set" of documents. The computer identifies properties of those documents that it uses to code other documents. As the senior reviewer continues to code more sample documents, the computer predicts the reviewer's coding. (Or, the computer codes some documents and asks the senior reviewer for feedback.) When the system's predictions and the reviewer's coding sufficiently coincide, the system has learned enough to make confident predictions for the remaining documents. Typically, the senior lawyer (or team) needs to review only a few thousand documents to train the computer. Some [**7] systems produce a simple yes/no as to relevance, while others give a relevance score (say, on a 0 to 100 basis) that counsel can use to prioritize review. For example, a score above 50 may produce 97% of the relevant documents, but constitutes only 20% of the entire document set. Counsel may decide, after sampling and quality control tests, that documents with a score of below 15 are so highly likely to be irrelevant that no further human review is necessary. Counsel can also decide the cost-benefit of manual review of the documents with scores of Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, at 25, From a different perspective, every person who uses uses predictive coding, even if they do not realize it. The "spam filter" is an example of predictive coding. My article further explained my belief that Daubert would not apply to the results of using predictive coding, but that in any challenge to its use, this Judge would be interested in both the process used and the results: [I]f the use of predictive coding is challenged in a case before me, I will want to know what was done and why that produced defensible results. I may be less interested in the science [**8] behind the "black box" of the vendor's software than in whether it produced responsive documents with reasonably high recall and high precision. That may mean allowing the requesting party to see the documents that were used to train the computer-assisted coding system. (Counsel would not be required to explain why they coded documents as responsive or non-responsive, just what the coding was.) Proof of a valid "process," including quality control testing, also will be important..... Of course, the best approach to the use of computer-assisted coding is to follow the Sedona Cooperation Proclamation model. Advise opposing

5 287 F.R.D. 182, *184; 2012 U.S. Dist. LEXIS 23350, **8; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 4 Id. counsel that you plan to use computer-assisted coding and seek agreement; if you cannot, consider whether to abandon predictive coding for that case or go to the court for advance approval. Is this the appropriate case for it? You all talk about it some more. And if you can't figure it out, you are going to get back in front of me. Key words, certainly unless they are well done and tested, are not overly useful. Key words along with predictive coding and other methodology, can be very instructive. THE ESI DISPUTES IN THIS CASE AND THEIR RESOLUTION After several discovery conferences and rulings by Judge Sullivan (the then-assigned District Judge), he referred the case to me for general pretrial supervision. (Dkt. No. 48: 11/28/11 Referral Order.) At my first discovery conference with the parties, both parties' counsel mentioned that they had been discussing an "electronic [**9] discovery protocol," and MSL's counsel stated that an open issue was "plaintiff's reluctance to utilize predictive coding to try to cull down the" approximately three million electronic documents from the agreed-upon custodians. (Dkt. No. 51: 12/2/11 Conf. Tr. at 7-8.) 3 Plaintiffs' counsel clarified that MSL had "over simplified [plaintiffs'] stance on predictive coding," i.e., that it was not opposed [*185] but had "multiple concerns... on the way in which [MSL] plan to employ predictive coding" and plaintiffs wanted "clarification." (12/2/11 Conf. Tr. at 21.) 3 When defense counsel mentioned the disagreement about predictive coding, I stated that: "You must have thought you died and went to Heaven when this was referred to me," to which MSL's counsel responded: "Yes, your Honor. Well, I'm just thankful that, you know, we have a person familiar with the predictive coding concept." (12/2/11 Conf. Tr. at 8-9.) The Court did not rule but offered the parties the following advice: Now, if you want any more advice, for better or for worse on the ESI plan and whether predictive coding should be used,... I will say right now, what should not be a surprise, I wrote an article in the October Law [**10] Technology News called Search Forward, which says predictive coding should be used in the appropriate case. I'm also saying to the defendants who may, from the comment before, have read my article. If you do predictive coding, you are going to have to give your seed set, including the seed documents marked as nonresponsive to the plaintiff's counsel so they can say, well, of course you are not getting any [relevant] documents, you're not appropriately training the computer. (12/2/11 Conf. Tr. at ) The December 2, 2011 conference adjourned with the parties agreeing to further discuss the ESI protocol. (12/2/11 Conf. Tr. at ) The ESI issue was next discussed at a conference on January 4, (Dkt. No. 71: 1/4/12 Conf. Tr.) Plaintiffs' ESI consultant conceded that plaintiffs "have not taken issue with the use of predictive coding or, frankly, with the confidence levels [**11] that they [MSL] have proposed...." (1/4/12 Conf. Tr. at 51.) Rather, plaintiffs took issue with MSL's proposal that after the computer was fully trained and the results generated, MSL wanted to only review and produce the top 40,000 documents, which it estimated would cost $200,000 (at $5 per document). (1/4/12 Conf. Tr. at 47-48, 51.) The Court rejected MSL's 40,000 documents proposal as a "pig in a poke." (1/4/12 Conf. Tr. at ) The Court explained that "where [the] line will be drawn [as to review and production] is going to depend on what the statistics show for the results," since "[p]roportionality requires consideration of results as well as costs. And if stopping at 40,000 is going to leave a tremendous number of likely highly responsive documents unproduced, [MSL's proposed cutoff] doesn't work." (1/4/12 Conf. Tr. at 51-52; see also id. at 57-58; Dkt. No. 88: 2/8/12 Conf. Tr. at 84.) The parties agreed to further discuss and finalize the ESI protocol by late January 2012, with a conference held on February 8, (1/4/12 Conf. Tr. at 60-66; see 2/8/12 Conf. Tr.)

6 287 F.R.D. 182, *185; 2012 U.S. Dist. LEXIS 23350, **11; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 5 Custodians The first issue regarding the ESI protocol involved the selection of which custodians' s [**12] would be searched. MSL agreed to thirty custodians for a "first phase." (Dkt. No. 88: 2/8/12 Conf. Tr. at ) MSL's custodian list included the president and other members of MSL's "executive team," most of its HR staff and a number of managing directors. (2/8/12 Conf. Tr. at 24.) Plaintiffs sought to include as additional custodians seven male "comparators," explaining that the comparators' s were needed in order to find information about their job duties and how their duties compared to plaintiffs' job duties. (2/8/12 Conf. Tr. at ) Plaintiffs gave an example of the men being given greater "client contact" or having better job assignments. (2/8/12 Conf. Tr. at ) The Court held that the search of the comparators' s would be so different from that of the other custodians that the comparators should not be included in the s subjected to predictive coding review. (2/8/12 Conf. Tr. at 28, 30.) As a fallback position, plaintiffs proposed to "treat the comparators as a separate search," but the Court found that plaintiffs could not describe in any meaningful way how they would search the comparators' s, even as a separate search. (2/8/12 Conf. Tr. at ) [**13] Since the plaintiffs likely could develop the information needed through depositions of the comparators, the Court ruled that the comparators' s would not be included in phase one. (2/8/12 Conf. Tr. at 31.) [*186] Plaintiffs also sought to include MSL's CEO, Olivier Fleuriot, located in France and whose s were mostly written in French. (2/8/12 Conf. Tr. at ) The Court concluded that because his s with the New York based executive staff would be gathered from those custodians, and Fleuriot's s stored in France likely would be covered by the French privacy and blocking laws, 4 Fleuriot should not be included as a first-phase custodian. (2/8/12 Conf. Tr. at 35.) 4 See, e.g., Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the S.D. of Iowa, 482 U.S. 522, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987); see also The Sedona Conference, International Principles on Discovery, Disclosure & Data Protection (2011), available at rm?did=intlprinciples2011.pdf. Plaintiffs sought to include certain managing directors from MSL offices at which no named plaintiff worked. (2/8/12 Conf. Tr. at ) The Court ruled that since plaintiffs had not yet moved [**14] for collective action status or class certification, until the motions were made and granted, discovery would be limited to offices (and managing directors) where the named plaintiffs had worked. (2/8/12 Conf. Tr. at ) The final issue raised by plaintiffs related to the phasing of custodians and the discovery cutoff dates. MSL proposed finishing phase-one discovery completely before considering what to do about a second phase. (See 2/8/12 Conf. Tr. at 36.) Plaintiffs expressed concern that there would not be time for two separate phases, essentially seeking to move the phase-two custodians back into phase one. (2/8/12 Conf. Tr. at ) The Court found MSL's separate phase approach to be more sensible and noted that if necessary, the Court would extend the discovery cutoff to allow the parties to pursue discovery in phases. (2/8/12 Conf. Tr. at 36, 50.) Sources of ESI The parties agreed on certain ESI sources, including the "EMC SourceOne [ ] Archive," the "PeopleSoft" human resources information management system and certain other sources including certain HR "shared" folders. (See Dkt. No. 88: 2/8/12 Conf. Tr. at 44-45, ) As to other "shared" folders, neither side [**15] was able to explain whether the folders merely contained forms and templates or collaborative working documents; the Court therefore left those shared folders for phase two unless the parties promptly provided information about likely contents. (2/8/12 Conf. Tr. at ) The Court noted that because the named plaintiffs worked for MSL, plaintiffs should have some idea what additional ESI sources, if any, likely had relevant information; since the Court needed to consider proportionality pursuant to Rule 26(b)(2)(C), plaintiffs needed to provide more information to the Court than they were doing if they wanted to add additional data sources into phase one. (2/8/12 Conf. Tr. at ) The Court also noted that where plaintiffs were getting factual information from one source (e.g., pay information, promotions, etc.), "there has to be a limit to redundancy" to comply with Rule 26(b)(2)(C). (2/8/12 Conf. Tr. at 54.) 5 5 The Court also suggested that the best way to

7 287 F.R.D. 182, *186; 2012 U.S. Dist. LEXIS 23350, **15; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 6 resolve issues about what information might be found in a certain source is for MSL to show plaintiffs a sample printout from that source. (2/8/12 Conf. Tr. at ) The Predictive Coding Protocol The parties agreed to use a [**16] 95% confidence level (plus or minus two percent) to create a random sample of the entire collection; that sample of 2,399 documents will be reviewed to determine relevant (and not relevant) documents for a "seed set" to use to train the predictive coding software. (Dkt. No. 88: 2/8/12 Conf. Tr. at ) An area of disagreement was that MSL reviewed the 2,399 documents before the parties agreed to add two additional concept groups (i.e., issue tags). (2/8/12 Conf. Tr. at 62.) MSL suggested that since it had agreed to provide all 2,399 documents (and MSL's coding of them) to plaintiffs for their review, plaintiffs can code them for the new issue tags, and MSL will incorporate that coding into the system. (2/8/12 Conf. Tr. at 64.) Plaintiffs' vendor agreed to that approach. (2/8/12 Conf. Tr. at 64.) To further create the seed set to train the predictive coding software, MSL coded certain [*187] documents through "judgmental sampling." (2/8/12 Conf. Tr. at 64.) The remainder of the seed set was created by MSL reviewing "keyword" searches with Boolean connectors (such as "training and Da Silva Moore," or "promotion and Da Silva Moore") and coding the top fifty hits from those searches. [**17] (2/8/12 Conf. Tr. at 64-66, 72.) MSL agreed to provide all those documents (except privileged ones) to plaintiffs for plaintiffs to review MSL's relevance coding. (2/8/12 Conf. Tr. at 66.) In addition, plaintiffs provided MSL with certain other keywords, and MSL used the same process with plaintiffs' keywords as with the MSL keywords, reviewing and coding an additional 4,000 documents. (2/8/12 Conf. Tr. at 68-69, 71.) All of this review to create the seed set was done by senior attorneys (not paralegals, staff attorneys or junior associates). (2/8/12 Conf. Tr. at ) MSL reconfirmed that "[a]ll of the documents that are reviewed as a function of the seed set, whether [they] are ultimately coded relevant or irrelevant, aside from privilege, will be turned over to" plaintiffs. (2/8/12 Conf. Tr. at 73.) The next area of discussion was the iterative rounds to stabilize the training of the software. MSL's vendor's predictive coding software ranks documents on a score of 100 to zero, i.e., from most likely relevant to least likely relevant. (2/8/12 Conf. Tr. at 70.) MSL proposed using seven iterative rounds; in each round they would review at least 500 documents from different concept [**18] clusters to see if the computer is returning new relevant documents. (2/8/12 Conf. Tr. at ) After the seventh round, to determine if the computer is well trained and stable, MSL would review a random sample (of 2,399 documents) from the discards (i.e., documents coded as non-relevant) to make sure the documents determined by the software to not be relevant do not, in fact, contain highly-relevant documents. (2/8/12 Conf. Tr. at ) For each of the seven rounds and the final quality-check random sample, MSL agreed that it would show plaintiffs all the documents it looked at including those deemed not relevant (except for privileged documents). (2/8/12 Conf. Tr. at 76.) Plaintiffs' vendor noted that "we don't at this point agree that this is going to work. This is new technology and it has to be proven out." (2/8/12 Conf. Tr. at 75.) Plaintiffs' vendor agreed, in general, that computer-assisted review works, and works better than most alternatives. (2/8/12 Conf. Tr. at 76.) Indeed, plaintiffs' vendor noted that "it is fair to say [that] we are big proponents of it." (2/8/12 Conf. Tr. at 76.) The Court reminded the parties that computer-assisted review "works better than most [**19] of the alternatives, if not all of the [present] alternatives. So the idea is not to make this perfect, it's not going to be perfect. The idea is to make it significantly better than the alternatives without nearly as much cost." (2/8/12 Conf. Tr. at 76.) The Court accepted MSL's proposal for the seven iterative reviews, but with the following caveat: But if you get to the seventh round and [plaintiffs] are saying that the computer is still doing weird things, it's not stabilized, etc., we need to do another round or two, either you will agree to that or you will both come in with the appropriate QC information and everything else and [may be ordered to] do another round or two or five or 500 or whatever it takes to stabilize the system. (2/8/12 Conf. Tr. at 76-77; see also id. at 83-84, 88.) On February 17, 2012, the parties submitted their

8 287 F.R.D. 182, *187; 2012 U.S. Dist. LEXIS 23350, **19; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 7 "final" ESI Protocol which the Court "so ordered." (Dkt. No. 92: 2/17/12 ESI Protocol & Order.) 6 Because this is the first Opinion dealing with predictive coding, the Court annexes hereto as an Exhibit the provisions of the ESI Protocol dealing with the predictive coding search methodology. 6 Plaintiffs included a paragraph noting its objection to the [**20] ESI Protocol, as follows: Plaintiffs object to this ESI Protocol in its entirety. Plaintiffs submitted their own proposed ESI Protocol to the Court, but it was largely rejected. The Court then ordered the parties to submit a joint ESI Protocol reflecting the Court's rulings. Accordingly, Plaintiffs jointly submit this ESI Protocol with MSL, but reserve the right to object to its use in this case. (ESI Protocol J.1 at p. 22.) [*188] OBSERVATIONS ON PLAINTIFF'S OBJECTIONS TO THE COURT'S RULINGS On February 22, 2012, plaintiffs filed objections to the Court's February 8, 2012 rulings. (Dkt. No. 93: Pls. Rule 72(a) Objections; see also Dkt. No. 94: Nurhussein Aff.; Dkt. No. 95: Neale Aff.) While those objections are before District Judge Carter, a few comments are in order. Plaintiffs' Reliance on Rule 26(g)(1)(A) is Erroneous Plaintiffs' objections to my February 8, 2012 rulings assert that my acceptance of MSL's predictive coding approach "provides unlawful 'cover' for MSL's counsel, who has a duty under FRCP 26(g) to 'certify' that their client's document production is 'complete' and 'correct' as of the time it was made. FRCP 26(g)(1)(A)." (Dkt. No. 93: Pls. Rule 72(a) Objections at 8 n.7; accord, [**21] id. at 2.) In large-data cases like this, involving over three million s, no lawyer using any search method could honestly certify that its production is "complete" -- but more importantly, Rule 26(g)(1) does not require that. Plaintiffs simply misread Rule 26(g)(1). The certification required by Rule 26(g)(1) applies "with respect to a disclosure." Fed. R. Civ. P. 26(g)(1)(A) (emphasis added). That is a term of art, referring to the mandatory initial disclosures required by Rule 26(a)(1). Since the Rule 26(a)(1) disclosure is information (witnesses, exhibits) that "the disclosing party may use to support its claims or defenses," and failure to provide such information leads to virtually automatic preclusion, see Fed. R Civ. P. 37(c)(1), it is appropriate for the Rule 26(g)(1)(A) certification to require disclosures be "complete and correct." Rule 26(g)(1)(B) is the provision that applies to discovery responses. It does not call for certification that the discovery response is "complete," but rather incorporates the Rule 26(b)(2)(C) proportionality principle. Thus, Rule 26(g)(1)(A) has absolutely nothing to do with MSL's obligations to respond to plaintiffs' discovery requests. [**22] Plaintiffs' argument is based on a misunderstanding of Rule 26(g)(1). 7 7 Rule 26(g)(1) provides: (g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name.... By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent

9 287 F.R.D. 182, *188; 2012 U.S. Dist. LEXIS 23350, **22; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 8 with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues [**23] at stake in the action. Fed. R. Civ. P. 26(g)(1) (emphasis added). Rule 702 and Daubert Are Not Applicable to Discovery Search Methods Plaintiffs' objections also argue that my acceptance of MSL's predictive coding protocol "is contrary to Federal Rule of Evidence 702" and "violates the gatekeeping function underlying Rule 702." (Dkt. No. 93: Pls. Rule 72(a) Objections at 2-3; accord, id. at ) 8 8 As part of this argument, plaintiffs complain that although both parties' experts (i.e., vendors)

10 287 F.R.D. 182, *188; 2012 U.S. Dist. LEXIS 23350, **23; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 9 spoke at the discovery conferences, they were not sworn in. (Pls. Rule 72(a) Objections at 12: "To his credit, the Magistrate [Judge] did ask the parties to bring [to the conference] the ESI experts they had hired to advise them regarding the creation of an ESI protocol. These experts, however, were never sworn in, and thus the statements they made in court at the hearings were not sworn testimony made under penalty of perjury.") Plaintiffs never asked the Court to have the experts testify to their qualifications or be sworn in. Federal Rule of Evidence 702 and the Supreme Court's Daubert decision 9 deal with the trial court's role as gatekeeper to exclude unreliable expert testimony from being [**24] submitted [*189] to the jury at trial. See also Advisory Comm. Notes to Fed. R. Evid It is a rule for admissibility of evidence at trial. 9 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). If MSL sought to have its expert testify at trial and introduce the results of its ESI protocol into evidence, Daubert and Rule 702 would apply. Here, in contrast, the tens of thousands of s that will be produced in discovery are not being offered into evidence at trial as the result of a scientific process or otherwise. The admissibility of specific s at trial will depend upon each itself (for example, whether it is hearsay, or a business record or party admission), not how it was found during discovery. Rule 702 and Daubert simply are not applicable to how documents are searched for and found in discovery. Plaintiffs' Reliability Concerns Are, At Best, Premature Finally, plaintiffs' objections assert that "MSL's method lacks the necessary standards for assessing whether its results are accurate; in other words, there is no way to be certain if MSL's method is reliable." (Dkt. No. 93: Pls. Rule 72(a) Objections at ) Plaintiffs' concerns may be appropriate [**25] for resolution during or after the process (which the Court will be closely supervising), but are premature now. For example, plaintiffs complain that "MSL's method fails to include an agreed-upon standard of relevance that is transparent and accessible to all parties.... Without this standard, there is a high-likelihood of delay as the parties resolve disputes with regard to individual documents on a case-by-case basis." (Id. at 14.) Relevance is determined by plaintiffs' document demands. As statistics show, perhaps only 5% of the disagreement among reviewers comes from close questions of relevance, as opposed to reviewer error. (See page 18 n.11 below.) The issue regarding relevance standards might be significant if MSL's proposal was not totally transparent. Here, however, plaintiffs will see how MSL has coded every used in the seed set (both relevant and not relevant), and the Court is available to quickly resolve any issues. Plaintiffs complain they cannot determine if "MSL's method actually works" because MSL does not describe how many relevant documents are permitted to be located in the final random sample of documents the software deemed irrelevant. (Pls. Rule 72(a) [**26] Objections at ) Plaintiffs argue that "without any decision about this made in advance, the Court is simply kicking the can down the road." (Id. at 16.) In order to determine proportionality, it is necessary to have more information than the parties (or the Court) now has, including how many relevant documents will be produced and at what cost to MSL. Will the case remain limited to the named plaintiffs, or will plaintiffs seek and obtain collective action and/or class action certification? In the final sample of documents deemed irrelevant, are any relevant documents found that are "hot," "smoking gun" documents (i.e., highly relevant)? Or are the only relevant documents more of the same thing? One hot document may require the software to be re-trained (or some other search method employed), while several documents that really do not add anything to the case might not matter. These types of questions are better decided "down the road," when real information is available to the parties and the Court. FURTHER ANALYSIS AND LESSONS FOR THE FUTURE The decision to allow computer-assisted review in this case was relatively easy -- the parties agreed to its use (although disagreed about [**27] how best to implement such review). The Court recognizes that computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases. The technology exists and should be used where

11 287 F.R.D. 182, *189; 2012 U.S. Dist. LEXIS 23350, **27; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 10 appropriate, but it is not a case of machine replacing humans: it is the process used and the interaction of man and machine that the courts needs to examine. The objective of review in ediscovery is to identify as many relevant documents as possible, while reviewing as few non-relevant documents as possible. Recall is the fraction of relevant documents identified during a review; precision is the fraction of identified documents that are relevant. Thus, recall is a measure of completeness, while precision is [*190] a measure of accuracy or correctness. The goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the "value" of the case. See, e.g., Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, Rich. J.L.& Tech., Spring 2011, at 8-9, available at The slightly more [**28] difficult case would be where the producing party wants to use computer-assisted review and the requesting party objects. 10 The question to ask in that situation is what methodology would the requesting party suggest instead? Linear manual review is simply too expensive where, as here, there are over three million s to review. Moreover, while some lawyers still consider manual review to be the "gold standard," that is a myth, as statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review. Herb Roitblatt, Anne Kershaw, and Patrick Oot of the Electronic Discovery Institute conducted an empirical assessment to "answer the question of whether there was a benefit to engaging in a traditional human review or whether computer systems could be relied on to produce comparable results," and concluded that "[o]n every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of human re-review." Herbert L. Roitblatt, Anne Kershaw & Patrick Oot, Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review, 61 J. Am. Soc'y for Info. Sci. [**29] & Tech. 70, 79 (2010) The tougher question, raised in Klein Prods. LLC v. Packaging Corp. of Am. before Magistrate Judge Nan Nolan in Chicago, is whether the Court, at plaintiffs' request, should order the defendant to use computer-assisted review to respond to plaintiffs' document requests. 11 The Roitblatt, Kershaw, Oot article noted that "[t]he level of agreement among human reviewers is not strikingly high," around 70-75%. They identify two sources for this variability: fatigue ("A document that they [the reviewers] might have categorized as responsive when they were more attentive might then be categorized [when the reviewer is distracted or fatigued] as non-responsive or vice versa."), and differences in "strategic judgment." Id. at Another study found that responsiveness "is fairly well defined, and that disagreements among assessors are largely attributable to human error," with only 5% of reviewer disagreement attributable to borderline or questionable issues as to relevance. Maura R. Grossman & Gordon V. Cormack, Inconsistent Assessment of Responsiveness in E-Discovery: Difference of Opinion or Human Error? 9 (DESI IV: 2011 ICAIL Workshop on Setting Standards for [**30] Searching Elec. Stored Info. in Discovery, Research Paper), available at pers/grossman3.pdf. Likewise, Wachtell, Lipton, Rosen & Katz litigation counsel Maura Grossman and University of Waterloo professor Gordon Cormack, studied data from the Text Retrieval Conference Legal Track (TREC) and concluded that: "[T]he myth that exhaustive manual review is the most effective -- and therefore the most defensible -- approach to document review is strongly refuted. Technology-assisted review can (and does) yield more accurate results than exhaustive manual review, with much lower effort." Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, Rich. J.L.& Tech., Spring 2011, at The technology-assisted reviews in the Grossman-Cormack article also demonstrated significant cost savings over manual review: "The technology-assisted reviews require, on average, human review of only 1.9% of the documents, a fifty-fold savings over exhaustive manual review." Id. at Grossman and Cormack also note that "not [**31] all technology-assisted reviews... are created equal" and that future studies will be needed to "address which technology-assisted

12 287 F.R.D. 182, *190; 2012 U.S. Dist. LEXIS 23350, **31; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 11 review process(es) will improve most on manual review." Id. Because of the volume of ESI, lawyers frequently have turned to keyword searches to cull (or other ESI) down to a more manageable volume for further manual review. Keywords have a place in production of ESI -- indeed, the parties here used keyword searches (with Boolean connectors) to find documents for the expanded seed set to train the predictive coding software. In too [*191] many cases, however, the way lawyers choose keywords is the equivalent of the child's game of "Go Fish." 13 The requesting party guesses which keywords might produce evidence to support its case without having much, if any, knowledge of the responding party's "cards" (i.e., the terminology used by the responding party's custodians). Indeed, the responding party's counsel often does not know what is in its own client's "cards." 13 See Ralph C. Losey, "Child's Game of 'Go Fish' is a Poor Model for e-discovery Search," in Adventures in Electronic Discovery (2011). Another problem with keywords is that they often are over-inclusive, [**32] that is, they find responsive documents but also large numbers of irrelevant documents. In this case, for example, a keyword search for "training" resulted in 165,208 hits; Da Silva Moore's name resulted in 201,179 hits; "bonus" resulted in 40,756 hits; "compensation" resulted in 55,602 hits; and "diversity" resulted in 38,315 hits. (Dkt. No. 92: 2/17/12 ESI Protocol Ex. A.) If MSL had to manually review all of the keyword hits, many of which would not be relevant (i.e., would be false positives), it would be quite costly. Moreover, keyword searches usually are not very effective. In 1985, scholars David Blair and M. Maron collected 40,000 documents from a Bay Area Rapid Transit accident, and instructed experienced attorney and paralegal searchers to use keywords and other review techniques to retrieve at least 75% of the documents relevant to 51 document requests. David L. Blair & M. E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval System, 28 Comm. ACM 289 (1985). Searchers believed they met the goals, but their average recall was just 20%. Id. This result has been replicated in the TREC Legal Track studies over the past few years. Judicial decisions [**33] have criticized specific keyword searches. Important early decisions in this area came from two of the leading judicial scholars in ediscovery, Magistrate Judges John Facciola (District of Columbia) and Paul Grimm (Maryland). See United States v. O'Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, M.J.); Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008) (Facciola, M.J.); Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. 2008) (Grimm, M.J.). I followed their lead with Willaim A. Gross Construction Associates, Inc., when I wrote: This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or "keywords" to be used to produce s or other electronically stored information ("ESI")..... Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI's custodians as to [**34] the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of "false positives." It is time that the Bar -- even those lawyers who did not come of age in the computer era -- understand this. William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134, 136 (S.D.N.Y. 2009) (Peck, M.J.). Computer-assisted review appears to be better than the available alternatives, and thus should be used in appropriate cases. While this Court recognizes that computer-assisted review is not perfect, the Federal Rules of Civil Procedure do not require perfection. See, e.g., Pension Comm. of Univ. of Montreal Pension Plan v.

