Predictive Coding Cases. 1. Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS 23350 (SDNY, Feb. 24, 2012)

Predictive Coding Cases 1. Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS 23350 (SDNY, Feb. 24, 2012) 2. Robocast v. Apple, 2012 U.S. Dist. LEXIS 24879 (D. Del. Feb. 24, 2012) 3. In Re: Actos (Pioglitazone) Products Liability Litigation, 2012 US Dist. LEXIS 187519 (WD La. Jul. 27, 2012) 4. Kleen Products v. Packaging Corp. of America, 2012 U.S. Dist. LEXI 139632 (ND Ill. Sep. 28, 2012) 5. EORHB, Inc. v. HOA Holdings, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012). 6. U.S. Dept. of Labor v. Subcontracting Concepts, 2013 U.S. Dist. LEXIS 33593 (NDNY, Mar. 11, 2013) 7. Chevron Corporation v. Donzinger, 2013 U.S. Dist. LEXIS 36353 (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 716.566.5469 or jjablonski@goldbergsegalla.com. For more information about Goldberg Segalla or the firm s e-discovery capabilities, please visit our E-Discovery Practice Group page.

Page 1 MONIQUE DA SILVA MOORE, et al., Plaintiffs, -against- PUBLICIS GROUPE & MSL GROUP, Defendants. 11 Civ. 1279 (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 58742 (S.D.N.Y., Apr. 25, 2012) PRIOR HISTORY: Moore v. Publicis Groupe SA, 2012 U.S. Dist. LEXIS 19857 (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

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, 26-32.) 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 2008.... (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. 204-25), pregnancy discrimination under Title VII and related violations of the Family and Medical Leave Act (Am. Compl. 239-71), as well as violations of the Equal Pay Act and Fair Labor Standards Act (and the similar New York Labor Law) (Am. Compl. 226-38). 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. 179-80, 190-203), and as a class action on the gender and pregnancy discrimination claims and on the New York Labor Law pay claim (Am. Compl. 171-98). Plaintiffs, however, have not yet moved for

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 15-50. Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, at 25, 29. 2 2 From a different perspective, every person who uses email 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

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 20-21.) The December 2, 2011 conference adjourned with the parties agreeing to further discuss the ESI protocol. (12/2/11 Conf. Tr. at 34-35.) The ESI issue was next discussed at a conference on January 4, 2012. (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 51-52.) 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, 2012. (1/4/12 Conf. Tr. at 60-66; see 2/8/12 Conf. Tr.)

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' emails [**12] would be searched. MSL agreed to thirty custodians for a "first phase." (Dkt. No. 88: 2/8/12 Conf. Tr. at 23-24.) 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' emails 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 25-27.) Plaintiffs gave an example of the men being given greater "client contact" or having better job assignments. (2/8/12 Conf. Tr. at 28-30.) The Court held that the search of the comparators' emails would be so different from that of the other custodians that the comparators should not be included in the emails 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' emails, even as a separate search. (2/8/12 Conf. Tr. at 30-31.) [**13] Since the plaintiffs likely could develop the information needed through depositions of the comparators, the Court ruled that the comparators' emails 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 emails were mostly written in French. (2/8/12 Conf. Tr. at 32-34.) The Court concluded that because his emails with the New York based executive staff would be gathered from those custodians, and Fleuriot's emails 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 http://www.thesedonaconference.org/dltfo 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 36-37.) 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 37-39.) 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 35-36.) 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 [Email] 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, 50-51.) 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 47-48.) 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 49-50.) 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

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 55-56.) 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 email 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 59-61.) 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 92-93.) 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 73-74.) 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 74-75.) 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

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 emails, 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

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 10-12.) 8 8 As part of this argument, plaintiffs complain that although both parties' experts (i.e., vendors)

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. 702. 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 emails 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 emails at trial will depend upon each email 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 13-18.) 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 email 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 15-16.) 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

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 http://jolt.richmond.edu/v17i3/article11.pdf. 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 emails 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). 11 10 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 77-78. 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 http://www.umiacs.umd.edu/~oard/desi4/pa 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 48. 12 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 43. 12 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

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 email (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 209-10 (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 emails 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.

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 www.thesedonaconference.org)." 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

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

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-email ESI relating to topics besides pay discrimination and for all e-mails. January 1, 2005 through February 24, 2011 for all non-e-mail 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, 2011. 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 e-mails and selected instant message conversations saved through IBM Sametime (see below). b Lotus Notes Active corporate system that provides N/A E-mail e-mail communication and calendaring functions. c GroupWise Legacy corporate system that provided N/A E-mail e-mail 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

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 E-mail 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.

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

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 e-mail archiving system that captures and stores all e-mail messages that pass through the corporate e-mail 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 E-mail - MSL currently maintains multiple Lotus Notes Domino servers in various data centers around the world. All e-mail 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 E-mail -- Prior to the implementation of the Lotus Notes environment, GroupWise was used for all e-mail and calendar functionality. Before the decommissioning of the GroupWise servers, MSL created backup tapes of all servers that housed the GroupWise e-mail 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 e-mail addresses that employees may utilize to provide the company with comments, suggestions and overall feedback. These e-mail 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 e-mail accounts and any other e-mail accounts that fall under this category of information. At present, MSL intends to manually review the contents of each of these e-mail accounts. However, if after collecting the contents [**48] of each of the e-mail 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.

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 e-mail 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 2009. z. SalesForce.com -- This is a web-based customer relationship management application but it was not widely used.

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 e-mail 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 e-mail 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

287 F.R.D. 182, *198; 2012 U.S. Dist. LEXIS 23350, **52; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 20 29. 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 "e-mail collection"). 2. General Overview of Predictive Coding Process. MSL will utilize the Axcelerate software by Recommind to search and review the e-mail collection for production in this case. The process begins with Jackson Lewis attorneys developing an understanding of the entire e-mail 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 e-mail 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 e-mail 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

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

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

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 email 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-email 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.

287 F.R.D. 182, *203; 2012 U.S. Dist. LEXIS 23350, **68; 18 Wage & Hour Cas. 2d (BNA) 1479 Page 24 3. 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, 2012-002", "Defendant MSL Production April 1, 2012-003." 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.

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. 1206 San Francisco, CA 94111 Telephone: (415) 391-6900 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 11747 Telephone: (631) [**72] 247-0404 Date:, 2012

Page 1 ROBOCAST, INC., Plaintiff, v. APPLE, INC., Defendant. ROBOCAST, INC., Plaintiff, v. MICROSOFT CORPORATION, Defendant. Civil Action No. 11-235-RGA,Civil Action No. 10-1055-RGA UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2012 U.S. Dist. LEXIS 24879 February 24, 2012, Decided SUBSEQUENT HISTORY: Related proceeding at Robocast, Inc. v. Microsoft Corp., 2013 U.S. Dist. LEXIS 52619 (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. 10-1055, D.I. 17). Microsoft states forthrightly (and, in the Court's opinion, correctly) that its transfer motion rises or falls with Apple's. (No. 10-1055, 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. 11-235-RGA. [*2] Citations to the record in Robocast v. Microsoft include the case number ("10-1055"). 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

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 879-80 (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 297720, *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

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. 14-17). 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

2012 U.S. Dist. LEXIS 24879, *10 Page 4 WL 297720, *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

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, 1997. (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 1223. 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 297720, *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 297720, *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.

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 187519 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.

2012 U.S. Dist. LEXIS 187519, *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

2012 U.S. Dist. LEXIS 187519, *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,

2012 U.S. Dist. LEXIS 187519, *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

2012 U.S. Dist. LEXIS 187519, *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 1999. 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

2012 U.S. Dist. LEXIS 187519, *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 2009. 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 e-mail, 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

2012 U.S. Dist. LEXIS 187519, *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 e-mail, 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.10. 2. General Overview of Advanced Analytics/Predictive Coding Process. Takeda utilizes

2012 U.S. Dist. LEXIS 187519, *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 e-mail 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 29201 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

2012 U.S. Dist. LEXIS 187519, *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. E-mail 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 e-mail, 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

2012 U.S. Dist. LEXIS 187519, *28 Page 10 70 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.

2012 U.S. Dist. LEXIS 187519, *31 Page 11 9. 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

2012 U.S. Dist. LEXIS 187519, *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

2012 U.S. Dist. LEXIS 187519, *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 emails, 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 emails, 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 Email 15 FROM FROM Sender Email 16 TO TO Recipient Email 17 cc cc Additional Recipients Email 18 BCC BCC Blind Additional Recipients Email 19 SUBJECT SUBJECT Subject line of email Email 20 PARENTBATES PARENTID BeginBates number for the parent email 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 email) Last Bates number of family range (i.e. Bates number of the last page of the last attachment) Email Email Email Email 24 ATTACHCOUNT ATTACHMENT COUNT Number of attachments to an email Email 25 ATTACHNAME ATTACHMENT LIST Name of each individual attachment Email 26 DATESENT (mm/dd/yyyy hh:mm:ss AM) 27 DATERCVD (mm/dd/yyyy hh:mm:ss DATESENT Date Sent Email DATERCVD Date Received Email

2012 U.S. Dist. LEXIS 187519, *35 Page 14 AM) 28 EMAILDATSORT (mm/dd/yyyy hh:mm:ss AM) DATESENT Sent Date of the parent email (physically top email in a chain, I.e. immediate/direct parent email) 29 Email Outlook Type Email Outlook Type Type of Outlook item, e.g.email, calendar item, contact, note, task 30 HASHVALUE MD5HASH MD5 Hash Value All 31 TITLE DOCTITLE Title provided by user within the document Email Email 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 emails; "Emails" for all emails; "Eattachments" for files that were attachments to emails; and "Physicals" for hard copy physical documents that have been scanned and converted to an electronic image. 37 Importance Importance High Importance - indicates Priority Email 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 Email folder Email folder Folder in which non- archive collected email 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 Email All All All Email All

2012 U.S. Dist. LEXIS 187519, *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;

2012 U.S. Dist. LEXIS 187519, *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. E-mail Threading: The producing Party may identify e-mail threads where all previous emails which make up the thread are present in the body of the final e-mail in the thread. Any party electing to use this procedure must notify all receiving parties that e-mail 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, 2012-002", "Defendant Takeda Production April 1, 2012-003." 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

2012 U.S. Dist. LEXIS 187519, *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 E-mail 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, 2012. /s/ Rebecca F. Doherty HONORABLE REBECCA F. DOHERTY UNITED STATES DISTRICT JUDGE

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 139632 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 38546 (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

2012 U.S. Dist. LEXIS 139632, *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.

2012 U.S. Dist. LEXIS 139632, *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. 57-62.) 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. 47-48.) 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. 50-51.) 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

2012 U.S. Dist. LEXIS 139632, *9 Page 4 Norampac, significantly reduced their production capacity through plant closures, capacity idling or scheduled production downtime. (Id. 71-72, 75, 78-81, 84-87.) Those capacity reductions coincided in time with the existence of a high demand for containerboard. (Id. 73-75.) There are a number of important industry groups and trade associations in the containerboard industry. (Compl. 53-56.) 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. 53-54.) In June 2005, industry leaders, including many representatives of Defendants, attended an industry conference where pricing strategies were discussed. (Id. 76-77.) Just over three months after the conference, Smurfit, PCA and GP each announced a $30 per ton price increase effective October 1, 2005. (Id. 83-84.) 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, 117-18.) Such capacity decreases continued through 2007. (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. 126-27.) 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. 138-39.) 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, 2008. (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. 154-58.) In the face of economic weakness and normal seasonal weakness, Defendants raised prices by $50 per ton on January 1, 2010. Defendants continued to [*12] raise prices through the summer of 2010, raising prices by $60 per ton on April 1 and August 1, 2010. (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, 2011. Defendants began producing responsive hard copy documents in August 2011. 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-mail, 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, 2011. Plaintiffs served their responses and objections on June 10, 2011. Plaintiffs began producing paper documents in August 2011 and completed their paper production in November 2011. In November 2011, Plaintiffs served Rule 30(b)(6)

2012 U.S. Dist. LEXIS 139632, *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. 8-10.) 5 See http://www.discoverypilot.com. 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 12-13.) 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, 2003. (Defs.' Statement 14.) They argued that those time periods were appropriate based on the Complaint's allegations that the conspiracy began in mid-2005. (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

2012 U.S. Dist. LEXIS 139632, *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, 2013. 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,

2012 U.S. Dist. LEXIS 139632, *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, 350-52.) 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, 2012. 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

2012 U.S. Dist. LEXIS 139632, *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, 2012. 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. 36-41, 48-50.) 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 27-29.) 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 29-30.) Plaintiffs took the Rule 30(b)(6) deposition on August 1, 2012. 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. 166-68, 192-99.) 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. 205-08.) 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

2012 U.S. Dist. LEXIS 139632, *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 1526070, 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 780390 (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.)

2012 U.S. Dist. LEXIS 139632, *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. 144-45.) 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. 147-48.) 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. 05-720, 2007 U.S. Dist. LEXIS 58039, 2007 WL 2264729, 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 emailing each of the litigation-hold recipients. (Resp. 13-14 & 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

2012 U.S. Dist. LEXIS 139632, *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, 296-97 (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. 166-68, 192-99, 205-08.) 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. 206-30.) 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

2012 U.S. Dist. LEXIS 139632, *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 240-41; see Willnerd v. Sybase, Inc., No. 09 C 500, 2010 U.S. Dist. LEXIS 121658, 2010 WL 4736295, 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. 11-1560, 2011 U.S. Dist. LEXIS 156303, 2011 WL 534178, 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. 11-14.) 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 emails from the sales and marketing people that were already identified as custodians. (Hr'g Tr. 18-21, 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 emails with top sales and marketing executives already named as custodians. (IP Reply 3-4;

2012 U.S. Dist. LEXIS 139632, *44 Page 13 see TIN Reply 13-15.) 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 emails 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 e-mails, 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 123008, 2011 WL 7568591, 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. 06-2198, 2010 U.S. Dist. LEXIS 135678, 2010 WL 5392660, at *14 (D. Kan. Dec. 21, 2010) (Waxse, M.J.) ("Plaintiffs present no evidence that a search of e-mail repositories of the 11 employees at issue is likely to reveal any additional responsive e-mails.... Plaintiffs must present something more than mere speculation that responsive e-mails 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. 08-4168, 2012 U.S. Dist. LEXIS 52885, 2012 WL 1299379, 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 1082. 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. 07-1819, 2010 U.S. Dist. LEXIS 132172, 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

2012 U.S. Dist. LEXIS 139632, *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 3584780, 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. 10-11.) 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] email and other ESI documents, they have not asserted that non-esi documents are unimportant. Given the dearth of emails 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. 16-27.) The resolution of Plaintiffs' motion is dependent on the application of Rule 26(b)(2)(B). This Rule provides:

2012 U.S. Dist. LEXIS 139632, *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. 05-3091, 2009 U.S. Dist. LEXIS 97554, 2009 WL 3446761, 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 850236, 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 319-20 (" '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 3446761, at *3 (Backup tapes are "typically classified as inaccessible."); Go v. Rockefeller Univ., 280 F.R.D. 165, 175-76 (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 1897213, 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

2012 U.S. Dist. LEXIS 139632, *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. 14 13 See The Sedona Conference, The Sedona Conference Cooperation Proclamation: Resources for the Judiciary (2011), available at http://www.thesedonaconference.org; The Se-dona Conference, The Sedona Conference Cooperation Guidance for Litigators & In-House Counsel (2011), available at http://www.thesedonaconference.org. 14 See, e.g., Seventh Circuit Electronic Discovery Pilot Program, Model Standing Order, available at http://www.discoverypilot.com; Southern District of New York Pilot Program, available at http://www.nysd.uscourts.gov; District of Delaware, Default Standard for Discovery, Including Discovery of Electronically Stored Information ("ESI"), available at http://www.ded.uscourts.gov; 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, 332-33 (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.

2012 U.S. Dist. LEXIS 139632, *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-05711 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

2012 U.S. Dist. LEXIS 139632, *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, 2013. 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 2012. 4. 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 92101 (619) 687-6611 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 60015 (224) 632-4500 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 10010 (212) 849-7000 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 60603 (312) 251-4600 jfigliulo@fslegal.com sjones@fslegal.com COUNSEL FOR DEFENDANT GEORGIA-PACIFIC LLC By: Douglas J. Kurtenbach, P.C.