13 287 F.R.D. 182, *191; 2012 U.S. Dist. LEXIS 23350, **34; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 12 Banc of Am. Sec., 685 F. Supp. 2d 456, 461 (S.D.N.Y. 2010). Courts and litigants must be cognizant of the aim of Rule 1, to "secure the just, speedy, and inexpensive determination" of lawsuits. Fed. R. Civ. P. 1. That goal is further reinforced by the proportionality doctrine set forth in Rule 26(b)(2)(C), which provides that: On [**35] motion or on its own, the court must limit the frequency or extent of discovery [*192] otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; Fed. R. Civ. P. 26(b)(2)(C). (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. In this case, the Court determined that the use of predictive coding was appropriate considering: (1) the parties' agreement, (2) the vast amount of ESI to be reviewed (over three million documents), (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches), (4) the need for cost effectiveness and proportionality under Rule 26(b)(2)(C), and (5) the transparent process proposed by [**36] MSL. This Court was one of the early signatories to The Sedona Conference Cooperation Proclamation, and has stated that "the best solution in the entire area of electronic discovery is cooperation among counsel. This Court strongly endorses The Sedona Conference Proclamation (available at William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. at 136. An important aspect of cooperation is transparency in the discovery process. MSL's transparency in its proposed ESI search protocol made it easier for the Court to approve the use of predictive coding. As discussed above on page 10, MSL confirmed that "[a]ll of the documents that are reviewed as a function of the seed set, whether [they] are ultimately coded relevant or irrelevant, aside from privilege, will be turned over to" plaintiffs. (Dkt. No. 88: 2/8/12 Conf. Tr. at 73; see also 2/17/12 ESI Protocol at 14: "MSL will provide Plaintiffs' counsel with all of the non-privileged documents and will provide, to the extent applicable, the issue tag(s) coded for each document.... If necessary, counsel will meet and confer to attempt to resolve any disagreements regarding the coding [**37] applied to the documents in the seed set.") While not all experienced ESI counsel believe it necessary to be as transparent as MSL was willing to be, such transparency allows the opposing counsel (and the Court) to be more comfortable with computer-assisted review, reducing fears about the so-called "black box" of the technology. 14 This Court highly recommends that counsel in future cases be willing to at least discuss, if not agree to, such transparency in the computer-assisted review process. 14 It also avoids the GIGO problem, i.e., garbage in, garbage out. Several other lessons for the future can be derived from the Court's resolution of the ESI discovery disputes in this case. First, it is unlikely that courts will be able to determine or approve a party's proposal as to when review and production can stop until the computer-assisted review software has been trained and the results are quality control verified. Only at that point can the parties and the Court see where there is a clear drop off from highly relevant to marginally relevant to

14 287 F.R.D. 182, *192; 2012 U.S. Dist. LEXIS 23350, **37; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 13 not likely to be relevant documents. While cost is a factor under Rule 26(b)(2)(C), it cannot be considered in isolation from the results of the [**38] predictive coding process and the amount at issue in the litigation. Second, staging of discovery by starting with the most likely to be relevant sources (including custodians), without prejudice to the requesting party seeking more after conclusion of that first stage review, is a way to control discovery costs. If staging requires a longer discovery period, most judges should be willing to grant such an extension. (This Judge runs a self-proclaimed "rocket docket," but informed the parties here of the Court's willingness to extend the discovery cutoff if necessary to allow the staging of custodians and other ESI sources.) [*193] Third, in many cases requesting counsel's client has knowledge of the producing party's records, either because of an employment relationship as here or because of other dealings between the parties (e.g., contractual or other business relationships). It is surprising that in many cases counsel do not appear to have sought and utilized their client's knowledge about the opposing party's custodians and document sources. Similarly, counsel for the producing party often is not sufficiently knowledgeable about their own client's custodians and business terminology. Another [**39] way to phrase cooperation is "strategic proactive disclosure of information," i.e., if you are knowledgeable about and tell the other side who your key custodians are and how you propose to search for the requested documents, opposing counsel and the Court are more apt to agree to your approach (at least as phase one without prejudice). Fourth, the Court found it very helpful that the parties' ediscovery vendors were present and spoke at the court hearings where the ESI Protocol was discussed. (At ediscovery programs, this is sometimes jokingly referred to as "bring your geek to court day.") Even where as here counsel is very familiar with ESI issues, it is very helpful to have the parties' ediscovery vendors (or in-house IT personnel or in-house ediscovery counsel) present at court conferences where ESI issues are being discussed. It also is important for the vendors and/or knowledgeable counsel to be able to explain complicated ediscovery concepts in ways that make it easily understandable to judges who may not be tech-savvy. CONCLUSION This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review. That does not mean computer-assisted review [**40] must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review. Nor does this Opinion endorse any vendor (the Court was very careful not to mention the names of the parties' vendors in the body of this Opinion, although it is revealed in the attached ESI Protocol), nor any particular computer-assisted review tool. What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the "first" or "guinea pig" for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to ediscovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases. SO [**41] ORDERED. Dated: New York, New York February 24, 2012 /s/ Andrew J. Peck Andrew J. Peck United States Magistrate Judge EXHIBIT PARTIES' PROPOSED PROTOCOL RELATING TO THE PRODUCTION OF ELECTRONICALLY STORED INFORMATION ("ESI") A. Scope 1. General. The procedures and protocols outlined herein govern the production of electronically stored information ("ESI") by MSLGROUP Americas, Inc. ("MSL") during the pendency of this litigation. The parties to this protocol will take reasonable steps to

15 287 F.R.D. 182, *193; 2012 U.S. Dist. LEXIS 23350, **41; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 14 comply with this agreed-upon protocol for the production of documents and information existing in electronic format. Nothing in this protocol will be interpreted to require disclosure of documents or information protected [*194] from disclosure by the attorney-client privilege, work-product product doctrine or any other applicable privilege or immunity. It is Plaintiffs' position that nothing in this protocol will be interpreted to waive Plaintiffs' right to object to this protocol as portions of it were mandated by the Court over Plaintiffs' objections, including Plaintiffs' objections to the predictive coding methodology proposed by MSL. 2. Limitations and No-Waiver. This protocol provides a general framework for [**42] the production of ESI on a going forward basis. The Parties and their attorneys do not intend by this protocol to waive their rights to the attorney work-product privilege, except as specifically required herein, and any such waiver shall be strictly and narrowly construed and shall not extend to other matters or information not specifically described herein. All Parties preserve their attorney client privileges and other privileges and there is no intent by the protocol, or the production of documents pursuant to the protocol, to in any way waive or weaken these privileges. All documents produced hereunder are fully protected and covered by the Parties' confidentiality and clawback agreements and orders of the Court effectuating same. 3. Relevant Time Period. January 1, 2008 through February 24, 2011 for all non- ESI relating to topics besides pay discrimination and for all s. January 1, 2005 through February 24, 2011 for all non- ESI relating to pay discrimination for New York Plaintiffs. B. ESI Preservation 1. MSL has issued litigation notices to designated employees on February 10, 2010, March 14, 2011 and June 9, C. Sources 1. The Parties have identified the [**43] following sources of potentially discoverable ESI at MSL. Phase I sources will be addressed first, and Phase II sources will be addressed after Phase I source searches are complete. Sources marked as "N/A" will not be searched by the Parties. Data Source Description Phase a EMC SourceOne I Archive Archiving System used to capture and store all incoming and outbound s and selected instant message conversations saved through IBM Sametime (see below). b Lotus Notes Active corporate system that provides N/A communication and calendaring functions. c GroupWise Legacy corporate system that provided N/A communication and calendarin, functions. d IBM Sametime Lotus Notes Instant Messaging and N/A collaboration application. e Home Directories Personal network storage locations on II the file server(s) dedicated to

16 287 F.R.D. 182, *194; 2012 U.S. Dist. LEXIS 23350, **43; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 15 individual users. (With the exception of 2 home directories for which MSL will collect and analyze the data to determine the level of duplication as compared to the EMC SourceOne Archive. The parties will meet and confer regarding the selection of the two custodians.) f Shared Folders Shared network storage locations on the II file server(s) that are accessible by individual users, groups of users or entire departments. (With the exception of the following Human Resources shared folders which will be in Phase I: Corporate HR, North America HR and New York HR.) g Database Servers Backend databases (e.g. Oracle, SQL, N/A MySQL) used to store information for front end applications or other purposes. h Halogen Software Performance management program provided I by Halogen to conduct performance evaluations. i Noovoo Corporate Intranet site. II j Corporate addresses that employees may I Feedback utilize to provide the company with comments, suggestions and overall feedback. k Hyperion Oracle application that offers global N/A Financial financial consolidation, reporting and Management analysis. ("HFM") l Vurv/Taleo Talent recruitment software. II m ServiceNow Help Desk application used to track N/A employee computer related requests. n PeopleSoft Human resources information management I system.

17 287 F.R.D. 182, *194; 2012 U.S. Dist. LEXIS 23350, **43; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 16 o PRISM PeopleSoft component used for time and I billing management. p Portal A project based portal provided through II Oracle/BEA Systems. q Desktops/Laptops Fixed and portable computers provided to II employees to perform work related activities. (With the exception of 2 desktop/laptop hard drives for which MSL will collect and analyze the data to determine the level of duplication as compared to the EMC SourceOne Archive. The parties will meet and confer regarding the selection of the two custodians.) r Publicis Benefits Web based site that maintains II Connection information about employee benefits and related information. s GEARS Employee expense reporting system. II t MS&L City Former corporate Intranet. N/A u Adium Application which aggregates instant N/A messages. y Pidgin Application which aggregates instant N/A message. w IBM Lotus Mobile device synchronization and N/A Traveler and security system. MobileIron y Mobile Portable PDAs, smart phones, tablets N/A Communication used for communication. Devices z Yammer Social media and collaboration portal. N/A aa SalesForce.com Web-based customer relationship N/A management application. bb Removable Portable storage media, external hard N/A Storage Devices drives, thumb drives, etc. used to store copies of work related ESI. [*196] a. [**44] EMC SourceOne - MSL uses

18 287 F.R.D. 182, *196; 2012 U.S. Dist. LEXIS 23350, **44; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 17 SourceOne, an EMC archiving system that captures and stores all messages that pass through the corporate system. In addition, if a user chooses to save an instant messaging chat conversation from IBM Sametime (referenced below), that too would be archived in SourceOne. Defendant MSL also acknowledges that calendar items are regularly ingested into the SourceOne system. The parties have agreed that this data source will be handled as outlined in section E below. b. Lotus Notes - MSL currently maintains multiple Lotus Notes Domino servers in various data centers around the world. All communication and calendar items are journaled in real time to the EMC SourceOne archive. The parties have agreed to not collect any information from this data source at this time. c. GroupWise -- Prior to the implementation of the Lotus Notes environment, GroupWise was used for all and calendar functionality. Before the decommissioning of the GroupWise servers, MSL created backup tapes of all servers that housed the GroupWise databases. The parties have agreed to not collect any information from this data source at this time. d. [**45] IBM Sametime -- MSL provides custodians with the ability to have real time chat conversations via the IBM Sametime application that is part of the Lotus Notes suite of products. e. Home Directories -- Custodians with corporate network access at MSL also have a dedicated and secured network storage location where they are able to save files. MSL will collect the home directory data for 2 custodians and analyze the data to determine the level of duplication of documents in this data source against the data contained in the EMC SourceOne archive for the same custodians. (The parties will meet and confer regarding the selection of the two custodians.) The results of the analysis will be provided to Plaintiffs so that a determination can be made by the parties as to whether MSL will include this data source in its production of ESI to Plaintiffs. If so, the parties will attempt to reach an agreement as to the approach used to collect, review and produce responsive and non-privileged documents. f. Shared Folders -- Individual employees, groups of employees and entire departments at MSL are given access to shared network storage locations to save and share files. As it relates to the Human Resources [**46] related shared folders (i.e., North America HR Drive (10.2 GB), Corporate HR Drive (440 MB), NY HR Drive (1.9 GB), Chicago HR Drive (1.16 GB), Boston HR Drive (43.3 MB), and Atlanta HR Drive (6.64 GB)), MSL will judgmentally review and produce responsive and non-privileged documents from the North America HR Drive, Corporate HR Drive, and NY HR Drive. MSL will produce to Plaintiffs general information regarding the content of other Shared Folders. The parties will meet and confer regarding the information gathered concerning the other Shared Folders and discuss whether any additional Shared Folders should be moved to Phase I. g. Database Servers -- MSL has indicated that it does not utilize any database servers, other than those that pertain to the sources outlined above in C, which are likely to contain information relevant to Plaintiffs' claims. h. Halogen Software -- MSL [**47] utilizes a third party product, Halogen, for performance management and employee evaluations. The parties will meet and confer in order to exchange additional information and attempt to reach an agreement as to the scope of data and the approach used to collect, review and produce responsive and non-privileged documents. i. Noovoo -- MSL maintains a corporate Intranet site called "Noovoo" where employees are able to access Company-related information. [*197] MSL will provide Plaintiffs with any employment-related policies maintained within Noovoo. j. Corporate Feedback -- MSL has maintained various addresses that employees may utilize to provide the company with comments, suggestions and overall feedback. These addresses include "powerofone@mslworldwide.com", "poweroftheindividual@mslworldwide.com", "townhall@mslworldwide.com" and "whatsonyourmind@mslworldwide.com". The parties have agreed that all responsive and non-privileged ESI will be produced from these accounts and any other accounts that fall under this category of information. At present, MSL intends to manually review the contents of each of these accounts. However, if after collecting the contents [**48] of each of the accounts MSL determines that a manual review would be impractical, the parties will meet and confer as to the approach used to collect, review and produce responsive and non-privileged documents.

19 287 F.R.D. 182, *197; 2012 U.S. Dist. LEXIS 23350, **48; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 18 k. Hyperion Financial Management ("HFM") -- MSL uses an Oracle application called HFM that offers global financial consolidation, reporting and analysis capabilities. l. Vurv/Taleo -- [**49] Since approximately 2006, MSL used an application known as Vury as its talent recruitment software. As of August 31, 2011, as a result of Vury being purchased by Taleo, MSL has been using a similar application by Taleo as its talent recruitment software. The application, which is accessed through MSL's public website, allows users to search for open positions as well as input information about themselves. To the extent Plaintiffs contend they were denied any specific positions, they will identify same and the Parties will meet and confer to discuss what, if any, information exists within Vurv/Taleo regarding the identified position. If information exists in Vurv/Taleo or another source regarding these positions, MSL will produce this information, to the extent such information is discoverable. m. ServiceNow -- MSL utilizes ServiceNow as its Help Desk application. This system covers a wide variety of requests by employees for computer-related assistance (e.g., troubleshoot incidents, install software, etc.). n. PeopleSoft -- MSL utilizes PeopleSoft, an Oracle-based software product, to record employee data such as date of hire, date of termination, promotions, salary increases, transfers, [**50] etc. MSL has produced data from this source and will consider producing additional data in response to a specific inquiry from Plaintiffs. o. PRISM -- MSL utilizes PRISM for tracking time and billing. It is used primarily to track an employee's billable time. MSL will consider producing additional data in response to a specific inquiry from Plaintiffs. p. Portal -- MSL maintains a portal provided through Oracle/BEA Systems. The portal is web-based and is used for light workflow activities (such as reviewing draft documents). q. Desktops/Laptops -- MSL provided employees with desktop and/or laptop computers to assist in work related activities. MSL will collect the desktop/laptop hard drive data for 2 custodians and analyze the data to determine the level of duplication of documents in this data source against the data contained in the EMC SourceOne archive for the same custodians. (The parties will meet and confer regarding the selection of the two custodians.) The results of the analysis will be provided to Plaintiffs so that a determination can be made by the parties as to whether MSL will include this data source in its production of ESI to Plaintiffs. If so, the Parties will attempt [**51] to reach an agreement as to the approach used to collect, review and produce responsive and non-privileged documents. r. Publicis Benefits Connection -- Plaintiffs understand that MSL provides employees with access to a centralized web based site that provides access to corporate benefits information and other related content. s. GEARS -- MSL maintains a centralized web-based expense tracking and reporting system called "GEARS" where users are able to enter expenses and generate reports. [*198] t. MS&L City -- MSL maintained a corporate web-based Intranet prior to migrating to Noovoo. u. Adium -- This is a free and open source instant messaging client for Mac OS X users. v. Pidgin -- Pidgin is a chat program which lets users log into accounts on multiple chat networks simultaneously. However, the data resides with a third party messaging provider (e.g. AIM, Yahoo!, Google Talk, MSN Messenger, etc.). w. IBM Lotus Traveler and MobileIron -- MSL maintains these systems for device sync and security features for employees' mobile devices, including Blackberry devices, iphones, ipads, Android phones, and Android tablets. x. Mobile Communication Devices - MSL provides mobile devices and/or connectivity [**52] including Blackberry devices, iphones, ipads, Android phones, and Android tablets to designated employees. y. Yammer -- This is an instant messaging application hosted externally, used for approximately one year in or around 2008 through z. SalesForce.com -- This is a web-based customer relationship management application but it was not widely used.

20 287 F.R.D. 182, *198; 2012 U.S. Dist. LEXIS 23350, **52; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 19 aa. Removable Storage Devices -- MSL does not restrict authorized employees from using removable storage devices. D. Custodians 1. The Parties agree that MSL will search the accounts of the following individuals as they exist on MSL's EMC SourceOne archive. (Except where a date range is noted, the custodian's entire account was collected from the archive.) Custodian Name Title 1. Lund, Wendy Executive VP of Global Client and Business Development 2. Fite, Vicki Managing Director, MSL Los Angeles 3. Wilson, Renee President, NE Region, Managing Director NY 4. Brennan, Nancy (1/1/08 to 5/31/08) SVP/Director Corporate Branding 5. Lilien (Lillien, Kashanian), Tara SVP, North America Human Resources 6. Miller, Peter Executive Vice President, CFO 7. Masini, Rita Chief Talent Officer 8. Tsokanos, Jim President of the Americas 9. Da Silva Moore, Monique Director Healthcare Practice, Global 10. O'Kane, Jeanine (2/8/10 to 2/24/11) Director of Healthcare North America 11. Perlman, Carol Senior VP 12. Mayers, Laurie SVP MS&L Digital 13. Wilkinson, Kate Account Executive 14. Curran, Joel (5/1/08 to 5/31/10) Managing Director MSL Chicago 15. Shapiro, Maury North American CFO 16. Baskin, Rob (1/1/08 to 12/31/08) Managing Director 17. Pierce, Heather VP 18. Branam, Jud (1/1/08 to 1/31/10) Managing Director, MS&L Digital 19. McDonough, Jenni (1/1/08 VP, Director of Human Resources to 12/31/08) 20. Hannaford, Donald (1/1/08 to 3/1/08) Managing Director 21. On, Bill (1/1/08 to 2/24/11) Managing Director 22. Dhillon, Neil (9/8/08 to 5/31/10) Managing Director MSL Washington DC 23. Hubbard, Zaneta Account Supervisor 24. Morgan, Valerie (1/1/08 to 2/24/11) HR Director 25. Daversa, Kristin (1/1/08 to 2/24/11) HR Director 26. Vosk, Lindsey (1/1/08 to 2/24/11) HR Manager 27. Carberry, Joe (1/1/08 to 2/24/11) President, Western Region 28. Sheffield, Julie (1/1/08 to 2/24/11) HR/Recruiting Associate

21 287 F.R.D. 182, *198; 2012 U.S. Dist. LEXIS 23350, **52; 18 Wage & Hour Cas. 2d (BNA) 1479 Page MaryEllen O'Donohue SVP (2010) 30. Hass, Mark CEO (former) 31. Morsman, Michael Managing Director, Ann Arbor (former) [*199] E. [**53] Search Methodology 1 1 As noted in Paragraphs A(1) and J of this Protocol, Plaintiffs object to the predictive coding methodology proposed by MSL. 1. General. The Parties have discussed the methodologies or protocols for the search and review of ESI collected from the EMC SourceOne archive and the following is a summary of the Parties' agreement on the use of Predictive Coding. This section relates solely to the EMC SourceOne data source (hereinafter referred to as the " collection"). 2. General Overview of Predictive Coding Process. MSL will utilize the Axcelerate software by Recommind to search and review the collection for production in this case. The process begins with Jackson Lewis attorneys developing an understanding of the entire collection while identifying a small number of documents, the initial seed set, that is representative of the categories to be reviewed and coded (relevance, privilege, issue-relation). It is the step when the first seed sets are generated which is done by use of search and analytical tools, including keyword, Boolean and concept search, concept grouping, and, as needed, up to 40 other automatically populated filters available within [**54] the Axcelerate system. This assists in the attorneys' identification of probative documents for each category to be reviewed and coded. Plaintiffs' counsel will be provided with preliminary results of MSL's hit counts using keyword searches to create a high priority relevant seed set, and will be invited to contribute their own proposed keywords. Thereafter, Plaintiffs' counsel will be provided with the non-privileged keyword hits -- both from MSL's keyword list and Plaintiffs' keyword list -- which were reviewed and coded by MSL. Plaintiffs' counsel will review the documents produced and promptly provide defense counsel with their own evaluation of the initial coding applied to the documents, including identification of any documents it believes were incorrectly coded. To the extent the parties disagree regarding the coding of a particular document, they will meet and confer in an effort to resolve the dispute prior to contacting the Court for resolution. The irrelevant documents so produced shall be promptly returned after review and analysis by Plaintiffs' counsel and/or resolution of any disputes by the Court. The seed sets are then used to begin the Predictive Coding process. Each [**55] seed set of documents is applied to its relevant category and starts the software "training" process. The software uses each seed set to identify and prioritize all substantively similar documents over the complete corpus of the collection. The attorneys then review and code a judgmental sample of at least 500 of the "computer suggested" documents to ensure their proper categorization and to further calibrate the system by recoding documents into their proper categories. Axcelerate learns from the new corrected coding and the Predictive Coding process is repeated. Attorneys representing MSL will have access to the entire collection to be searched and will lead the computer training, but they will obtain input from Plaintiffs' counsel during the iterative seed selection and quality control processes and will share the information used to craft the search protocol as further described herein. All non-privileged documents reviewed by MSL during each round of the iterative process (i.e., [*200] both documents coded as relevant and irrelevant) will be produced to Plaintiffs' counsel during the iterative seed set selection process. Plaintiffs' counsel will review the documents produced [**56] and promptly provide defense counsel with its own evaluation of the initial coding applied to the documents, including identification of any documents it believes were incorrectly coded. To the extent the Parties disagree regarding the coding of a particular document, they will meet and confer in an effort to resolve the dispute prior to contacting the Court for resolution. Again, the irrelevant documents so produced shall be promptly returned after review and analysis by Plaintiffs' counsel and/or resolution of any

22 287 F.R.D. 182, *200; 2012 U.S. Dist. LEXIS 23350, **56; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 21 disputes by the Court. At the conclusion of the iterative review process, all document predicted by Axcelerate to be relevant will be manually reviewed for production. However, depending on the number of documents returned, the relevancy rating of those documents, and the costs incurred during the development of the seed set and iterative reviews, MSL reserves the right to seek appropriate relief from the Court prior to commencing the final manual review. The accuracy of the search processes, both the systems' functions and the attorney judgments to train the computer, will be tested and quality controlled by both judgmental and statistical sampling. In statistical sampling, [**57] a small set of documents is randomly selected from the total corpus of the documents to be tested. The small set is then reviewed and an error rate calculated therefrom. The error rates can then be reliably projected on the total corpus, having a margin of error directly related to the sample size. 3. Issue Tags. The parties agree that, to the extent applicable, as part of the seed set training described above, as well as during the iterative review process, all documents categorized as relevant and not privileged, to the extent applicable, also shall be coded with one or more of the following agreed-upon issue tags: a. Reorganization. b. Promotion/Assignments. c. Work/Life Balance. d. Termination. e. Compensation. f. Maternity/Pregnancy. g. Complaints/HR. h. Publicis Groupe/Jurisdiction. This issue coding will take place during the initial random sample, creation of the seed set and initial and iterative training (see paragraphs 4, 5 and 6 below). This input shall be provided to Plaintiffs' counsel along with the initial document productions. Plaintiffs' counsel shall promptly report any disagreements on classification, and the parties shall discuss these issues in good faith, so that the seed [**58] set training may be improved accordingly. This issue-tagging and disclosure shall take place during the described collaborative seed set training process. The disclosures here made by MSL on its issue coding are not required in the final production set. 4. Initial Random Sample. Using the Axcelerate software to generate a random sample of the entire corpus of documents uploaded to the Axcelerate search and review platform, MSL's attorneys will conduct a review of the random sample for relevance and to develop a baseline for calculating recall and precision. To the extent applicable, any relevant documents also will be coded with one or more of the issue tags referenced in paragraph E.3 above. The random sample consists of 2,399 documents, which represents a 95% confidence level with a confidence estimation of plus or minus 2%. The Parties agree to utilize the random sample generated prior to the finalization of this protocol. However, during Plaintiffs' counsel's review of the random sample, they may advise as to whether they believe any of the documents should be coded with one or more of the subsequently added issue codes (i.e., Complaints/HR and Publicis Groupe/Jurisdiction) and [**59] will, as discussed above, indicate any disagreement with MSL's classifications. 5. Seed Set. a. Defendant MSL. To create the initial seed set of documents that will be used to "train" the Axcelerate software as described [*201] generally above, MSL primarily utilized keywords listed on Exhibits A and B to this protocol, but also utilized other judgmental analysis and search techniques designed to locate highly relevant documents, including the Boolean, concept search and other features of Axcelerate. Given the volume of hits for each keyword (Exhibit A), MSL reviewed a sampling of the hits and coded them for relevance as well as for the following eight preliminary issues: (i) Reorganization; (ii) Promotion; (iii) Work/Life Balance; (iv) Termination; (v) Compensation; and (vi) Maternity. Specifically, except for key words that were proper names, MSL performed several searches within each set of key word hits and reviewed a sample of the hits. The Axcelerate software ranked the hits in order of relevance based on the software's analytical capabilities and the documents were reviewed in decreasing order of relevance (i.e., each review of the sample of supplemental searches started with the highest [**60] ranked documents). Exhibit B

23 287 F.R.D. 182, *201; 2012 U.S. Dist. LEXIS 23350, **60; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 22 identifies the supplemental searches conducted, the number of hits, the number of documents reviewed, the number of documents coded as potentially responsive and general comments regarding the results. In addition, to the extent applicable, documents coded as responsive also were coded with one or more issue tags. MSL will repeat the process outlined above and will include the newly defined issues and newly added custodians. MSL will provide Plaintiffs' counsel with all of the non-privileged documents and will provide, to the extent applicable, the issue tag(s) coded for each document, as described above. Plaintiffs' counsel shall promptly review and provide notice as to any documents with which they disagree where they do not understand the coding. If necessary, counsel will meet and confer to attempt to resolve any disagreements regarding the coding applied to the documents in this seed set. b. Plaintiffs. To help create the initial seed set of documents that will be used to "train" the Axcelerate software, Plaintiffs provided a list of potential key words to MSL. MSL provided Plaintiffs with a hit list for their proposed key words. This process was repeated [**61] twice with the hit list for Plaintiffs' most recent set of keywords attached as Exhibit C. MSL will review 4,000 randomly sampled documents from Plaintiffs' supplemental list of key words to be coded for relevance and issue tags. MSL will provide Plaintiffs' counsel with all non-privileged documents and will provide, to the extent applicable, the issue tag(s) coded for each document. Plaintiffs' counsel shall promptly review and provide notice as to any documents with which they disagree with or where they do not understand the coding. If necessary, the Parties' counsel will meet and confer to attempt to resolve any disagreements regarding the coding applied to the documents in this seed set. c. Judgmental Sampling. In addition to the above, a number of targeted searches were conducted by MSL in an effort to locate documents responsive to several of Plaintiffs' specific discovery requests. Approximately 578 documents have already been coded as responsive and produced to Plaintiffs. In addition, several judgmental searches were conducted which resulted in approximately 300 documents initially being coded as responsive and several thousand additional documents coded as irrelevant. The [**62] documents coded as relevant and non-privileged also will be reviewed by Plaintiffs' counsel and, subject to their feedback, included in the seed set. An explanation shall be provided by MSL's attorneys for the basis of the bulk tagging of irrelevant documents (primarily electronic periodicals and newsletters that were excluded in the same manner as spam junk mail is excluded). The explanation shall include the types of documents bulk tagged as irrelevant as well as the process used to identify those types of documents and other similar documents that were bulk tagged as irrelevant. 6. Initial And Iterative Training. Following the creation of the first seed set, the Axcelerate software will review the entire data set to identify other potentially relevant documents. MSL will then review and tag a judgmental based sample, consisting of a minimum of 500 documents, including all documents ranked as highly relevant or hot, of the new "Computer Suggested" documents, [*202] which were suggested by the Axcelerate software. MSL's attorneys shall act in consultation with the Axcelerate software experts to make a reasonable, good faith effort to select documents in the judgmental sample that will serve [**63] to enhance and increase the accuracy of the predictive coding functions. The results of this first iteration, both the documents newly coded as relevant and not relevant for particular issue code or codes, will be provided to Plaintiffs' counsel for review and comment. (All documents produced by the parties herein to each other, including, without limitation, these small seed set development productions, shall be made under the Confidentiality Stipulation in this matter as well as any clawback agreement that shall be reduced to an order acceptable to the Court. Any documents marked as irrelevant shall be returned to counsel for MSL at the conclusion of the iterative training phase, unless the relevancy of any documents are disputed, in which case they may be submitted to the Court for review.) Upon completion of the initial review, and any related meet and confer sessions and agreed upon coding corrections, the Axcelerate software will be run again over the entire data set for suggestions on other potentially relevant documents following the same procedures as the first iteration. The purpose of this second and any subsequent iterations of the Predictive Coding process will be to further [**64] refine and improve the accuracy of the predictions on relevance and various other codes. The results of the second iteration shall be reviewed and new coding shared with Plaintiffs' counsel as described for the first iteration. This process shall be repeated five more times, for a total of seven

24 287 F.R.D. 182, *202; 2012 U.S. Dist. LEXIS 23350, **64; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 23 iterations, unless the change in the total number of relevant documents predicted by the system as a result of a new iteration, as compared to the last iteration, is less than five percent (5%), and no new documents are found that are predicted to be hot (aka highly relevant), at which point MSL shall have the discretion to stop the iterative process and begin the final review as next described. If more than 40,000 documents are returned in the final iteration, then MSL reserves the right to apply to the Court for relief and limitations in its review obligations hereunder. Plaintiffs reserve the right, at all times, to challenge the accuracy and reliability of the predictive coding process and the right to apply to the Court for a review of the process. 7. Final Search and Production. All of the documents predicted to be relevant in the final iteration described in paragraph six above will be [**65] reviewed by MSL, unless it applies to the court for relief hereunder. All documents found by MSL's review to be relevant and non-privileged documents will be promptly produced to Plaintiffs. If more than 40,000 documents are included in the final iteration, then MSL reserves its right to seek payment from Plaintiffs for all reasonable costs and fees MSL incurred related to the attorney review and production of more 40,000 documents. 8. Quality Control by Random Sample of Irrelevant Documents. In addition, at the conclusion of this search protocol development process described above, and before the final search and production described in Paragraph 7 above, MSL will review a random sample of 2,399 documents contained in the remainder of the database that were excluded as irrelevant. The results of this review, both the documents coded as relevant and not relevant, but not privileged, will be provided to Plaintiffs' counsel for review. (Any documents initially coded as "not relevant" will be provided subject to the Confidentiality Stipulation and any clawback agreements entered in this matter will be returned to counsel for MSL within 60 days of their production.) The purpose for this [**66] review is to allow calculation of the approximate degree of recall and precision of the search and review process used. If Plaintiffs object to the proposed review based on the random sample quality control results, or any other valid objection, they shall provide MSL with written notice thereof within five days of the receipt of the random sample. The parties shall then meet and confer in good faith to resolve any difficulties, and failing that shall apply to the Court for relief. MSL shall not be required to proceed with the final search and review described in Paragraph [*203] 7 above unless and until objections raised by Plaintiffs have been adjudicated by the Court or resolved by written agreement of the Parties. F. Costs 1. MSL proposes to limit the costs of its final review and production of responsive ESI from the MSL collection to an additional $200,000, above and beyond the approximately $350,000 it has already paid or is anticipated to pay in e-discovery related activities as previously described and disclosed to Plaintiffs. 2. Plaintiffs agree to bear all of the costs associated with their compliance with the terms of this protocol and with the receipt and review of ESI produced [**67] hereunder including the costs associated with its ESI experts at DOAR Litigation Consulting who will be involved with Plaintiffs in all aspects of this ESI protocol. Plaintiffs propose that MSL bear all of the costs associated with its obligations under the terms of this protocol and do not agree to limit the amount of information subject to the review and production of ESI by MSL. G. Format of Production For Documents Produced From Axcelerate 1. TIFF/Native File Format Production. Documents will be produced as single-page TIFF images with corresponding multi-page text and necessary load files. The load files will include an image load file as well as a metadata (.DAT) file with the metadata fields identified on Exhibit D. Defendant MSL will produce spreadsheets (.xls files) and PowerPoint presentations (.ppt files) in native form as well as any documents that cannot be converted to TIFF format (e.g., audio or video files, such as mp3s, ways, megs, etc.). In addition, for any redacted documents that are produced, the documents' metadata fields will be redacted where required. For the production of ESI from non- sources, the parties will meet and confer to attempt to reach an agreement [**68] of the format of production. 2. Appearance. Subject to appropriate redaction, each document's electronic image will convey the same information and image as the original document. Documents that present imaging or formatting problems will be promptly identified and the parties will meet and confer in an attempt to resolve the problems.

25 287 F.R.D. 182, *203; 2012 U.S. Dist. LEXIS 23350, **68; 18 Wage & Hour Cas. 2d (BNA) 1479 Page Document Numbering. Each page of a produced document will have a legible, unique page identifier "Bates Number" electronically "burned" onto the image at a location that does not obliterate, conceal or interfere with any information from the source document. The Bates Number for each page of each document will be created so as to identify the producing party and the document number. In the case of materials redacted in accordance with applicable law or confidential materials contemplated in any Confidentiality Stipulation entered into by the parties, a designation may be "burned" onto the document's image at a location that does not obliterate or obscure any information from the source document. 4. Production Media. The producing party will produce documents on readily accessible, computer or electronic media as the parties may hereafter agree upon, [**69] including CD-ROM, DVD, external hard drive (with standard PC compatible interface), (the "Production Media"). Each piece of Production Media will be assigned a production number or other unique identifying label corresponding to the date of the production of documents on the Production Media (e.g., "Defendant MSL Production April 1, 2012") as well as the sequence of the material in that production (e.g. "-001", "-002"). For example, if the production comprises document images on three DVDs, the producing party may label each DVD in the following manner "Defendant MSL Production April 1, 2012", "Defendant MSL Production April 1, ", "Defendant MSL Production April 1, " Additional information that will be identified on the physical Production Media includes: (1) text referencing that it was produced in da Silva Moore v. Publicis Groupe SA, et al.; and (2) the Bates Number range of the materials contained on the Production Media. Further, any replacement [*204] Production Media will cross-reference the original Production Media and clearly identify that it is a replacement and cross-reference the Bates Number range that is being replaced. 5. Write Protection and Preservation. [**70] All computer media that is capable of write-protection should be write-protected before production. 6. Inadvertent Disclosures. The terms of the Parties' Clawback Agreement and Court Order shall apply to this protocol. 7. Duplicate Production Not Required. A party producing data in electronic form need not produce the same document in paper format. H. Timing. I. To the extent a timeframe is not specifically outlined herein, the parties will use their reasonable efforts to produce ESI in a timely manner consistent with the Court's discovery schedule. 2. The parties will produce ESI on a rolling basis. I. General Provisions. 1. Any practice or procedure set forth herein may be varied by agreement of the parties, and first will be confirmed in writing, where such variance is deemed appropriate to facilitate the timely and economical exchange of electronic data. 2. Should any party subsequently determine it cannot in good faith proceed as required by this protocol, the parties will meet and confer to resolve any dispute before seeking Court intervention. 3. The Parties agree that e-discovery will be conducted in phases and, at the conclusion of the search process described in Section E above, the [**71] Parties will meet and confer regarding whether further searches of additional custodians and/or the Phase II sources is warranted and/or reasonable. If agreement cannot be reached, either party may seek relief from the Court. J. Plaintiffs' Objection 1. Plaintiffs object to this ESI Protocol in its entirety. Plaintiffs submitted their own proposed ES! Protocol to the Court, but it was largely rejected. The Court then ordered the parties to submit a joint ES! Protocol reflecting the Court's rulings. Accordingly, Plaintiffs jointly submit this ESI Protocol with MSL, but reserve the right to object to its use in this case. This protocol may be executed in counterparts. Each counterpart, when so executed, will be deemed and original, and will constitute the same instrument. By: JANETTE WIPPER, ESQ. DEEPIKA BAINS, ESQ. SIHAM NURHUSSEIN, ESQ.

26 287 F.R.D. 182, *204; 2012 U.S. Dist. LEXIS 23350, **71; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 25 SANFORD WITTELS & HEISLER, LLP Attorneys for Plaintiffs and Class 555 Montgomery Street, Ste San Francisco, CA Telephone: (415) Date:, 2012 By: BRETT M. ANDERS, ESQ. VICTORIA WOODIN CHAVEY, ESQ. JEFFREY W. BRECHER, ESQ. JACKSON LEWIS LLP Attorneys for Defendant MSLGROUP 58 South Service Road, Suite 410 Melville, NY Telephone: (631) [**72] Date:, 2012

27 Page 1 ROBOCAST, INC., Plaintiff, v. APPLE, INC., Defendant. ROBOCAST, INC., Plaintiff, v. MICROSOFT CORPORATION, Defendant. Civil Action No RGA,Civil Action No RGA UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2012 U.S. Dist. LEXIS February 24, 2012, Decided SUBSEQUENT HISTORY: Related proceeding at Robocast, Inc. v. Microsoft Corp., 2013 U.S. Dist. LEXIS (D. Del., Apr. 12, 2013) COUNSEL: [*1] Thomas C. Grimm, Esq., Wilmington, Delaware; Steven J. Rizzi, Esq. (argued), New York, New York, Attorneys for Plaintiff. Richard L. Horwitz, Esq., Wilmington, Delaware; Harrison J. Frahn IV, Esq. (argued), Palo Alto, California, Attorneys for Defendant Apple, Inc. Thomas Lee Halkowski, Esq., Wilmington, Delaware; Adam J. Kessel, Esq. (argued), Boston, Massachusetts, Attorneys for Defendant Microsoft Corporation. JUDGES: Richard G. Andrews, U.S. DISTRICT JUDGE. OPINION BY: Richard G. Andrews OPINION MEMORANDUM OPINION /s/ Richard G. Andrews ANDREWS, U.S. DISTRICT JUDGE: Before the Court are motions to transfer these two separate cases to the Northern District of California. On December 6, 2010, Robocast filed a Complaint against Microsoft. Microsoft duly filed an Answer. On March 21, 2011, Robocast sued Apple. Apple responded by filing a motion to transfer. (D.I. 16). 1 Microsoft subsequently filed a similar motion to transfer. (No , D.I. 17). Microsoft states forthrightly (and, in the Court's opinion, correctly) that its transfer motion rises or falls with Apple's. (No , D.I. 27, pp. 1-2). 1 Unless otherwise indicated, Docket Item ("D.I.") citations are to filings in Robocast v. Apple, Civil Act. No RGA. [*2] Citations to the record in Robocast v. Microsoft include the case number (" "). The Complaints at issue are similar. They are each based on Robocast's ownership of U.S. patent No. 7,155,451, which concerns an "Automated Browsing System for Publishers and Users on Networks Serving Internet and Remote Devices." It was invented by Robocast's President, Damon Torres. Apple products such as AppleTV, Front Row, and itunes are said to infringe the patent. Microsoft products such as Bing and Windows Vista are also said to infringe the patent. The transfer motions have been fully briefed and orally argued. The statutory authority for transferring the case is 1404(a) of Title 28, which provides: "For the

28 2012 U.S. Dist. LEXIS 24879, *2 Page 2 convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The burden of establishing the need for transfer is the movant's, see Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995), which in this case is Apple. 2 The Third Circuit has set forth the framework for analysis: "[I]n ruling on defendants' motion the plaintiff's choice of venue should not be lightly [*3] disturbed." In ruling on 1404(a) motions, courts have not limited their consideration to the three enumerated factors in 1404(a) (convenience of parties, convenience of witnesses, or interests of justice), and, indeed, commentators have called on the courts to "consider all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." While there is no definitive formula or list of the factors to consider, courts have considered many variants of the private and public interests protected by the language of 1404(a). The private interests have included: (1) plaintiff's forum preference as manifested in the original choice; (2) the defendant's preference; (3) whether the claim arose elsewhere; (4) the convenience of the parties as indicated by their relative physical and financial condition; (5) the convenience of the witnesses-but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and (6) the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum). The public [*4] interests have included: (7) the enforceability of the judgment; (8) practical considerations that could make the trial easy, expeditious, or inexpensive; (9) the relative administrative difficulty in the two fora resulting from court congestion; (10) the local interest in deciding local controversies at home; (11) the public policies of the fora; and (12) the familiarity of the trial judge with the applicable state law in diversity cases. Id. at (citations omitted and numbering added). 2 Given Microsoft's acknowledgement that its motion is dependent upon Apple's, the analysis will be limited to Apple's motion. There is no dispute that the patent infringement action against Apple could have been brought in the Northern District of California, as it is a California corporation with its principal place of business in the Northern District of California. In my view, interests (1) and (4) support the plaintiff's position that the case should not be transferred. Interests (2), (5), (6), and (8) support the defendant's request to transfer the case. Interests (3), (7), (10), (11) and (12) do not add much to the balancing, as they are either inapplicable or marginally applicable to this [*5] case. Interest (9) is applicable but does not favor one side or the other. Plaintiff has chosen Delaware as a forum. That choice weighs strongly in the plaintiff's favor, although not as strongly as it would if the plaintiff had its principal place of business (or, indeed, any place of business) in Delaware. See Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970) ("plaintiff's choice of a proper forum is a paramount consideration in any determination of a transfer request"); Pennwalt Corp. v. Purex Industries, Inc., 659 F.Supp. 287, 289 (D.Del. 1986) (plaintiff's choice of forum not as compelling if it is not plaintiff's "'home turf'"). 3 Robocast's principal place of business is in the State of New York. It is a Delaware corporation, and, while I think that gives Robocast a legitimate reason to sue in Delaware, 4 I think that is also a reason that adds to the weight given its choice to sue in Delaware. 3 I assume, without deciding, that Delaware is not Robocast's "home turf." Cf. Intellectual Ventures I LLC v. Altera Corp., 2012 U.S. Dist. LEXIS 70653, 2012 WL , *6-7 (D.Del. Jan. 23, 2012) (holding state of incorporation is "home turf" but also analyzing in the alternative). 4 At oral argument, Robocast [*6] also offered

29 2012 U.S. Dist. LEXIS 24879, *6 Page 3 as a legitimate reason for suing in Delaware the expertise that it would expect to encounter from a Court that has a heavy patent caseload. Defendant's preference is the Northern District of California, where it has its principal place of business. Clearly, Defendant's decision to seek to litigate in the Northern District of California is rational and legitimate also. 5 5 At oral argument, I stated that I did not view Apple's decisions to sue in Delaware in other cases, or not to seek transfer from Delaware in other cases in which it was named as a defendant, as having any relevance to the instant decision. (D.I. 40, pp. 7-8). If there were a question about Apple's capability of litigating a case in Delaware, such information might be relevant, but capability is not at issue. Although the defendant has argued in its briefing that the claim did not arise in Delaware (D.I. 17, p.9), and that the Apple products that are alleged to infringe were designed, developed and marketed in the Northern District of California, I think the claim that is relevant here is the plaintiff's claim that Apple's products, which are sold and offered for sale all over the United States, including [*7] Delaware (D.I. 18, 3), infringed its patent. Thus, I think the claims arise in every judicial district. See In re Acer America Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010). Consequently, this factor has no weight in the balancing. 6 6 Of course, the fact that Apple's engineers and marketers for these products are in Northern California is not irrelevant. It merely is analyzed as part of a different factor. Apple is omnipresent in everyday life. It is a large and powerful corporation. Robocast consists of its President and two employees. (D.I. 24, 10). Its founder was at the oral argument on the present motion. Its financial condition pales in comparison to that of Apple. Ten years ago, it had twenty-two employees. (D.I. 24, 5). While Robocast's primary enterprise today may be litigation, there is little reason to believe that its pockets are deep. (D.I. 24, 8, 10). "We could not even afford to file this lawsuit, except on a contingency basis." (D.I. 24, 13). There is no reason to doubt that if this litigation turns into a war of attrition, Apple will have the upper hand. I think this factor significantly disfavors transfer. At this juncture, it is hard to tell who the witnesses [*8] might be. It seems likely that a significant number of the non-expert witnesses will be employees of Apple. See In re Genentech, 566 F.3d 1338, 1345 (Fed. Cir. 2009) ("In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer."). Two current Apple employees (who live in California) with personal knowledge of relevant events are identified from the Complaint. (D.I. 1, 18-19; D.I. 19, 12). Apple has submitted the last known locations for 75 people involved in the prior art references cited during the prosecution of the '451 patent. (D.I. 19, 7). Of those people, 25 are in California and subject to the Northern District of California's subpoena power; 4 are or might be 7 subject to this Court's subpoena power, and 46 are subject to neither Court's subpoena power. 8 (D.I. 19-1, pp ). Robocast has identified two former Robocast employees with purportedly relevant information (D.I. 24, 14-16), and while they live near Delaware, they do not appear to be within this Court's subpoena power. Even assuming their information is relevant, and I am not convinced of that, their existence does not aid Robocast's argument. Unfortunately, [*9] a patent case is not like a car accident, where the fact witnesses -- or likely trial witnesses -- can be identified from day one. All that can be concluded about likely trial witnesses is that a year and a half to two years from now, more of them are more likely to be in California than in Delaware or within 100 miles of Wilmington. If there is a trial, 9 and if there are one or more necessary witnesses who will only testify if subpoenaed, there is a statistically greater likelihood that such witnesses would be within the subpoena power of the Northern District of California than within the subpoena power of the District of Delaware. No likely witnesses who would be unavailable in one location but not the other have been identified. The odds, however, are that such people exist, and that they are in California. Thus, this factor slightly favors transfer. 7 Two are listed as being in Washington, D.C., and, depending upon their exact location, might be within or without this Court's subpoena power. Two are listed as being in New Jersey and would appear to be within this Court's subpoena power. 8 A dozen of them are listed as having last known addresses in the State of Washington, but whether [*10] some or all of them are current or former employees of Microsoft is not described. 9 As noted in Intellectual Ventures I LLC v. Altera Corp., 2012 U.S. Dist. LEXIS 70653, 2012

30 2012 U.S. Dist. LEXIS 24879, *10 Page 4 WL , *10-11 (D.Del. Jan. 23, 2012), a trial is an unlikely event. Similarly, it is hard to tell where most of the books and records would be (other than Plaintiff's and Apple's). The only identified holders of records are the parties, and their records will be able to be produced in whichever forum has the case. Robocast's President has seventy boxes of hard copy documents and ten boxes of computer hardware material in New York City. (D.I. 24, 12). The records of Apple relating to its accused products, which are most likely the most important records for this litigation, see In re Genentech, 566 F.3d at 1345, are in the Northern District of California (D.I. 18, 2), and not in Delaware. Apple also suggests that some of the evidence in this case is sufficiently old that there may need to be some effort to retrieve it, and that the materials to do so might be in the Computer History Museum or other locations in Northern California. (D.I. 29, p. 8). Such an argument is fairly speculative. In any event, there are no records identified [*11] as only being available for trial in one of the two locations. 10 Thus, this factor favors transfer, but is of marginal weight given that it is likely that Apple's records can be produced at trial wherever trial is held. 10 While there is a paragraph in In re Link_A_Media Devices Corp., 662 F.3d 1221, 1224 (Fed. Cir. 2011), about "the convenience of the witnesses and the location of the books and records," I do not understand the Federal Circuit to have altered the Third Circuit's focus on the issue being not so much where the witnesses and evidence are, but whether they can be produced in court. Enforceability of the judgment is not an issue. Practical considerations that could make the trial easy, expeditious, or inexpensive favor the Northern District of California. A trial in Delaware is likely to be marginally less easy and more expensive for Apple than a trial in the Northern District of California, because of travel considerations and expenses for witnesses. A trial in the Northern District of California is likely to be marginally less easy and more expensive for Robocast than a trial in Delaware. On balance, the overall cost and inconvenience of a trial in the Northern District [*12] of California is likely to be less than it would be in Delaware, but not by a significant amount. Expedition, however, does not seem to depend upon the location of the trial. Thus, this factor slightly favors transfer. The relative administrative difficulty due to court congestion is difficult to assess. Plaintiff and Defendant both cite statistics suggesting greater court congestion in the court in which it does not want to try the case. I do not find any of the cited statistics to be meaningful in predicting what would happen with this case, either in Delaware or the Northern District of California. I would also note that, in my brief experience, "court congestion" has not caused any delay in assigning trial dates in Delaware. I therefore believe this factor is neutral. The "local controversy" consideration is inapplicable here. Apple is a major employer in the Northern District of California, but I do not think that makes the claim that Apple is infringing the patent of a Delaware company with a principal place of business in New York into a local California controversy. Thus, I think this factor is neutral. The public policy of Delaware encourages the use by Delaware corporations -- [*13] such as Robocast -- of Delaware as a forum for the resolution of business disputes. 11 Typically, the forum is the Delaware Court of Chancery. More generally, though, Delaware wants corporations to incorporate in Delaware, and the taxes that corporations pay are important to Delaware's financial health. While it is not unusual that a Delaware corporation should sue another corporation in a Delaware court, and is a factor that has some impact on the balancing, cf. Micron Technology v. Rambus, 645 F.3d 1311, 1332 (Fed. Cir. 2011)("Given that both parties were incorporated in Delaware, they had both willingly submitted to suit there, which weighs in favor of keeping the litigation in Delaware."), this factor significantly overlaps with why Robocast would have chosen Delaware as a venue in the first place, and is less significant than in Micron since Apple is not a Delaware corporation. I do not attribute it independent weight as a "public policy" factor. I believe it is taken into account in the first factor. 11 The State of Delaware Division of Corporations, on its website, prominently asks, "Why Choose Delaware as Your Corporate Home?" The answer follows: "More than 900,000 business entities [*14] have their legal home in Delaware including more than 50% of all U.S. publicly-traded companies and 63% of the Fortune 500. Businesses choose Delaware

31 2012 U.S. Dist. LEXIS 24879, *14 Page 5 because we provide a complete package of incorporation services including modern and flexible corporate laws, our highly-respected Court of Chancery, a business-friendly State Government, and the customer service-oriented Staff of the Delaware Division of Corporations." This is not a diversity case, and thus knowledge of state law is irrelevant here. Apple states that Robocast's connection with Delaware is entitled to less weight because it is a "non-practicing entit[y]." (D.I. 17, p.8). 12 Robocast was incorporated under the laws of the State of Delaware on January 10, (D.I. 24, 4). While it has no physical connection to Delaware, its corporate citizenship is of long standing. There might be cases in which a non-practicing entity's connections to Delaware suggest reasons to discount that connection, cf. In re Zimmer Holdings, Inc., 609 F.3d 1378 (Fed. Cir. 2010) (according no weight to the plaintiff's choice of venue when its "presence in [that venue] appears to be recent, ephemeral, and an artifact of litigation."), but this [*15] is not one of them. 12 Robocast disputes whether it is a "non-practicing" entity, pointing to products it has developed in the past. (D.I. 24, 5-6). I have considered In re Link_A_Media Devices Corp., 662 F.3d 1221 (Fed. Cir. 2011), 13 but I do not think it is particularly helpful in assessing the transfer request in this case, as its facts were very different. I would characterize that case generally as standing for the proposition that when the parties, all the witnesses, and all the evidence are in one distant jurisdiction, and the only connection to Delaware is that it is the state of incorporation of the defendant, and there is no other reason for the suit to be in Delaware, the suit must be transferred, upon timely request, to the distant jurisdiction. In the present case there is a greater connection to Delaware, as the plaintiff is a Delaware corporation with its principal place of business close to Delaware but not to California, and, also of considerable significance, the plaintiff would be inconvenienced by transfer. 13 The Federal Circuit's numerous transfer cases arising from the Fifth Circuit are not controlling as the Federal Circuit interprets the law of the Circuit in [*16] which the District Court sits. See In re Link_A_Media Devices Corp., 662 F.3d at The law of the two Circuits in regard to how to conduct a transfer analysis is different in a number of regards. Of greatest relevance, "Fifth Circuit precedent clearly forbids treating the plaintiff's choice of venue as a distinct factor in the [transfer] analysis." In re TS Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir. 2008). As noted earlier, the Third Circuit treats the plaintiff's choice as a factor of "paramount importance." Additional differences are identified in Intellectual Ventures I LLC v. Altera Corp., 2012 U.S. Dist. LEXIS 70653, 2012 WL , *13 n.7 (D.Del. Jan. 23, 2012). Under Third Circuit law, considerable deference is given to the plaintiffs' choice of forum. I think that when the plaintiff is a three-person corporation with Delaware as its longstanding corporate home, and the defendant is Apple, see Intellectual Ventures I LLC v. Altera Corp., 2012 U.S. Dist. LEXIS 70653, 2012 WL , *3 (D.Del. Jan. 23, 2012) (multi-billion dollar companies doing business on an international scale have a greater burden to meet in seeking transfer), there ought to be a compelling reason to overcome plaintiff's choice of forum. Apple has offered [*17] valid reasons, but I do not think Apple has shown that the balance of convenience tips strongly enough in Apple's favor so that transfer should be ordered. I will therefore deny Apple's motion to transfer. Consequently, I will also deny Microsoft's motion to transfer. An appropriate order will be entered.