2012 U.S. Dist. LEXIS 139632, *65 Page 19 Daniel E. Laytin Barack S. Echols Leonid Feller KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 (312) 862-2000 douglas.kurtenbach@kirkland.com daniel.laytin@kirkland.com barack.echols@kirkland.com leonid.feller@kirkland.com COUNSEL FOR DEFENDANT PACKAGING CORPORATION OF AMERICA By: Nathan P. Eimer EIMER STAHL LLP 224 South Michigan Avenue, Suite 1100 Chicago, IL 60604-2516 (312) 660-7600 neimer@eimerstahl.com James T. McKeown FOLEY & LARDNER LLP 777 East Wisconsin Avenue Milwaukee, WI 53202-5306 (414) 297-5530 jmckeown@foley.com 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 60601 (312) 558-5600 rmccareins@winston.com >mmayer@winston.com >jherbison@winston.com COUNSEL FOR DEFENDANT ROCKTENN CP, LLC By: Andrew [*66] S. Marovitz Britt M. Miller MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606 (312) 782-0600 amarovitz@mayerbrown.com bmiller@mayerbrown.com 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 60606 (312) 372-2000 dmarx@mwe.com jdiver@mwe.com rlewis@mwe.com COUNSEL FOR DEFENDANT WEYERHAEUSER COMPANY By: Scott M. Mendel John E. Susoreny Lauren N. Norris K&L GATES LLP

2012 U.S. Dist. LEXIS 139632, *66 Page 20 70 W. MADISON ST. SUITE 3100 CHICAGO, IL 60602 (312) 372-1121 scott.mendel@klgates.com >john.susoreny@klgates.com >lauren.norris@klgates.com 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-05711 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

2012 U.S. Dist. LEXIS 139632, *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 92101 (619) 687-6611 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 60015 (224) 632-4500 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 60601 (312) 558-5600 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 60606 (312) 372-2000 dmarx@mwe.com >jdiver@mwe.com >rlewis@mwe.com COUNSEL FOR DEFENDANT WEYERHAEUSER COMPANY By: Scott M. Mendel Scott M. Mendel

2012 U.S. Dist. LEXIS 139632, *70 Page 22 John E. Susoreny Lauren N. Norris K&L GATES LLP 70 W. MADISON ST. SUITE 3100 CHICAGO, IL 60602 (312) 372-1121 scott.mendel@klgates.com lauren.norris@klgates.com 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 john.susoreny@klgates.com

EFiled: Oct 19 2012 11:36AM EDT Transaction ID 47152282 Case No. 7409 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. 7409-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, 2012 2:00 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

2 1 2 APPEARANCES: 3 4 RICHARD P. ROLLO, ESQ. JOHN MARK ZEBERKIEWICZ, ESQ. 5 Richards, Layton & Finger, P.A. for Plaintiffs/Counterclaim Defendants 6 7 A. THOMPSON BAYLISS, ESQ. Abrams & Bayliss LLP 8 -and- DOUGLAS H. HALLWARD-DRIEMEIER, ESQ. 9 CHRISTOPHER G. GREEN, ESQ. AMY D. ROY, ESQ. 10 of the Massachusetts bar Ropes & Gray LLP 11 for Defendants/Counterclaim Plaintiffs 12 13 14 15 - - - 16 17 18 19 20 21 22 23 24 CHANCERY COURT REPORTERS

3 1 THE COURT: Welcome, everyone. 2 Mr. Bayliss, how are you? 3 MR. BAYLISS: Good afternoon, Your 4 Honor. Tom Bayliss on behalf of HOA Restaurant Group. 5 I rise to introduce Mr. Douglas Driemeier, Chris Green 6 and Amy Roy from Ropes & Gray. 7 THE COURT: Great. Welcome to all of 8 you. Mr. Rollo, how are you doing? 9 MR. ROLLO: I'm doing well, Your 10 Honor. Yourself? 11 THE COURT: Great. 12 MR. ROLLO: For the record, this is 13 Rich Rollo of Richards, Layton & Finger, and I 14 represent the plaintiffs in this action. With me at 15 counsel table is my colleague, John Mark Zeberkiewicz. 16 THE COURT: Mr. Zeberkiewicz, how are 17 you. Mr. Zeberkiewicz has not often darkened the 18 doors of the courtroom. 19 MR. ZEBERKIEWICZ: Absolutely correct. 20 THE COURT: It's good to see you, a 21 transactional lawyer learning how to make his way down 22 to 500 King Street. You're always welcome here, 23 Mr. Zeberkiewicz. 24 MR. ZEBERKIEWICZ: Thank you, Your CHANCERY COURT REPORTERS

4 1 Honor. 2 MR. ROLLO: Your Honor, we're before 3 the Court today on our motion for partial summary 4 judgment and also a motion to dismiss. I know Your 5 Honor is familiar with the papers, so I'll briefly 6 summarize our position and then address any questions 7 Your Honor may have. 8 We believe this case is relatively 9 simple. Sophisticated parties negotiated a settlement 10 that included the exchange of a specific release. 11 Neither side claims they were tricked or defrauded or 12 some mistake occurred that resulted in the release. 13 Rather, we simply disagree over what 14 the words on the page mean. The release was executed 15 in May 2011 which was about four months after the 16 parties engaged in a merger transaction pursuant to 17 which the buyers purchased the Hooters restaurant 18 chain from the sellers. 19 A release was exchanged as part of a 20 global settlement of a prior litigation before Your 21 Honor involving, among other things, who had the right 22 to purchase the restaurant chain. 23 At the time in May of 2011, the 24 transaction had closed, but the parties had continuing CHANCERY COURT REPORTERS

5 1 obligations under the merger agreement which we wanted 2 to preserve. So we included a carveout. It's the 3 scope and operation of that carveout that is the 4 dispute before the Court today. 5 Now, the release is attached as 6 Exhibit G to our opening brief. On the third page is 7 the language that's disputed, the beginning of it. It 8 starts, and it's a single sentence that begins with, 9 I'll say, your typical laundry list identifying the 10 types of claims and rights released, including the 11 conflicting adjectives to include everything under the 12 sun and make clear that there are no limitations. 13 Now, because this is a specific 14 release, toward the bottom of the page, about five 15 lines from the bottom, there is a limitation on that 16 laundry list, and I'm paraphrasing, arising from or 17 related to indirectly or directly any of nine 18 enumerated categories. In clause five, it says the 19 sale of Hooters. Now, I'm paraphrasing that as well, 20 but it's the sale of Hooters pursuant to the merger 21 transaction. 22 Those rights and any obligations under 23 the merger agreement would have been eliminated 24 without a carveout. So following the list of nine CHANCERY COURT REPORTERS

6 1 categories, there are two provisos separated by 2 semicolons. The first, about halfway down the page on 3 the third page, begins "provided however," and it 4 creates a specific carveout for enforcement of the 5 settlement agreement. It doesn't purport to modify 6 the definition of released claims. It says "provided 7 however, nothing in this release." 8 Now, the second proviso begins four 9 lines later and starts after the second semicolon with 10 "provided further, however," and it creates a carveout 11 for the merger and related transactions. That's 12 followed by a carveback where it says "except that" 13 and the carveback says released claims cannot be the 14 basis for a breach of the merger agreement and won't 15 result in a purchase price adjustment pursuant to the 16 operative contract. 17 We think that the only reasonable 18 read -- in fact, the only read of this language -- is 19 that the parties agreed that they could, on a 20 forward-looking basis, enforce the merger agreement 21 and that any breach of contract claims that existed 22 from that date back in time were released. 23 Now, the indemnifications we're here 24 today about are predicated upon purported breaches of CHANCERY COURT REPORTERS

7 1 the merger agreement that occurred before the release 2 date; in fact, in or around January 2011 when the reps 3 and warranties were supposed to have been true, and 4 there's also one claim with respect to a pre-closing 5 operation of the company, the pre-closing operations 6 covenant. All of those were released, we say, under 7 the operative agreement. 8 My friends make several arguments, and 9 I'll respond to most of them on rebuttal, but there is 10 one I'd like to address briefly. That's the argument 11 that some temporal ambiguity exists in the document 12 that precludes summary judgment. Briefly, and they'll 13 state it for themselves, in the beginning part of the 14 contract, there is a phrase that says "which now 15 exists or heretofore after existed or may hereafter 16 exist." I think I mangled that. I could say it 17 again, but Your Honor understands the concept. Seven 18 lines later, there's another phrase that says "in 19 existence from the beginning of time to the date of 20 this agreement." 21 Now, that alleged conflict -- and we, 22 in our reply brief, say we don't believe it's a 23 conflict, but let's assume that is a conflict. It 24 doesn't matter in this case. We're not arguing about CHANCERY COURT REPORTERS

8 1 breaches that supposedly occurred after execution of 2 the release. We're arguing about breaches that 3 existed on the date of the release under either 4 definition. Under either temporal phrase, they fall 5 within the definition of released claims. Because 6 they fall within the definition of released claims, 7 they were barred under the second part of the second 8 proviso. 9 Now, I'm happy to address any of the 10 arguments or questions Your Honor may have. I think 11 it may be more efficient if my friends, since they 12 have several arguments, would state the arguments and 13 I can reply on rebuttal. 14 THE COURT: Let me ask you one thing 15 before you sit down. 16 MR. ROLLO: Yes, Your Honor. 17 THE COURT: How do you pronounce the 18 entity that is now successor to the estate, EORHB? 19 MR. ROLLO: EORHB is how I say it. 20 It's the Estate of Robert H. Brooks. 21 THE COURT: The estate, as the 22 predecessor to EORHB, signed a comparable release that 23 is one of the ones that you collected, that is 24 collected behind Exhibit E; true? CHANCERY COURT REPORTERS

9 1 MR. ROLLO: Yes, Your Honor. 2 THE COURT: EORHB's claim to 3 additional monies from the indemnification agreement 4 arose at closing, right? 5 MR. ROLLO: I don't believe I agree 6 with that, Your Honor. A certain amount of the 7 consideration payable to us was set aside in an escrow 8 account. And if valid claims were not presented under 9 that, we received it when the escrow expired. That is 10 a contractual obligation under the merger agreement 11 and separately under the escrow agreement. And under 12 the releases, there is a carveout for future 13 enforcement of the merger agreement. 14 THE COURT: You think that claim for 15 the access of the indemnification agreement falls 16 under the enforcement of the merger agreement proviso? 17 MR. ROLLO: Yes, Your Honor. 18 THE COURT: You don't think that a 19 right against the escrow agreement is a right that 20 would fall under the definition of released claims? 21 MR. ROLLO: I don't, Your Honor, for 22 two reasons. First, it is a contractual obligation 23 under the escrow, and that if valid claims are not 24 made against the escrow, the escrow agent is directed CHANCERY COURT REPORTERS

10 1 to tender the rest of that money to us last summer. 2 So if, at that point in time, $11 million remained, 3 it's either given to us or it stays there presumably 4 in perpetuity because the buyers wouldn't have a claim 5 against it. 6 THE COURT: I hear you. Released 7 claims means any and all claims. It means rights, 8 blah, blah, blah, of any kind whatsoever, whether 9 known or unknown. Well, this one was known. Fixed or 10 contingent. Well, this is a little bit of both. As 11 you say, it's a fixed contractual right of which the 12 amount the contingent. 13 The definition of released claims, if 14 one were to read it broadly to include everything 15 related to the sale of HOA, it seems to me is 16 sufficiently capacious to cover, in the first 17 instance, EORHB's claim against the escrow fund. 18 MR. ROLLO: Perhaps I misunderstood 19 Your Honor's earlier question. I believe the initial 20 definition does. I think then it is saved by the 21 second proviso that says "provided further, however, 22 the foregoing shall not include any claims to enforce 23 the terms and conditions of the merger agreement or 24 directly related to the transaction contemplated CHANCERY COURT REPORTERS

11 1 thereby." 2 THE COURT: Why doesn't it then 3 founder again on the idea that receipt of that money 4 would result in an adjustment to the merger 5 consideration? 6 MR. ROLLO: Because receipt of that 7 money, by definition on the bottom of the second 8 proviso, does not result in a modification of the 9 merger agreement. There is a -- 10 THE COURT: It doesn't fall under the 11 modification of the merger agreement, but -- 12 MR. ROLLO: Purchase price adjustment. 13 We expressly excluded that in the bottom of the second 14 proviso. No release claim and no liability or payment 15 under the accompanying settlement agreement -- 16 THE COURT: The problem with that is 17 Section 9.7 which says, "All payments made pursuant to 18 this Article 9 shall be treated as adjustments to the 19 merger consideration for tax purposes." I agree 20 that's for tax purposes, but it would seem to say that 21 the release of funds from the escrow would be an 22 adjustment to the merger consideration. 23 MR. ROLLO: It would be an adjustment 24 to the merger consideration and -- CHANCERY COURT REPORTERS

12 1 THE COURT: That would take it into 2 the second "except" clause which would mean you'd be 3 back to the idea that really what I ought to be doing 4 is granting summary judgment for the other side saying 5 that they released their claims to everything in the 6 escrow fund. 7 MR. ROLLO: I disagree, because I 8 think the second portion, Your Honor, is predicated on 9 breaches of the merger agreement. The first is 10 "obligations under," and the second is "breaches 11 under." Future enforcement of contractual provisions 12 is not a breach of the merger. If tomorrow we 13 breached, it would fall within that provision, so I 14 think there's a distinction in the first part between 15 "obligations under" and "breaches under." 16 THE COURT: Walk me through that 17 again. 18 MR. ROLLO: The indemnification 19 obligation that my friends are seeking to pursue is 20 predicated upon purported breaches of the merger 21 agreement. 22 THE COURT: That's a problem for them 23 under Romanette "i". 24 MR. ROLLO: Correct. But, for CHANCERY COURT REPORTERS

13 1 example, I'll use an example -- 2 THE COURT: I'm focused on Romanette 3 "ii". I think your problem is the breadth of your 4 argument as to released claims is so powerful that it 5 seems to me that it runs into exception two. I agree 6 with you your issue isn't that it's a breach under 7 exception one. 8 What seems to me to be your problem is 9 that you agree contractually that any additional money 10 you got was going to be an adjustment to the merger 11 consideration, and you're now telling me that you 12 released anything that fit within the definition of 13 released claims that could result in an adjustment to 14 the merger consideration, and so by the force of your 15 powerful interpretation of released claims, hasn't 16 your fellow given up his adjustment to the merger 17 consideration? 18 MR. ROLLO: I don't believe so, 19 because as I read the second Romanette, it says "no 20 released claims shall result in adjustment to the 21 merger consideration." 22 Now, the merger consideration is a 23 defined term under the merger agreement. The escrow 24 didn't result in a lower amount. It was simply an CHANCERY COURT REPORTERS

14 1 amount of money that was set aside and the merger 2 consideration itself remained constant. That payment 3 was just delayed. Had it resulted in a reduction, 4 which I believe Your Honor is positing, that escrow 5 amount would then be deducted from the overall merger 6 consideration. That would then be barred by Romanette 7 "ii". I believe Romanette "ii" operates to prevent 8 the exact issue that Your Honor is raising. 9 There's a provision, I believe, at 10 Section 9.3 that talks about how purchase price 11 adjustments are made under the merger agreement. It's 12 Section 2.3 of the merger agreement. Basically, it 13 provides a process post-closing where either side can 14 identify certain issues that would result in a change 15 in the merger consideration. 16 Those adjustments aren't based upon a 17 claim that we breached the merger agreement or that 18 the other side breached the merger agreement. It was 19 simply the accounting process in place. Romanette 20 "ii" in the release is focused on that process. 21 In order for I believe what Your Honor 22 is positing that the escrow functionally is waived, 23 that would presuppose that by putting the escrow funds 24 in escrow, it somehow impacts the merger CHANCERY COURT REPORTERS

15 1 consideration, and I would submit to Your Honor it 2 does not. The consideration is the consideration. 3 11.5 of that consideration was simply held for a 4 period of time subject to the rights under 9.3 for 5 indemnification. 6 THE COURT: It does create an 7 interesting interpretive question because 2.1(b) says 8 that your company membership interests that EORHB 9 owned were converted into the right to receive 10 Romanette "i", net merger consideration plus various 11 other amounts which include amounts released from the 12 escrow agreement, and it defines those latter amounts 13 as contingent merger payments. 14 So, again, I look at that, and I 15 think, okay, well, are contingent merger payments part 16 of the merger consideration such that they represent 17 an adjustment? They seem to be something other than 18 net merger consideration. Then I get back here to 19 9.7, treatment of indemnity payments, and it says, 20 "All payments pursuant to this Article 9 shall be 21 treated as adjustments to the merger consideration for 22 tax purposes." 23 I guess what you're telling me is that 24 Section 9.7 is only intended to be payments to HOA and CHANCERY COURT REPORTERS

16 1 folks, not releases from the escrow agreement. 2 MR. ROLLO: I think functionally 3 that's correct, Your Honor, because the escrow 4 agreement itself is a separate document that says if 5 you don't have indemnification claims validly made 6 against it, then, at the end of its term, those funds 7 are released, and that in terms of merger 8 consideration, whether that consideration is 9 contingent or absolute, it's still merger 10 consideration. 11 So that Your Honor's definition of 12 2.1(b), contingent merger payments, those are still 13 part of the merger consideration. Then if you go back 14 to the release Romanette "ii" it says that the 15 settlement agreement and whatnot will not result in a 16 modification of the merger consideration, 17 paraphrasing, of course. 18 THE COURT: You obviously resist any 19 broad construction of the release that gave up the 20 escrow. 21 MR. ROLLO: Absolutely, Your Honor. 22 THE COURT: All right. Let me hear 23 from the other side. 24 MR. ROLLO: Thank you, Your Honor. CHANCERY COURT REPORTERS

17 1 MR. DRIEMEIER: Good afternoon, Your 2 Honor. I think that it's important to begin with the 3 context in which this release was entered. It was 4 entered as part of a settlement of the ROFR 5 litigation, the litigation about who was going to be 6 able to purchase Hooters of America or whether it 7 would be the Wellspring, NRI parties or our clients 8 that would be able to spend the $223 million to 9 acquire a very complicated enterprise of global reach. 10 It is really beyond logic to think 11 that as part of a release that was executed in the 12 context of tying up the loose ends of that litigation 13 over those threshold questions of who would get to 14 enter into the substantive agreement to purchase HOA, 15 that our clients released all of their substantive 16 rights under that $223 million agreement. 17 In fact, not only does the context 18 suggest that that is highly unlikely; the text of the 19 agreement provides a specific preservation of the 20 claims under the agreement. Because after 21 delineating -- of course, it's not a general release. 22 After delineating categories of claims, specific 23 categories of claims that are released, the agreement 24 provides specifically that the foregoing, that list of CHANCERY COURT REPORTERS

18 1 claims, shall not include any claims to enforce the 2 terms and conditions of the amended and restated 3 Holdings merger agreement. 4 Now, my friend would have the Court 5 read into that clause a temporal limitation, a 6 temporal scope; only those claims to enforce the terms 7 and conditions going forward. He also wants to 8 rewrite that language to eliminate the words "terms 9 and conditions of the amended and restated merger 10 Holdings agreement" as obligations because that 11 comports with his temporal-only forward-looking view. 12 THE COURT: I don't think that's where 13 he gets the temporal issue. Maybe I'm misunder- 14 standing it, but I think that he agrees with you that 15 there is a broad preservation of claims to enforce the 16 merger agreement. I think the temporal issue comes 17 into play because under the first and second 18 exceptions, there are carveouts from that broad 19 preservation, and the temporal issue comes from your 20 inability to release future claims. So, therefore, 21 those carveouts are limited to the date of the 22 execution of the release. 23 Again, he can correct me, but I don't 24 think the temporal limitation comes from the CHANCERY COURT REPORTERS