32 Page 1 In Re: Actos (Pioglitazone) Products Liability Litigation. This Document Applies to: All Cases MDL NO. 6:11-md-2299 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA 2012 U.S. Dist. LEXIS July 27, 2012, Decided July 27, 2012, Filed COUNSEL: [*1] For Gary J Russo, Special Master: Gary J Russo, LEAD ATTORNEY, Carmen M Rodriguez, Jones Walker et al (LAF), Lafayette, LA; Kenneth W DeJean, Office of Kenneth W DeJean, Lafayette, LA. For Executive Committee, Plaintiff: Paul J Pennock, LEAD ATTORNEY, Weitz & Luxenberg (NY), New York, NY; Richard J Arsenault, LEAD ATTORNEY, Neblett Beard & Arsenault, Alexandria, LA; Dawn Barrios, Barrios Kingsdorf & Casteix, New Orleans, LA; Mark P Robinson, Jr, Robinson Calcagnie et al, Newport Beach, CA; Patrick C Morrow, Morrow Morrow et al, Opelousas, LA; Stephanie O'Connor, Douglas & London, New York, NY. For Plaintiffs Steering Committee, Plaintiff: J Pennock, LEAD ATTORNEY, Weitz & Luxenberg (NY), New York, NY; Richard J Arsenault, LEAD ATTORNEY, Neblett Beard & Arsenault, Alexandria, LA; Andy D Birchfield, Beasley Allen et al, Montgomery, AL; Christopher A Seeger, Seeger Weiss, New York, NY; Dianne M Nast, Nast Law, Philadelphia, PA; Jayne Conroy, Hanly Conroy et al, New York, NY; Jerrold S Parker, Parker Waichman (FL), Bonita Springs, FL; Neil D Overholtz, Aylstock Witkin & Sasser (Pensacola), Pensacola, FL; Nicholas J Drakulich, Drakulich Firm, San Diego, CA; Stephen B Murray, Murray Law Firm, [*2] New Orleans, LA; Troy A Rafferty, Levin Papantonio et al, Pensacola, FL; Vance R Andrus, Andrus Hood & Wagstaff, Denver, CO; W Mark Lanier, Law Offices of W Mark Lanier, Houston, TX; W James Singleton, Singleton Law Firm, Shreveport, LA. For Takeda Pharmaceutical Co Ltd, Defendant: Sara J Gourley, LEAD ATTORNEY, Jennifer A Foster, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Amy Sherry Fischer, Foliart Huff et al, Oklahoma City, OK; Bruce R Parker, Venable (MD), Baltimore, MD; D'Lesli M Davis, H Douglas Wabner, Jonathan B Skidmore, Katherine P Lett, Krtistin Turner, Fulbright & Jaworski (DAL), Dallas, TX; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Donna L Boyce, Adams & Reese (MEM), Memphis, TN; E Paige Sensenbrenner, Jaimme Angelle Collins, Lawton Cole Callihan, Megan Haggerty Guy, Kathleen Fontenot Drew, Adams & Reese (NO), New Orleans, LA; Jennifer Blakely D Kiefer, Stephen D Martin, Nelson Mullins et al (NC), Raleigh, NC; John E McElligott, Jr, Davidson Meaux et al, Lafayette, LA; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH; Randall Shirres Richardson, Fulbright & Jaworski (HOU), Houston, TX; Richard [*3] C Harlan, Alycia Degen, Sidley Austin (LA), Los Angeles, CA; Gerald J Corcoran, Montgomery McCracken et al (NJ), Linwood, NJ; James M Campbell, Campbell Campbell et al (MA), Boston, MA; Robert A Limbacher, Goodell DeVries et al (PA), Philadelphia, PA.

33 2012 U.S. Dist. LEXIS , *3 Page 2 For Takeda Pharmaceuticals America Inc, Defendant: Sara J Gourley, LEAD ATTORNEY, Jennifer A Foster, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Alycia Degen, Richard C Harlan, Catherine Valerio Barrad, Sidley Austin (LA), Los Angeles, CA; Bruce R Parker, Venable (MD), Baltimore, MD; Carol Dan Browning, Stites & Harbison, Lexington, KY; Colin J Garry, James D Arden, Sidley Austin (NY), New York, NY; D'Lesli M Davis, H Douglas Wabner, Jonathan B Skidmore, Katherine P Lett, Krtistin Turner, Fulbright & Jaworski (DAL), Dallas, TX; David J Walz, Edward Walter Gerecke, Carlton Fields (FL), Tampa, FL; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Donna L Boyce, Adams & Reese (MEM), Memphis, TN; E Paige Sensenbrenner, Jaimme Angelle Collins, Lawton Cole Callihan, Megan Haggerty Guy, Kathleen Fontenot Drew, Adams & Reese (NO), New Orleans, LA; Jennifer Y Dukart, Joseph M Price, Faegre & [*4] Benson (MN), Minneapolis, MN; Jennifer Blakely D Kiefer, Stephen D Martin, Nelson Mullins et al (NC), Raleigh, NC; John E McElligott, Jr, Davidson Meaux et al, Lafayette, LA; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH; Mary Nold Larimore, Nancy Menard Riddle, Ice Miller et al, Indianapolis, IN; Randall Shirres Richardson, Fulbright & Jaworski (HOU), Houston, TX; Stephen M Brooks, Nelson Mullins et al (Atlanta), Atlanta, GA; Camille N Johnson, Snow Christensen & Martineau, Salt Lake City, UT; Gerald J Corcoran, Montgomery McCracken et al (NJ), Linwood, NJ; J Bennett Fox, Jr, Adams & Reese, Memphis, TN; James M Campbell, Campbell Campbell et al (MA), Boston, MA; John E Galvin, III, Jonathan H Garside, Fox Galvin, St Louis, MO; Robert A Limbacher, Goodell DeVries et al (PA), Philadelphia, PA; Scott W Sayler, Shook Hardy & Bacon (KC), Kansas City, MO. For Eli Lilly & Co, Defendant: J Bennett Fox, Jr, LEAD ATTORNEY, Adams & Reese, Memphis, TN; Sara J Gourley, LEAD ATTORNEY, Jennifer A Foster, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Alan Daniel Mathis, James C Barton, Jr, Johnston Barton et al (AL), Birmingham, AL; Amy B Alderfer, [*5] Lori Chang, Greenberg Traurig (CA), Santa Monica, CA; Amy Sherry Fischer, Andrew M Bowman, Foliart Huff et al, Oklahoma City, OK; Christiana C Jacxsens, PRO HAC VICE, Greenberg Traurig (GA), Atlanta, GA; Lori G Cohen, PRO HAC VICE, Greenberg Traurig (GA), Atlanta, GA; Colin J Garry, James D Arden, Sidley Austin (NY), New York, NY; D'Lesli M Davis, Jonathan B Skidmore, Katherine P Lett, H Douglas Wabner, Fulbright & Jaworski (DAL), Dallas, TX; David J Walz, Edward Walter Gerecke, Carlton Fields (FL), Tampa, FL; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Donna L Boyce, Adams & Reese (MEM), Memphis, TN; E Paige Sensenbrenner, Jaimme Angelle Collins, Lawton Cole Callihan, Megan Haggerty Guy, Kathleen Fontenot Drew, Adams & Reese (NO), New Orleans, LA; Jennifer Y Dukart, Joseph M Price, Faegre & Benson (MN), Minneapolis, MN; Jennifer Blakely D Kiefer, Stephen D Martin, Nelson Mullins et al (NC), Raleigh, NC; John E McElligott, Jr, Davidson Meaux et al, Lafayette, LA; Jose Antonio Isasi, II, Greenberg Traurig (Chicago), Chicago, IL; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH; Lauren P Buford, Greenberg Traurig (Chicago), Chicago, IL; [*6] Mary Nold Larimore, Nancy Menard Riddle, Ice Miller et al, Indianapolis, IN; Randall Shirres Richardson, Fulbright & Jaworski (HOU), Houston, TX; Stephen M Brooks, Nelson Mullins et al (Atlanta), Atlanta, GA; Alycia Degen, Catherine Valerio Barrad, Sidley Austin (LA), Los Angeles, CA; Camille N Johnson, Snow Christensen & Martineau, Salt Lake City, UT; Gerald J Corcoran, Montgomery McCracken et al (NJ), Linwood, NJ; James M Campbell, Campbell Campbell et al (MA), Boston, MA; Lindsey N Oswalt, Sharon F Bridges, Adams & Reese (RL), Ridgeland, MS; Richard C Harlan, Sidley Austin (LA); Robert A Limbacher, Goodell DeVries et al (PA), Philadelphia, PA; Scott W Sayler, Shook Hardy & Bacon (KC), Kansas City, MO. For Takeda Global Research & Development Center Inc, Defendant: Sara J Gourley, LEAD ATTORNEY, Jennifer A Foster, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Alan Daniel Mathis, James C Barton, Jr, Johnston Barton et al (AL), Birmingham, AL; Alycia Degen, Amanda Victoria Lopez, Richard C Harlan, Sidley Austin (LA), Los Angeles, CA; Amy Sherry Fischer, Foliart Huff et al, Oklahoma City, OK; Carol Dan Browning, Stites & Harbison, Lexington, KY; Colin J Garry, [*7] James D Arden, Sidley Austin (NY), New York, NY; D'Lesli M Davis, H Douglas Wabner, Jonathan B Skidmore, Katherine P Lett, Fulbright & Jaworski (DAL), Dallas, TX; David J Walz, Edward Walter Gerecke, Carlton Fields (FL), Tampa, FL; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Donna L Boyce, Adams & Reese (MEM), Memphis, TN; E Paige Sensenbrenner, Jaimme Angelle Collins, Megan Haggerty Guy, Kathleen Fontenot Drew, Adams & Reese

34 2012 U.S. Dist. LEXIS , *7 Page 3 (NO), New Orleans, LA; Jane Thompson Davis, Nelson Mullins et al (SC), Charleston, SC; Jennifer Blakely D Kiefer, Stephen D Martin, Nelson Mullins et al (NC), Raleigh, NC; John E McElligott, Jr, Davidson Meaux et al, Lafayette, LA; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH; Mary Nold Larimore, Nancy Menard Riddle, Ice Miller et al, Indianapolis, IN; Michael P Morrissey, Sidley Austin (NY), New York, NY; Randall Shirres Richardson, Fulbright & Jaworski (HOU), Houston, TX; Stephen M Bressler, Lewis & Roca, Phoenix, AZ; Stephen M Brooks, Nelson Mullins et al (Atlanta), Atlanta, GA; William Stevens Brown, Nelson Mullins et al (GV), Greenville, SC; Gerald J Corcoran, Montgomery McCracken et al (NJ), Linwood, NJ; [*8] J Bennett Fox, Jr, Adams & Reese, Memphis, TN; John E Galvin, III, Jonathan H Garside, Fox Galvin, St Louis, MO; Lindsey N Oswalt, Sharon F Bridges, Adams & Reese (RL), Ridgeland, MS; Scott W Sayler, Shook Hardy & Bacon (KC), Kansas City, MO. For Takeda Pharmaceuticals International Inc, Defendant: Sara J Gourley, LEAD ATTORNEY, Jennifer A Foster, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Alan Daniel Mathis, James C Barton, Jr, Johnston Barton et al (AL), Birmingham, AL; Alycia Degen, Amanda Victoria Lopez, Richard C Harlan, Sidley Austin (LA), Los Angeles, CA; Amy Sherry Fischer, Foliart Huff et al, Oklahoma City, OK; Carol Dan Browning, Stites & Harbison, Lexington, KY; Colin J Garry, James D Arden, Sidley Austin (NY), New York, NY; D'Lesli M Davis, H Douglas Wabner, Jonathan B Skidmore, Katherine P Lett, Fulbright & Jaworski (DAL), Dallas, TX; David J Walz, Edward Walter Gerecke, Carlton Fields (FL), Tampa, FL; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Donna L Boyce, Adams & Reese (MEM), Memphis, TN; E Paige Sensenbrenner, Jaimme Angelle Collins, Megan Haggerty Guy, Kathleen Fontenot Drew, Adams & Reese (NO), New Orleans, [*9] LA; Jane Thompson Davis, Nelson Mullins et al (SC), Charleston, SC; Jennifer Blakely D Kiefer, Stephen D Martin, Nelson Mullins et al (NC), Raleigh, NC; John E McElligott, Jr, Davidson Meaux et al, Lafayette, LA; Michael P Morrissey, Sidley Austin (NY), New York, NY; Randall Shirres Richardson, Fulbright & Jaworski (HOU), Houston, TX; Stephen M Bressler, Lewis & Roca, Phoenix, AZ; William Stevens Brown, Nelson Mullins et al (GV), Greenville, SC; Gerald J Corcoran, Montgomery McCracken et al (NJ), Linwood, NJ; J Bennett Fox, Jr, Adams & Reese, Memphis, TN; John E Galvin, III, Jonathan H Garside, Fox Galvin, St Louis, MO; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH; Lindsey N Oswalt, Sharon F Bridges, Adams & Reese (RL), Ridgeland, MS; Scott W Sayler, Shook Hardy & Bacon (KC), Kansas City, MO. For Takeda Pharmaceuticals L L C, Defendant: Sara J Gourley, LEAD ATTORNEY, Jennifer A Foster, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Alan Daniel Mathis, James C Barton, Jr, Johnston Barton et al (AL), Birmingham, AL; Alycia Degen, Amanda Victoria Lopez, Richard C Harlan, Sidley Austin (LA), Los Angeles, CA; Amy Sherry Fischer, Foliart Huff [*10] et al, Oklahoma City, OK; Carol Dan Browning, Stites & Harbison, Lexington, KY; Colin J Garry, James D Arden, Sidley Austin (NY), New York, NY; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Donna L Boyce, Adams & Reese (MEM), Memphis, TN; E Paige Sensenbrenner, Jaimme Angelle Collins, Megan Haggerty Guy, Kathleen Fontenot Drew, Adams & Reese (NO), New Orleans, LA; Jane Thompson Davis, Nelson Mullins et al (SC), Charleston, SC; John E McElligott, Jr, Davidson Meaux et al, Lafayette, LA; Michael P Morrissey, Sidley Austin (NY), New York, NY; Stephen M Bressler, Lewis & Roca, Phoenix, AZ; William Stevens Brown, Nelson Mullins et al (GV), Greenville, SC; Gerald J Corcoran, Montgomery McCracken et al (NJ), Linwood, NJ; J Bennett Fox, Jr, Adams & Reese, Memphis, TN; John E Galvin, III, Jonathan H Garside, Fox Galvin, St Louis, MO; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH. For Takeda San Francisco Inc, Defendant: Sara J Gourley, LEAD ATTORNEY, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Alycia Degen, Richard C Harlan, Sidley Austin (LA), Los Angeles, CA; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), [*11] Cleveland, OH. For Takeda Ventures Inc, Defendant: Sara J Gourley, LEAD ATTORNEY, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Alycia Degen, Richard C Harlan, Sidley Austin (LA), Los Angeles, CA; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Megan Haggerty Guy, Adams & Reese (NO), New Orleans, LA; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH. For Takeda Pharmaceuticals International L L C,

35 2012 U.S. Dist. LEXIS , *11 Page 4 Defendant: Megan Haggerty Guy, Adams & Reese (NO), New Orleans, LA. For Takeda Pharmaceuticals U S A Inc, formerly known as Takeda Pharmaceuticals North America Inc, Defendant: K Michele Anderson, Sandy M Eloranto, LEAD ATTORNEYS, Tucker Ellis, Denver, CO; Sara J Gourley, LEAD ATTORNEY, Jennifer A Foster, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; D'Lesli M Davis, Jonathan B Skidmore, Katherine P Lett, H Douglas Wabner, Fulbright & Jaworski (DAL), Dallas, TX; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Donna L Boyce, Adams & Reese (MEM), Memphis, TN; Jaimme Angelle Collins, Lawton Cole Callihan, Megan Haggerty Guy, Kathleen Fontenot Drew, Adams & Reese (NO), New [*12] Orleans, LA; John E McElligott, Jr, Davidson Meaux et al, Lafayette, LA; Mary Nold Larimore, Nancy Menard Riddle, Ice Miller et al, Indianapolis, IN; Amanda Victoria Lopez, Sidley Austin (LA); Catherine Valerio Barrad, Sidley Austin (LA), Los Angeles, CA; E Paige Sensenbrenner, Adams & Reese (NO); Gerald J Corcoran, Montgomery McCracken et al (NJ), Linwood, NJ; J Bennett Fox, Jr, Adams & Reese, Memphis, TN; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH; Robert A Limbacher, Goodell DeVries et al (PA), Philadelphia, PA; Scott W Sayler, Shook Hardy & Bacon (KC), Kansas City, MO. For Takeda Industries Inc, Defendant: Jennifer A Foster, Sidley Austin (Chicago), Chicago, IL. For Springer Clinic Inc, Defendant: F Will DeMier, Jeffrey Lee Wilson, Barkley Law Firm, Tulsa, OK; Parker Huntington Foster, Barkley Law Firm. For Takeda California Inc, formerly known as Takeda San Diego Inc, Defendant: Sara J Gourley, LEAD ATTORNEY, Jennifer A Foster, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; D'Lesli M Davis, Jonathan B Skidmore, Katherine P Lett, Fulbright & Jaworski (DAL), Dallas, TX; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, [*13] SC; Donna L Boyce, Adams & Reese (MEM), Memphis, TN; Jaimme Angelle Collins, Megan Haggerty Guy, Kathleen Fontenot Drew, Adams & Reese (NO), New Orleans, LA; John E McElligott, Jr, Davidson Meaux et al, Lafayette, LA; Amanda Victoria Lopez, Sidley Austin (LA); E Paige Sensenbrenner, Adams & Reese (NO); Gerald J Corcoran, Montgomery McCracken et al (NJ), Linwood, NJ; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH. For Takeda America Holdings Inc, Defendant: Sara J Gourley, LEAD ATTORNEY, Nathan A Huey, Sherry Ann Knutson, Sidley Austin (Chicago), Chicago, IL; Dell P Chappell, John D Martin, Nelson Mullins et al (COL), Columbia, SC; Jude Philip Calabrese, Squire Sanders & Dempsey (OH), Cleveland, OH; Megan Haggerty Guy, Adams & Reese (NO), New Orleans, LA. For Alabama C V S Pharmacy L L C, Defendant: J Allen Sydnor, Jr, LEAD ATTORNEY, Huie Fernambucq & Stewart, Birmingham, AL. For Warren Clinic Inc, Defendant: Jeffrey Lee Wilson, Barkley Law Firm, Tulsa, OK; Parker Huntington Foster, Barkley Law Firm. JUDGES: HONORABLE REBECCA F. DOHERTY, UNITED STATES DISTRICT JUDGE. MAGISTRATE JUDGE HANNA. OPINION BY: REBECCA F. DOHERTY OPINION CASE MANAGEMENT ORDER: PROTOCOL RELATING TO THE PRODUCTION OF ELECTRONICALLY [*14] STORED INFORMATION ("ESI") Pursuant to the agreement reached between the Plaintiffs and Defendants herein, this Court enters the following Order concerning the production of electronically stored information in these proceedings: A. Scope 1. General. The procedures and protocols outlined herein govern the production of electronically stored information ("ESI") by the Parties. Section E titled "Search Methodology Proof of Concept" applies only to the predictive coding and advanced analytics sampling procedure as outlined in that Section. Sections A through D and Sections F through J apply throughout the pendency of this litigation. This Order governs all parties to these proceedings, whether they currently are involved or become so in the future. The Parties to this protocol ("Protocol") will take reasonable steps to comply with

36 2012 U.S. Dist. LEXIS , *14 Page 5 this agreed-upon Protocol for the production of documents and information existing in electronic format. All disclosures and productions made pursuant to this Protocol are subject to the Privilege Protocol and Protective Order entered in this matter. 2. Limitations and No-Waiver. The Parties and their attorneys do not intend by this Protocol to waive their rights [*15] to the attorney work-product privilege, except as specifically required herein, and any such waiver shall be strictly and narrowly construed and shall not extend to other matters or information not specifically described herein. All Parties preserve their attorney client privileges and other privileges and there is no intent by the protocol, or the production of documents pursuant to the protocol, to in any way waive or weaken these privileges. All documents produced hereunder are fully protected and covered by the Parties' confidentiality agreements, and order(s) of the United States District Court, as well as any clawback agreements, and protective order(s) of the United States District Court effectuating same. B. ESI Preservation 1. The Parties have issued litigation notices to those identified as most likely to have discoverable information. C. Sources 1. While Defendants' fact gathering is ongoing, the following are data sources identified to date that are most likely to contain discoverable information. Defendants agree to provide additional discovered data sources likely to contain relevant information. Defendants agree to provide information about the data sources to the extent [*16] applicable and known in addition to that found in the subparagraphs below, including the date range of information contained in the data source, the department(s) utilizing the data source, whether the data source is hosted internally or externally, and the database type. a ARISg b BLUE c Galaxy d MEDIsource e T-Rx f TSARS (or "S Drive") g T-Track h IRIS i LARC j Sample Guardian k TEG l PubBase m Records Management System Adverse Event Database Labeling and promotional materials management system Regulatory document management system Product information request database Field sales call database Takeda Statistical Analysis and Repository System Clinical Science Liaison database Research grant management system Clinical Science Liaison education resources database Product sample management database Takeda Educational Grant management system Publications management system Records Operation Center ("ROC") information system a. ARISg: ARISg is an adverse event database. It contains information that the Pharmacovigilance department at TRGD U.S. receives regarding adverse events related to Takeda drugs, including adverse event reports ("AERs") received from, without limitation, physicians, patients, clinical trials, medical literature, [*17] and foreign entities. ARISg is the software used for this database, which is sometimes called T-Gaea within Takeda. It has been in effect since b. BLUE: This database is used by the Marketing department in the approval process for promotional materials. It contains a labeling module and a module for promotional pieces and marketing campaigns. BLUE has been active from