19 1 preservation of the merger agreement enforcement 2 right. 3 MR. DRIEMEIER: But based on that 4 understanding, that the temporal limitation as 5 provided by Delaware common law as they argue in the 6 reply, then the proviso and the "except that" clause 7 are wholly unnecessary because solely on the force of 8 the release itself in the Romanettes, they would not 9 have encompassed suits to enforce the agreement going 10 forward and would only have released claims for past 11 breach. 12 So the two clauses that the parties 13 spent a lot of time negotiating, there's a lot of 14 exchanges about how the "specifically included" 15 becomes surplusage. But I would also point out that 16 it's inconsistent, because under the agreement, it 17 explicitly provides, among the scope of types of 18 things that are released, the word "obligations," so, 19 again, the argument that they advance really turns 20 this into a circular exercise because obligations are 21 released, because the word -- one of the first words 22 in terms of the scope of the release is "any and all 23 claims, demands, rights, actions, potential actions, 24 causes of action, liability, damages, lawsuits, CHANCERY COURT REPORTERS

20 1 obligations," so any extant obligation would be 2 released. 3 Then there's the proviso, and they say 4 the "except that" clause means that all that was 5 released is still released so that "all obligations" 6 which would include all obligations extant at that 7 date, all obligations under the merger agreement are 8 released. 9 And there's nothing to, on that view, 10 the proviso which is clearly intended to do something. 11 Both common sense and rules of construction of 12 contracts provides that the Court should not adopt a 13 construction that would render the language 14 surplusage. On their view, that proviso which the 15 parties spent so much time about, so many exchanges 16 about, becomes a nullity. 17 And if there were any question about 18 that, the fact that on the day before the agreement 19 was signed we wrote to counsel for sellers and 20 specifically said that it was our understanding that 21 this proviso preserved our ability to bring typical 22 buyer/seller claims, there was no rejection of that. 23 There was no even question about what that term meant. 24 The only response was one of agreement. CHANCERY COURT REPORTERS

21 1 They recognized that the proviso 2 preserved the right to enforce the terms and 3 conditions of the merger agreement. Of course, one 4 enforces the representations and warranties when the 5 party does not make good on them by suing for breach, 6 and that's what we're here today about. 7 I think that Your Honor's focus in 8 your questions of my friend on the trouble that their 9 interpretation has with making sense of the second 10 Romanette of the "except that" clause is right. 11 Because, really, they trip themselves up. If the 12 release was as broad as they now contend, they would 13 have asked for the escrow to have been returned to 14 them because there really would have been virtually 15 nothing for us to have asked for them that would have 16 implicated the escrow. 17 More importantly perhaps, they would 18 not have paid a purchase price adjustment in late May 19 of that year based on facts that were alerted to them 20 in March of 2011 and that involve a lot of the same 21 types of issues that gave rise to the representation 22 of the warranty claims. 23 Exhibit 24 of the Schulman affidavit 24 that we submitted is the document relating to the CHANCERY COURT REPORTERS

22 1 purchase price adjustment. If you look at the last 2 few pages of that exhibit, it goes through a list of 3 the types of items that were subsumed in the 4 adjustment, and they include things like the North 5 Carolina Dram Shop litigation. They include things 6 like taxes. They include things like the fact that we 7 were not getting the kinds of royalties that we had 8 expected from Wings Over Germany. All of those issues 9 were made part of a purchase price adjustment. 10 Then they would today say that -- I 11 don't actually understand quite their explanation 12 about why, under their theory of the release, they 13 were not also released from paying that purchase price 14 adjustment, and yet they did, just weeks after having 15 signed the release. 16 So we have the contemporaneous 17 communications between the parties. We have the 18 conduct of the parties subsequent to the signing of 19 the release. But more importantly from our view, 20 because we don't think you even need to get to those, 21 we have the context in which it was negotiated, and 22 the fact that a very specific proviso was inserted to 23 preserve precisely this type of claim, and that 24 proviso is rendered meaningless on their CHANCERY COURT REPORTERS

23 1 interpretation. 2 I think it's interesting to contrast 3 the proviso and "except that" clause in the release 4 that we're discussing now with the release that was 5 included in the January 24 amended and restated merger 6 agreement, because, there, there are two things that 7 are notable. One is that the proviso preserves claims 8 to enforce obligations, and it specifies obligations. 9 It doesn't use the broader "terms and conditions" 10 under the loan agreement that relate to conduct that 11 was to occur after December 24th. 12 THE COURT: I thought I had flagged 13 that provision in the first amendment. I remember it 14 being in the seven's. 7.14. Okay. I got it now. 15 Get back on your horse now. 16 MR. DRIEMEIER: So what we have is we 17 have a distinction both because the temporal 18 limitations are spelled out explicitly. It's limited 19 to obligations, and it says obligations based on 20 conduct after December 24th. So all of those features 21 of the January 24th release are absent from the 22 release that we see on May 3rd. 23 So it really, I think, highlights the 24 extent to which one has to write into the May 3rd CHANCERY COURT REPORTERS

24 1 release the kinds of limitations that the sellers are 2 advocating today, and why it is that we had no 3 expectation that that would be the interpretation. 4 In fact, it's interesting that the 5 language that the sellers have seized upon, the sale 6 of HOA, in the context of this list of Romanettes, 7 it's really the emphasis that is on the sale of HOA to 8 the private equity parties. Now, why is that included 9 in our release with the sellers? Well, you do have to 10 kind of go back to the history of the development of 11 the release. 12 THE COURT: Go back and explain to me 13 what is the business reason you think for -- what is 14 the inference I should draw from the plain meaning of 15 the distinction that you pointed out between 7.14(b) 16 and the release found in Exhibit G? In other words, 17 why in 7.14(b) do people go to the trouble of 18 including the dates and not include them in the 19 release? What was on peoples' minds at the time that 20 7.14 made them do that? 21 MR. DRIEMEIER: Well, I think with 22 respect to 7.14, it was that there was a release of 23 the kind of delay -- that was one of the big issues, 24 the disputes between the parties, the delay on the CHANCERY COURT REPORTERS

25 1 part of the sellers in signing the merger agreement 2 and beginning to cooperate. They were willing to 3 release -- the buyers were -- it was the sellers delay 4 up until December 24th but not their delay thereafter. 5 So it was a temporal distinction that the parties were 6 drawing. 7 But with respect to the release on 8 May 3rd, it's a substantive distinction that the 9 parties are drawing. We are releasing, and we mean 10 it, that's what the "except that" clause basically 11 means, all of the claims relating to this dispute 12 about who would buy HOA, would it be NRI, and you have 13 the first of the Romanettes, the NRI merger agreement. 14 Now, mind you, one of the significant 15 features of this list of Romanettes is that there is 16 no Romanette that simply says "the amended and 17 restated Holdings merger agreement." That is, I 18 think, very significant. Then you have the separate 19 and apart from the NRI merger agreement, the entering 20 into or termination of the NRI merger agreement. 21 So already we think, okay, these 22 clauses are pretty specifically crafted because 23 there's some distinction that the drafters see between 24 the NRI merger agreement and the entering into, CHANCERY COURT REPORTERS

26 1 meaning like the fact of the entering into and the 2 fact of the termination of. 3 THE COURT: Really, in your view of 4 the Romanettes, you don't even need the second 5 proviso. 6 MR. DRIEMEIER: True, Your Honor, but 7 I think it's fair to say that we anticipated that we 8 might be here without the proviso. We never 9 anticipated that we would be here with the proviso. 10 We thought the proviso was belt and suspenders and it 11 provided the clarity that we needed. 12 When the other side said, well, wait a 13 minute, you can't then turn around and urge that the 14 delay and all those various things that we're 15 resolving here as part of this release and settlement, 16 you're not going to be able to come back and 17 recharacterize those as the basis of a breach of 18 contract claim based on the merger agreement. 19 Now, in their reply, the sellers said, 20 well, that's meaningless because you couldn't breach 21 an agreement that wasn't in force. But, in fact, it's 22 a little too quick, a little too easy. If you look at 23 the reps and warranties and other provisions of the 24 amended and restated merger agreement, many of those CHANCERY COURT REPORTERS

27 1 provisions have effective dates that predate 2 December 1st, 2010, even October 29, 2010. 3 So I'm not suggesting that we would 4 have done this, but the other side -- we could 5 understand why the other side would be concerned that 6 we would try to recharacterize these types of claims 7 as a breach of the merger agreement which, of course, 8 we thought was effective as of December 1. 9 We thought that when we sent them a 10 signed merger agreement that was the equivalent of the 11 agreement that they had entered into with NRI; that 12 that constituted a binding contract as of that point. 13 Of course, that too was an issue of dispute between 14 the parties, but we understood why they wanted that 15 clarification, and we gave it to them. 16 THE COURT: Remind me when the closing 17 actually was. 18 MR. DRIEMEIER: January 24th, 2011. 19 THE COURT: The same day as the 20 amended and restated agreement. 21 MR. DRIEMEIER: Yes. 22 I do want to, if I could, just go back 23 again to the Romanettes, and as we were saying, 24 they're kind of narrowly and specifically drawn, CHANCERY COURT REPORTERS

28 1 "entering into" or "termination of" being different 2 from the NRI merger agreement itself. 3 We then have "entering into" the 4 Holdings merger agreement, our agreement, and of 5 course, there was no termination of it, so there's no 6 parallel there. But the effective equivalent of that, 7 or an analogue would be the consummation of it. So we 8 say the sale of HOA to our clients. 9 Now, these Romanettes were initially 10 drafted as part of a release that was to be included 11 in the agreement with NRI, and of course, that was 12 critical that we have that language in a release that 13 NRI was granting to us or granting to the sellers 14 because that was, of course, the whole basis of their 15 claim against the sellers, or against us; was that 16 they sold HOA to us instead of selling it to NRI, so 17 we had to have that included there to protect 18 ourselves. 19 But there was never a thought that 20 that would prevent us from enforcing the terms and 21 conditions of the merger agreement itself, the merger 22 agreement never being a Romanette by itself. And the 23 proviso so specifies. 24 So, again, as I said, and I think Your CHANCERY COURT REPORTERS

29 1 Honor's question was well put, we think that the 2 Romanettes themselves, properly construed, protected 3 us. But understanding how, months later, years later, 4 the parties' views can evolve, we added that proviso 5 for clarity, and we don't think that it fairly can be 6 construed -- and certainly that contemporaneous 7 correspondence when we made clear our understanding 8 that it preserved traditional buyer/seller claims with 9 no dispute from the other side, we think there is no 10 question but that we have preserved our rights. 11 If Your Honor has no further 12 questions. 13 THE COURT: I don't, thank you. 14 Mr. Rollo. 15 MR. ROLLO: Thank you, Your Honor. 16 I tried to take notes on the various 17 points, so I'll try and respond as best I can to each 18 of them. I heard a lot about parol evidence, and I 19 don't need to recite all the case law that says it 20 can't be used to create an ambiguity. 21 In our reply brief, we walk through 22 the history. My friend suggested, I think twice, 23 there was a lot of negotiation around the second 24 proviso. Where is that in the papers? He also CHANCERY COURT REPORTERS

30 1 testified, he testified, that they had no 2 understanding or belief. 3 Let me go back to kind of the 4 fundamental concept. It really doesn't matter what 5 they thought. It really doesn't matter if they 6 believed or didn't believe that it operated this way, 7 because the words on the page say what they say. 8 We talk about the spirit or intent 9 or -- I forget the phrase they use as to how to 10 rewrite the nine categories. But I didn't once hear 11 that the plain words on the page for category five do 12 not include the obligations under the merger 13 agreement. 14 Now, there were several loose 15 statements made during the argument, and I want to 16 correct them because they are important. There is the 17 suggestion that we are here contending that all of the 18 obligations under the merger agreement were 19 eliminated. That's not what we said. That's not 20 what's in our papers. 21 Yes, the initial definition was 22 everything, and then there is a carveback, and it says 23 "your obligations." Those obligations are saved. But 24 you can't sue us for a breach, a claim of breach based CHANCERY COURT REPORTERS

31 1 upon what happened beforehand. 2 Now, my friends say that the second 3 proviso, I think it is conceded, that under their 4 interpretation, the second proviso is surplusage. 5 They said that it is unnecessary. Well, that's a 6 concession that their interpretation is inconsistent 7 with Delaware law. 8 We give meaning to the second proviso. 9 We give meaning to the second proviso in part if you 10 look at the negotiating history because we're the ones 11 who put it in. If you look at pages two through I 12 think it's seven of our reply brief, we walk through 13 the iterations. They proposed -- and I'm not 14 suggesting Your Honor should use any of this 15 information to create an ambiguity, but you can use it 16 secondarily in order to confirm the conclusion that 17 there is no ambiguity. 18 With that said, the first draft said 19 the merger agreement and everything related to it is 20 preserved in its entirety. I think it's an April 18th 21 draft from Mr. Bueker. Paragraph eight, it breaks 22 into two parts, 8-A, the lawsuit, or 8-B, a list of a 23 bunch of different things, including the transaction. 24 Any suggestion that they really meant CHANCERY COURT REPORTERS

32 1 there that, oh, everything after 8-B is really 2 qualified by the lawsuit, it would have been worded 3 differently. They wouldn't have said "or." They 4 would have said "including but not limited to." They 5 didn't do that. 6 We rejected that carveout. We then 7 counter-proposed a carveout that contains functionally 8 this structure. Now, there's some modifications that 9 happened over time, but it didn't materially change. 10 The draft that we circulated back -- I 11 believe it has a paragraph 8-E, and it's cited in our 12 reply brief that makes clear how the ultimate 13 definition of "released claims" was intended to 14 operate because it didn't incorporate the definition 15 of released claims initially. That's consistent with 16 what we said. 17 I don't need to drag Your Honor 18 through the negotiating history because I don't think 19 Your Honor needs to get there, but I will say one 20 thing about this whole forthright negotiator. We sent 21 two emails. Both of them say -- and you can debate 22 how it's worded -- that the operation of the second 23 proviso prevented a warranty claim. Consistent with 24 this side. Not even addressed. CHANCERY COURT REPORTERS

33 1 Had they had a piece of paper where 2 they said, "You're absolutely wrong, Mr. Rollo, you're 3 crazy, you're lying to the Court," I imagine Your 4 Honor would have it. This was a voicemail left near 5 the close of business on a Friday when this deal was 6 about to get done. And on a Monday morning, we get an 7 email that's vaguely worded about typical buyer and 8 seller claims. 9 I'll submit to Your Honor if I pass 10 out a bunch of pieces of paper and pens and said, 11 without talking to anybody, everyone write down in the 12 room what a typical buyer and seller claim is, we 13 wouldn't have agreement, not complete. We may have a 14 general notion of what it is, but those words, they 15 are critical to their position, do not show up in the 16 settlement agreement. They don't show up in the 17 release. They don't show up anywhere. 18 So while maybe you make a vague 19 statement at the end of a negotiation to preserve an 20 argument later that you want to create an ambiguity, 21 that doesn't modify the agreement. They proposed a 22 change. We rejected it. We counter-proposed. They 23 accepted it. Done. 24 Now, we add a footnote about a comma, CHANCERY COURT REPORTERS

34 1 and I know we haven't talked about punctuation today, 2 and I don't think Your Honor needs to even address 3 whether or not that comma is necessary. I haven't 4 heard an argument today about the semicolons or lack 5 of semicolons in the definitions, and I think all of 6 that's laid out in the papers. I think Your Honor 7 basically understands our position. 8 But let me address one or two other 9 arguments. Your Honor asked about 7.14(b). I can 10 tell you exactly what was on everyone's mind at the 11 time. There were counterclaims, and those 12 counterclaims said we refused to sign the merger 13 agreement and as a result of it, we'd harmed them. 14 All of that conduct occurred beforehand. 15 Now, Your Honor asked what were we 16 thinking at the time. We had a deal with a different 17 bidder. Same reps and warranties. Same restrictions. 18 Now, things had happened between when we signed that 19 deal and this time. 20 For example, they consented to certain 21 things that violated the reps and warranties and 22 covenants. Now, those concessions were binding on the 23 prior bidder but not on my friends. So if we signed a 24 document that says something has to be true and where CHANCERY COURT REPORTERS

35 1 the other earlier counter party had breached the 2 agreement, because as soon as we signed it, we 3 breached the agreement, we needed something that said 4 you couldn't sue us for that. 5 In their papers, they suggest that the 6 dispute in the earlier lawsuit were additional claims 7 against us. That's just not consistent with the 8 record. The counterclaims say what they say. The 9 counterclaims were filed before this release. 10 This release says basically it's the 11 cooperation covenants and we had to do everything in 12 our power to make sure this deal goes forward. They 13 can suggest that they believe maybe there were some 14 claims, but that's not what was at issue. Nor is 15 there a single document that suggests that the second 16 proviso was animated or included based upon those 17 concerns. 18 I'm generally pretty simple when it 19 comes to contract construction. There's a 20 straightforward answer, and we think it's the one we 21 put forward, and to reach an alternative conclusion, 22 Your Honor has to go through machinations, some 23 contortion of the language to reach the conclusion, 24 and the ultimate conclusion my friends concede does CHANCERY COURT REPORTERS