37 2012 U.S. Dist. LEXIS , *17 Page 6 April 2008 to present. The vendor is Schawk Blue. c. Galaxy: Galaxy is a document repository system used by the Regulatory department containing components of regulatory submissions to the Food and Drug Administration. It went into production in d. MEDIsource: This data system is used by the Medical Information and Quality Assurance departments to capture and respond to product information requests and non-medical product complaints. It has a Siebel component that documents the intake of requests for information from physicians and provides a response; a Documentum system with standard response and customer response letters; and Info Maestro which pulls information from the standard response letter and from the Sieble system to create the response letter to an individual physician. e. T-Rx: This database contains [*18] information regarding U.S. commercial field sales calls. f. TSARS (or "S Drive"): This is Takeda's Statistical Analysis and Repository System and is a Unix centralized repository used to manage Clinical and research data. It is used by the Analytical Science department. It contains clinical SAS data sets and programs used to analyze those data sets for purposes of final submission reports -- tables, listings, and graphs. g. T-Track: This database is a customized application of Seibel's Customer Relationship Management system for use by Takeda's field based Clinical Science Liaisons. h. IRIS: This system is used by Takeda for the intake and processing of external research grant requests. It is a vendor hosted system (SteepRock is the vendor). It was implemented within the last five years. i. LARC: This database includes articles, presentations, and publications related to Takeda products and the therapeutic areas they address. Quosa is the vender for this database. It is accessible by Clinical Science Liaisons in their respective therapeutic areas. j. Sample Guardian: This database contains product sample management data regarding sample transactions and inventory reconciliations. k. TEG: [*19] Takeda Educational Grant database is used for education grant request management. l. PubBase: PubBase is a Documentum-based system used for the management and storage of publication documents. m. Records Management System: This data source is used by the Records Operations Center ("ROC"), where physical records are maintained. D. Custodians 1. The following are custodians who have been identified as most likely to have information relevant to this litigation. For these custodians, data is being pulled from , computer hard drives, and physical files that are in the possession, custody, and control of Takeda. Investigation is ongoing by both Parties as to potential additional custodians at Takeda (including potential Japanese custodians) and Eli Lilly and Company. Current key custodians include: 1. Baron, David Vice President, NonClinical Safety/Efficacy 2. Spanheimer, Robert Vice President, Medical and Scientific Affairs

38 2012 U.S. Dist. LEXIS , *19 Page 7 3. Greeby, Jennifer Director, Marketing (Diabetes) 4. Recker, David Senior Vice President, Clinical Science 5. Paris, Maria Former Vice President, Pharmacovigilance 6. Gerrits, Charles Former Senior Director, Pharmacoepidemiology 7. Johnston, Janet Associate Director, Safety Surveillance 8. Thom, Claire Former Vice President, Research and Development 9. Daly, Rich Former Vice President, Marketing 10. Perez, Alfonso Vice President, Clinical Science Strategy 11. Ortell, Una Director, Promotion and Advertising 12. Orlando, Dan Former Vice President, Sales 13. Lee, Jessie Manager, Regulatory Affairs Strategy 14. Cuomo, Maryann Associate Director, Regulatory Labeling 15. Weisbrich, Shay Vice President, Franchise Leader (Former Director, Marketing) 16. Kupfer, Stuart Vice President, Clinical Science 17. Ramstack, Mary Sr. Director, Strategic Project Planning and Management 18. Roebel, Mick Sr. Director, Regulatory Affairs 19. Lorenz, Janet Associate Director, Regulatory Affairs, Promotion and Advertising 20. Pritza, Mary Jo Former Associate Director, Regulatory Affairs 21. Caracci, Mike Former Director, Marketing 22. Tynan, Julie Assistant Project Director, Strategic Project and Planning Management 23. Hull, Andy Vice President, Alliance Management (former Vice President, Marketing) 24. Fusco, Gregory Sr. Medical Director, Pharmacoepidemiology and Analysis 25. Caggiano, Christopher Sr. Product Manager, Diabetes Marketing 26. Ryan, D'Arcy Former Director, Marketing 27. Khan, Mehmood Former Sr. Vice President, Medical and Scientific Affairs 28. Harris, Thomas Vice President, Regulatory Affairs 29. Trochanov, Anton Associate Medical Director, Pharmacovigilance E. [*20] Search Methodology Proof of Concept 1. General. The Parties have discussed the methodologies or protocols for the search and review of ESI collected from Takeda sources, including but not limited to , and the following is a summary of the Parties' agreement on the use of a search methodology proof of concept to evaluate the potential utility of advanced analytics as a document identification mechanism for the review and production of this data. The Parties agree to meet and confer regarding the use of advanced analytics for other data sources. While the Parties agree to explore the use of advanced analytics as a technique to ensure appropriate responses to discovery requests, the Parties agree that Defendants retain the right to review documents after predictive coding but prior to production for relevance, confidentiality, and privilege. A sampling of documents withheld after such review will take place pursuant to Section E General Overview of Advanced Analytics/Predictive Coding Process. Takeda utilizes

39 2012 U.S. Dist. LEXIS , *20 Page 8 software provided by Epiq Systems ("Epiq") to search and review ESI for production in this case. Epiq uses Equivio's Relevance software for advanced analytics and predictive [*21] coding. Epiq will collect documents from four key Takeda custodians, which will be combined to create the "sample collection population." The Parties will meet and confer to determine the names of the four custodians. Additionally, Takeda will add a set of regulatory documents which have already been collected to the "sample collection population." Takeda and Plaintiffs will each nominate three individuals ("the experts") to work collaboratively at the offices of Nelson Mullins, 1320 Main Street, Columbia, SC to train the Equivio Relevance system. Plaintiffs' experts will execute a Nondisclosure and Confidentiality Agreement in the form attached as Exhibit A hereto. To the extent that Plaintiffs' experts are exposed to information that would be subject to withholding or redaction under the Protective Order in this matter, Plaintiffs' experts agree not to disclose such information to co-counsel, client, any Party, or any third party without obtaining prior written consent of the other Party regarding the particular piece of information sought to be disclosed. Before the meeting, the Parties shall be provided a copy of the applicable Equivio training documents, handbook, [*22] or manual. The Parties' experts will receive technical training on the Equivio Relevance software and coding process and will work together to make one relevance decision for documents in the Control and Training sets, as described in more detail below. The Parties will review a number of documents required by the Equivio Relevance system for the data to reach Stability as described below. Once Stability is reached, the Control and Training sets are then used to begin the predictive coding process. Using the Control and Training documents, the system calculates relevance scores for the entire sample collection population, with each document in the sample collection population receiving a relevance score of 0 through 100. Attorneys representing Takeda will have access to the entire sample collection population to be searched and will lead the computer training, but they will work collaboratively with Plaintiffs' counsel during the Assessment and Training phases. Takeda's experts will conduct an initial review of documents presented by the Equivio Relevance system for privilege. The privileged documents will be either entirely withheld from viewing by Plaintiffs' experts or printed and [*23] redacted. A privilege log for such documents will be provided. The Parties, after review of the privilege log, reserve the right to require that such documents be deemed as "skip" (same as designation used for technical problem documents). Otherwise, these documents may still be used to train the system. Both Parties will then review all of the non-privileged documents during the training process (i.e., both documents coded as relevant and irrelevant). The Parties' experts will review the documents in collaboration and determine the coding to be applied to the documents. To the extent the Parties disagree regarding the coding of a particular document or designation of privilege, they will meet and confer in an effort to resolve the dispute prior to contacting the Court for resolution. At the conclusion of the training process and upon calculation of relevance scores, the Parties will meet and confer regarding which relevance score will provide a cutoff for documents to be manually reviewed by defense counsel for production. However, the Parties reserve the right to seek relief from the Court prior to the commencement of the final manual review. At the recommendation of Epiq, no seeding [*24] will take place at this time. The Parties may meet and confer if it is determined that seeding may be applicable at a later date. Plaintiffs' experts and counsel shall not remove any of the Control or Training documents from the offices of Nelson Mullins, nor shall they be allowed to copy such documents. The Parties agree that Defendants do not waive protection of trade secret or confidential information in allowing Plaintiffs to review documents under this sampling mechanism. All documents reviewed pursuant to this sampling protocol shall be done under the Protective Order in this matter as well as any Privilege Protocol or clawback agreement that shall be reduced to an order acceptable to the Court. 3. Relevance Tags. The Parties agree that as part of the Assessment and Training phases, all of the non-privileged and privilege-redacted documents reviewed by both parties' experts will be categorized as relevant, not relevant, or skip (to be used for documents with technical problems). The privileged-withheld documents will be categorized by Defendants' experts as relevant, not relevant, or skip, subject to the Parties' right

40 2012 U.S. Dist. LEXIS , *24 Page 9 to have any privileged-withheld documents categorized as a "skip." [*25] The Parties shall immediately discuss any disagreements on coding in good faith, so that the training may be improved accordingly, and may seek guidance from the Court or the Court appointed special masters if necessary. 4. Collection & Data Preparation. The Parties will meet and confer to agree upon the four custodians that will be selected for the sampling. and attachment documents will be collected from the four custodians and added to the collected regulatory documents, together comprising the sample collection population. Documents may be removed from the sample collection population if they are: a. Spam, b. Commercial , c. Files without text, d. Exact duplicates within the custodians (see Section G.6 regarding production of information for duplicate documents), and e. System files, etc. (i.e., the documents that the samples will be selected from will be de-nisted) Epiq will extract the sample collection population documents' text and build an index. 5. Assessment Phase. The Equivio Relevance software generates an initial simple random sample of 500 documents from the sample collection population. Takeda's experts will initially review the documents for privilege. Any documents [*26] deemed privileged by Takeda's experts will be either entirely withheld from viewing by Plaintiffs' experts or printed and redacted prior to viewing by Plaintiffs' experts, and logged on a privilege log consistent with the Privilege Protocol in this matter. These documents may still be used to train the system. To the extent the Parties disagree regarding the privilege decision for a particular document, they will meet and confer in an effort to resolve the dispute prior to contacting the Court for resolution. The Parties' experts will then work collaboratively to determine the relevance of the non-privileged and privilege-redacted documents. The relevance of the privileged-withheld documents will be determined by Defendants' experts. The documents reviewed in the Assessment Phase make up the Control Set. The Control Set is used for estimating richness (percentage of relevant documents in a population), and also serves as a reference point for calculating recall and precision. a. The application's estimates of richness use a confidence level of 95%. The initial Control Set of 500 documents yields a confidence estimation of richness with an error margin of plus or minus 4.3%. This is [*27] a worst-case error margin assuming richness of 50%. For lower levels of richness, the error margin will also be lower. For example, for richness of 10%, the error margin would be plus or minus 2.6%, while for 5%, the error margin would be plus or minus 1.9%. b. The Control Set also creates a basis for calculating recall and precision, which are then used for monitoring training progress and calculating results. c. Equivio Relevance tracks the progress of the Assessment Phase to achieve the appropriate level of statistical validation. These levels of validation are referred to in the Equivio system as "Baseline," at the lowest level, through "Statistical," at the highest level. The terms "Baseline" and "Statistical" are used by Equivio Relevance as indicators to the user as to the progress of the Assessment Phase. The validation level achieved depends on the number of relevant documents found by the user in the Control Set. At the "Baseline" level, the number of relevant documents in the control set is too low to allow statistically valid estimates of recall and precision. The Parties will ensure that the number of Control Set documents reviewed will reach the "Statistical" level. d. For [*28] informational purposes, the "Statistical" level of validation in Equivio requires the presence of at least

41 2012 U.S. Dist. LEXIS , *28 Page relevant documents in the Control Set. For document collections with richness of 14% and above, a Control Set of 500 documents is sufficient to reach the "Statistical" level of validation. For lower levels of richness, additional documents will need to be reviewed in the Assessment Phase in order to reach the "Statistical" level. e. Based on a confidence level of 95%, the Statistical level of validation yields an error margin on recall estimates of plus or minus 11.7%. This is a worst-case error margin assuming recall of 50%. The Parties will continue the Assessment Phase, beyond the "Statistical" level, until the Control Set contains at least 385 relevant documents. This sample will yield an error margin on recall estimates of plus or minus 5%. 6. Iterative Training Phase. Following the creation of the Control Set at the Statistical validation level, the Equivio Relevance system selects a random sample of forty documents. Takeda's experts will initially review the forty documents for privilege. Any documents deemed privileged by Takeda's experts will be either entirely withheld [*29] from viewing by Plaintiffs' experts or printed and redacted prior to viewing by Plaintiffs' experts, and logged on a privilege log consistent with the Privilege Protocol in this matter. These documents may still be used to train the system. The Parties' experts will then work collaboratively to determine the relevance of the non-privileged and privilege-redacted documents. The relevance of the privileged-withheld documents will be determined by Defendants' experts, subject to the Parties' right to have any privileged-withheld documents categorized as a "skip" and not included in the training. To the extent the Parties disagree regarding the relevance or privilege decision for a particular document, they will meet and confer in an effort to resolve the dispute prior to contacting the Court for resolution. a. Once the experts have completed the first Training Set, the Equivio Relevance system calculates the Training Status. The three possible states are "Not Stable," "Nearly Stable," or "Stable." b. The experts continue to review samples of forty documents each, using the process outlined in paragraph 6 above, until the Stable Training Status is reached. c. The subsequent samples of forty [*30] documents are selected using an Active Learning approach. Active Learning means that each training sample is selected based on what has been learned from previous samples. The object is to maximize the sample's contribution to the training process. Therefore, the system chooses samples that provide comprehensive coverage of the population (reducing under-inclusiveness), while fine-tuning the concept of relevance that the Classifier is developing (reducing over-inclusiveness). The system reaches Stability when the marginal contribution of additional samples to the enhancement of the Classifier approaches zero, as determined by the Equivio software and which determination (Stability) is not configurable. 7. Calculation of Relevance Scores. Upon completion of the Training Phase once Stability is reached, and any related meet and confer sessions and agreed upon coding corrections, the Equivio Relevance system will run over the sample collection population and calculate relevance scores for each document in the sample collection population. Each document in the sample collection population receives a relevance score of 0 through 100, with 0 being least likely to be relevant and 100 being [*31] most likely. 8. Final Search, Review, and Production of Sample Collection Population Documents. The Parties will meet and confer regarding which relevance score will provide a cutoff that will yield a proportionate set of documents that will be manually reviewed by Takeda for production. All of the documents above the agreed upon relevance score in the sample collection population will be reviewed by Takeda. Documents found by Takeda's review to be relevant and non-privileged documents will be produced to Plaintiffs.

42 2012 U.S. Dist. LEXIS , *31 Page Quality Control by Random Sample of Irrelevant Documents. In addition, at the conclusion of the process described above, and prior to generating the review set, the Parties will collaboratively review at the offices of Nelson Mullins in Columbia, SC a random sample of documents in the sample collection population with relevance scores below the cut-off score set for establishing the review set (aka the "Rest"). These documents are flagged for culling, and will not be included in the review set. In Equivio Relevance, this test is referred to as "Test the Rest." The purpose for this phase is to verify that the Rest contains a low prevalence of relevant documents and that [*32] the proportionality assumptions underlying the cut-off decision are valid. a. The Test the Rest sample is designed to provide a confidence level of 95%. The default sample size is 500 documents. The margin of error depends on the percentage of relevant documents in the Rest. For example, if 5% of the Rest documents are found to be relevant, the margin of error is 1.9%. If 1% are relevant, the margin of error is 0.8%. b. Takeda's experts will initially review the Rest sample documents for privilege. Any documents deemed privileged by Takeda's experts will be either entirely withheld from viewing by Plaintiffs' experts or printed and redacted prior to viewing by Plaintiffs' experts, and logged on a privilege log consistent with the Privilege Protocol in this matter. The Parties' experts will then work collaboratively to determine the relevance of the non-privileged and privilege-redacted documents. The relevance of the privileged-withheld documents will be determined by Defendants' experts, subject to the Parties' rights to have any privilege-withheld document categorized as a "skip" for purposes of the Test the Rest sample. To the extent the Parties disagree regarding the relevance or [*33] privilege decision for a particular document, they will meet and confer in an effort to resolve the dispute prior to contacting the Court for resolution. 10. Sampling of Documents Not Produced After Predictive Coding. After the predictive coding process completes, and Takeda's counsel reviews and produces documents from the sample collection population consistent with paragraph 8, the Parties will collaboratively review at the offices of Nelson Mullins in Columbia, SC a random sample of documents above the agreed-upon cutoff relevance score that were withheld from production on relevance grounds. The Parties agree to meet and confer regarding an appropriate sample size. a. Takeda's experts will initially review the sample documents for privilege. Any documents deemed privileged by Takeda's experts will be either entirely withheld from viewing by Plaintiffs' experts or printed and redacted prior to viewing by Plaintiffs' experts, and logged on a privilege log consistent with the Privilege Protocol in this matter. The Parties' experts will then work collaboratively to determine the relevance of the non-privileged and privilege-redacted documents. The relevance of the privileged-withheld [*34] documents will be determined by Defendants' experts, subject to the Parties' rights to have any privilege-withheld document categorized as a "skip" for this purpose. To the extent the Parties disagree regarding the relevance or privilege decision for a particular document, they will meet and confer in an effort to resolve the dispute prior to contacting the Court for resolution. 11. Post-Predictive Coding Sampling Meet and Confer. The Parties shall meet and confer in good faith to resolve any difficulties and finalize the method for searching documents on a going forward basis. To the extent that the Parties cannot agree, they shall apply to the Court for relief. Defendant shall not be required to proceed with the final search and review unless and until objections raised by either Party have been adjudicated by the Court or resolved by written agreement of the Parties. The Parties reserve the right to request a meet and confer regarding the designation of any document as

43 2012 U.S. Dist. LEXIS , *34 Page 12 a "skip" for purposes of the control sample, training, or Test the Rest, if agreement cannot be reached. F. Costs 1. Takeda reserves its right to seek relief from the Court (e.g., a cost shifting award and pursuant to [*35] the principles of proportionality). See Fed. R. Civ. P. 1, 26(b)(2)(C), 26(b)(2)(B), & 26(g); Electronic Discovery, 11 Sedona Conf. J. 289 (2010); see also Fed. R. Evid. 403 (inadmissibility of cumulative evidence). 2. Plaintiffs agree to bear all of the costs associated with their compliance with the terms of this protocol. Plaintiffs agree to bear all of the costs associated with the receipt and review of ESI produced hereunder including the costs associated with its ESI experts who will be involved with Plaintiffs in all aspects of this ESI protocol. G. Format of Production For Documents Produced by Defendants 1. TIFF/Native File Format Production. Documents will be produced as single-page TIFF images with corresponding multi-page text, native file format document if applicable under paragraph G.2, and necessary load files. Native files, along with all corresponding metadata, will be preserved. TIFF images will be of 300 dpi quality or better. The load files will include an image load file as well as a metadata (.DAT) file with the metadata fields identified below on the document level to the extent available. Field Summation Field (Florida) Definition Doc Type 1 SOURCE SOURCE Name of party producing the document All 2 CUSTODIAN CUSTODIAN Name of person or non- human data source from where documents/files are produced. **Where redundant names occur, individuals should be distinguished by an initial which is kept constant throughout productions (e.g., Smith, John A. and Smith, John B. Where data is collected from an archive, the archive will be listed as custodian. 3 CUSTODIANAPPEND- MULTI CUSTODIANAPPENDMULTI All Name of Takeda person or non-human All data source from where duplicate documents/files were suppressed. **Where redundant names occur, individuals should be distinguished by an initial which is kept constant throughout productions (e.g., Smith, John A. and Smith, John B. Where data is collected from an archive, the archive will be listed as custodian. 4 CUSTODIAN ID CUSTODIAN ID Each CUSTODIAN from #2 or 3 above will be assigned a unique numeric identifier that will be maintained throughout productions. Where data is collected from an archive, the archive will be listed as custodian. 5 BEGBATES BEGDOC# Beginning Bates Number (production number) All All

44 2012 U.S. Dist. LEXIS , *35 Page 13 6 ENDBATES ENDDOC# End Bates Number (production number) 7 PGCOUNT PGCOUNT Number of pages in the document All 8 FILESIZE FILESIZE File Size All 9 APPLICAT APPLICAT Commonly associated application for the specified file type. 10 FILEPATH FILEPATH (for Edocs) File source path for electronically collected documents other than s, which includes location, file name, and file source extension. 11 RELATIVE PATH AP- PEND RELATIVE PATH APPEND (for Edocs) File source path for duplicate electronically collected documents other than s, which includes location, file name, and file source extension. 12 NATIVEFILELINK DOCLINK For documents provided in native format only 13 TEXTPATH LOGFILE or FULLTEXT File path for OCR or Extracted Text files 14 MSGID MSGID Value extracted from parent message during processing All All Edocs Edocs All All 15 FROM FROM Sender 16 TO TO Recipient 17 cc cc Additional Recipients 18 BCC BCC Blind Additional Recipients 19 SUBJECT SUBJECT Subject line of 20 PARENTBATES PARENTID BeginBates number for the parent of a family (will not be populated for documents that are not part of a family) 21 ATTACHBATES ATTACHID Bates number from the first page of each attachment 22 BEGATTACH (will be provided from AT- TRANGE) 23 ENDATTACH (will be provided from AT- TRANGE) First Bates number of family range (i.e. Bates number of the first page of the parent ) Last Bates number of family range (i.e. Bates number of the last page of the last attachment) ATTACHCOUNT ATTACHMENT COUNT Number of attachments to an 25 ATTACHNAME ATTACHMENT LIST Name of each individual attachment 26 DATESENT (mm/dd/yyyy hh:mm:ss AM) 27 DATERCVD (mm/dd/yyyy hh:mm:ss DATESENT Date Sent DATERCVD Date Received

45 2012 U.S. Dist. LEXIS , *35 Page 14 AM) 28 DATSORT (mm/dd/yyyy hh:mm:ss AM) DATESENT Sent Date of the parent (physically top in a chain, I.e. immediate/direct parent ) 29 Outlook Type Outlook Type Type of Outlook item, e.g. , calendar item, contact, note, task 30 HASHVALUE MD5HASH MD5 Hash Value All 31 TITLE DOCTITLE Title provided by user within the document Edocs 32 AUTHOR AUTHOR Creator of a document Edocs 33 DATECRTD DATECRTD Creation Date Edocs 34 MODIFIED BY LAST EDITED BY Person who has modified a document Edocs 35 LASTMODD (mm/dd/yyyy LASTMODD (mm/dd/yyyy hh:mm:ss Last Modified Date 36 DocumentType DocumentType Descriptor for the type of document: "E-document" for electronic documents not attached to s; " s" for all s; "Eattachments" for files that were attachments to s; and "Physicals" for hard copy physical documents that have been scanned and converted to an electronic image. 37 Importance Importance High Importance - indicates Priority message. 38 Redacted Redacted Descriptor for documents that have been redacted. Yes for redacted documents; "No" for unredacted documents. 39 ProdVol ProdVol Name of media that data was produced on. Wave 00 I - Hard Drive 40 Confidentiality Confidentiality Indicates if the document has been designated as Confidential pursuant to any applicable Protective Order. "Yes" for Confidential documents; No for documents that are not so designated. 41 folder folder Folder in which non- archive collected is stored within the custodians mailbox, such as "inbox", "sent", deleted, "draft", or any custom folder. 42 Relevance score Relevance score Relevance score assigned by Equivio for documents that have been through the predictive coding process Edocs All All All All All

46 2012 U.S. Dist. LEXIS , *35 Page 15 a. [*36] This list of fields does not create any obligation to create or manually code fields that are not automatically generated by the processing of the ESI; that do not exist as part of the original Metadata of the document; or that would be burdensome or costly to obtain. 2. Defendants will produce spreadsheets (.xls/.xlsx files) and PowerPoint presentations (.ppt/.pptx files) in native form as well as audio and video files (e.g., mp3s, wavs, mpegs, etc.), except that spreadsheets and PowerPoint documents will be produced in TIFF format if redactions are applied. Audio and video files shall be edited if redactions are required, subject to appropriate identification of any such audio or video files having been edited. In addition, for any redacted documents that are produced, the documents' metadata fields will be redacted where required. The Parties will meet and confer regarding a request for the production of any other materials including documents in native file format. 3. The Parties agree to meet and confer regarding the format of production for structured databases. 4. Appearance. Subject to appropriate redaction, each document's electronic image will convey the same information and [*37] image as the original document, including formatting, such as bolding, highlighting, font size, italics. Documents will be produced in black and white. After production, a Party may request that a document be produced in color at which time the Parties may meet and confer about such production. Documents that present imaging or formatting problems will be identified and the Parties will meet and confer in an attempt to resolve the problems. 5. Document Numbering. Each page of a produced document will have a legible, unique page identifier "Bates Number" electronically "burned" onto the image at a location that does not obliterate, conceal or interfere with any information from the source document. The Bates Number for each page of each document will be created so as to identify the producing Party and the document number. In the case of materials redacted in accordance with applicable law or confidential materials contemplated in any Protective Order or Confidentiality Stipulation entered into by the Parties, a designation may be "burned" onto the document's image at a location that does not obliterate or obscure any information from the source document. 6. De-NISTing and Deduplication. [*38] Electronic file collections will be De-NISTed, removing commercially available operating system and application file contained on the current NIST file list. Defendants will globally deduplicate identical ESI as follows: a. Electronic Files: Duplicated electronic files will be identified based upon calculated MD5 Hash values for binary file content. File contents only will be used for MD5 Hash value calculation and will not include operating system metadata (filename, file dates) values. All files bearing an identical MD5 hash value are a duplicate group. The document reviewed by Defendants for privilege, relevance, or confidentiality shall be deemed the primary duplicate document within the group. Generally, the Defendants shall not remove any of the objective coding fields listed in paragraph G.1 above, in either primary or duplicate documents. If redactions are applied to the subject and/or text fields, however, Defendants may apply the same redactions to all other documents within the duplicate group. Defendants shall only produce one document image or native file for duplicate ESI documents within the group. For Takeda sources, the following metadata fields as described in Section [*39] G.1 associated with the produced document will provide information for duplicate documents not produced: CustodianAppendMulti and RelativePathAppend. b. Messaging Files: Duplicate messaging files will be identified based upon MD5 Hash values for the message family, including parent object and attachments. The following fields will be used to create the unique value for each message: To; From; CC; BCC; Date Sent;

47 2012 U.S. Dist. LEXIS , *39 Page 16 Subject; Body; and, MD5 Hash values for all attachments, in attachment order. Duplicate messaging materials will be identified at a family level, including message and attachment(s). All files bearing an identical MD5 Hash value are a duplicate group. The documents reviewed by Defendants for privilege, relevance, or confidentiality shall be deemed the primary duplicate document within the group. For identified duplicate ESI, the Defendants shall not remove any of the objective coding fields listed in paragraph G.1 above. If redactions have been applied to such fields, Defendants may substitute and replace the subject and text fields with those reviewed by Defendants' counsel for the primary duplicate ESI document for the other documents within the duplicate group. Defendants [*40] shall only produce one document image or native file for duplicate ESI documents within the group. For Takeda sources, the following metadata field as described in Section G.1 associated with the produced document will provide information for duplicate documents not produced: CustodianAppendMulti. c. Threading: The producing Party may identify threads where all previous s which make up the thread are present in the body of the final in the thread. Any party electing to use this procedure must notify all receiving parties that thread suppression has been proposed to be performed on a specified production and the Parties agree to meet and confer regarding the format of this production, and reserve the right to seek Court guidance on the issue should agreement not be reached. 7. Production Media. The producing Party may produce documents via a secure file transfer mechanism and/or on readily accessible, computer or electronic media as the Parties may hereafter agree upon, including CD-ROM, DVD, external hard drive (with standard PC compatible interface), (the "Production Media"). Each piece of Production Media will be assigned a production number or other [*41] unique identifying label corresponding to the date of the production of documents on the Production Media (e.g., "Defendant Takeda Production April 1, 2012") as well as the sequence of the material in that production (e.g. "-001", "-002"). For example, if the production comprises document images on three DVDs, the producing Party may label each DVD in the following manner "Defendant Takeda Production April 1, 2012", "Defendant MSL Production April 1, ", "Defendant Takeda Production April 1, " Additional information that will be identified on the physical Production Media includes: (1) text referencing that it was produced in In re: Actos (Pioglitazone) Products Liability Litigation; and (2) the Bates Number range of the materials contained on the Production Media. Further, any replacement Production Media will cross-reference the original Production Media and clearly identify that it is a replacement and cross-reference the Bates Number range that is being replaced. 8. Write Protection and Preservation. All computer media that is capable of write protection should be write-protected before production. 9. Inadvertent Disclosures. The terms of the Case Management Order: [*42] Assertions of Attorney-Client Privilege and Work Product Doctrine shall apply to this protocol. 10. Duplicate Production Not Required. The Parties shall meet and confer regarding any Party's request to produce identical paper copies of data already produced in electronic form. H. Timing. 1. The Parties will use their reasonable efforts to produce ESI in a timely manner consistent with the Court's discovery schedule. 2. The Parties will produce ESI on a rolling basis. I. General Provisions. 1. Any practice or procedure set forth herein may be varied by agreement of the Parties, and first will be confirmed in writing, where such variance is deemed appropriate to facilitate the timely and economical

48 2012 U.S. Dist. LEXIS , *42 Page 17 exchange of electronic data. 2. Should any Party subsequently determine it cannot in good faith proceed as required by this protocol; the Parties will meet and confer to resolve any dispute before seeking Court intervention. 3. The Parties agree that e-discovery will be conducted in phases and the Parties will meet and confer regarding discovery of data sources not listed herein. 4. Regardless of the foregoing, the Parties are under a continuing obligation to produce identified responsive, non-privileged [*43] documents and to identify sources of potentially discoverable materials consistent with their obligations under Federal Rules of Civil Procedure. J. Items Requiring Meet and Confer. 1. The Parties agree to meet and confer regarding the following items in advance of impacted productions: a. Whether the Property metadata field is able to be produced b. Certain technical specifications for productions: (1) Hard copy document unitization (2) Microsoft "Auto" features or macros (3) Embedded objects (4) Compressed Files (5) Load file organization IT IS SO ORDERED. THUS DONE AND SIGNED in Lafayette, Louisiana, this 27 day of July, /s/ Rebecca F. Doherty HONORABLE REBECCA F. DOHERTY UNITED STATES DISTRICT JUDGE

49 Page 1 KLEEN PRODUCTS LLC, et al., Plaintiffs, v. PACKAGING CORPORATION OF AMERICA, et al., Defendants. No. 10 C 5711 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 2012 U.S. Dist. LEXIS September 28, 2012, Decided September 28, 2012, Filed PRIOR HISTORY: Kleen Prods., LLC v. Packaging Corp. of Am., 775 F. Supp. 2d 1071, 2011 U.S. Dist. LEXIS (N.D. Ill., 2011) COUNSEL: [*1] For Kleen Products LLC, Plaintiff: Heidi M. Silton, W. Joseph Bruckner, LEAD ATTORNEYS, Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN; Trent M. Johnson, LEAD ATTORNEY, PRO HAC VICE, Foley & Lardner Llp, Milwaukee, WI; Anthony D. Shapiro, Hagens Berman Sobol Shapiro, Seattle, WA; Charles P Goodwin, PRO HAC VICE, H. laddie Montague, PRO HAC VICE, Berger & Montague, P.c., Philadelphia, PA; Christopher M. Burke, PRO HAC VICE, Kristen M. Anderson, PRO HAC VICE, Walter W. Noss, PRO HAC VICE, ScottScott LLP, San Diego, CA; Daniel A. Bushell, Berman DeValerio, Palm Beach Gardens, FL; Daniel E Gustafson, Daniel C Hedlund, Gustafson Gluek PLLC, Minneapolis, MN; Daniel Jay Mogin, PRO HAC VICE, The Mogin Law Firm, San Diego, CA; Dianne M Nast, PRO HAC VICE, Roda & Nast, P.C., Lancaster, PA; Donald Lewis Sawyer, Freed Kanner London & Millen LLC, Bannockburn, IL; Edward A. Diver, PRO HAC VICE, Howard Langer, Peter E. Leckman, PRO HAC VICE, Langer Grogan & Diver, P.c., Philadelphia, PA; Erin C. Burns, PRO HAC VICE, RodaNast, P.C., Lancaster, PA; Geoffrey C Rushing, PRO HAC VICE, Richard Alexander Saveri, PRO HAC VICE, Saveri & Saveri, Inc., San Francisco, CA; Jeffrey Sprung, PRO HAC VICE, Hagens [*2] Berman Sobol Shapiro Llp, Seattle, WA; Joseph Goldberg, PRO HAC VICE, Freedman Boyd Hollander, Goldberg Ives & Duncan, PA, Albuquerque, NM; Manuel Juan Dominguez, Cohen Milstein Sellers & Toll, Palm Beach Gardens, FL; Martin I. Twersky, PRO HAC VICE, Berger & Montaque, P.C., Philadelphia, PA; Matthew Sinnott, PRO HAC VICE, The Mogin Law Firm, P.c., San Diego, CA; Michael Jerry Freed, Michael E. Moskovitz, Robert J. Wozniak, Steven A Kanner, Freed Kanner London & Millen, LLC, Bannockburn, IL; Steven J. Greenfogel, Lite DePalma Greenberg, LLC, Philadelphia, PA; William J Heye, PRO HAC VICE, Saveri & Saevri, Inc., San Francisco, CA. For Ferraro Foods of North Carolina, LLC., Ferraro Foods, Inc., Plaintiffs: Heidi M. Silton, W. Joseph Bruckner, LEAD ATTORNEYS, Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN; Daniel Jay Mogin, The Mogin Law Firm, San Diego, CA; Donald Lewis Sawyer, Robert J. Wozniak, Freed Kanner London & Millen LLC, Bannockburn, IL; Manuel Juan Dominguez, Cohen Milstein Sellers & Toll, Palm Beach Gardens, FL; Robert G. Eisler, PRO HAC VICE, Grant & Eisenhofer P.A., Wilmington, DE; Vincent J Esades, PRO HAC VICE, Heins Mills & Olson, P.L.C., Minneapolis, MN. For Distributors [*3] Packaging Group, LLC, RHE Hatco, Inc., Plaintiffs: Heidi M. Silton, W. Joseph

50 2012 U.S. Dist. LEXIS , *3 Page 2 Bruckner, LEAD ATTORNEYS, Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN; Daniel Jay Mogin, The Mogin Law Firm, San Diego, CA; Donald Lewis Sawyer, Robert J. Wozniak, Freed Kanner London & Millen LLC, Bannockburn, IL; Manuel Juan Dominguez, Cohen Milstein Sellers & Toll, Palm Beach Gardens, FL. For R.P.R. Enterprises, Inc., Plaintiff: W. Joseph Bruckner, LEAD ATTORNEY, Brian D. Clark, PRO HAC VICE, Heidi M. Silton, Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN; Daniel Jay Mogin, The Mogin Law Firm, San Diego, CA; Donald Lewis Sawyer, Robert J. Wozniak, Freed Kanner London & Millen LLC, Bannockburn, IL; Manuel Juan Dominguez, Cohen Milstein Sellers & Toll, Palm Beach Gardens, FL; Richard Frank Lombardo, PRO HAC VICE, Shaffer Lombardo Shurin, Kansas City, MO. For Chandler Packaging, Inc., Plaintiff: Heidi M. Silton, W. Joseph Bruckner, LEAD ATTORNEYS, Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN; Daniel Jay Mogin, The Mogin Law Firm, San Diego, CA; Donald Lewis Sawyer, Robert J. Wozniak, Freed Kanner London & Millen LLC, Bannockburn, IL; Lee Albert, PRO HAC VICE, Murray Frank LLP, New York, NY; Manuel [*4] Juan Dominguez, Cohen Milstein Sellers & Toll, Palm Beach Gardens, FL. For Mighty Pac, Inc., Plaintiff: Heidi M. Silton, W. Joseph Bruckner, LEAD ATTORNEYS, Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN; Daniel J. Kurowski, Hagens Berman Sobol Shapiro LLP, Oak Park, IL; Daniel Jay Mogin, The Mogin Law Firm, San Diego, CA; Donald Lewis Sawyer, Robert J. Wozniak, Freed Kanner London & Millen LLC, Bannockburn, IL; Manuel Juan Dominguez, Cohen Milstein Sellers & Toll, Palm Beach Gardens, FL. For Packaging Corporation of America, Defendant: Barack S. Echols, Daniel E. Laytin, Douglas James Kurtenbach, Jeannie Young Evans, Leonid Feller, Luke Christian Ruse, Kirkland & Ellis LLP, Chicago, IL. For International Paper, Defendant: James T. Mckeown, LEAD ATTORNEY, Foley & Lardner Llp, Milwaukee, WI; Michael M. Conway, LEAD ATTORNEY, Joanne Lee, Foley & Lardner, Chicago, IL; Gerald Michael Halfenger, James T. McKeown, PRO HAC VICE, Foley & Lardner, Milwaukee, WI; Nathan P. Eimer, Susan M. Razzano, Eimer Stahl LLP, Chicago, IL. For Norampac Industries Inc., Cascades, Inc., Defendants: Scott M. Mendel, LEAD ATTORNEY, John Edward Susoreny, Lauren Nicole Norris, K&L Gates LLP, Chicago, IL. For Weyerhaeuser [*5] Company, Defendant: David Marx, Michelle S. Lowery, LEAD ATTORNEYS, McDermott, Will & Emery LLP (Chicago), Chicago, IL; Jennifer A Smulin Diver, Rachael V Lewis, PRO HAC VICE, McDermott Will & Emery LLP, Chicago, IL. For Georgia Pacific LLC, Defendant: Deborah Kay Brown, PRO HAC VICE, Quinn Emanuel, New York, NY; James R. Figliulo, Figliulo & Silverman, Chicago, IL; Kyle R Taylor, PRO HAC VICE, Marc L. Greenwald, PRO HAC VICE, Sami Husayn Rashid, PRO HAC VICE, Stephen R Neuwirth, PRO HAC VICE, Quinn Emanuel Urquhart & Sullivan, Llp, New York, NY; Michael B Carlinsky, PRO HAC VICE, Quinn Emanuel Urquhart Oliver & Hedges LLP, New York, NY; Stephanie D. Jones, Figliulo & Silverman, P.C., Chicago, IL. For Temple-Inland, Inc., Defendant: Andrew Stanley Marovitz, Britt Marie Miller, Courtney Lynn Anderson, Mayer Brown LLP, Chicago, IL. For RockTenn CP, LLC, Defendant: R. Mark McCareins, LEAD ATTORNEY, James Franklin Herbison, Joseph Lawrence Siders, Michael P Mayer, Winston & Strawn LLP, Chicago, IL. For Cascades Canada Inc., Norampac Holdings U.S. Inc., Defendants: Scott M. Mendel, LEAD ATTORNEY, K&L Gates LLP, Chicago, IL. JUDGES: Nan R. Nolan, United States Magistrate Judge. OPINION BY: Nan R. Nolan OPINION MEMORANDUM [*6] OPINION AND ORDER Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner.

51 2012 U.S. Dist. LEXIS , *6 Page 3 Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients' interests--it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict. The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 Se-dona Conf. J. 331, 331 (2009). This matter is before the Court on Plaintiffs' Motion to Compel Defendants to Produce Documents and Data from All Reasonable Accessible Sources [Doc. 347], Plaintiffs' Motion to Compel Temple-Inland to Include Additional Document Custodians [Doc. 366], Plaintiffs' Motion to Compel International Paper Company to Include Additional Document Custodians [Doc. 382], and Defendant Georgia-Pacific LLC's Motion for Protective Order [Doc. 373]. 1 However, this is a story as much about cooperation as dispute. 1 Plaintiffs have [*7] also filed a Motion to Compel Defendants to Produce Documents and Data for the Time Periods Proposed by Plaintiffs [Doc. 345], which the Court will address in a separate order. I. BACKGROUND A. Procedural This action is the outgrowth of a number of class actions that had been brought against Defendants Georgia-Pacific LLC ("GP"), Packaging Corporation of America ("PCA"), International Paper Company ("IP"), Cascades Canada, Inc./Norampac Holdings U.S., Inc. ("Norampac"), Weyerhaeuser Company ("Weyerhaeuser"), Temple-Inland, Inc. ("TIN") and Smurfit-Stone Container Corporation ("Smurfit") 2 charging violations of Sherman Act 1. The instant action, which is the first-filed case in these consolidated actions, was filed on September 9, 2010, and the related later-filed cases were subsequently reassigned to the District Judge. On November 8, 2010, Plaintiffs filed a Consolidated and Amended Complaint ("Complaint"). 2 On May 27, 2011, Smurfit was acquired by Rock-Tenn Company. To effect the acquisition, Smurfit was merged into a subsidiary of Rock-Tenn Company. The surviving entity from the merger became RockTenn CP, LLC ("RockTenn"), a limited liability company and wholly owned subsidiary of [*8] Rock-Tenn Company. On June 16, 2011, the Court allowed RockTenn to be substituted as a defendant in place of Smurfit. B. The Complaint 3 3 This summary of the Complaint is adopted from the Court's opinion denying Defendants' motions to dismiss. Countless industrial and consumer products are manufactured from container-board, the principal raw material used to manufacture corrugated products such as linerboard and corrugated boxes. (Compl. 36.) Thus, the prices of those corrugated products are tied directly to the price of containerboard. (Id. 40.) From the 1930s onward, the containerboard industry has been subject to extensive antitrust litigation and other charges of unfair competition. (Id ) In this instance, Plaintiffs allege the existence of anticompetitive behavior beginning in August 2005 and continuing through the present. (Id. 1.) During the class period, the containerboard industry was heavily consolidated. (Compl. 39.) Significant barriers to entry in the form of capital-intensive startup costs and high transportation costs make that industry susceptible to an oligopolistic structure. (Id. 41.) Because of those barriers to entry and the degree of consolidation [*9] in the industry, containerboard industry firms share a similar cost structure. (Id ) While the containerboard industry is consolidated, no single firm has sufficient market power to control the supply and price of the product. (Id. 52.) Because there are no close substitutes for containerboard, the demand for the product is inelastic. (Id ) In August 2005, the containerboard industry faced complex environmental factors, including declining profit margins, rising demand and a promising economic environment. (Compl. 64.) Between 2003 and 2005, individual producers had tried and failed to institute price increases at least twice. (Id.) In 2005, many of the Defendants, including Smurfit, PCA, IP, TIN, GP and

52 2012 U.S. Dist. LEXIS , *9 Page 4 Norampac, significantly reduced their production capacity through plant closures, capacity idling or scheduled production downtime. (Id , 75, 78-81, ) Those capacity reductions coincided in time with the existence of a high demand for containerboard. (Id ) There are a number of important industry groups and trade associations in the containerboard industry. (Compl ) Most Defendants belong to one or both of two prominent organizations: [*10] the Fibre Box Association ("FBA") and the American Forest and Paper Association. (Id ) In June 2005, industry leaders, including many representatives of Defendants, attended an industry conference where pricing strategies were discussed. (Id ) Just over three months after the conference, Smurfit, PCA and GP each announced a $30 per ton price increase effective October 1, (Id ) After an FBA conference on September 27, 2005, the remaining Defendants followed suit. (Id. 89.) Only a few months later, on November 28, the FBA Board of Directors met. (Id. 91.) At that meeting, both Weyerhaeuser and PCA announced $40 per ton price increases effective January 1, 2006, which was soon matched by all other Defendants. (Id. 91, 98.) Then on March 14, 2006, the FBA Executive Committee met again, and Defendants raised their prices by $50 per ton only a few weeks later. (Id. 104.) Even though prices were increasing throughout 2005 and into 2006, during that period many of the Defendants reduced capacity. (Compl. 115, ) Such capacity decreases continued through (Id. 123, 125, 132.) Shortly after a large industry conference in June 2007, [*11] both PCA and Smurfit announced $40 per ton price increases effective August 1. (Id ) On or about August 1, all other Defendants followed suit. (Id. 129.) In late March 2008, as the economy was beginning to decline, the industry conducted a series of conferences. (Compl ) Less than two months later, in early May 2008, both GP and Smurfit announced $55 per ton price increases to take effect July 1. (Id. 141.) Most of the remaining Defendants instituted identical price increase in the same time period. (Id.) About a month later, IP announced its intention to raise prices by an additional $60 per ton on October 1, (Id. 145.) IP's price increase was followed by the majority of the industry soon thereafter. (Id.) Over the course of the remainder of the year, the industry saw a continued decrease in production. (Id. 150, 152.) Despite a drastic economic slowdown in 2009, containerboard prices were inelastic and, for the most part, remained at the levels achieved by earlier price increases. (Compl ) In the face of economic weakness and normal seasonal weakness, Defendants raised prices by $50 per ton on January 1, Defendants continued to [*12] raise prices through the summer of 2010, raising prices by $60 per ton on April 1 and August 1, (Id. 163, 167.) II. DISCOVERY PROCESS A. Timeline On January 14, 2011, Defendants each filed a motion to dismiss. On April 8, 2011, the Court entered a memorandum opinion and order denying Defendants' motions. Kleen Prods., LLC v. Packaging Corp. of America, 775 F. Supp. 2d 1071 (N.D. Ill. 2011). On May 2, 2011, Defendants filed their answers. Following the Court's denial of the motions to dismiss, the parties began their initial discovery. On May 3, 2011, Plaintiffs served Defendants with their First Request for Production of Documents ("RPD"). The RPD had 94 requests, which Plaintiffs divided into three general categories: (1) conduct requests, (2) data requests, and (3) inquiries, investigations and prior litigation requests. Defendants each filed responses and objections to the RPD on June 6, Defendants began producing responsive hard copy documents in August Shortly thereafter, the parties began meet-and-confer discussions in an attempt to resolve issues raised in Defendants' responses and objections and to draft a protocol for the production of ESI. On October 26, 2011, [*13] the Court entered a stipulated Order governing the production format of , e-files and paper documents and other related matters ("ESI Production Order") [Doc. 245]. Defendants served their First Set of Requests to Plaintiffs for the Production of Documents on May 6, Plaintiffs served their responses and objections on June 10, Plaintiffs began producing paper documents in August 2011 and completed their paper production in November In November 2011, Plaintiffs served Rule 30(b)(6)

53 2012 U.S. Dist. LEXIS , *13 Page 5 notices on each Defendant relating to document preservation and information systems issues. After conducting meet-and-confer sessions, the parties agreed that Defendants would provide written responses to the information sought in the Rule 30(b)(6) notices and the depositions would be deferred pending Plaintiffs' review of the responses. 4 4 The parties ended up supplementing the written responses with Rule 30(b)(6) depositions. Nevertheless, the Court commends the parties' efforts to address the 30(b)(6) issues without lengthy depositions. While the parties were able to resolve many of their discovery issues through meet-and-confer sessions, by December 2011, four issues remained unresolved: [*14] (1) reconciling Defendants' production to the individual RPD requests; (2) ESI search methods, (3) scope of document searches, and (4) relevant time periods. As to the first issue, Plaintiffs requested that each Defendant provide an index associating its produced documents with the 29 categories Plaintiffs included in the RPD. (Pls.' Statement [Doc. 266] 1.) Defendants asserted that complying with Plaintiffs' request would impose great expense and is not required by Rule 34. Defendants argued that the metadata required by the parties' agreed ESI Production Order provides Plaintiffs with sufficient identifying information. (Defs.' Statement [Doc. 267] 10.) Plaintiffs responded that metadata is not the issue and that the coding fields they are requesting are not addressed by the ESI Production Order. (Pls.' Statement 3.) With regard to the ESI search dispute, Plaintiffs criticized Defendants' use of a Boolean search method to identify responsive documents. (Pls.' Statement 4-16.) Plaintiffs argued that the Boolean keyword process is per se "subject to the inadequacies and flaws inherent when keywords are used to identify responsive documents." (Id. 8.) They requested that Defendants use [*15] "content-based advanced analytics ('CBAA') technology analytics to conduct natural language, subject matter searches across corporate departments or corporate functions, using content-based search technology rather than keywords." (Id. 5.) Defendants defended their use of Boolean keywords, arguing that their testing and validations processes "will have a degree of accuracy that meets or surpasses not only industry standards but also the likely accuracy of any other available methodology." (Defs.' Statement 3.) Further, given that by December 2011, Defendants had already collected and produced a significant amount of responsive information, they contend that Plaintiffs' approach would involve additional costs and burdens not contemplated by the Federal Rules, the Seventh Circuit Electronic Discovery Pilot Program, 5 or case law. (Id ) 5 See As to the third issue, Plaintiffs criticized Defendants for limiting their search to "main active servers." (Pls.' Statement 16.) Defendants stated they were willing to consider searching for responsive archived documents if Plaintiffs both identify a "particular and compelling need" and agree to bear the costs of [*16] restoring the archived information. (Defs.' Statement ) Finally, with regard to the temporal scope dispute, Plaintiffs broke down their document requests into the following time periods: Conduct Requests: January 1, 2002-December 31, 2010; Data Requests: January 1, 2000-December 31, 2010; Inquiries, Investigations and Prior Litigation Requests: January 1, 1996-December 31, 2010; and The prior antitrust litigation identified in the Complaint: no time limitation. (Pls.' Statement 17.) In response, Defendants proposed to produce conduct request documents only back to January 1, 2004, and data request documents back to January 1, (Defs.' Statement 14.) They argued that those time periods were appropriate based on the Complaint's allegations that the conspiracy began in mid (Id.) On January 10, 2012, the case was referred to the undersigned Magistrate Judge for discovery supervision. In February and March 2012, the Court conducted two full days of evidentiary hearings on the ESI search dispute issue. Over the next six months, the Court held 11 status hearings and Rule 16 conferences with all parties, many of which lasted a half day or longer. The Court also

54 2012 U.S. Dist. LEXIS , *16 Page 6 facilitated three Rule 16 [*17] conferences between Plaintiffs and individual Defendants. A client representative attended many of these conferences. Due to counsel's hard work, the parties and the Court were able to resolve a number of the issues through meet-and-confer discussions. These cooperative endeavors are described in the next section. B. Issues on Which Parties Have Reached Agreement 1. Search Methodology As discussed above, the parties had a fundamental dispute over what search methodology Defendants should utilize to identify documents responsive to Plaintiffs' RPD. Defendants argued that in order to best identify potentially responsive ESI, they engaged leading consulting companies to develop Boolean search terms. (Pls.' Evidentiary Hr'g Br. [Doc. 288] 3.) During an iterative process, Defendants and their consultants revised and refined the search terms over the course of several months. (Id. 4.) Sampling procedures were used throughout the process to evaluate the effectiveness and reliability of the search terms. (Id.) On the other hand, Plaintiffs argued that Defendants' search methodology is likely to find less than 25% of responsive documents. (Defs.' Evidentiary Hr'g Mem. [Doc. 290] 1.) They asserted [*18] that their proposed content-based advance analytics ("CBAA") search would find more than 70% of responsive documents at no greater cost. (Id. 1-2.) Plaintiffs contended that because CBAA searches do not focus on matching words but instead on identifying relevant concepts out of the documents, CBAA searches provide a richer, substantially more accurate return than Boolean searches. (Id. 5.) Thus, they concluded that "[a] CBAA search of documents collected by corporate or department function is the best and most practical method for locating responsive ESO in this case." (Id. 6.) In an attempt to resolve this impasse, an evidentiary hearing was held on February 21 and March 28, 2012, with both sides presenting witnesses in support of their positions. At the conclusion of the second day, the Court observed that under Sedona Principle 6, "[r]esponding parties are best situated to evaluate the procedures, methodologies, and techniques appropriate for preserving and producing their own electronically stored information." See The Sedona Conference, The Sedo-na Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 193 (Fall 2007). [*19] Accordingly, the Court urged the parties to consider whether there was a method to refine or supplement Defendants' Boolean search so that Plaintiffs had a reasonable assurance that they were receiving a high percentage of responsive documents without completely scrapping Defendants' search methodology. Over the course of the next five months, the parties and the Court continued to meet and confer on this issue. Finally, in August 2012, the parties came to an understanding on the ESI search methodology issue, and on August 21, 2012, the Court entered a stipulated order relating to ESI search ("ESI Search Order") [Doc. 385]. 6 In the ESI Search Order, Plaintiffs agreed to withdraw their demand that Defendants apply CBAA to documents that have been or will be collected in response to the RPD ("First Request Corpus"). As to any documents or ESI beyond the First Request Corpus, Plaintiffs agreed not to argue or contend that Defendants should be required to apply CBAA or "predictive coding" methodology with respect to any requests for productions served on any Defendant prior to October 1, With respect to any requests for production served on any Defendant on or after October 1, 2013 [*20] that requires the collection of documents beyond the First Request Corpus, the parties agreed to meet and confer regarding the appropriate search methodology to be used for such newly collected documents. 6 A copy of the ESI Search Order is attached as Exhibit A. 2. Custodians After Defendants filed their responses and objections to the RPD in June 2011, the parties began meet-and-confer sessions in an attempt to work out their differences. In August 2011, Defendants identified 109 individuals for which they intended to collect custodian-specific documents responsive to the RPD. Because the Complaint alleged that "Defendants and their co-conspirators conducted their conspiracy in secret and kept it mostly within the confines of their higher-level executives" (Compl. 192; see id. 6), Defendants included as custodians their higher-level executives with decision-making responsibility for the pricing and sale of container-board and corrugated products during the relevant period, along with some of their subordinates. Plaintiffs complained that more custodians were needed,