36 1 not give any meaning to the second proviso. 2 Now, there was one additional point 3 concerning I'll call it the circularity in the second 4 proviso, and it's included in the briefs, but I think 5 today there was the suggestion that it was 6 unnecessary. I want to address that point because I 7 think it's just wrong. 8 The first part of the proviso says 9 notwithstanding this broad definition, which would 10 include the merger agreement and any obligations or 11 breaches, there's a savings clause. Obligations under 12 the merger agreement, and broader than that, 13 transactions directly related thereto. It's a broad 14 transaction. 15 The next one simply refers to claims 16 for breach. That is a smaller subset. So even if you 17 agree that that first clause, the savings clause, is 18 broad, as broad as you'd like it to be, ultimately 19 because there is a difference in the wording between 20 the first clause and the second clause, they're not 21 circular. 22 We submit that the reason they were 23 worded the way they are is the merger agreement has 24 obligations just like the escrow agreement, just like CHANCERY COURT REPORTERS

37 1 everything else, and we wanted to insure that those 2 were not eliminated, because they would have been. 3 Without a proviso, our obligation to not use the 4 Hooters trade name would have been eliminated. 5 Now, with respect to the escrow 6 agreement which Your Honor raised initially about did 7 we release that, there's money in escrow. What right 8 would the buyers have to have the funds flow to them 9 in Your Honor's hypothetical. None. 10 So while I understand Your Honor's 11 hypothetical in terms of how you get there, it doesn't 12 lead to the conclusion that the buyers would have an 13 entitlement to that $11.5 million. So I don't think 14 ultimately that example creates a flaw in our 15 analysis, or alternatively, any ambiguity that would 16 render summary judgment inappropriate. 17 I guess the final point, unless Your 18 Honor has questions, one thing we haven't heard today 19 and anywhere in the brief, is an alternative 20 reasonable interpretation of the contract as a whole. 21 The buyer's position is predicated, the whole thing, 22 on the conclusion that the initial definition of 23 "released claims" does not include the merger 24 agreement obligations. They spend several pages on CHANCERY COURT REPORTERS

38 1 that and that argument. 2 Now, I think that's flatly 3 inconsistent with the negotiating history and the 4 language in the contract. But if you eliminate that 5 assumption, every other argument in the answering 6 brief falls apart because there isn't a cohesive 7 explanation of the contract. 8 How was it intended to operate? What 9 did they think or what did they propose these 10 conflicting temporal clauses mean? Nothing. They 11 simply are trying to create an excuse to get to parol 12 evidence. Then when you get to the parol evidence 13 that they want to look at, it falls apart. 14 Now, one piece -- because Your Honor 15 had questions on it on the purchase price adjustment. 16 Back to what we said in our brief. The purchase price 17 obligation -- the adjustment is an obligation under 18 the contract. My friend pointed to I think it's 19 Exhibit 24. I don't believe the word "breach" is in 20 that document. 21 There is no claim for breach of the 22 merger agreement. We had a contract that says here's 23 how you adjust it. That is an obligation of the 24 merger agreement that continued to be enforceable. It CHANCERY COURT REPORTERS

39 1 is not within the second part of the proviso that says 2 "except no release can be the basis for a breach of 3 the contract." That's the distinction. 4 THE COURT: So you beat that one, but 5 why wouldn't that then result in a released claim 6 affecting an adjustment to the merger consideration? 7 MR. ROLLO: I would submit to Your 8 Honor that release of the escrow is not a 9 modification. 10 THE COURT: Purchase price adjustment. 11 Purchase price adjustment is a modification to the 12 merger agreement consideration because you're 13 following one of these standard mechanisms. Yours was 14 a three-day, pre-closing, you submit your estimates, 15 and then within 60 days post-closing you do the 16 true-up, and you were modifying the merger 17 consideration to reflect what was really on the books 18 at the time of closing as opposed to what was in the 19 estimates. 20 So if the first half of the release 21 encompasses claims for the merger agreement such that 22 those are released claims, didn't you all accept that 23 a released claim was used to make an adjustment to the 24 merger consideration? CHANCERY COURT REPORTERS

40 1 MR. ROLLO: I don't know if I agree 2 with that assertion, Your Honor, since this is the 3 first time I've kind of thought through it, that 4 particular argument, because it's not raised in the 5 papers. I think we talked about it earlier. 6 THE COURT: That's what I thought they 7 were saying. 8 MR. ROLLO: I didn't get that from the 9 papers, let me put it that way. That may be where 10 Your Honor got it from; the papers. As I think I said 11 in my reply brief, we didn't quite follow the 12 argument. 13 So let me respond in two ways. First, 14 even if we did make a payment we weren't obligated to 15 make -- 16 THE COURT: You're just good guys. 17 MR. ROLLO: Let's say we did. That's 18 parol evidence. Post-execution conduct cannot be used 19 to modify the terms of the agreement. Let's say we 20 made that, and we had a right to say, "No, never 21 mind," at best, that's a waiver argument, and there's 22 the provision that says a waiver of one provision is 23 not a waiver of anything else. 24 So while I think in terms of structure CHANCERY COURT REPORTERS

41 1 we can walk through whether or not we could have said 2 no around the same time we were agreeing to a 3 settlement with our friends, I don't know if it 4 ultimately impacts this question because it doesn't 5 modify the text. 6 But I'm happy to address any other 7 arguments or questions Your Honor has. 8 THE COURT: No, I don't have any other 9 questions. 10 All right. Well, thank you both for 11 your presentation. Let me give you a couple of 12 thoughts. First, purely non-substantively, two things 13 for the Delawareans to note for the future, and I give 14 this same advice to some of the other outstanding 15 firms, so don't take this personally. I really hate 16 this footnote structure in briefs. I'll tell you why: 17 Because I actually want to know what you're citing for 18 these statements. To figure out what you're citing 19 for these statements, I have to jump down to the 20 footnotes. Perhaps somebody with better visual acuity 21 than I is readily able to jump down from text to 22 footnote to text to footnote to text to footnote, but 23 I can't. So I get a quote that sounds really good. A 24 good example is Footnote 70. That is one that was CHANCERY COURT REPORTERS

42 1 such a good example that I wrote it down. So I'm 2 reading along and this is -- let's get there. This is 3 a great statement. "Indemnity, in its most basic 4 sense, means reimbursement may lie when one party 5 discharges" blah, blah, blah, Footnote 70." 6 I have to look down to the footnote to 7 find out that that is an unreported Delaware Superior 8 Court case from 2008. Now, I'm not saying there's 9 anything wrong with an unreported Delaware Superior 10 Court case. Certainly we like unreported cases here 11 in Delaware, but I think it would be undisputed that 12 that case would have more heft were it a reported 13 Supreme Court case. 14 So it may be that my colleagues like 15 this footnote style, and it eases their minds when 16 they're reading because they don't have to actually 17 look at where the sources are from or that type of 18 thing. I find it very difficult to deal with. So 19 just in terms of submissions to me, if it's going to 20 be some lengthy string cite, you can put it down in 21 the footnote, but otherwise put these things in the 22 text, because, particularly in a section of the brief 23 where there's carpet bombing of footnotes after every 24 sentence, I'm bouncing down and back after every CHANCERY COURT REPORTERS

43 1 sentence. 2 You'll notice that that's why I don't 3 use the Garner footnote style in my opinions. It's 4 because, again, I think it's ineffective for someone 5 who is immersed in the law of the particular 6 jurisdiction and therefore cares about what case 7 you're actually citing for a proposition. If you were 8 a lawyer who is itinerant and wanders from circuit to 9 circuit and is not as concerned with particular case 10 names or particular authorities, Garner is fantastic. 11 Why bother? I mean, that footnote method is great. 12 But I actually care about what cases you're citing for 13 these principles and where things are coming from. 14 Nobody should take it personally or anything like 15 that. But that's a little constructive point on that. 16 The other thing is I do not understand 17 why I got dueling transmittal affidavits where 80 18 percent of the documents were the same. Now, it 19 turned out to be helpful because I read everything out 20 of the Rollo affidavit. One of my cats decided that 21 the Rollo affidavit was an appropriate litter box 22 substitute. Because of that, I was glad to be able to 23 resort to the Hannigan affidavit. Generally speaking 24 though, I do not want to lug two things like this. I CHANCERY COURT REPORTERS

44 1 mean, look, I've gotten to the point -- and the reason 2 why, when Mr. Bayliss worked for me, he had to carry 3 my bags was not because I was some crazy corner office 4 partner who wanted somebody to carry my bags, but 5 because I got tennis elbow. I didn't get tennis elbow 6 from playing tennis. I like to play tennis. I got 7 tennis elbow from carrying around a big heavy lit bag. 8 The lit bag is twice as heavy when I have the Schulman 9 affidavit and the Hannigan affidavit and the Rollo 10 affidavit. 11 Now, the last affidavit did have a 12 bunch of emails that weren't in the first two, but the 13 first two, I would say 80 percent of those documents 14 were the same. I got two copies of the merger 15 agreement. I got two copies of the escrow agreement. 16 I got two copies of the back and forth. I got two 17 copies of the blooming pleadings from the December 18 case. I don't need that. 19 So those are two practice points for 20 you all going forward, idiosyncratic though they may 21 be. Perhaps other members of the Court would like you 22 to handle their documents differently. But if you 23 would like me to be happy and smiling when I read your 24 papers, those are two things to remember. CHANCERY COURT REPORTERS

45 1 I am going to give you my ruling now. 2 First of all, I want to start by giving you the 3 factual background because I think the time line is 4 important. I'll give you the punch line up front. I 5 am denying the plaintiff's motion for summary 6 judgment, and under the authority of Stroud V. Grace 7 and XO Communications LLC versus Level 3 8 Communications, because I think the language of the 9 contract is plain, I am granting summary judgment in 10 favor of the defendants on the interpretation of the 11 release. 12 So what that will leave, as far as I 13 understand it, is a case about the counterclaims. I 14 do believe that the counterclaims state a claim. I 15 think even this odd claim for the airplane usage -- 16 the airplane judgment -- is something that, frankly, I 17 don't understand what's going on there. It's bizarre. 18 It seems to me that it's the type of thing where 19 conceivably one guy was in control of both entities, 20 and he said, "You know what? I'd rather have this be 21 a judgment against this one rather than that one." 22 If that pans out, and all I have is 23 the pleadings right now, but if that pans out, it's 24 conceivable to me that that could be a situation where CHANCERY COURT REPORTERS

46 1 there would be grounds for indemnification. We'd have 2 to run it through the merger agreement. We'd have to 3 run it through the reps. We'd have to run it through 4 the disclosure schedules. But it's reasonably 5 conceivable. So I think but for the -- except for the 6 release argument -- the counterclaims state claims. 7 Now I am going to address the release 8 argument. The time line is that on October 29th of 9 2010, the plaintiffs originally signed up a deal to 10 sell the Hooters restaurant chain to Neighborhood 11 Restaurants Inc., which people refer to as NRI, and 12 which was connected with Wellspring Capital 13 Management; hence, those references in various 14 documents to the Wellspring claims and things like 15 that. 16 On December 1st, 2010, the private 17 equity group that now owns the Hooters chain through 18 HOA Holdings exercised a preexisting right of first 19 refusal that it had under an outstanding loan 20 document. 21 Six days later, on the 7th of 22 December, the plaintiffs filed a suit claiming that 23 they couldn't figure out whether the right of first 24 refusal had been validly exercised. Three days later, CHANCERY COURT REPORTERS

47 1 on December 10th, HOA, the second bidder private 2 equity firm, filed counterclaims and cross claims. 3 In their answers to those, the 4 plaintiffs suddenly found pellucid clarity as to 5 whether the right of first refusal had been validly 6 exercised and conceded that it had been. Based on 7 that, on December 20th, 2010, I granted judgment on 8 the pleadings as to the valid exercise, the concededly 9 valid exercise of the right of first refusal. That 10 led essentially to a situation where there were two 11 merger agreements in play. 12 So, on December 22nd, 2012, there was 13 a first amendment to the merger agreement with HOA. 14 That's Exhibit C to the Rollo affidavit. That 15 agreement extended the closing deadline, it cut back 16 on the plaintiff's indemnification rights, facially 17 because they had created the mess, and in that 18 document, plaintiffs and the HOA Holdings group agreed 19 to give each other mutual releases but with carveouts 20 preserving rights under the operative transaction 21 documents. 22 Notably, paragraph nine left in place 23 the price adjustment provisions of the merger 24 agreement but provided that payment of litigation CHANCERY COURT REPORTERS

48 1 expenses relating to the then extant litigation 2 wouldn't be treated as increasing current liabilities 3 or indebtedness or as reducing cash or cash 4 equivalents or otherwise. In other words, it wouldn't 5 be treated as having an effect on the price adjustment 6 provisions that were preserved. 7 On January 24, 2011, there was an 8 amended and restated merger agreement between 9 plaintiffs and HOA. That agreement superseded the 10 first amendment to the original merger agreement and 11 picked up and incorporated its provisions. A couple 12 things are important about this merger agreement. 13 First, it had an extensive section on indemnification 14 for breaches and inaccuracies of reps and warrantees. 15 The vast majority of the representations were extended 16 for a year plus 180 days post-closing. Fundamental 17 representations were extended forever. Tax 18 representations were based on the expiration of the 19 related tax oriented statute of limitations. A total 20 of $61.5 million was put into escrows for various 21 buckets of payments, and to govern that escrow 22 arrangement and to provide for the indemnification, 23 there was an escrow agreement dated January 24, 2011. 24 As I indicated in comments with CHANCERY COURT REPORTERS

49 1 counsel, Section 2.1(b) of the merger agreement 2 provided that the LLC interests -- to facilitate that 3 transaction, the Hooters entity which originally was a 4 corporation had been converted into an LLC -- the LLC 5 interests were converted into the right to receive the 6 net merger consideration plus amounts received from 7 the shareholder escrow plus tax reimbursements. 8 Section 2.2 provided for a price true-up mechanism. 9 As I described earlier, it called for delivery three 10 days pre-closing of estimates of cash, cash 11 equivalents and indebtedness with a post- closing 12 purchase price adjustment to be completed 60 days 13 after closing based on actual figures. 14 Of importance to me at least, and to 15 an understanding what was going on, is what the 16 parties agreed to in the introductory paragraph of 17 Article 4. All of the representations and warrantees 18 that were set forth in the amended and restated merger 19 agreement were qualified, recognizing the existence of 20 the then still extant litigation, the Chancery 21 litigation. 22 The obvious purpose of that was 23 because the outcome of that litigation -- indeed, the 24 existence of that litigation -- could have had CHANCERY COURT REPORTERS

50 1 significant implications for various representations 2 and warranties. Immediately jumping to mind are 3 Section 4.5(b), the absence of any undisclosed 4 liabilities other than those on the schedules. One 5 could envision being tripped up by Section 4.6, the 6 absence of certain changes; effectively, a "no MAE" 7 clause. And Section 4.7, no other litigation. 8 There were also potential issues for 9 the parties in terms of the conduct of business 10 between signing and closing. So Section 6.1 listed a 11 pretty extensive, very extensive, list of closing 12 covenants in terms of the operation of the business, 13 generally limiting the business to ordinary course of 14 business activities. A lot of the items that are 15 listed in there could have been affected by and 16 breached by, created problems for by, the outcome of 17 the then extant Chancery litigation. 18 In Section 7.4, what I interpret that 19 to be, that's the release that I discussed with 20 counsel, and it seems to be a release designed to 21 resolve any of the disputes that had been generated by 22 the Chancery litigation up until the date specified in 23 that provision, but which otherwise preserved the 24 right to enforce the transaction documents. CHANCERY COURT REPORTERS

51 1 The merger closed promptly after the 2 signing of the merger agreement. I understand from 3 counsel it was, in fact, the same day. Now, four 4 months later, just under four months later, on 5 May 3rd, 2011, the Chancery litigation was settled. 6 NRI got $9 million. Everybody else got releases. 7 There was a side agreement among the folks in this 8 room about how to divvy up the $9 million payment. 9 Now, this was one of these settlements 10 where nobody actually wanted to have to ultimately 11 show the full agreement whenever they wanted to invoke 12 their releases, so rather than there just being an 13 agreement containing the releases, people signed a 14 settlement agreement and then signed a list of 15 releases from each party to the other parties. That's 16 what gets us to Exhibit G which is the specific 17 release that HOA gave to the plaintiffs. 18 Then, finally, October 4th, 2011, 19 within the schedule contemplated by the 20 indemnification provisions of the merger agreement, 21 HOA served the first of several notices for losses. 22 That's a defined term, "Losses," for indemnification 23 claims against the escrow fund based on alleged 24 breaches of reps and warranties. CHANCERY COURT REPORTERS

52 1 Now, we're here today because in 2 response to those notices, the plaintiffs cited 3 Exhibit G and said, "Sorry, HOA, even though we set 4 aside this money for escrow, even though we had this 5 expansive procedure in the merger agreement to handle 6 post-closing indemnification claims, and even though 7 there's nothing specifically addressing the giving of 8 those up in the settlement agreement, when you granted 9 your broad release found at Exhibit G, that language 10 can actually be read to release any claim you might 11 have for anything you might bring up in the next year 12 plus 180 days for most representations, anything you 13 might bring up forever for fundamental 14 representations, and anything you might bring up for 15 taxes at any point during the period before the 16 expiration of the statute of limitations. You guys 17 gave all that away." 18 Well, that was a claim with which HOA 19 disagreed. It is also one with which I disagree. 20 The release has three pertinent parts. 21 I decide this entirely based on plain language. The 22 release has three pertinent parts. The first is an 23 expansive definition of what qualifies as a Released 24 Claim, and that is with a capital R, capital C. CHANCERY COURT REPORTERS

53 1 The second important part has two 2 provisos where, after the definition of Released 3 Claim, there are two sections where the parties said 4 "provided that." 5 Then finally there are two exceptions 6 to the second proviso. 7 Let's start with the definition of 8 released claims. It is typically expansive. It is 9 plainly attempting to give broad and global releases 10 as to everything related to the enumerated items. In 11 other words, it has the type of language that one 12 would see in a general broad universal release 13 covering everything from the beginning of time with 14 every adjective that any lawyer who ever touched the 15 form language could find in the Thesaurus. But then 16 rather than simply stopping with that broad language, 17 it lists items that the claims have to relate to. 18 It's, therefore, a specific release. 19 In my view, the plain language of the 20 enumerated items facially reflect what actually was 21 being settled; namely, the dispute over the then 22 extant Chancery litigation about which the merger 23 agreement had been validly entered into, how those 24 events occurred, and what the consequences of those CHANCERY COURT REPORTERS