55 2012 U.S. Dist. LEXIS , *20 Page 7 especially within the sales and marketing departments and at the plant level. Subsequent meet-and-confer discussions, [*21] some of which the Court supervised, resulted in a few additional custodians. During the Court's meet-and-confer sessions with the parties, the Court encouraged Defendants to expand their lists of custodians and include at least a sample of lower-level and plant-level employees. At the Court's urging, Defendants produced litigation hold lists to aid Plaintiffs in identifying appropriate custodians. 7 (See, e.g., Docs. 325, ) Thereafter, to move the process along, the Court urged Plaintiffs to make formal requests for specific custodians from each Defendant. On July 27, 2012, after reviewing the litigation hold lists and documents produced by Defendants to date, Plaintiffs made formal requests for additional custodians. Thereafter, the parties promptly engaged in meet-and-confer discussions. Those discussions ultimately led to agreements with five of the seven Defendants. 8 (See Docs. 409, 410.) In those agreements, the parties agreed on specific additional custodians and a protocol for how they would handle future requests for additional custodians. 7 A copy of the order is attached as Exhibit B. 8 A copy of one such agreement is attached as Exhibit C. 3. Document Requests Plaintiffs [*22] have objected to the form and substance of many of Defendants' objections and responses to the RPD. They contend that the responses make it difficult to determine what was produced in response to each document request. During meet-and-confer sessions facilitated by the Court, Defendant IP prepared a chart that described the specific ESI searches it made to respond to each of the separate RPD requests. Plaintiffs agreed that this chart was helpful and could alleviate some of their concerns. Thereafter, IP agreed to revise its RPD responses to incorporate the information in the chart. IP served its revised RPD responses on July 23, The Court determined that the most efficient use of the Court's and the parties' time is to address the RFP issue in stages. During phase one, Plaintiffs are meeting and conferring solely with IP in an effort to address Plaintiffs' objections to IP's revised responses. After Plaintiffs finish their review of the revised responses, they will meet and confer with IP to see if they can work out any remaining disputes. After the meet-and-confer process is completed, Plaintiffs may file a motion to compel against IP regarding any unresolved RFP responses. [*23] Phase two will include the remaining Defendants and will commence after the Court has ruled on Plaintiffs' motion to compel against IP. To narrow any remaining disputes, the Court expects the parties to use the IP process as a guide. 4. Sources of Data Plaintiffs have asserted that Defendants should search and produce responsive information regardless of where it is stored. Defendants countered that they will search all active files for each of their custodians. Defendants are also prepared to search for categories of data that are stored in centralized corporate systems and exist on media or servers which can be searched using Defendants' current system capabilities and without incurring undue costs. With regard to archived media, Defendants will consider searching for responsive documents where Plaintiffs identify a specific need and agree to bear the costs of restoring the archived documents. The parties and the Court have conducted meet-and-confer sessions in an effort to find some common ground on these issues. While the parties continue to dispute both the cost and the need to restore information from archived media, Defendants have agreed to preserve all such media during the pendency [*24] of the case. Further, each Defendant has agreed that to the extent it has not already done so, it will determine if any of its custodians maintained potentially responsive information on any personal device not synced to its servers. If any potentially responsive information is identified, it will be reviewed and responsive, nonduplicative, nonprivi-leged information will be produced. 9 9 The parties also continue to meet and confer in an effort to agree on the information Defendants will provide in response to Plaintiffs' transactional data requests. III. DISCUSSION The following issues remain in dispute. A. Georgia-Pacific Motion for Protective Order

56 2012 U.S. Dist. LEXIS , *24 Page 8 On August 14, 2012, Defendant Georgia-Pacific filed a Motion for Protective Order. In its Motion, GP requests that the Court quash Plaintiffs' Sixth Interrogatory. 1. Background The Court facilitated a Rule 16 Conference between GP and Plaintiffs on May 31, Prior to the Conference, the parties engaged in numerous discussions concerning GP's responses to Plaintiffs' initial document requests. (Resp. 6.) Plaintiffs complained that "GP refuses to identify which of its personnel were involved in Con-tainerboard Products business other than [*25] 'primary decision makers' or reveal its corporate structure." (Mot. Ex. 7 at 11.) During the Conference, GP explained that since 2005, it has been a privately-held company and does not maintain organizational charts or job descriptions. (Hr'g Tr., May 31, 2012, at 36, 46.) However, in the interests of cooperation and compromise, GP agreed to produce a list of the individuals who received the litigation-hold notice in connection with this litigation, along with their job titles. (Id , ) On June 26, 2012, GP produced the list of litigation-hold recipients. (Mot. Ex. 1, Attach. A.) The list included not only the names and titles of the litigation-hold recipients, but also the GP division in which each recipient works. (Id.) Three days later, on June 29, 2012, Plaintiffs served their Sixth Interrogatory request, demanding various background information over an eight-year period for each of the approximately 400 persons on the litigation-hold list. (Mot. Ex. 1.) GP informally objected to the request, contending that it was unfair and burdensome. (Mot. 5.) Thereafter, the parties met and conferred in an effort to address GP's concerns. (Id. 5-6, Ex. 9.) During a telephonic status [*26] conference on July 25, 2012, GP indicated to the Court that it may have to move for protection from the Sixth Interrogatory. (Id. Ex. 10 at ) In response, Plaintiffs stated that they expected the upcoming Rule 30(b)(6) deposition, scheduled for August 1, to largely eliminate Plaintiffs' need for the Sixth Interrogatory. (Id. Ex. 10 at ) Plaintiffs took the Rule 30(b)(6) deposition on August 1, GP's designee, George Ragsdale, was prepared to answer questions about the structure of, and personnel in, GP's containerboard and packaging businesses, including specific questions about the individuals and job titles on GP's list of litigation-hold recipients. (Ragsdale Dep , ) 10 When Plaintiffs' counsel announced, well before the expiration of seven hours, that he had completed questioning the witness, GP's counsel reminded Plaintiffs' counsel that the witness was available to answer questions about the litigation-hold list. (Id ) Thereafter, Plaintiffs continued the deposition, asking the witness further questions, but ultimately ended the deposition before the expiration of seven hours. (Mot. 8.) 10 The transcript of the Rule 30(b)(6) deposition is available [*27] at Exhibit 11 to GP's Motion and Exhibit C to Plaintiffs' Response. The next day, GP requested that Plaintiffs withdraw the Sixth Interrogatory, believing that Plaintiffs had obtained all of their needed information during the Rule 30(b)(6) deposition. (Mot. 8.) Plaintiffs refused, stating that the Sixth Interrogatory "is hardly burdensome" and can be "answered by a small production of paper." (Id. Ex. 12 at 13.) 2. Analysis GP contends that the Sixth Interrogatory (a) "imposes undue and disproportionate burdens, and constitutes an abusive response to GP's agreement voluntarily to provide its list of litigation hold recipients and their job titles;" (b) "with its multiple subparts, both on its own and when combined with prior interrogatories, exceeds the number of interrogatories permitted by the Federal Rules;" and (c) "violates Plaintiffs' express commitment not to seek further discovery about GP's organizational structure after GP responded to previous interrogatories on these subjects." (Mot. 3.) Plaintiffs disagree, contending that the Sixth Interrogatory "can be answered through the production of documents pursuant to Fed. R. Civ. P. 33(d), if GP would produce the job descriptions [*28] that it maintains in the ordinary course of its business." (Resp. 1-2.) After carefully reviewing the issue, the Court finds that a protective order is warranted. First, issuing the Sixth Interrogatory within days of receiving the list of litigation-hold recipients violated the spirit of cooperation that this Court has encouraged the parties to pursue. The Rule 16 conference was held to facilitate cooperative discussions between the parties on issues related to Defendants' document production. During the conference, the discussion largely focused on Plaintiffs' need to understand GP's key personnel and

57 2012 U.S. Dist. LEXIS , *28 Page 9 who some of the individuals are whose names were appearing in the document production. GP explained that it is a privately-held company and does not maintain organizational charts or job descriptions. (Hr'g Tr., May 31, 2012, at 36, 46.) The Court, acting as a neutral, facilitated an informal brainstorming discussion with the parties. The Court observed that without a formal organizational chart, Plaintiffs need a better understanding of GP's organizational structure. In this context, the Court suggested that one possible solution might be to provide Plaintiffs with a list of GP's litigation-hold [*29] recipients. (See, e.g., Hr'g Tr. 10, 11, 14, 20, 31, 33, 35, 36.) However, the Court's suggestion was never intended to generate additional discovery obligations. Accordingly, the Court expected that Plaintiffs would use the list of litigation-hold recipients, which included the recipients' job titles and the division in which they worked, in conjunction with their review of GP's documents to create their own organizational charts. (Id. 50.) Instead, Plaintiffs violated the spirit of cooperation and used the list of litigation-hold recipients to request the additional discovery. Such a response could have a chilling effect on both litigants and courts to engage in candid discussions. Second, GP has established an undue burden in responding to the Sixth Interrogatory. "All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)." Fed. R. Civ. P. 26(b)(1). The Rule 26 proportionality test allows the Court to "limit discovery if it determines that the burden of the discovery outweighs its benefit." In re IKB Deutsche Industriebank AG, No. 09 CV 7582, 2010 U.S. Dist. LEXIS 35924, 2010 WL , at *5 (N.D. Ill. Apr. 8, 2010). Rule 26(b)(2)(C)(iii) requires a court to limit discovery if it determines that [*30] "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." In other words, "Rule 26(b)(2)(C)(iii) empowers a court to limit the frequency or extent of discovery if it determines that the burden or expense of the proposed discovery outweighs its likely benefit or that it is unreasonably cumulative or duplicative." Sommerfield v. City of Chicago, 613 F. Supp. 2d 1004, 1017 (N.D. Ill. 2009) objections overruled, 06 C 3132, 2010 U.S. Dist. LEXIS 19440, 2010 WL (N.D. Ill. Mar. 3, 2010). "The 'metrics' set forth in Rule 26(b)(2)(C)(iii) provide courts significant flexibility and discretion to assess the circumstances of the case and limit discovery accordingly to ensure that the scope and duration of discovery is reasonably proportional to the value of the requested information, the needs of the case, and the parties' resources." The Sedona Conference, The Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. J. 289, 294 (2010); see Sommerfield, 613 F. Supp. 2d at 1017 [*31] ("The application of Rule 26(b)(2)(C)(iii) involves a highly discretionary determination based upon an assessment of a number of competing considerations."). The Sixth Interrogatory requests for each of the approximately 400 persons on the litigation-hold list, and for an eight-year period, that GP: (a) describe their job functions; (b) identify their employer; (c) identify all the persons to whom they reported, the period during which they so reported, and the job titles, employer and division of the person to whom they reported; and (d) identify all the persons who reported to them, the period during which they so reported, and the job titles, employer and division of the reporting person. (Mot. Ex. 1.) GP has demonstrated that it "does not maintain any single report in the ordinary course of business from which this information could be readily obtained." (Mary K. McLemore Decl. 4.) Indeed, given the temporal scope of the request, some of this information would be difficult, or perhaps impossible, to obtain. (Id. 4-8.) To attempt to respond to the Sixth Interrogatory, GP would need to (a) conduct a multi-step process to compile the information that is available in its SAP Data Warehouse, [*32] and then (b) interview each of the litigation-hold recipients-- along with their supervisors and direct reports--to confirm the information. (Id. 4-6.) GP estimates that the process could take as many as 800 hours to accomplish. (Id. 7.) Even after these hours were devoted, the response would likely be incomplete and could be impossible to verify. (Id. 8.)

58 2012 U.S. Dist. LEXIS , *32 Page 10 In responding to the Motion, Plaintiffs do not address the Rule 26 proportionality principle. In other words, they do not explain how the value of the proposed discovery outweighs its burden. Instead, Plaintiffs contend that GP can answer the Sixth Interrogatory by producing the job descriptions that it maintains. (Resp. 13) ("GP can readily answer Plaintiffs' Sixth Interrogatory through the production of a defined set of documents that GP can readily assemble and produce.") However, GP has consistently stated that it does not maintain formal organizational charts or job descriptions. (See, e.g., Hr'g Tr. 36 ("Since 2005, [GP] has not been a public company [and] there are not in existence organizational charts."), 46 ("There are no written job descriptions in [GP's] system."); Resp. Ex. E at 2 (GP "has searched and does not believe [*33] such formal written job descriptions exist.").) Plaintiffs assert that at the Rule 30(b)(6) deposition, "Plaintiffs learned for the first time that as an organization, GP's practice was to generate a Roles, Responsibilities and Expectations ("RRE") document for each employee that sets forth that employee's duties, as well as providing pertinent reporting information." (Resp. Ex. E at 2.) Thus, Plaintiffs assert that "[w]ere GP to produce its RREs for the individuals identifies on GP's litigation hold list, Plaintiffs would accept their Sixth Interrogatory as answered." (Id. 2-3.) But Plaintiffs misapprehend the testimony of GP's representative. The phrase "job description" does not appear in the transcript, and Plaintiffs' counsel did not even inquire if RREs were job descriptions. On the contrary, the witness testified that job descriptions would be meaningless because an individual employee's responsibilities are defined annually on an individual basis by the employee and his or her supervisor and are subject to change at any time. (Ragsdale Dep ) Thus, the RRE is retained locally "as a living document between the boss and the subordinate[;] it's updated annually, or at least [*34] it's reviewed annually for update, and, theoretically, once it's updated, the old one goes away." (Id ) Furthermore, the RREs do not necessarily provide all of the information required by the Sixth Interrogatory. "For example, rather than providing a fixed job description for a title, a RRE is intended to be a negotiated framework between each employee and his or her supervisor that is used to focus an employee on planned outcomes for each year." (McLemore Decl. 11.) And, while the RREs identify the employee's supervisor, they do not provide the additional reporting relationships sought by Plaintiffs. (Id.) The Court agrees. The RRE is a document used as part of an individual employee's job performance review, not a document used by GP to describe a particular job. Significantly, job descriptions are generic documents meant to apply to all individuals at all times, while performance evaluations are highly personal documents that apply to a single employee at a particular point in time. See, e.g., Hooper v. Total System Services, Inc., 799 F. Supp. 2d 1350, 1362 (M.D. Ga. 2011) (describing "job descriptions" as "generic and meant to be used across business units"); Loeb v. Best Buy Co, Inc., No , 2007 U.S. Dist. LEXIS 58039, 2007 WL , at *1, *15 (D. Minn. Aug. 6, 2007) [*35] (describing "job descriptions" as "fairly generic and broad" and "performance reviews" as means to determine if employee is meeting current expectations). In any event, the Rule 26 proportionality test cautions against producing the RREs. Indeed, producing the RREs as an alternative to responding to the Sixth Interrogatory would be no less burdensome. "RREs are not centrally maintained in any location and can be updated more than once each year." (McLemore Decl. 12.) Thus, "GP would have to interview each of the [litigation-hold recipients] to determine whether they maintain any current or historical RREs." (Id.) "GP would also be required to interview each of their supervisors to determine if they maintain any RREs for the identified individuals." (Id.) Plaintiffs contend that GP could simply request all RREs by ing each of the litigation-hold recipients. (Resp & n.8.) But Plaintiffs fail to discuss how this process would work with former employees. Furthermore, GP could not provide a complete, accurate and verified response to the Sixth Interrogatory without also determining who the employees' supervisors were during the eight-year period and contacting them to collect [*36] any RREs in their possession. (See McLemore Decl. 5, 12.) Moreover, Plaintiffs do not explain how any benefit from securing more RREs outweighs the burden of producing them. Despite having identified some 25 RREs in GP's production (Resp. 13), Plaintiffs do not describe how these documents have aided their document review or could lead to relevant information. Finally, much of the information sought in the Sixth Interrogatory has already been obtained through a more

59 2012 U.S. Dist. LEXIS , *36 Page 11 convenient, less burdensome, and less expensive method. "[T]he court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that... the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive...." Fed. R. Civ. P. 26(b)(2)(C)(i). "In other words, where relevant information is available from multiple sources, the Rules give courts the authority to limit discovery to the least burdensome source, thus empowering courts to control litigation costs and promote efficiency in accordance with Rule 1." The Sedona Conference, The Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. J. 289, (2010); [*37] see Fed. R. Civ. P. 1 (The Rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."). Here, GP provided a Rule 30(b)(6) witness to provide testimony about the litigation-hold recipients, specifically "their responsibilities at GP, the identities of those reporting to him or her, and the identities of those to whom he or she reported, whether directly or in a 'dotted line' relationship." (Resp. Ex. R.) The witness answered almost all of the questions asked of him regarding GP's organizational structure and job titles, and Plaintiffs concluded the deposition early rather than asking any additional questions of the deponent. (Ragsdale Dep , , ) In fact, in response to GP's request that Plaintiffs use the remaining time to ask additional questions, Plaintiffs' counsel responded that while "[t]here may be small areas that remain where we need some further information," "I believe, on my recollection without review of the transcript, that I have accomplished what Plaintiffs, at a minimum to satisfy [the Sixth Interrogatory], need to accomplish." (Id. 206.) Thereafter, Plaintiffs continued the [*38] deposition, asking the witness further questions, but ultimately ending the deposition before the expiration of seven hours. (Id ) Plaintiffs do not dispute that GP's corporate witness was qualified and able to provide significant information on the above topic. Instead, they argue that "there were more than a half dozen instances where Mr. Ragsdale was either unable to testify concerning the nature of a position or had to speculate about job functions." (Resp. 12 & n.7.) In response, GP has provided verified written answers to each of the specific questions referenced in footnote 7 to Plaintiffs' Response. (Doc. 407.) These additional answers, together with the Rule 30(b)(6) deposition, provide Plaintiffs with a proportional response to their Sixth Interrogatory. In sum, the Court finds that the Sixth Interrogatory violated the spirit of cooperation. Further, the Sixth Interrogatory does not pass the Rule 26 proportionality test. GP's burden of responding to the Sixth Interrogatory outweighs any benefits, and Plaintiffs were able to get much of the information in a less burdensome way. Defendant Georgia-Pacific LLC's Motion for Protective Order is granted. Plaintiffs' Sixth [*39] Interrogatory is quashed. B. Custodians As discussed above, the Court facilitated meet-and-confer discussions with the parties in an effort to find a cooperative solution to the parties' disputes over who is an appropriate custodian. Those discussions ultimately led to agreements with GP, Norampac, Weyerhaeuser, PCA and RockTenn. (Docs. 409, 410.) However, Plaintiffs were unable to come to agreements with IP and TIN and have filed motions to compel additional custodians from them. Plaintiffs contend that "[i]n this price-fixing conspiracy, [IP and TIN] should not have the unilateral ability to select their own 'priority' document custodians, limit such custodians to high level executives with 'primary decision making authority,' and reject Plaintiffs' reasonable requests for additional custodians that are believed likely to possess responsive documents." (Custodian Mem. 7.) In their motions, Plaintiffs request 19 additional custodians from TIN (TIN Mem. 6) and 16 additional custodians from IP (IP Mem. 8). IP and TIN oppose the motions. IP and TIN were each willing to include 16 additional custodians but only if Plaintiffs agreed to limit the document sources for the additional custodians [*40] and a written assurance that any future custodian requests be accompanied with substantive support. (IP Resp. 1-5, 15; TIN Resp. 1-4.) Plaintiffs are unwilling to make this compromise. They assert that limiting sources to a subset of ESI documents would preclude paper documents, which may the only viable source of discovery for the earlier time periods and for former employees. (TIN Reply [Doc. 392] 14; see IP Reply [Doc. 402] 6.) Plaintiffs also contend that IP's and TIN's "efforts to tie any additional custodians to specific

60 2012 U.S. Dist. LEXIS , *40 Page 12 allegations in the [Complaint] or documents already produced" is inconsistent with the Federal Rules, especially Rule 26. (TIN Reply 4-5; see IP Reply 2-3.) In antitrust cases, courts generally take an expansive view of relevance and permit broad discovery. In re Auto. Refinishing Paint Antitrust Litig., MDL No. 1426, 2004 U.S. Dist. LEXIS 29160, at *7-8 (E.D. Penn. Oct. 29, 2004); see United States v. International Business Machines Corp., 66 F.R.D. 186, 189 (S.D.N.Y. 1974) (observing that "discovery in antitrust litigation is most broadly permitted and the burden or cost of providing the information sought is less weighty a consideration than in other cases") (citation omitted). "Broad [*41] discovery is permitted because direct evidence of an anticompetitive conspiracy is often difficult to obtain, and the existence of a conspiracy frequently can be established only through circumstantial evidence, such as business documents and other records." In re Auto. Refinishing Paint Antitrust Litig., 2004 U.S. Dist. LEXIS 29160, at *8; see Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976) (In antitrust cases, relevant evidence is "largely in the hands of the alleged conspirators.") (citation omitted); Callahan v. A.E.V. Inc., 947 F. Supp. 175, 179 (W.D. Penn. 1996) ("Discovery in an antitrust case is necessarily broad because allegations involve improper business conduct. Such conduct is generally covert and must be gleaned from records, conduct, and business relationships.") (citation omitted). Courts also note "the public importance of the decision, the need of large corporate defendants to know which of their many activities are attacked, [and] the issue narrowing function of discovery." Bass v. Gulf Oil Corp., 304 F. Supp. 1041, 1046 (S.D. Miss. 1969). These factors create a predisposition among courts to allow broad discovery of antitrust defendants. However, "[a]ll [*42] discovery, even if otherwise permitted by the Federal Rules of Civil Procedure because it is likely to yield relevant evidence, is subject to the court's obligation to balance its utility against its cost." U.S. ex rel. McBride v. Halliburton Co., 272 F.R.D. 235, 240 (D.D.C. 2011) (Facciola, M.J.); see Fed. R. Civ. P. 26(b)(2)(C). More specifically, Rule 26(b)(2)(C) requires the court to consider whether "(1) the discovery sought is unreasonably cumulative or duplicative, or obtainable from a cheaper and more convenient source; (2) the party seeking the discovery has had ample opportunity to obtain the sought information by earlier discovery; or (3) the burden of the discovery outweighs its utility." McBride, 272 F.R.D. at ; see Willnerd v. Sybase, Inc., No. 09 C 500, 2010 U.S. Dist. LEXIS , 2010 WL , at *3 (D. Idaho Nov. 16, 2010) ("In employing the proportionality standard of Rule 26(b)(2)(C)..., the Court balances [the requesting party's] interest in the documents requested, against the not-inconsequential burden of searching for and producing documents."). The third factor requires the court to consider (a) the needs of the case; (b) the amount in controversy; (c) the parties' resources; [*43] (d) the importance of the issues at stake in the action; and (e) the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C)(iii). Nevertheless, "[t]he party opposing a motion to compel carries a 'heavy' burden of persuasion." U.S. v. AT&T Inc., No , 2011 U.S. Dist. LEXIS , 2011 WL , at *5 (D.D.C. Nov. 6, 2011). While the record does not afford a precise calculation, the Court can presume, given the nature of the antitrust claims and the size of the companies involved, that the amount in controversy is very large and that Defendants' resources are greater than Plaintiffs'. Further, claims of collusion in the containerboard and corrugated box industries raise important, vital issues of public importance. Thus, these factors weigh in favor of the discovery sought by Plaintiffs. See McBride, 272 F.R.D. at 241. On the other hand, Defendants protest that Plaintiffs have not demonstrated that the proposed additional custodians will have important, nonduplicative information. (IP Resp. 9; TIN Resp ) Indeed, Plaintiffs do not point to any specific, noncumulative evidence they expect to find with the additional custodians. Instead, they selected the additional custodians [*44] by examining each Defendant's organizational charts and the list and titles of persons who received a litigation hold notice 11 and using metadata to analyze which individuals were sending and receiving s from the sales and marketing people that were already identified as custodians. (Hr'g Tr , Aug. 21, 2012.) Thus, Plaintiffs contend that the proposed individuals should be included as custodians because they are senior executives with responsibilities in containerboard, boxes, pricing, strategic planning, marketing and sales, and who "exchanged an unusually large" number of s with top sales and marketing executives already named as custodians. (IP Reply 3-4;

61 2012 U.S. Dist. LEXIS , *44 Page 13 see TIN Reply ) 11 Because Temple-Inland sent a litigation-hold notice to all employees, it did not produce a litigation-hold list. But just because a proposed custodian exchanged a large number of s with a current custodian does not mean that the proposed custodians will have a significant number of important, non-cumulative information. Further, until Plaintiffs have had an opportunity to review the huge quantity of information already produced from the existing custodians, it is difficult for the Court [*45] to determine the utility of the proposed discovery. See McBride, 272 F.R.D. at 241 ("Without any showing of the significance of the non-produced s, let alone the likelihood of finding the 'smoking gun,' the [party's] demands [for additional custodians] cannot possibly be justified when one balances its cost against its utility."); Jones v. Nat'l Council of Young Men's Christian Ass'ns of the United States, No. 09 C 6437, 2011 U.S. Dist. LEXIS , 2011 WL , at *2 (N.D. Ill. Oct. 21, 2011) ("The Court finds that Plaintiffs' untargeted, all-encompassing request fails to focus on key individuals and the likelihood of receiving relevant information."); Garcia v. Tyson Foods, Inc., No , 2010 U.S. Dist. LEXIS , 2010 WL , at *14 (D. Kan. Dec. 21, 2010) (Waxse, M.J.) ("Plaintiffs present no evidence that a search of repositories of the 11 employees at issue is likely to reveal any additional responsive s.... Plaintiffs must present something more than mere speculation that responsive s might exist in order for this Court to compel the searches and productions requested."). The Court also notes that IP already has 75 custodians--by far the most of any Defendant--and has engaged in good faith meet-and-confer [*46] discussions with Plaintiffs that enlarged the scope of document collection and production that IP initially agreed to undertake. (See IP Resp. 1, 6-7.) Similarly, TIN already has 28 custodians, which is more than most of the other Defendants. However, the selection of custodians is more than a mathematical count. The selection of custodians must be designed to respond fully to document requests and to produce responsive, nonduplicative documents during the relevant period. See, generally, Eisai Inc. v. Sanofi-Aventis U.S., LLC, No , 2012 U.S. Dist. LEXIS 52885, 2012 WL , at *9 (D.N.J. April 16, 2012). First of all, Plaintiffs are entitled to discovery about Defendants' box businesses. The Complaint adequately alleges a conspiracy both of containerboard and of corrugated products, including corrugated boxes. See Kleen Prods., 775 F. Supp. 2d at Further, while the Complaint alleges a conspiracy mostly among higher-level executives (Compl. 192), it does not exclude lower level employees. More importantly, even if the conspiracy is among higher-level executives, lower-level employees may possess important, relevant information which could reasonably lead to admissible evidence. Fed. R. Civ. P. 26(b)(1); [*47] see In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 906 F.2d 432, 453 (9th Cir. 1990) ("With regard to the appellees' contention that Rogers was too low-level an employee to be of significance, we see no reason for concluding that such information gathering cannot be delegated to subordinates. Accordingly, the fact that Rogers did not himself have authority to make ARCO pricing decisions is not dispositive."); In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 662 (7th Cir. 2002) ("One of Staley's HFCS plant managers was heard to say: 'We have an understanding within the industry not to undercut each other's prices.' (He was commenting on a matter within the scope of his employment and his comment was therefore admissible as an admission by a party. Fed. R. Evid. 801(d)(2)(D).)"); see also In re SRAM Antitrust Litig., No , 2010 U.S. Dist. LEXIS , at *40, *45-48, *51 (N.D. Cal. Dec. 10, 2010). Thus, in an antitrust case such as this, Plaintiffs are at least entitled to a sample of lower-level and plant-level employees to determine if they possess significant and nonduplicative information. Further, IP and TIN have not established [*48] an undue burden to producing information from the additional custodians. IP contends that its burden is undue because it has "already produced more than 4 million pages, with more to come based upon prior agreements with Plaintiffs." (IP Resp. 7 (emphasis added); see id. 11.) Similarly, TIN requests "an acknowledgment of the considerable burdens it already has been subjected to and some assistance... in controlling this burden going forward." (TIN Resp. 11.) But a party must articulate and provide evidence of its burden. While a discovery request can be denied if the "burden or expense of the proposed discovery outweighs its likely benefit," Fed. R. Civ. P. 26(b)(2)(C)(iii), a party objecting to discovery must specifically demonstrate how

62 2012 U.S. Dist. LEXIS , *48 Page 14 the request is burdensome. See Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 598 (7th Cir. 2011); Sauer v. Exelon Generation Co., No. 10 C 3258, 2011 U.S. Dist. LEXIS 90511, 2011 WL , at *5 (N.D. Ill. Aug. 15, 2011). This specific showing can include "an estimate of the number of documents that it would be required to provide..., the number of hours of work by lawyers and paralegals required, [or] the expense." Heraeus Kulzer, 633 F.3d at 598. Here, TIN's [*49] and IP's conclusory statements do not provide evidence in support of their burdensome arguments. In sum, in this situation, the Rule 26(b)(2)(C) factors do not overwhelmingly favor either Plaintiffs or Defendants. However, because Plaintiffs had no input on the initial custodian determinations and the case is still in the early stages of discovery, the Court finds that Plaintiffs should be allowed a small number of additional custodians. Accordingly, Plaintiffs may select eight additional custodians from the prioritized list it sent to IP. (IP Mot. Ex. 9.) Similarly, Plaintiffs may select eight additional custodians from the proposed list it sent to TIN, two of whom should be a random sample of the individuals identified as mill managers. (See TIN Mot. Ex. A.) TIN and IP argue that they should not have to search all sources of information for any new custodians. (TIN Resp. 9-11; IP Resp ) They generally propose to search only ESI from particular servers. (Id.) They contend that "the burden and expense of searching [other] sources... would certainly outweigh its likely benefit." (IP Resp. 11; see TIN Resp. 11.) The Court disagrees. While Plaintiffs have focused their review on [*50] and other ESI documents, they have not asserted that non-esi documents are unimportant. Given the dearth of s produced in the early time periods, hard copy documents for those periods may prove valuable. Similarly, for former employees, hard copy documents may be the only information available. TIN and IP also seek a written assurance that any future custodian request would be subject to a good faith belief that the individual possesses information tending to prove the alleged conspiracy. (See IP Resp. 12; TIN Resp. 4.) Specifically, IP requests assurance that "[a]ny future request for custodians would be based on a good faith belief, arising from a review of the documents produced in this case and taking depositions, than an individual possesses information tending the prove the allege conspiracy, and Plaintiffs agree to provide the basis for their good faith belief to IP." (IP Resp. 12) (emphasis omitted). Similarly, TIN seeks confirmation that "if Plaintiffs seek to add any additional custodians, it would have to be based on specific evidence from the record indicating that the proposed custodian would have responsive evidence tending to prove the alleged conspiracy." [*51] (TIN Resp. 4.) Plaintiffs counter that the agreement they reached with PCA provides sufficient protection for all parties and is consistent with Rule 26. (IP Reply 4-5.) The Court declines to set any restrictions on future custodian requests. The Court finds that IP's and TIN's requests are too restrictive and run contrary to the Federal Rules. For example, discoverable information "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible information." Fed. R. Civ. P. 26(b)(1). Nevertheless, the parties are free to enter into any stipulations or agreements that fit their needs. Absent any agreements, however, the Court will be guided in any future custodian disputes by the Federal Rules and applicable case law. 12 See, e.g., Fed. R. Civ. P. 1, 26(b)-(c). 12 Plaintiffs are cautioned, however, that the Court expects them to support any future custodian requests with specific evidence of the expected utility of the additional custodians derived from their review of existing documents. See Fed. R. Civ. P. 26(b)(2)(C)(iii). Plaintiffs' motions to compel IP and TIN to include additional custodians are granted in part. C. [*52] Data Sources In Plaintiffs' Motion to Compel Defendants to Produce Documents and Data from All Reasonably Accessible Sources, they request that Defendants be compelled to search all reasonably accessible sources that potentially contain nonduplicative responsive documents or data, including backup tapes. (Mot. 10.) Defendants respond that their backup tapes are not reasonably accessible and Plaintiffs have not shown good cause for requiring their production. (Resp ) The resolution of Plaintiffs' motion is dependent on the application of Rule 26(b)(2)(B). This Rule provides:

63 2012 U.S. Dist. LEXIS , *52 Page 15 Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify [*53] conditions for the discovery. "Pursuant to this Rule, defendants must produce electronically stored information that is relevant, not privileged, and reasonably accessible, subject to the discovery limitations in Rule 26(b)(2)(C)." Major Tours, Inc. v. Colorel, No , 2009 U.S. Dist. LEXIS 97554, 2009 WL , at *2 (D.N.J. Oct. 20, 2009). If Defendants establish that the requested backup tapes are "inaccessible" within the meaning of Rule 26(b)(2)(B), the information must still be produced if Plaintiffs establish good cause considering the limitations in Rule 26(b)(2)(C). "The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case." Fed. R. Civ. P. 26(b)(2), advisory committee's note (2006). Factors to examine in this analysis include: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed [*54] sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of further information; (6) the importance of the issues at stake in the litigation; and (7) the Id. parties' resources. "Under this framework, a court does not reach the two-fold question of whether inaccessible sources of electronically stored information should be searched and, if so, which party should bear the associated costs unless it is first satisfied that the request seeks relevant information that is not available from accessible sources." Baker v. Gerould, 03-CV-6558L, 2008 U.S. Dist. LEXIS 28628, 2008 WL , at *2 (W.D.N.Y. Mar. 27, 2008) This is because relevant considerations in determining whether to order a search of inaccessible sources include "the quantity of information available from other and more easily accessed sources" and "the likelihood of finding relevant information that seems likely to have existed but is no longer available on more easily accessed sources." Fed. R. Civ. P. 26(b)(2), advisory committee's note (2006); see Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 323 (S.D.N.Y. 2003) (Scheindlin, [*55] J.) (one of the two most important considerations is "the availability of such information from other sources"). Courts generally agree that backup tapes are presumptively inaccessible. See, e.g., Zubulake, 217 F.R.D. at (" 'Inaccessible' data... is not readily usable. Backup tapes must be restored using a process similar to that previously described, fragmented data must be de-fragmented, and erased data must be reconstructed, all before the data is usable. That makes such data inaccessible."); Major Tours, 2009 U.S. Dist. LEXIS 97554, 2009 WL , at *3 (Backup tapes are "typically classified as inaccessible."); Go v. Rockefeller Univ., 280 F.R.D. 165, (S.D.N.Y. 2012) ("Information stored on backup tapes is generally considered 'not reasonably accessible.' ") (citation omitted); Clean Harbors Envtl. Servs., Inc. v. ESIS, Inc., No. 09 CV 3789, 2011 U.S. Dist. LEXIS 53212, 2011 WL , at *2 (N.D. Ill. May 17, 2011) (Courts [*56] have already agreed that when information is stored on backup tapes, it is 'likened to paper records locked inside a sophisticated safe to which no one has the key or combination.' ESIS has given us no reason to believe that the information on the backup tapes in this case would be more easily accessible.") (quoting Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 291 (S.D.N.Y. 2003)). In addition, Defendants have demonstrated a cost

64 2012 U.S. Dist. LEXIS , *56 Page 16 burden to restoring the backup media. They provided affidavits indicating that to restore the backup tapes would cost each Defendant at least $200,000, with some estimates well over $1,000,000. (See Resp. Exs. D, H.) Plaintiffs dispute the cost to restore Defendants' backup media. They contend that sampling the media to determine whether they contain responsive nonduplicative information could reduce costs. (Reply 6-7; Han-ners Decl. 5.) In any event, the Court finds that Plaintiffs' request to produce the backup tapes is premature. There is no discovery cutoff date in this case, and Plaintiffs are only 20% complete with their first level review of Defendants' documents. Thus, Plaintiffs should complete their review of Defendants' ESI, including the information [*57] produced from the additional custodians, before seeking to have archived backup tapes restored. "The volume of--and the ability to search--much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties' discovery needs." Fed. R. Civ. P. 26(b)(2), advisory committee's note (2006). Accordingly, Plaintiffs "should obtain and evaluate the information from such sources before insisting that the responding party search and produce information contained on sources that are not reasonably accessible." Id. If, at the appropriate time, Plaintiffs decide to pursue the backup tapes, the parties and their experts are urged to work together in a cooperative manner to determine the actual cost of restoring the archived media. If feasible and cost efficient, sampling methods should be pursued. However, because each Defendant's ESI storage protocoal is unique, it may be difficult or impossible to extrapolate any sampling results from one Defendant to the others. Plaintiffs' Motion to Compel Defendants to Produce Documents and Data from All Reasonably Accessible Sources is denied [*58] without prejudice. IV. CONCLUSION Since its publication in 2009, more than 100 federal judges have endorsed the Cooperation Proclamation. In an effort to aid courts and counsel, The Sedona Conference has published guides and toolkits to facilitate proportionality and cooperation in discovery. 13 Moreover, a number of courts have instituted model orders to assist counsel in transitioning to the cooperative discovery approach See The Sedona Conference, The Sedona Conference Cooperation Proclamation: Resources for the Judiciary (2011), available at The Se-dona Conference, The Sedona Conference Cooperation Guidance for Litigators & In-House Counsel (2011), available at 14 See, e.g., Seventh Circuit Electronic Discovery Pilot Program, Model Standing Order, available at Southern District of New York Pilot Program, available at District of Delaware, Default Standard for Discovery, Including Discovery of Electronically Stored Information ("ESI"), available at see also David J. Waxse, Cooperation--What Is It and Why Do It?, XVIII Rich. [*59] J. L. & Tech. 8 (2012), available at jolt.richmond.edu/v18i3/article8.pdf. In pursuing a collaborative approach, some lessons have been learned. First, the approach should be started early in the case. It is difficult or impossible to unwind procedures that have already been implemented. Second, in multiple party cases represented by separate counsel, it may be beneficial for liaisons to be assigned to each party. Finally, to the extent possible, discovery phases should be discussed and agreed to at the onset of discovery. The Cooperation Proclamation calls for a "paradigm shift" in how parties engage in the discovery process. The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 Sedona Conf. J. 331, (2009). In some small way, it is hoped that this Opinion can be of some help to others interested in pursuing a cooperative approach. 15 The Court commends the lawyers and their clients for conducting their discovery obligations in a collaborative manner. 15 The Court notes that there are very few model agreements available for parties and courts to follow. Accordingly, the Court suggests that The Sedona Conference and the Seventh Circuit Electronic Discovery Pilot [*60] Program serve as repositories for gathering ESI discovery agreements.

65 2012 U.S. Dist. LEXIS , *60 Page 17 For the foregoing reasons, Plaintiffs' Motion to Compel Defendants to Produce Documents and Data from All Reasonable Accessible Sources [347] is DENIED WITHOUT PREJUDICE; Plaintiffs' Motion to Compel Temple-Inland to Include Additional Document Custodians [366] is GRANTED IN PART AND DENIED IN PART; Plaintiffs' Motion to Compel International Paper Company to Include Additional Document Custodians [382] is GRANTED IN PART AND DENIED IN PART; and Defendant Georgia-Pacific LLC's Motion for Protective Order [373] is GRANTED. Dated: September 28, 2012 ENTER: /s/ Nan R. Nolan Nan R. Nolan United States Magistrate Judge EXHIBIT A UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION KLEEN PRODUCTS LLC, et al., individually and on behalf of all those similarly situated, v. Plaintiff, PACKAGING CORPORATION OF AMERICA, et al, Defendants. Civil Case No. 1:10-cv Hon. Milton I. Shadur Hon. Nan R. Nolan STIPULATION AND ORDER RELATING TO ESI SEARCH WHEREAS, in response to plaintiffs' May 3, 2011 Request for Production of Documents (the "First Request") in this matter, defendants have collected electronic and hard [*61] copy documents; WHEREAS, defendants will continue to collect certain documents in response to the First Request, including without limitation such documents that may be collected for review in response to discovery conferences or pursuant to judicial orders arising out of motions brought on the First Request (e.g., any documents that the Court orders included for review and production based on the motions to be filed in July and August, 2012) (collectively all of the documents that have been or will be collected in response to the First Request shall be referred to in this Stipulation as the "First Request Corpus"); WHEREAS, defendants have employed ESI vendors to process the electronic documents contained within the First Request Corpus, and those ESI vendors have done so and continue to do so; WHEREAS, defendants have applied and continue to apply their ESI search methodology (hereafter "Defendants' ESI Methodology"), which was described during the evidentiary hearings conducted on February 21, 2012 and on March 28, 2012 (the "Evidentiary Hearings"), to those processed electronic documents within the First Request Corpus; WHEREAS, plaintiffs have challenged Defendants' ESI Methodology [*62] for the identification of documents responsive to the First Requests and asked the Court to order defendants to employ a "Content Based Advanced Analytics" ("CBAA") approach, as defined by plaintiffs, instead of Defendants' ESI Methodology; WHEREAS, defendants have opposed this challenge; WHEREAS, the parties have made a substantial number of written submissions and oral presentations to the Court with their views on this issue, and the Court held the Evidentiary Hearings to address this dispute; and WHEREAS, the parties continue to have a number of disputes, but in order to narrow the issues, the parties have reached an agreement that will obviate the need for additional evidentiary hearings on the issue of the technology to be used to search for documents responsive to the First Requests. THEREFORE, based upon and incorporating the foregoing, the parties, through their respective counsel of record, hereby stipulate to and the Court hereby orders: 1. Plaintiffs withdraw their demand that defendants apply CBAA to documents contained within the First Request Corpus. Plaintiffs will not claim that defendants must use an electronic search process other than Defendants' ESI Methodology to locate [*63] relevant

66 2012 U.S. Dist. LEXIS , *63 Page 18 documents contained in the First Request Corpus. 2. As to any documents or ESI beyond the First Request Corpus, plaintiffs will not argue or contend that defendants should be required to use or apply the types of CBAA or "predictive coding" methodology and technology that were proposed by plaintiffs in connection with the Evidentiary Hearings with respect to any requests for production served on any defendant prior to October 1, With respect to any requests for production served on any defendant on or after October 1, 2013, that requires the collection of documents beyond the First Request Corpus, the parties will meet and confer regarding the appropriate search methodology to be used for such newly collected documents. If the parties fail to agree on a search methodology, either party may file a motion with the Court seeking resolution. 3. Plaintiffs do not waive any additional objections they may have to defendants' search methodology for the First Requests, including any additional objections relating to defendants' identification, collection, custodians, data sources, search terms, statistical validation, review or production of documents, and that defendants' objections [*64] to the First Request unduly narrowed the scope of responsive documents, and defendants will not argue or contend that plaintiffs, in whole or in part, have waived or otherwise failed to fully reserve such additional objections by entering into this Stipulation. The Court has established briefing schedules and other processes to resolve some of these issues by the end of September Defendants reserve all rights they currently have with respect to their position that their document collection and production efforts met or exceeded relevant legal standards. 5. In light of this agreement by the parties, the Evidentiary Hearings are discontinued. Stipulated and agreed: By: Daniel J. Mogin Matthew T. Sinnott THE MOGIN LAW FIRM, P.C. 707 Broadway, Suite 1000 San Diego, CA (619) dmogin@moginlaw.com msinnott@moginlaw.com INTERIM CO-LEAD COUNSEL FOR THE PROPOSED CLASS By: Michael J. Freed Steven A. Kanner FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL (224) mfreed@fklmlaw.com skanner@fklmlaw.com INTERIM CO-LEAD COUNSEL FOR THE PROPOSED CLASS By: Stephen R. Neuwirth Deborah Brown Sami H. Rashid QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 [*65] Madison Avenue, 22nd Floor New York, NY (212) stephenneuwirth@quinnemanuel.com marcgreenwald@quinnemanuel.com samirashid@quinnemanuel.com James R. Figliulo Stephanie D. Jones FIGLIULO & SILVERMAN, P.C. 10 South LaSalle Street, Suite 3600 Chicago, IL (312) jfigliulo@fslegal.com sjones@fslegal.com COUNSEL FOR DEFENDANT GEORGIA-PACIFIC LLC By: Douglas J. Kurtenbach, P.C.

67 2012 U.S. Dist. LEXIS , *65 Page 19 Daniel E. Laytin Barack S. Echols Leonid Feller KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL (312) COUNSEL FOR DEFENDANT PACKAGING CORPORATION OF AMERICA By: Nathan P. Eimer EIMER STAHL LLP 224 South Michigan Avenue, Suite 1100 Chicago, IL (312) James T. McKeown FOLEY & LARDNER LLP 777 East Wisconsin Avenue Milwaukee, WI (414) COUNSEL FOR DEFENDANT INTERNATIONAL PAPER COMPANY By: R. Mark McCareins Michael P. Mayer James F. Herbison WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL (312) COUNSEL FOR DEFENDANT ROCKTENN CP, LLC By: Andrew [*66] S. Marovitz Britt M. Miller MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL (312) COUNSEL FOR DEFENDANT TEMPLE-INLAND INC. By: David Marx Jr. Jennifer S. Diver Rachel Lewis McDERMOTT WILL & EMERY LLP 227 W. Monroe Street Chicago, IL (312) COUNSEL FOR DEFENDANT WEYERHAEUSER COMPANY By: Scott M. Mendel John E. Susoreny Lauren N. Norris K&L GATES LLP

68 2012 U.S. Dist. LEXIS , *66 Page W. MADISON ST. SUITE 3100 CHICAGO, IL (312) COUNSEL FOR DEFENDANTS CASCADES, INC. AND NORAMPAC HOLDING U.S. INC. Dated: August 21, 2012 ENTER: /s/ Nan R. Nolan NAN R. NOLAN United States Magistrate Judge EXHIBIT B Name of Assigned Judge or Magistrate Judge Nan R. Nolan Sitting Judge if Other than Assigned Judge CASE NUMBER 10 C 5711 DATE 6/25/2012 CASE TITLE Kleen Products, et al. vs. Packaging Corporation of America, et al. DOCKET ENTRY TEXT Rule 16 conference between Plaintiffs and Defendant Georgia-Pacific held on 5/31/2012. As stated below and on the record, various agreements were reached. STATEMENT At the 5/31/2012 Rule 16 conference, Plaintiffs and Defendant [*67] Georgia-Pacific each agreed to produce the names and titles of all persons who have received a litigation hold notice related to this action, along with the date that the notice was made. If the exact date of the notice cannot be readily determined, an approximate range of dates will be provided. The production of the names of persons receiving the litigation hold notice shall not constitute a waiver of the work-product doctrine or any other privilege. In addition, the inclusion of a person on the list of those receiving the litigation hold notice shall not create any presumption, or change the applicable standards for determining, that the person is an appropriate document custodian for purposes of ESI and document searches, or is otherwise subject to discovery. Defendant Georgia-Pacific also agreed to include James Hannan, Chief Executive Officer and President, as a document custodian. Defendant Georgia-Pacific's willingness to compromise, in the context of a meet and confer supervised by the Court, on the foregoing issues of litigation hold recipients and making Hannan a document custodian shall not be a factor in determining whether Hannan shall be subject to any further discovery [*68] in this litigation. EXHIBIT C UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION KLEEN PRODUCTS LLC, et al. individually and on behalf of all those similarly situated, Plaintiff, v. PACKAGING CORPORATION OF AMERICA, et al, Defendants. Civil Case No. 1:10-cv Hon. Milton I. Shadur Hon. Nan R. Nolan STIPULATION AND ORDER RELATING TO CUSTODIANS In order to fully and finally resolve the parties' custodian disputes as outlined in their submissions to the Court, Plaintiffs and the undersigned defendants ("Defendants") agree as follows: 1. Defendants have agreed, in connection with this Stipulation and Order and their respective agreements

69 2012 U.S. Dist. LEXIS , *68 Page 21 with Plaintiffs, to add certain additional custodians to the document review. Plaintiffs have no present intention of seeking additional custodians from any of the Defendants. 2. Plaintiffs shall not make a future request for custodians from Defendants unless Plaintiffs' counsel have a good faith belief, arising from a review of the documents produced in this case, from depositions, or from some other identifiable source, that each requested individual custodian has information, not unreasonably cumulative or duplicative, that is relevant [*69] to the conduct alleged in Plaintiffs' Complaint. 3. Plaintiffs will provide the Defendant from whom they are seeking any additional custodians with a written summary explanation of their basis for requesting each additional custodian, including a specific articulation of the basis for the request, such as Plaintiffs' review of documents and deposition testimony. In providing this information, Plaintiffs do not waive any work product protection that might apply. 4. If, after receiving the written explanation described in paragraph 3, an agreement cannot be reached among the relevant parties, then either party may take the issue up with the Court. 5. Defendants reserve the right to oppose the addition of future custodians. 6. Nothing in this agreement is intended to modify the applicability of the standard set forth in Fed. R. Civ. P. 26(b)(2)(C) in the event that a future dispute arises with respect to custodians. STIPULATED AND AGREED: By: Daniel J. Mogin Daniel J. Mogin Matthew T. Sinnott THE MOGIN LAW FIRM, P.C. 707 Broadway, Suite 1000 San Diego, CA (619) dmogin@moginlaw.com >msinnott@moginlaw.com INTERIM CO-LEAD COUNSEL FOR THE PROPOSED CLASS By: Michael J. Freed Michael J. Freed Steven [*70] A. Kanner FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL (224) mfreed@fklmlaw.com skanner@fklmlaw.com INTERIM CO-LEAD COUNSEL FOR THE PROPOSED CLASS By: R. Mark McCareins R. Mark McCareins Michael P. Mayer James F. Herbison WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL (312) rmccareins@winston.com >mmayer@winston.com >jherbison@winston.com COUNSEL FOR DEFENDANT ROCKTENN CP, LLC By: Jennifer S. Diver David Marx Jr. Jennifer S. Diver Rachel Lewis McDERMOTT WILL & EMERY LLP 227 W. Monroe Street Chicago, IL (312) dmarx@mwe.com >jdiver@mwe.com >rlewis@mwe.com COUNSEL FOR DEFENDANT WEYERHAEUSER COMPANY By: Scott M. Mendel Scott M. Mendel

70 2012 U.S. Dist. LEXIS , *70 Page 22 John E. Susoreny Lauren N. Norris K&L GATES LLP 70 W. MADISON ST. SUITE 3100 CHICAGO, IL (312) COUNSEL FOR DEFENDANTS CASCADES, INC. AND NORAMPAC HOLDING U.S. INC. Dated: September 17, 2012 ENTER: /s/ Nan R. Nolan NAN R. NOLAN United States Magistrate Judge

71 EFiled: Oct :36AM EDT Transaction ID Case No VCL IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE EORHB, INC., a Georgia corporation, : and COBY G. BROOKS, EDWARD J. GREENE, : JAMES P. CREEL, CARTER B. WRENN : and GLENN G. BROOKS, each as personal : representatives and trustees of the : estate of Robert H. Brooks, : : Plaintiffs, : : vs. : Civil Action : No VCL HOA HOLDINGS LLC, a Delaware limited : liability company, and HOA RESTAURANT : GROUP, LLC, a Delaware limited : liability company, : : Defendants and : Counterclaim Plaintiffs,: : vs. : : EORHB, INC., a Georgia corporation, : and COBY G. BROOKS, EDWARD J. GREENE, : JAMES P. CREEL, CARTER B. WRENN : and GLENN G. BROOKS, each as personal : representatives and trustees of the : estate of Robert H. Brooks, : : Counterclaim Defendants.: : Chancery Courtroom 12C New Castle County Courthouse Wilmington, Delaware Monday, October 15, :00 p.m BEFORE: HON. J. TRAVIS LASTER, VICE CHANCELLOR MOTION FOR PARTIAL SUMMARY JUDGMENT MOTION TO DISMISS COUNTERCLAIM AND RULING OF THE COURT CHANCERY COURT REPORTERS