54 1 events would be. 2 The plain language of the Exhibit G 3 release, as well as the plain language of all of the 4 mix-and-match releases that the parties entered into 5 to implement this settlement agreement, drew 6 distinctions between the original NRI merger agreement 7 and the HOA merger agreement. 8 For example, Romanette "i" releases 9 all claims relating to the NRI merger agreement. It's 10 gone, done, over. Romanette "iii" releases all claims 11 relating to the entering into or termination of the 12 NRI merger agreement. Just in case you didn't realize 13 from Romanette "i" that it was gone, over and done, 14 Romanette "iii" is clear that anything related to the 15 entering into of that transaction or the termination 16 of that transaction is gone, over and done. 17 Contrast that with what it says about 18 the Holdings merger agreement. Romanette "iv" only 19 releases matters relating to the entering into of the 20 Holdings merger agreement. What that distinction is 21 plainly attempting to capture is the idea that the 22 Chancery litigation focused on the events leading up 23 to the entering into of the Holdings merger agreement. 24 Thus, while the parties were getting CHANCERY COURT REPORTERS

55 1 rid of, in its entirety, the NRI merger agreement, 2 everything relating to the entering into of that 3 agreement, and everything relating to the termination 4 of that agreement, all people were focused on, as 5 shown by the plain language of Romanette "iv" was the 6 entering into of the Holdings merger agreement. 7 Likewise, in Romanette "v" they were 8 worried about the sale of HOA to a specific set of 9 buyers; namely, the exercisers of the ROFR. Read in 10 context, the plain language of that phrase 11 distinguishes between the sale of HOA to the second 12 set of buyers; namely, the exercisers of the ROFR, as 13 contrasted to the first folks in the door, NRI. 14 Now, the problem with that is that 15 although that is the plainest reading of what the 16 romanettes said, the global release language that 17 precedes the specific items that make it a specific 18 release, is quite expansive. There could be 19 uncertainty, particularly litigation-driven 20 uncertainty, as to the interpretation of what would 21 happen to the existing Holdings merger agreement. 22 Prudent transactional attorneys might worry that if 23 the romanettes were read too broadly, someone would 24 argue that the Holdings merger agreement had been, in CHANCERY COURT REPORTERS

56 1 fact, itself released. 2 So, hence, you have two provisos: The 3 first proviso which was in all of the myriad 4 mix-and-match release documents is that "Provided, 5 however, that nothing in this release shall bar any 6 party from taking any action necessary to enforce the 7 terms of the accompanying settlement agreement," and 8 that's the settlement agreement relating to the 9 Chancery litigation. This first proviso was included 10 because otherwise the release is so blooming broad 11 that even the settlement agreement itself could be 12 released. What that first proviso demonstrates is 13 that the settlement agreement was not part of the 14 defined term "Released Claims," so if you start out -- 15 imagine a circle. Think Venn diagrams encompassing 16 released claims. We are then taking a bite out of 17 that circle relating to the enforcement of the 18 settlement agreement. 19 We then get to the second proviso 20 where it says, "Provided further, however, that the 21 foregoing shall not include any claims to enforce the 22 terms and conditions of the amended and restated 23 Holdings merger agreement or directly relating to the 24 transactions contemplated thereby." Again, otherwise CHANCERY COURT REPORTERS

57 1 some litigation-minded parties potentially could argue 2 that the amended and restated Holdings merger 3 agreement itself had been covered and released. 4 Now, I agree with Mr. Rollo that in an 5 ideal world perhaps, instead of "provided further 6 however" someone truly channeling Brian Garner would 7 have said, "for the avoidance of doubt," but I think 8 that it is sufficiently plain from the "provided 9 further," particularly when combined with the first 10 "provided further" clause, that the intent of this 11 construction was to carveout from the definition of 12 Released Claims any claim for enforcement of the 13 amended and restated Holdings merger agreement. 14 That is another bite out of the circle 15 that otherwise would be Released Claims. In other 16 words, if you had any doubt at all based on the 17 structure of the nine romanettes, we are now 18 confirming through this "provided further" clause that 19 claims to enforce the merger agreement are not part of 20 the Released Claims. 21 Now, this, however, created a problem 22 for the sellers. Why? Because there were matters 23 that were the subject of the Chancery litigation that 24 could be used to claim indemnifiable breaches of the CHANCERY COURT REPORTERS

58 1 reps and warranties or breaches of the covenants as to 2 how the business was to be operated between signing 3 and closing. 4 I discussed in my factual exposition 5 why there are some relatively clear items that might 6 jump out. Just to put a finer point on it, the 7 $9 million payment to NRI, how would that fit into the 8 liabilities and the need to disclose liabilities? It 9 would be hard to call that a MAC, but we have seen 10 weaker MAC claims. Would that have been -- would the 11 agreement to do that, or the exposure of the company 12 to that claim, be something that could be shoe horned 13 into one of the closing covenants if not into one of 14 the representations? 15 We, therefore, have the "except that" 16 provisions. The first "except that" provision says 17 "No released claim shall be the basis for any claim of 18 breach of the amended and restated Holdings merger 19 agreement." What that is saying is if you had any 20 doubt that we were releasing the Released Claims, we 21 really are giving them up, and you, HOA, as buyer, or 22 this is a release from HOA, so it's we, as HOA, as 23 buyer, will not claim that anything that happened and 24 was at issue in that Chancery litigation about the CHANCERY COURT REPORTERS

59 1 ROFR or the delay in payment or the incurrence of 2 contingent liabilities that might thereby have been 3 not adequately disclosed Liabilities, we're not going 4 to claim that any of those are breaches of the merger 5 agreement. We're letting those go. 6 You also have the second proviso which 7 says that except that no Released Claim and no 8 liability or payment under the accompanying settlement 9 agreement shall result in any adjustment to the merger 10 consideration due under the merger agreement. This is 11 exactly the same concept spelled out slightly 12 differently to make sure that no clever transactional 13 lawyer, or clever private equity guy at the Karp firm, 14 could try to get back some of his expenses incurred in 15 the litigation or his piece of that $9 million payment 16 as part of the price adjustment or as part of an 17 indemnification claim. 18 This is saying, "No, we're not going 19 to try to re-trade the settlement by saying that the 20 expenditure of cash to pay that $9 million actually is 21 something that we can then assert as an 22 indemnification claim to come back on you." 23 It doesn't give up the entire 24 indemnification framework because it would only give CHANCERY COURT REPORTERS

60 1 up the entire indemnification framework if all of that 2 article was part of the definition of Released Claim. 3 As I have already said, for two independent reasons, 4 that is not the case. That is not the case, first, 5 because the plain language of the series of romanettes 6 makes clear that they are not releasing claims for 7 enforcement of the merger agreement, and to again 8 avoid any litigation-oriented reinterpretation of the 9 romanettes, the second proviso makes clear that claims 10 to enforce the amended and restated Holdings merger 11 agreement, including things like your indemnification 12 rights, don't fall within the definition of Released 13 Claims. 14 So, given all this, it is clear to me 15 that the release does not mean what the plaintiffs are 16 now arguing; namely, that claims for indemnification 17 under the merger agreement are Released Claims and 18 therefore can't be part of the indemnification process 19 which includes the need to assert that there was some 20 breach of a representation and warranty, thereby 21 falling afoul of romanette "i" of the first exception, 22 in plaintiff's view. Nor is it a Released Claim that 23 would lead to an adjustment of the merger 24 consideration and therefore running afoul of the CHANCERY COURT REPORTERS

61 1 second exception, in the plaintiff's view. 2 Contrary to plaintiff's argument, the 3 plain language of the settlement agreement carves out 4 enforcement of the merger agreement from the 5 definition of Released Claims. Contrary to the 6 plaintiff's argument, the structure of the release as 7 a whole was clearly intended to address the then 8 extant Chancery litigation and the potential 9 re-cycling of those claims through either a breach of 10 the merger agreement assertion, or, more importantly, 11 through the indemnification process. 12 Frankly, it is facially implausible 13 and absurd, given the detailed indemnification 14 provisions, given the sequence of events that led to 15 this settlement, given the nature of the settlement 16 payment, that in agreeing to these releases, the 17 buying parties gave up an otherwise quite detailed 18 indemnification article that entitled them to assert 19 breaches of most reps and warranties for 545 days and 20 other representations longer. 21 Now, I need not reach extrinsic 22 evidence, but were I to do so, I think it's consistent 23 with the plain meaning, and most importantly, I look 24 at the parties' post-contracting behavior. I should CHANCERY COURT REPORTERS

62 1 say post-contracting behavior prior to the buyers 2 actually asserting a meaningful claim for 3 indemnification at which point the sellers suddenly 4 raised this release argument. 5 Prior to those events in October, the 6 parties' post-contracting behavior was consistent with 7 the plain meaning of the release and contrary to the 8 plaintiff's position. So, first of all, there was no 9 effort to shut down, or more likely, modify this 10 indemnification escrow. Again, there was a lot of 11 money in this thing, and even though there's a 12 provision saying that it's capped for tax purposes at 13 the amount that goes to EORHB at 20 million, 14 20 million is still a chunk of change. 15 The escrow agreement is a document 16 that limits the type of things in which the escrow 17 agent can invest. If EORHB and the clever fellows on 18 that side of the deal really thought that they had 19 gotten a release essentially giving up the ability, in 20 which the buyers gave up their ability to raise 21 breaches of reps and warranties under the theory that 22 all of those had to occur or not occur pre-closing, I 23 guarantee you that that event would have been followed 24 quite promptly by a demand for some portion of the CHANCERY COURT REPORTERS

63 1 escrow agreement based on the idea that there is no 2 way that 20 million ought to be sitting in there for 3 545 days when virtually every rep and warranty claim 4 and breach of covenant claim had been given up. 5 Separately and independently, the 6 plaintiffs went forward with a price adjustment. The 7 price adjustment provision is the short-term 8 adjustment for which the indemnification section is 9 the long-term adjustment. All of the same arguments 10 that are being raised now about the indemnification 11 issue could have been raised about the price 12 adjustment with the exception -- I agree with 13 Mr. Rollo on this -- that the argument would not be 14 based on a breach. The argument would be based on 15 romanette "ii" that said "all released claims were 16 given up and shall have no effect as a price 17 adjustment." 18 People went forward with the price 19 adjustment blissfully -- perhaps not blissfully but 20 blithely. Certainly blithely with respect to the idea 21 that there had been some type of release of this 22 mechanism and anything pre-closing that might have 23 been a deviation from what the actual results were. 24 That confirms, in my mind, what the CHANCERY COURT REPORTERS

64 1 plain language says and that this has been a -- 2 perhaps it wasn't a late-adopted strategy. Perhaps it 3 was an anticipated strategy. I don't know. I don't 4 need to make that decision. But certainly nobody 5 acted as if this was really a release until the big 6 dollar indemnification claims came in, and one can 7 almost imagine people saying, "Whoa, we got to figure 8 out some reason why these aren't valid. How about 9 those releases." 10 Lastly, although I do think that there 11 are perhaps some contractual gymnastics that one can 12 go through to preserve a claim, the full import of the 13 plaintiff's theory in terms of the capaciousness of 14 the release language could be read to give up their 15 right to the escrow. The original language of the 16 released claims is just so darn broad, and the link of 17 that to price adjustments in the second exception is 18 so problematic for price adjustments that are paid out 19 of the escrow, particularly given the language of the 20 merger agreement that defines those payments as price 21 adjustments for tax purposes that, again, it renders, 22 in my mind, highly implausible the argument that the 23 plaintiffs are now advancing as the plain meaning of 24 this release. CHANCERY COURT REPORTERS

65 1 So, to come full circle, I am granting 2 summary judgment for the defendants on Count I 3 regarding the nature of the release. I'm not saying 4 that it's ambiguous. I'm saying that, plainly read, 5 it doesn't do what the plaintiffs say it does, and 6 plainly read, it preserves the defendants' right to 7 seek this type of indemnification claim that they have 8 asserted. 9 Again, I am denying the motion to 10 dismiss as to the counterclaims. Having reviewed the 11 counterclaims, I think that but for the release 12 argument, it is reasonably conceivable that they state 13 a claim. It's also reasonably conceivable to me that 14 there could be, depending on how the facts pan out, 15 something relating to this litigation over the plane. 16 So, as far as my view of the matter, and people can 17 discuss this, but it seems to me the case is going 18 forward only as to counterclaims. 19 Now, before I say that so 20 definitively, Mr. Rollo, is there something other than 21 the counterclaims that I am missing that would still 22 be live given those rulings? I understand you 23 disagree with those rulings. I'm not asking you to 24 agree with them, but stuck as you are at least for the CHANCERY COURT REPORTERS

66 1 present with those rulings, is there anything that you 2 think would go forward other than the counterclaims? 3 MR. ROLLO: Not that I can recall. 4 THE COURT: Rise up. 5 MR. ROLLO: I apologize, Your Honor. 6 Not that I recall. 7 THE COURT: Just the speaker. 8 MR. ROLLO: No, Your Honor; not that I 9 am aware of at this point. 10 THE COURT: Thank you. Why don't you 11 all talk about a scheduling order for the litigation 12 on the counterclaims. This seems to me to be an ideal 13 non-expedited case in which the parties would benefit 14 from using predictive coding. I would like you all, 15 if you do not want to use predictive coding, to show 16 cause why this is not a case where predictive coding 17 is the way to go. 18 I would like you all to talk about a 19 single discovery provider that could be used to 20 warehouse both sides' documents to be your single 21 vendor. Pick one of these wonderful discovery super 22 powers that is able to maintain the integrity of both 23 side's documents and insure that no one can access the 24 other side's information. If you cannot agree on a CHANCERY COURT REPORTERS

67 1 suitable discovery vendor, you can submit names to me 2 and I will pick one for you. 3 One thing I don't want to do -- one of 4 the nice things about most of these situations is once 5 people get to the indemnification realm, particularly 6 if you get the business guys involved, they have some 7 interest in working out a number and moving on. The 8 problem is that these types of indemnification claims 9 can generate a huge amount of documents. That's why I 10 would really encourage you all, instead of burning 11 lots of hours with people reviewing, it seems to me 12 this is the type of non-expedited case where we could 13 all benefit from some new technology use. 14 What else should we talk about today? 15 Mr. Rollo, from your side? 16 MR. ROLLO: At this point there is 17 nothing else I think that we can talk about today. 18 THE COURT: Mr. Bayliss, anything that 19 you'd like to discuss? 20 MR. BAYLISS: Nothing, Your Honor. 21 Thank you. 22 THE COURT: All right. Thank you all 23 for coming in. It was very well briefed, and I 24 appreciate you all getting me so prepared that I was CHANCERY COURT REPORTERS

68 1 able to give you a ruling today. 2 We stand in recess. 3 4 (The Court adjourned at 3:35 p.m.) 5 6 7 ----- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CHANCERY COURT REPORTERS

69 CERTIFICATE I, MAUREEN M. McCAFFERY, Official Court Reporter of the Chancery Court, State of Delaware, do hereby certify that the foregoing pages numbered 3 through 68 contain a true and correct transcription of the proceedings as stenographically reported by me at the hearing in the above cause before the Vice Chancellor of the State of Delaware, on the date therein indicated. IN WITNESS WHEREOF, I have hereunto set my hand at Dover, this 17th day of October, 2012. /s/maureen M. McCaffery ---------------------------- Maureen M. McCaffery Official Court Reporter of the Chancery Court State of Delaware CHANCERY COURT REPORTERS

Page 1 SETH HARRIS, Acting Secretary of Labor, United States Department of Labor, Petitioner, - v - SUBCONTRACTING CONCEPTS, LLC, Respondent. Civ. No. 1:12-MC-82 (DNH/RFT) UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK 2013 U.S. Dist. LEXIS 33593 March 11, 2013, Decided March 11, 2013, Filed COUNSEL: [*1] For the Petitioner: ANDREW M. KATZ, ESQ., OF COUNSEL, UNITED STATES DEPARTMENT OF LABOR OFFICER OF THE SOLICITOR, New York, New York. For the Respondent: DAVID F. JASINSKI, ESQ., OF COUNSEL, JASINSKI, P.C., Newark, New Jersey. JUDGES: Randolph F. Treece, U.S. Magistrate Judge. OPINION BY: Randolph F. Treece OPINION RANDOLPH F. TREECE United States Magistrate Judge MEMORANDUM-DECISION and ORDER This matter was submitted to this Court by the United States Department of Labor's Wage and Hour Division (hereinafter "DOL") seeking to compel Subcontracting Concepts, LLC (hereinafter "SCI LLC") to comply with its Subpoena Ad Testificandum (hereinafter "Subpoena"). Dkt. No. 1, Pet'r Mot. to Compel. On February 11, 2013, this Court issued a Memorandum-Decision and Order (hereinafter "MDO") granting in part DOL's Motion. Dkt. No. 12. For the most part, SCI LLC was directed to testify at a deposition and to produce requested documents, albeit with specific limitations. Some of the production is subject to representative sampling, while disclosure of SCI LLC's client list was contingent upon "the [*2] understanding that DOL is not to publish, disclose, nor reveal this list to any third party outside the context of any prospective litigation." Id. at p. 20. Lastly, the applicable statute of limitations was tolled for a definite duration. Id. at pp. 21-22. On February 25, 2013, SCI LLC filed a Motion for Reconsideration of the MDO on the ground of newly discovered evidence. Dkt. No. 13. Additionally, SCI LLC seeks clarification of the MDO as well as a more formal and extensive protective order. Id. Pursuant to the Court's Amended Text Notice, the Motion for Reconsideration was placed on an expedited schedule requiring DOL to file its Response in Opposition to the Motion on an abbreviated time table, Dkt. No. 14, DOL's Opp'n, dated Mar. 5, 2013, and eliminating the need for replies and surreplies. MOTION FOR RECONSIDERATION STANDARD Normally, prior decisions made within the same case must be followed under the law of the case doctrine. Catanzano by Catanzano v. Wing, 103 F.3d 223, 231 n. 5 (2d Cir. 1996); Shomo v. City of New York, 579 F.3d 176, 186 (2d Cir. 2009); United States v. Millet, 208 F.3d 204

2013 U.S. Dist. LEXIS 33593, *2 Page 2 (2d Cir. 2000) (noting that court should "not depart from this sound policy absent [*3] cogent or compelling reasons"). Generally, reconsideration of a court's prior decision is warranted only where the moving party demonstrates (1) an intervening change of controlling law; (2) the availability of new evidence; and/or (3) the need to correct a clear error or prevent manifest injustice. Crucible Materials Corp. v. Certain Underwriters at Lloyd's London & London Market Companies, 681 F. Supp. 2d 216, 225 (N.D.N.Y. 2010); Caidor v. Harrington, 2009 U.S. Dist. LEXIS 24343, 2009 WL 799954, at *1 (N.D.N.Y. Mar. 24, 2009) (Suddaby, J.) (quoting United States v. Sanchez, 35 F.3d 673, 677 (2d Cir.), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); see also Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 8 (2d. Cir. 1996) (one ground for reconsideration includes an intervening change of controlling law); Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983)). Thus, the moving party must "point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) [*4] (citations omitted). "[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Id. at 257. "[A]ny litigant considering bringing a motion for reconsideration must evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant." Gaston v. Coughlin, 102 F. Supp. 2d 81, 83 (N.D.N.Y. 2000) (citation omitted). Of significance here, "[a] motion for reconsideration is not an opportunity for a losing party to advance new arguments to supplant those that failed in the prior briefing of the issue." Fredericks v. Chemipal, Ltd., 2007 U.S. Dist. LEXIS 49185, 2007 WL 1975441, at *1 (S.D.N.Y. July 6, 2007). In other words, it is not an opportunity to take a "second bite at the apple." Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)); see also In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) ("[R]econsideration of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.") [*5] (quotation marks and citations omitted); In re Bird, 222 B.R. 229, 235 (Bankr. S.D.N.Y. 1998) ("A motion for reconsideration is not a forum for new theories or for plugging the gaps of a lost motion with additional matters.") (internal quotation marks and citation omitted). NEWLY DISCOVERED EVIDENCE SCI LLC seeks reconsideration of the MDO based upon newly discovered evidence. The Court is told that this new revelation became apparent to SCI LLC during the latter stage of the Motion to Compel discourse when DOL filed its reply and included an especially curious exhibit. That curious exhibit was a redacted check issued by Subcontracting Concepts, Inc (hereinafter "SCI"). 1 See Dkt. No. 8-1, Lisa Schneider Supp. Decl. & Supp. Ex. A. Relying upon Investigator Schneider's averment that she had "obtained copies of checks issued by "'SCI' to one of the individuals termed an independent contractor" in order to show that there may be a business relationship between SCI LLC and SCI, this Court accepted it for what it portrayed - a blank check. See id. at 3 (attaching a copy of "a partially redacted [check] to protect the identity of the payee"). However, still inexplicable to this Court, SCI [*6] LLC was able to discern that this Exhibit was a check issued to Milton Greene, who had previously challenged his independent contractor status with the New York State Division of Human Rights and the Equal Employment Opportunity Commission. Dkt. Nos. 13-1, Resp't Mem. of Law at p. 1, 13-3, Peter Fidopiastis, Esq., Decl., dated Feb. 25, 2013, at 3 & 7-12. Prior to this revelation, SCI LLC "had no idea why DOL was investigating its global operation," Fidopiastis Decl. at 4, and now posits that "DOL's investigation and "unrestrained demands for information were prompted by a single complaint filed by Milton Greene," Resp't Mem. of Law at p. 1. Purportedly contributing to SCI LLC's suspicion that Mr. Greene is the sole impetus for this investigation is DOL's letter to SCI LLC reminding it not to retaliate against Mr. Greene for the disclosure of his name in this case. Dkt. No. 13-4, Pet'r Lt., dated Feb. 11, 2013. 2 1 Subcontracting Concepts Inc. is a separate entity that may have a business connection to SCI LLC. That connection or relationship is to be explored during the ordered deposition of SCI LLC. 2 Apparently, the impetus for DOL's Letter was

2013 U.S. Dist. LEXIS 33593, *6 Page 3 SCI LLC's General Counsel's Supplemental [*7] Declaration identifying Mr. Greene. Dkt. No. 10-1, Peter Fidopiastis Supp. Decl., dated Feb. 7, 2013, at 3-9. Because Mr. Greene was identified in this manner and concerned about its overarching implications, DOL felt compelled to remind SCI LLC that it would be unlawful to retaliate against "any employee." Dkt. No. 13-4, Ex. B at p. 1. Based upon this newly unearthed revelation and DOL's Letter, SCI LLC extrapolates that Greene's complaint is the sole impetus for DOL's investigation, which would not justify the magnitude of DOL's investigation and the unreasonable production of documents demanded by DOL. SCI LLC exclaims that DOL intentionally kept it and the Court "in the dark as to the real basis for its investigation" and the Court was "deprived of this vital piece of evidence" which would have critically impacted the ultimate decision rendered in the MDO. Resp't Mem. of Law at pp. 5-6. With this in mind, SCI LLC argues that DOL's investigation is unreasonable and its investigative powers have been stretched "well beyond justifiable end[s]," the ordered production is disproportionate to the "real" scope of the investigation, and that DOL has no evidence that SCI LLC committed [*8] any violations of the Fair Labor Standard Act (hereinafter "FLSA"). See generally Resp't Mem. of Law. Lastly, SCI LLC seeks clarification of the MDO by asking that a more formal protective order be issued under these circumstances. Id. In opposing the Motion for Reconsideration, DOL chides the entire premise of SCI LLC's Application, especially the propositions that this constitutes newly discovered evidence and that its investigation is constrained solely to Mr. Greene or even to a single complaint. See Dkt. No. 14, Pet'r Opp'n Mem. of Law, dated Mar. 5, 2013. DOL contends that the wholly redacted check, which contains no personal identify information, "say[s] nothing about the origin of the Secretary's investigation" and, the proposition that this investigation should be limited to only those transactions involving Mr. Greene would "lead to an absurd result - the Secretary [of Labor] would be impeded from investigating widespread and pervasive employment violations where the trigger for the investigation was a single complaint." Id. at pp. 3 & 4. For the Petitioner, this Motion for Reconsideration constitutes nothing short of a ruse to supplement SCI LLC's previously ineffectual opposition [*9] to its Motion to Compel and poses as a veiled opportunity to re-argue relevancy, reasonableness, burden, and confidentiality, which were firmly rejected by the Court. See generally Pet'r Mem. of Law. Thus, DOL seeks a denial of this Motion for Reconsideration. ANALYSIS Even if the Court was to deem Mr. Greene's identity and his role in this investigation as newly discovered evidence, it could only serve as an abstract or obtuse fact having no purposeful bearing on this Court's MDO. This Court does not adopt SCI LLC's myopic view that a single complaint legally impedes DOL from conducting a much more broader investigation. To do so would require a tremendous leap in logic. It is well established that an agency cannot conjure up an investigation and its demands to produce are subject to the limitations of reasonableness, United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 471 (2d Cir. 1996), but as long as the investigation is conducted pursuant to a legitimate purpose, the information is not already within the agency's possession, and all required administrative steps have been followed, a court's role in enforcing an administrative subpoena is "extremely limited," E.E.O.C. v. United Parcel Serv., Inc., 587 F.3d 136, 139 (2d Cir. 2009). [*10] Under the statute, DOL may investigate and gather information relative to wages, hours and conditions of employment in order to determine if there has been a violation. See 29 U.S.C. 209 & 211(a) & Mem.-Dec. & Order at pp. 3-4. Even though DOL has not fully disclosed the genesis of its investigation, nor does it have to, SCI LLC knows full well, or should know, that this investigation does not rest solely on Mr. Greene's complaint alone. To argue otherwise is pure obfuscation. A better indicator as to why DOL's investigation has encompassed SCI LLC is DOL's ongoing investigation regarding Zion Delivery Services Inc., a client of SCI LLC. Dkt. No. 8, Attach. A, Peter Fidopiastis Decl., dated Dec. 31, 2012, & B, Cent. Dist. of California Case No. 12-09956, Order, dated Jan. 15, 2013. SCI LLC is keenly aware that DOL brought a petition to enforce an administrative subpoena to obtain drivers' 1099s completed by SCI LC, which was ultimately upheld by that district court. Dkt. No. 8, Ex. B, Order, dated Jan. 15, 2013. The California investigation was not narrowly confined to a particular driver, and obviously neither is this investigation. Setting all of that aside, this Court already [*11] found that the purpose of

2013 U.S. Dist. LEXIS 33593, *11 Page 4 this investigation is to determine whether the independent owner operators are misclassified as independent contractors rather than employees and whether SCI LLC and the logistic couriers may be joint employers of these drivers. Mem.-Dec. & Order at p. 9. Newly discovered evidence must have some significance to conceivably change the outcome of the previous ruling, but none can be found in this presentation. In re Bernard L. Madoff Inv. Sec., LLC, 489 F. App'x 519, 520 (2d Cir. 2012) (citing United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001). Mr. Greene's complaint and its impact as to the reasonableness of its scope is of minute importance. Hence this Court does not find that this is relevant newly discovered evidence nor would it require a modification to the MDO, and accordingly there is no legitimate basis for this Motion. Continuing, because it deserves mentioning, this Court agrees with DOL that this Motion is uniquely disguised as "a second bite of the apple" as SCI LLC reargues all of the issues that should have been fully addressed during the Motion to Compel. This is nothing more than a veiled attempt to overcome previous deficiencies [*12] and to plug in information SCI LLC failed to reveal earlier. For example, when the Court addressed the matter of disclosing SCI LLC's client list, I noted that "[o]ther than conclusory statements that its client list is 'carefully guarded,' SCI LLC has not outlined in any detail how it protects or guards its customer lists[.]" Mem.-Dec. & Order at p. 19. Now, SCI LLC presents Affidavits, especially one from Ryan Wise, the Vice President of Information Technology, extolling in graphic detail all of the steps SCI LLC takes to maintain the confidentiality of its "proprietary" information. See Dkt. No. 13-5, Ryan Wise Decl., dated Feb. 25, 2013. Additionally, SCI LLC's Memorandum of Law is merely a recapitulation of those same central themes it argued in opposing the Motion to Compel - relevance, reasonableness, burdensome, trade secrets, and confidentiality. These are belated submissions to overcome previous deficiencies. This Court will not allow SCI LLC another opportunity to pitch its position, and the MDO and all of its directions stand. Nonetheless, this Court takes a moment to address SCI LLC's complaint that if it has to adhere to the MDO, it will have to produce nearly 45,000 pages [*13] of documents. Initially, the Court realized the DOL was seeking an enormous amount of documents and, in that respect, I reduced the scope of the Subpoena and also imposed representative sampling in order to make the demand for documents more reasonable. See generally Mem.-Dec. & Order. By directing that SCI LLC give a deposition within sixty days, it is conceivable that the size of disclosure may be decreased. But this Court finds Ryan Wise's Declaration very telling in terms of SCI LLC's ability to produce these documents without unfairly intruding upon its twenty-two (22) employees. Both the client list and 1099 tax records are in both "physical form" and "in electronic form in [its] computer and server systems." Wise Decl. at 2-3. Although this Court may not share the technological sophistication of Mr. Wise, I certainly know that the amount of time, cost, and effort expended to produce these records from the computer is significantly less than by hand. With the advent of software, predictive coding, spreadsheets, and similar advances, the time and cost to produce large reams of documents can be dramatically reduced. Further, suggesting to DOL to accept the production of these [*14] documents in either native format, or through a zip file, or some other electronic transaction should minimize SCI LLC's anxiety. Hence, the Court is more convinced than ever that SCI LLC is not subject to an overwhelming and incomprehensible burden. See e.g., E.E.O.C. v. Sterling Jewelers, Inc., 2011 U.S. Dist. LEXIS 126585, 2011 WL 5282622, at *5 (W.D.N.Y. Nov. 2, 2011) (noting that reviewing 54,000 personnel files was not burdensome nor would it disrupt the business). Quite frankly, no manifest injustice has been demonstrated. Finally, SCI LLC's request for a more formal protective order to ensure that all necessary measures are taken by DOL to protect the names and addresses of its clients is as baseless as it is superfluous. Throughout its argument against the Motion to Compel, SCI LLC raised the alarm that DOL will reveal its proprietary information and that its profitability would be impaired. To remind SCI LLC, the Court found its "fear that DOL intends to share all of this information with SCI LLC's universe of competitors [] utterly without basis." Mem.-Dec. & Order at p. 16. Nonetheless, the Court directed DOL "not to publish, disclose nor reveal this list to any third party outside the context of any [*15] prospective litigation." Id. at p. 20. To suggest that this broadly stated protective order is toothless because a penalty or consequence was not definitely and explicitly meted out should this federal

2013 U.S. Dist. LEXIS 33593, *15 Page 5 agency not abide by the Court's order is meritless. Parties to litigation are expected to fully comprehend the magnitude of an order and the consequences to bear for failing to abide by such an order. And to surmise that a party will breach such an order is presumptuous and unfounded. SCI LLC has conveniently forgotten that this Court maintains jurisdiction over this application for the enforcement of a subpoena and clearly has the power of contempt when a party has failed to comply with such a clearly stated directive. 3 Thus a more formal protective order is not necessary. 3 The Court may turn to those inherent powers, which are innate to its creation, to impose respect for its lawful mandates. United States v. Seltzer, 227 F.3d 36, 39-42 (2d Cir. 2000); DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 136 (2d Cir. 1998). Federal courts have always had the inherent power to manage their own proceedings and to control the conduct of those who may appear before them, and when a party [*16] acts "in bad faith, vexatiously, wantonly, or for oppressive reasons," the courts may exercise their discretion in fashioning a remedy. Chambers v. Nasco, Inc., 501 U.S. 32, 45-46, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991). Additionally, the Court may rely upon the authority granted in the Federal Rules of Civil Procedure. FED. R. CIV. P. 37(b)(2)(A)(vii) & 45(e). Based upon the foregoing, it is hereby Ordered that SCI LLC's Motion for Reconsideration, Dkt. No. 13, is denied. To reiterate further, the entire MDO remains in effect. IT IS SO ORDERED. March 11, 2013 Albany, New York /s/ Randolph F. Treece Randolph F. Treece U.S. Magistrate Judge.

Page 1 CHEVRON CORPORATION, Plaintiff, -against- STEVEN DONZIGER et al., Defendants. 11 Civ. 0691 (LAK) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2013 U.S. Dist. LEXIS 36353 March 15, 2013, Decided March 15, 2013, Filed SUBSEQUENT HISTORY: Motion granted by, in part, Motion denied by, in part Chevron Corp. v. Donziger, 2013 U.S. Dist. LEXIS 46381 (S.D.N.Y., Mar. 26, 2013) PRIOR HISTORY: Chevron Corp. v. Donziger, 2013 U.S. Dist. LEXIS 24086 (S.D.N.Y., Feb. 21, 2013) COUNSEL: [*1] For Plaintiff: Randy M. Mastro, Andrea E. Neuman, Scott A. Edelman, Kristen L. Hendricks, William E. Thompson, GIBSON, DUNN & CRUTCHER, LLP. For Patton Boggs LLP: James K. Leader, S. Alyssa Young, LEADER & BERKON, LLP. For the Donziger, Defendants: John W. Keker, Elliot R. Peters, KEKER & VAN NEST, LLP. For Hugo Gerardo Camacho Naranjo and Javier Piaguaje Payaguaje, Defendants: Julio C. Gomez, JULIO C. GOMEZ, ATTORNEY AT LAW LLC; Craig Smyser, Larry R. Veselka, Tyler G. Doyle, SMYSER KAPLAN & VESELKA, L.L.P. JUDGES: Lewis A. Kaplan, United States District Judge. OPINION BY: Lewis A. Kaplan OPINION TABLE OF CONTENTS SUMMARY FACTS I. THE LAGO AGRIO LITIGATION A. THE BACKGROUND B. THE LAWSUIT, THE TERMINATION OF JUDICIAL INSPECTIONS, THE CABRERA APPOINTMENT, THE MAKING OF CRUDE, AND THE JUDGMENT II. THIS LITIGATION

2013 U.S. Dist. LEXIS 36353, *1 Page 2 III. EVIDENCE THAT THE JUDGMENT WAS OBTAINED BY FRAUD A. ALLEGED BRIBING OF THE JUDGE B. ADDITIONAL EVIDENCE THAT THE LAPS -- NOT THE JUDGE -- WROTE THE JUDGMENT C. EVIDENCE OF FRAUD WITH RESPECT TO THE JUDICIAL INSPECTION PROCESS 1. DR. CALMBACHER 2. THE TERMINATION OF THE JUDICIAL INSPECTIONS, CABRERA'S APPOINTMENT, AND THE CABRERA REPORT 3. NEW EVIDENCE OF FRAUD IN RESPECT OF THE CABRERA REPORT 4. THE "CLEANSING REPORTS" IV. PB'S INVOLVEMENT A. THE STRATUS SECTION 1782 PROCEEDING AND EVIDENCE OF FRAUD ON THE COURT B. THE CLEANSING REPORTS C. POST-TRIAL SUBMISSIONS TO THE LAGO AGRIO COURT D. PB'S OTHER ACTIVITIES IV. PROCEEDINGS WITH RESPECT TO THE PB SUBPOENA A. PB'S MOTION TO QUASH B. ARGUMENT AND THE INITIAL NARROWING OF THE SUBPOENA V. CHEVRON'S UNSUCCESSFUL ATTEMPTS TO OBTAIN DISCOVERY FROM THE LAP REPRESENTATIVES' AGENTS IN ECUADOR AND FROM THE DEFENDANTS A. DEFENDANTS' REFUSAL TO PRODUCE DOCUMENTS AND EVIDENCE FROM ECUADOR B. DEFENDANTS' REFUSAL TO COMPLY WITH THEIR OTHER DISCOVERY OBLIGATIONS DISCUSSION I. IN RE FRIEDMAN A. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT 1. BASIC PRINCIPLES (A) ATTORNEY-CLIENT PRIVILEGE (B) WORK PRODUCT DOCTRINE (C) THE CRIME-FRAUD EXCEPTION 2. APPLICATION IN THIS CASE (A) IMPROBABILITY OF MANY RESPONSIVE ATTORNEY-CLIENT COMMUNICATIONS, IF ANY (B) CHEVRON'S SUBSTANTIAL NEED OVERCOMES ORDINARY WORK PRODUCT PROTECTION (C) THE CRIME-FRAUD EXCEPTION 3. FURTHER LIMITATION OF THE SUBPOENA B. PB'S ROLE

2013 U.S. Dist. LEXIS 36353, *1 Page 3 (1) WHETHER DISCOVERY WOULD DISRUPT THE LITIGATION (2) WHETHER PB LIKELY HAS RELEVANT EVIDENCE C. THE NEED FOR DISCOVERY FROM PATTON BOGGS AND THE EXTENT OF DISCOVERY ALREADY CONDUCTED II. ALLEGED UNDUE BURDEN AND COST SHIFTING CONCLUSION LEWIS A. KAPLAN [*2], District Judge. An Ecuadorian court in 2011 entered an $18.2 billion judgment (the "Judgment") against Chevron Corporation ("Chevron") 1 in an action brought by 47 individuals referred to as the Lago Agrio Plaintiffs (the "LAPs"), two of whom, the LAP Representatives, have appeared in this action. 2 Chevron brought this action against the LAPs, their lead U.S. attorney, Steven Donziger and his law offices (the "Donziger Defendants"), and others involved in the Lago Agrio Litigation, 3 claiming among other things that the Judgment is the product of fraud and that it is a central part in a pattern of violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") that has included extortion, fraud, money laundering, and obstruction of justice, among other offenses. 1 DI 168 (Lago Agrio Judgment). 2 The other LAPs have defaulted and are not defending this action. DI 469. 3 In addition, the amended complaint identifies a number of alleged "co-conspirators" who are not named as defendants. This matter is now before the Court on a dispute over non-party discovery. Patton Boggs LLP ("PB") is a major U.S. law firm that has provided services to the LAPs since early 2010 with respect [*3] to the Ecuadorian litigation. It has represented the LAPs in much of the U.S. litigation relating to the Judgment, although not formally in the district court in this case. It has been involved in the Ecuadorian litigation behind the scenes. It is a named co-conspirator in this case. In addition, it has sued Chevron on its own behalf at least three times on claims relating to this controversy. Chevron served PB with a subpoena duces tecum (the "Subpoena") in this case. PB seeks to avoid entirely any obligation to comply or, at least, to minimize the scope of any disclosure. Its position rests mainly on claims of work product protection and attorney-client privilege, and on a contention that the requested discovery would be unduly burdensome. Summary The Court begins with the proposition that depositions of opposing trial counsel are disfavored. 4 Courts "have resisted the idea that lawyers should routinely be subject to broad discovery." 5 Nevertheless, "the disfavor with which the practice of seeking discovery from adversary counsel is regarded is not a talisman for the resolution of all controversies of this nature." 6 The Second Circuit has said that such efforts: "require a flexible approach [*4] to lawyer depositions whereby the judicial officer supervising discovery takes into consideration all of the relevant facts and circumstances to determine whether the proposed deposition would entail an inappropriate burden or hardship. Such considerations may include the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted.... Under this approach, the fact that the proposed deponent is a lawyer does not automatically insulate him or her from a deposition nor automatically require prior resort to alternative discovery devices, but it is a circumstance to be considered." 7 4 See generally In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71 (2d Cir. 2003) (hereinafter In re Friedman).

2013 U.S. Dist. LEXIS 36353, *4 Page 4 5 Id. at 70. 6 Id. at 71. 7 Id. at 72. These considerations again have led this Court to engage in a painstaking, step-by-step process to deal appropriately with a subpoena addressed to a LAP lawyer, a process that in this instance has consumed months. 8 [*5] In the final analysis, it has reached these conclusions. 8 In a decision affirmed on appeal, it previously granted and enforced a subpoena against Donziger. See In re Chevron Corp., 749 F. Supp. 2d 141 (S.D.N.Y. 2010) aff'd sub nom. Lago Agrio Plaintiffs v. Chevron Corp., 409 F. App'x 393 (2d Cir. 2010). First, Chevron has established at least probable cause to believe there was fraud or other criminal activity in the procurement of the Judgment and in other respects relating to the Lago Agrio litigation in which that Judgment was rendered and in certain litigations in the United States relating to the Ecuadorian litigation. Without alluding here to the entirety of its showing, there is probable case to suspect, and often stronger evidence, 9 that: o Representatives of the LAPs bribed the Ecuadorian judge to obtain the result they wanted and, as part of the deal, wrote the Judgment to which the judge put his name. Indeed, there is substantial evidence corroborating this assertion, not least of it the fact that significant parts of the Judgment match -- word-for-word -- internal work product documents of the LAPs that never were publicly filed in the Lago Agrio case. This latter evidence alone [*6] at least gives rise to probable cause to conclude that whoever wrote the Judgment had access to and copied non-record materials that originated with the LAPs. o At an earlier stage of the Lago Agrio litigation, representatives of the LAPs coerced the then-presiding Ecuadorian judge to terminate judicial inspections of alleged pollution sites, to replace that process with a global expert charged with making an independent evaluation, and to appoint the LAPs' candidate, Richard Stalin Cabrera Vega ("Cabrera"), to that position. They did so by threatening him with a judicial misconduct complaint if he did not accede to their wishes. o The report that Cabrera ultimately submitted in fact was planned and written, at least in major part and quite possibly entirely, by lawyers and consultants retained on behalf of the LAPs though it was signed by Cabrera and filed as if it were his independent work. LAP representatives, moreover, took a number of steps to create or reinforce the entirely inaccurate contention that the Cabrera report was the unbiased work of an independent expert when, in fact, it had been the work of the LAPs' representatives themselves and was not independent in the slightest [*7] respect. o Once the improprieties surrounding Cabrera began to come to light, the LAPs or their representatives then obstructed justice and committed fraud in at least one Section 1782 proceeding in the United States by submitting to a court in Colorado a deceptive account of the LAPs' relationship with Cabrera. o At a still earlier stage of the lawsuit in Ecuador, the LAPs filed two site inspection reports with the trial court over the signature of one of their experts that the expert neither adopted nor agreed with. The evidence readily gives rise to the inference that the LAP lawyers wrote the reports, affixed the expert's signature to them in the knowledge that they did not reflect his views, and filed them. 9 Some of this evidence is undisputed. The Court already has determined on a motion for partial summary judgment that there is no genuine issue of material fact as to much of it. See Chevron v. Donziger, 886 F. Supp. 2d 235,

2013 U.S. Dist. LEXIS 36353, *7 Page 5 286-90 (S.D.N.Y. 2011). The Court's second conclusion is this. Although the scope of the Subpoena has been limited dramatically in prior proceedings, described below, it will be limited further to avoid any undue imposition on PB's position as counsel, to further [*8] reduce any burden of compliance, and to minimize any genuine work product protection and attorney-client privilege issues. It will be limited to documents pertaining to the subjects as to which Chevron has established probable cause to suspect fraud or criminal activity. This limitation will greatly reduce any legitimate claim of work product protection or attorney-client privilege because documents that relate to the crime or fraud and would be discoverable provided only that the documents were in furtherance of the crime or fraud. Third, Chevron has established substantial need for the materials sought by the Subpoena as further narrowed here. It cannot obtain their substantial equivalent elsewhere without undue hardship, if at all. The qualified protection afforded to "ordinary" work product therefore has been overcome. Documents that fall within the Subpoena as further narrowed here and allegedly protected from disclosure only by an ordinary work product claim are discoverable without regard to whether they furthered a crime or fraud. The sum of these three conclusions thus will be that PB must produce (1) all documents responsive to the Subpoena as finally narrowed -- that is, documents [*9] relating to the subjects as to which there is a probable cause to suspect crime or fraud -- as to which either (a) no claim of privilege or work product protection is made, or (b) the only claim of protection from disclosure is that the documents contain ordinary, i.e., non-opinion, work product, and (2) a privilege log as to responsive documents which PB claims did not further the suspected crimes or frauds. One more preliminary comment is appropriate. It is important to recognize that the crime-fraud exception to work product protection and the attorney-client privilege is established where there is "probable cause to believe that a fraud or crime has been committed [by someone] and that the communications in question were in furtherance of the fraud or crime." 10 If probable cause exists as to the commission of a fraud or crime, it is not necessary to show also that a lawyer from whom otherwise privileged or protected documents may be sought was a culpable or knowing participant in the fraud or crime. 11 It therefore is unnecessary to determine for present purposes whether there is probable cause to suspect that PB or any of its personnel was a culpable or knowing participant in any [*10] alleged fraud or crime. 10 United States v. Jacobs, 117 F.3d 82, 87 (2d Cir. 1997). 11 See Clark v. United States, 289 U.S. 1, 15, 53 S. Ct. 465, 77 L. Ed. 993 (1933) ("the loss of the [attorney client] privilege [does not] depend... upon proof that client and attorney are involved in equal guilt. The attorney may be innocent, and still the guilty client must let the truth come out"); In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984) (attorney client "communications are properly excluded from the scope of the privilege even if the attorney is unaware that his advice is sought in furtherance of... an improper purpose."). The balance of this opinion proceeds as follows. Part I of the Facts is a basic description of the general course of the Lago Agrio litigation, which is essential to providing the time line with respect to events in Ecuador and a framework for understanding the relevance of this and other litigation in the United States. Part II sets forth the essentials with respect to this lawsuit. Part III describes the evidence and makes the finding that Chevron has established probable cause to suspect fraud or criminal behavior in a number of respects and the scope [*11] of that probable cause finding. Part IV then addresses PB's role, to the extent it is known, with respect to both the Ecuadorian and U.S. litigation. This is relevant to understanding, among other things, the extent to which the policies that underlie courts' reluctance to subject lawyers to discovery actually apply here and the types, significance of, and need for, the documents that PB almost certainly has. With that factual predicate thus established, the Discussion section analyzes the applicable law and comes to the ultimate conclusions described above. Facts I. The Lago Agrio Litigation A. The Background

2013 U.S. Dist. LEXIS 36353, *11 Page 6 In 1993, a group of Ecuadorians brought a class action in the Southern District of New York against Texaco seeking billions of dollars in damages for harm a subsidiary caused during its oil explorations in Ecuador's Oriente region in the 1960s-1990s (the "Aguinda Action"). 12 The case ultimately was dismissed on forum non conveniens grounds. 13 12 Republic of Ecuador v. ChevronTexaco Corp., 376 F. Supp. 2d 334 (S.D.N.Y. 2005). 13 Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001). On October 9, 2001, while the Aguinda Action was pending, a wholly owned subsidiary of Chevron merged [*12] with and into Texaco. Texaco was the surviving entity. Chevron became the owner of all of Texaco's common stock. Chevron did not acquire or assume any of Texaco's assets or liabilities by merger. 14 14 Chevron v. Donziger, 886 F. Supp. 2d at 243. B. The Lawsuit, the Termination of Judicial Inspections, the Cabrera Appointment, the Making of Crude, and the Judgment The Lago Agrio Litigation began in 2003 when the LAPs, represented by defendant Steven Donziger (albeit not of record in the Ecuadorian courts) and other lawyers, sued Chevron in Ecuador under that country's Environmental Management Act of 1999. 15 The LAPs asserted, inter alia, claims for damages for alleged environmental harm said to have been caused by Texaco. 15 "In 1999 the [Republic of Ecuador] enacted the Environmental Management Act of 1999 ("EMA"), which created a private right of action for Ecuadorians who have been individually affected to seek damages related to environmental harms to the community." Id. at 242. It is unnecessary to detail every aspect of the long history of the Lago Agrio litigation. It suffices to highlight only the aspects critical to this dispute. Beginning in 2004, the Lago Agrio court ordered judicial [*13] site inspections to "assess the approximately 122 wells and production installations in the former concession granted by the Ecuadorian government to what was called the PETROECUADOR-TEXACO Consortium." 16 Each party selected experts to be present during the judicial inspections and to submit their findings to a panel of "settling experts" that would "provide decisive opinions... [and] comment solely on the reports presented by the experts appointed by the parties." 17 Some of the inspections were completed, including two reports, which the LAPs submitted under the signature of one of their experts, Dr. Charles Calmbacher. 18 By 2006, however, the LAPs asked the Lago Agrio court to end the judicial inspection process and petitioned for the appointment of an independent expert to perform a global assessment of the alleged environmental effects. 19 The Lago Agrio court adopted that proposal, appointed Richard Stalin Cabrera Vega ("Cabrera") to serve as the independent global expert, and cancelled most of the remaining inspections. 20 As will appear below, these events and subsequent activities are among several foci of this case. 16 Id. at 244 (internal quotation marks omitted). 17 Id. (quoting [*14] Hendricks Decl. [DI 31] 198 & Ex. 121 pt.1 (Aug. 7, 2004 oral hearing summary), at 1). 18 Id. 19 Id. 20 Id. While all of this was going on, Steven Donziger, then the key lawyer on the LAP side, approached film maker Joe Berlinger to create a documentary depicting the Lago Agrio case from the perspective of his clients. For the next three years, Berlinger and his crew shadowed the plaintiffs' lawyers and filmed "the events and people surrounding the trial," compiling six hundred hours of raw footage. 21 21 In re Application of Chevron Corp., 709 F. Supp. 2d 283, 287 (S.D.N.Y. 2010) (internal quotation marks omitted), aff'd sub nom. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011). On April 1, 2008, Cabrera submitted what purported to be his independent report which attributed $16.3 billion in damages to Chevron. 22 A supplement to the report increased the damage assessment to $27.3 billion.23 22 Chevron Corp. v. Donziger, 886 F. Supp. 2d at 244. 23 Id. In 2009, Berlinger released two versions of his purported documentary, which is called Crude, one on

2013 U.S. Dist. LEXIS 36353, *14 Page 7 DVD and the other on Netflix. The Netflix version contained a scene or scenes not included on the DVD version. As has been discussed in prior [*15] opinions, it revealed or at least suggested that the LAPs and Donziger had collaborated with Cabrera. It suggested also that his report had been prepared by the LAPs and was not Cabrera's independent work product. This led to the filing by Chevron and others in April 2010 of a Section 1782 action against Berlinger that sought the video that Berlinger had shot that did not appear in the released films, which is referred to as outtakes. 24 This Court granted that discovery in May 2010 and the Second Circuit affirmed in January 2011. 25 The pendency of the appeal, however, did not long delay the release of most of the outtakes, as the Court of Appeals in July 2010 directed that Berlinger comply in major part with this Court's disclosure order. 26 24 The actions were filed on the Court's miscellaneous docket, which at that time was not electronic. The relevant docket entries appear in Berlinger's brief and appendix in the Court of Appeals, Chevron Corp. v. Berlinger, 2d Cir. Nos. 10-1918, 10-1919, at DI 196-98. 25 See In re Application of Chevron Corp., 709 F. Supp.2d 283; Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011). 26 Chevron Corp. v. Berlinger, [*16] 2d Cir. Nos. 10-1918, 10-1919, DI 277. Following the release of Crude and, in some cases, the outtakes, Chevron sought other discovery in the United States under 28 U.S.C. 1782 relating to the Lago Agrio litigation and the Cabrera report. 27 Based in part on evidence gathered through the Section 1782 proceedings, Chevron argued that the Calmbacher reports, Cabrera's appointment, and the Cabrera report were fraudulent. 28 In an effort to meet the mounting evidence of fraud, the LAP team hired new experts to address Cabrera's findings and submit new reports -- referred to as "cleansing reports"-- to the Lago Agrio court. On September 10, 2010, seven reports were submitted. 27 Chevron Corp. v. Donziger, 886 F. Supp. 2d at 245. 28 Id. The Lago Agrio court issued the Judgment on February 14, 2011. 29 It awarded $8.646 billion in remediation damages and another $8.646 billion to be paid unless Chevron issued a public apology within 15 days. Chevron issued no apology. 30 29 Id. 30 Id. at 246. Both the LAPs and Chevron appealed. The LAPs sought additional damages, and Chevron sought to have the Judgment reversed or declared a nullity on multiple grounds, including fraud. 31 The appellate court affirmed the [*17] Judgment on January 3, 2012. 32 It declined to address many of Chevron's allegations of fraud. In affirming the damages award, the appellate court specified that two trusts were to be set up and managed by defendant Amazon Defense Front ("ADF") -- one for the $8.646 billion in remediation damages and the other for the $8.646 in punitive damages. 33 31 Id. 32 Id. 33 Id. at 247. Chevron sought clarification on several aspects of the appellate decision, including whether the appellate court had considered Chevron's claims that the Judgment "had been based on information foreign to the record" and that the Lago Agrio court "ha[d] received 'secret assistance' in drafting it." 34 The court rejected what it described as Chevron's "accusations" that "'the [J]ugment ha[d] been based on information foreign to the record' and that the Lago Agrio court 'had received "secret assistance" in drafting' it." 35 34 Id. 35 Id. (quoting Lago Agrio Judgment). II. This Litigation Chevron brought this action on February 1, 2011 against the LAPs, the Donziger Defendants, 36 the Stratus Defendants, 37 and a number of other individuals and entities. Chevron alleges among other things that the Judgment is the product of fraud and [*18] violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). The RICO and, to some extent, the fraud claims rest on allegations that Donziger, a New York lawyer, and others based in the United States, here conceived, substantially executed, largely funded, and significantly directed a scheme to extort 38 and defraud Chevron by, among other things, (1) bringing the Lago

2013 U.S. Dist. LEXIS 36353, *18 Page 8 Agrio case; 39 (2) fabricating (principally in the United States) evidence for use in that lawsuit and corrupting and intimidating the Ecuadorian judiciary in order to obtain a tainted judgment; 40 (3) exerting pressure on Chevron to coerce it to pay money not only by means of the Lago Agrio litigation and judgment, but also by subjecting Chevron to public attacks in the United States and elsewhere based on false and misleading statements;41 (4) inducing U.S. public officials to investigate Chevron; 42 and (5) making false statements to U.S. courts and intimidating and tampering with witnesses in U.S. court proceedings to cover up their improper activities. 43 PB was named as a co-conspirator but not a defendant. 44 36 The Donziger Defendants are Steven Donziger and his law firm, variously referred to as the [*19] Law Offices of Steven Donziger and Donziger & Associates, PLLC. 37 The Stratus Defendants are Stratus Consulting, Inc. ("Stratus"), the consulting firm, that allegedly wrote all or most of the Cabrera report, and two of its personnel, Douglas Beltman and Ann Maest. 38 Amended complaint ("Cpt.") 1 (alleging that defendants "sought to extort, defraud, and otherwise tortiously injure plaintiff Chevron by means of a plan they conceived and substantially executed in the United States."); id. 2 ("The enterprise's ultimate aim is to create enough pressure on Chevron in the United States to extort it into paying to stop the campaign against it."). 39 Id. 3. 40 E.g., id. 145 ("Back in the United States, preparations were well underway for drafting Cabrera's report [the report of a supposedly independent, court-appointed expert]."); id. 151 ("While Stratus [LAP environmental consultant] was the primary coordinator of the... Cabrera Report, other members of the [LAP's] U.S.-based team of experts... also contributed to the report without attribution in the report or disclosure to Chevron."); id. 353--56; Mastro Decl. [DI 746] Ex. C (hereinafter "Guerra Decl."). 41 Cpt. 214. 42 Id. ("And [*20] they have taken this pressure campaign to U.S. state and federal agencies, seeking their falsely induced assistance in this racketeering scheme."); id. 216. 43 Id. 273-77, 291-300, 311-16. 44 Id. 18(s). Several counts of Chevron's complaint have been dismissed by this Court on motions by the defendants. 45 One count, which had been severed and became a separate action, was dismissed at the direction of the Court of Appeals (the "Count 9 Action"). 46 The principal counts remaining are the RICO and state law fraud counts. 47 45 Chevron Corp. v. Donziger, 871 F. Supp. 2d 229 (S.D.N.Y. 2012); DI 472 (May 24, 2012 Decision on Stratus Defendants' Motion to Dismiss). 46 Count 9 of Chevron's complaint sought a declaration that the Judgment was unenforceable and unrecognizable because it was tainted by fraud in a judicial system (Ecuador's) which could not afford a fair and impartial proceeding. The Court issued a preliminary injunction barring enforcement of the Judgment pendente lite in March 2011. Chevron Corp. v. Donziger, 768 F. Supp. 2d. 581 (S.D.N.Y. 2011). The Second Circuit vacated the preliminary injunction and remanded with instructions to dismiss Count 9 entirely on the ground that, [*21] in its view, "the procedural device [Chevron] has chosen to present those claims [in Count 9] is simply unavailable: The [New York Recognition of Foreign Country money Judgments Act] nowhere authorizes a court to declare a foreign judgment unenforceable on the preemptive suit of a putative judgment creditor." Chevron Corp. v. Naranjo, 667 F.3d 232, 240 (2d Cir. 2012), cert. denied, 133 S. Ct. 423, 184 L. Ed. 2d 288 (U.S. 2012). 47 Also remaining are claims for tortious interference with contract, trespass to chattels, and conspiracy against defendants, and a claim that the Donziger Defendants violated Section 487 of the New York Judiciary Law. III. Evidence that the Judgment Was Obtained by Fraud Chevron has contended since the inception of this lawsuit that the Cabrera report was not written by Cabrera but by the LAPs, who then foisted it upon the world and a perhaps unsuspecting Ecuadorian judge as the work of an independent, neutral expert. Soon after the Judgment came down, Chevron pointed to evidence that, it argued, suggested that portions of the Cabrera report were copied from the LAPs' internal documents. Most

2013 U.S. Dist. LEXIS 36353, *21 Page 9 recently, Chevron has come forward with evidence that, if credited, [*22] would establish that the Judgment was written by the LAPs, who bribed the Lago Agrio judge to submit it under his name. A. Alleged Bribing of the Judge On January 28, 2013, Chevron submitted a declaration of Alberto Guerra Bastidas, a former judge of the Provincial Court of Sucumbios, Ecuador, 48 the court that rendered the Judgment, and at one time the judge assigned to the case against Chevron. In summary, Guerra states that the LAPs' counsel -- Pablo Fajardo and Donziger -- bribed the judge who signed the Ecuadorian Judgment to obtain their desired result and, in fact, supplied him with the decision, which the LAPs had written in all important respects. 48 Mr. Guerra was dismissed as a judge in 2008, ostensibly for private statements to the effect that the case against Chevron should be dismissed. He avers, however, that the real reason for his dismissal was his confrontation of two judges who later served on the Chevron case "regarding several dubious and illegal rulings that had issued in the proceedings, and regarding their practice of asking the settling experts for 25 percent of their fees in consideration for having them appointed as such." Guerra Decl. 6. Turning to the details, [*23] Guerra's declaration, which is corroborated in some particulars by other publicly filed declarations, 49 states that when Judge Nicolás Zambrano was assigned the Chevron case on the first of two occasions, 50 he asked Guerra "to get in touch with the attorneys for Chevron in order to negotiate an agreement by which the company would pay Mr. Zambrano and [Guerra] for issuing the final judgment in Chevron's favor." 51 Guerra obliged, but Chevron rejected the overture. So Judge Zambrano, who had told Guerra that he already had reached an agreement with the LAPs' representatives "to quickly move the case along in their favor," suggested that Guerra meet with the LAPs' Ecuadorian lawyer, Fajardo. 52 Guerra then met with Fajardo. They discussed the fact that Guerra already had an arrangement with Zambrano pursuant to which Guerra wrote Zambrano's decisions in civil cases. Guerra and Fajardo then agreed that (1) Guerra would make the Chevron case move quickly, (2) "Chevron's procedural options would be limited by not granting their motions on alleged essential errors in rulings [Guerra] was to write," and (3) the LAPs' "representatives would pay [Guerra] approximately USD $1,000 per month for [*24] writing the court rulings Mr. Zambrano was supposed to write." 53 49 Mastro Decl. [DI 746] Ex. E (hereinafter "Callejas Decl."); id. Ex. F (hereinafter "Racines Decl."); id. Ex. G (hereinafter "Campuzano Decl."), id. Ex. H (hereinafter "Carvajal Decl."). 50 Judge Zambrano first began presiding over the case in September -- October 2009 when he replaced Judge Nuáez. Stavers Decl. [DI 754] Ex. 3102, at 4-6. He was replaced by Judge Ordoáez on March 12, 2010. Id. at 15. As will appear, Judge Zambrano later replaced Judge Ordoáez in October 2010. Id. at 18-19. 51 Guerra Decl. 12. 52 Id. 13. 53 Id. This arrangement is said to have continued until Judge Zambrano was replaced on the Chevron case by a Judge Ordoáez. 54 In time, however, a motion to recuse Judge Ordoáez in the Chevron case came before Judge Zambrano, which the latter allegedly "saw... as an opportunity to once again take control of the Chevron case, and asked [Guerra] to help him write the court ruling sustaining Judge Ordoáez's disqualification from the case." 55 Judge Zambrano allegedly "saw this as an opportunity to once again approach Chevron's attorneys to see if they were willing to pay to have the case decided in their favor." 56 [*25] He dispatched Guerra to explore that possibility, but Chevron again rejected the overture.57 54 Id. 20. 55 Id. 21. 56 Id. 22. As noted, Judge Zambrano replaced Judge Ordoáez on the Chevron case in the fall of 2010. Supra note 50; see also Carvajal Decl. 3. 57 Guerra Decl. 22. At that point, Judge Zambrano, according to Guerra, "suggested and authorized [Guerra] to seek an agreement with the Plaintiffs' representatives so that they could obtain a verdict in their favor, in exchange for a payment

2013 U.S. Dist. LEXIS 36353, *25 Page 10 of at least USD $500,000 to Mr. Zambrano; and whatever amount [Guerra] could negotiate or agree to for [himself]. The proposal entailed Plaintiffs writing a draft of the judgment and Judge Zambrano signing it and issuing it as his own." 58 Guerra took the offer to Fajardo, who expressed interest and said that he would discuss it with Donziger. Later, Guerra received a call from Fajardo who asked him to a meeting with himself, Donziger, and Luis Yanza. 59 At that meeting, Guerra summarized the proposal. Donziger replied that they, the LAPs, did not then have that sum of money. Subsequently, however, Zambrano told Guerra that he had been in direct contact with Fajardo and that "the Plaintiffs' representatives [*26] had agreed to pay him USD $500,000 from whatever money they were to collect on the judgment, in exchange for allowing them to write the judgment in Plaintiffs' favor." 60 Zambrano told Guerra that he would share the money with Guerra. 61 58 Id. 23. 59 Yanza is the co-founder of the Amazon Defense Front ("ADF"), a non-profit organization that purports to represent the LAPs, and the general manager of Selva Viva, an Ecuadorian company that administers funds for the Lago Agrio litigation. 60 Guerra Decl. 23. 61 Id. Guerra then resumed his role as Judge Zambrano's ghostwriter. When it came to the final judgment, however, Guerra relates that his role changed somewhat. About two weeks before the Judgment was issued, "Zambrano gave [Guerra] a draft of the judgment [that had been written by the attorneys for the plaintiffs and delivered to Zambrano] so that [Guerra] could revise it." Zambrano asked Guerra "to work on the document to fine-tune and polish it so it would have a more legal framework." 62 He did so at Zambrano's residence using Fajardo's computer. 63 He made few changes, making "it seem more like a judgment issued by the Sucumbios [i.e., Lago Agrio] court." 64 62 Id. 25. 63 Id. 64 Id. 26--27. When [*27] Guerra was through, he returned the document to Zambrano, which "was not too different from the one the Plaintiffs had given him." 65 Zambrano told him that the LAPs' lawyers "made changes to the judgment up to the very last minute before it was published." 66 65 Id. 27. 66 Id. 28. As noted, Guerra's account is corroborated in a number of respects by other declarations that recently were filed, some publicly and two under seal. And Chevron has submitted further corroborating evidence, including drafts of nine of the twelve court orders that Judge Zambrano 67 issued during his tenure on the Chevron case that were found on Guerra's computer 68 and emails among Donziger and Fajardo and others that appear to confirm the arrangement the LAPs had with Guerra. 69 67 Judge Zambrano reportedly was removed from the bench after rendering the decision against Chevron "for releasing a suspected drug trafficker in an act of 'obvious negligence or an inexcusable mistake.'" Eduardo Garcia and Alexandria Valencia, Chevron Hopes to Benefit from Ecuador's Judge Dismissal, REUTERS (Mar. 9, 2012) (available at http://www.reuters.com/article/2012/03/0 9/ecuador-chevron-idUSL2E8E9ETI20120309) (last visited Feb. 17, [*28] 2013). 68 Mastro Decl. [DI 746] Ex. C (Guerra Decl.) & Attachment O, P, Q, R, S, T, U, V, W. 69 Two emails appear strongly to corroborate Guerra's assertion that during Judge Zambrano's first tenure as the presiding judge of the Lago Agrio case (September 2009 through March 12, 2010), Judge Zambrano had an arrangement with Fajardo "to quickly move the case along in [the LAPs'] favor," that Judge Zambrano suggested that Guerra -- who wrote his decisions in civil cases -- meet with Fajardo, and that Guerra and Fajardo the agreed that Guerra would move the case quickly, that he would limit Chevron's procedural options, and that the LAPs' representatives would pay Guerra $1,000 per month. On September 15, 2009, Fajardo wrote to Donziger and others: "The puppeteer [allegedly referring to Guerra] is pulling the string and the puppet [Judge Zambrano] is returning the package.... By now it's pretty safe that there won't be anything to worry about...." Stavers Decl. [DI

2013 U.S. Dist. LEXIS 36353, *28 Page 11 754] Ex. 3140. A month later, Fajardo wrote to Donziger and Yanza that "[t]he puppeteer won't move his puppet until the audience doesn't pay him something...." Id. Ex. 3154. Deposit slips in Guerra's bank records show that [*29] $1,000 was deposited into Guerra's account a month later by someone whom Chevron identifies as a LAP employee. Guerra Decl. 14 & Attachment K, L, M, & N; DI 752, Rule 56.1 Statement 205. Chevron has submitted other bank records showing further $1,000 deposits made into Guerra's account by the same employee. The Guerra affidavit, if it ultimately is credited, establishes that the Judgment was fraudulently obtained by the LAPs. Even before the Guerra affidavit was filed, however, Chevron had presented substantial evidence of fraud in the procurement of the Judgment. More recently, it has submitted still more. B. Additional Evidence that the LAPs -- Not the Judge -- Wrote the Judgment On July 31, 2012, the Court granted in part and denied in part Chevron's motion for partial summary judgment seeking dismissal of the defenses of collateral estoppel and res judicata. 70 In that opinion, the Court held that there was no genuine issue of material fact that fraud tainted various aspects of the Lago Agrio litigation. Chevron subsequently has submitted additional evidence that further suggests that the Judgment was obtained by fraud. 70 Chevron Corp. v. Donziger, 886 F. Supp. 2d 235. In its motion [*30] for partial summary judgment, Chevron's "ghostwriting" allegations related principally to three internal LAP documents -- that is, documents that were not part of the court record but parts of which wound up in the Judgment: o A document entitled The Merger of Chevron Inc. And Texaco Inc. (the "Unfiled Fusion Memo") that was written by one or more members of the LAP team and that addresses, among other things, successor liability. 71 o The Index Summaries -- spreadsheets prepared by the LAP team that list and summarize documents filed in the Lago Agrio court. o The Selva Viva Data Compilation, which "consists of spreadsheets containing environmental sampling data." 72 Chevron submitted analyses by experts that established that portions of each of these documents appeared verbatim in the Judgment. 73 Thus, Chevron contended that (1) relevant portions of the Judgment either were written by the LAPs, who had generated the documents, and passed to the judge ex parte or (2) these documents themselves were provided ex parte to the Lago Agrio court, which copied at least parts of them word-for-word into the Judgment. 71 Id. at 253. 72 Id. 73 Id. at 253-54. There was no evidence disputing the fact that parts [*31] of the Judgment were virtually identical to the Unfiled Fusion Memo. This Court therefore held that this virtual identity "demonstrate[d] as a matter of law that whoever wrote the Judgment had access to and copied portions of the [Unfiled Fusion] Memo." 74 The Court, however, concluded that "[t]he identity of language between parts of the Unfiled Fusion Memo and parts of the Judgment -- troublesome as it is -- d[id] not alone warrant the conclusion that Chevron has established that there is no genuine issue of material fact on this issue." 75 With respect to the Index Summaries and Selva Viva Data Compilation, the Court held that "[w]hile the similarities between those documents and aspects of the Judgment supports the premise that the author or authors of the Judgment had access to and copied them, the nature of their contents makes it more difficult to conclude that any ex parte submission of them materially impacted Chevron's ability to present its defense." 76 74 Id. at 286. 75 Id. at 288. 76 Id. at 287 n.319. Chevron now has submitted additional evidence that, it claims, shows that at least three other portions of the Judgment are identical to other internal LAP documents that never were [*32] part of the Ecuadorian court record:

2013 U.S. Dist. LEXIS 36353, *32 Page 12 o A memorandum by a Donziger intern (the "Moodie Memorandum"), which analyzes causation under a doctrine applied in California asbestos litigation. o An analysis entitled La Explotacion De Petroleo En La Zona Conesionada A Texaco Y Sus Impactos En La Salud De Las Personas, which was written by LAP consultant Richard Clapp (the "Clapp Report"). o An email regarding trusts sent by Fajardo to alleged co-conspirators on June 18, 2009(the "Fajardo Trust Email"). Chevron supports its contention with respect to each document by expert analyses that conclude that (1) the language or analysis in the relevant LAP internal document and the Judgment is nearly identical, and (2) the analysis or language is found nowhere else in the court record. 77 In each case, Chevron's evidence is sufficient to warrant the conclusion that the items in question further support the existence of probable cause to suspect that the LAPs, not the judge, wrote the relevant part of the Judgment. 78 77 See, e.g., Mastro Decl. [DI 658], Ex. 3003 (Green Decl.), at 2, 12 ("it is highly unlikely, perhaps even more so than highly, that the passages in the [judgment regarding causation] were [*33] prepared independently of the Moodie memorandum."). 78 Moodie Memorandum. Chevron's expert explains that both the Moodie Memorandum and the Judgment analyze "causation law of the United States and Australia, not Ecuador.... Absent some explanation, [he] would consider it highly unlikely that an Ecuadorian court would independently choose United States and Australian causation law, rather than Ecuadorian causation law." Mastro Decl. [DI 658], Ex. 3003 (Green Decl.), at 4, 13. Moreover, the expert opines that the causation analysis in both the Judgment and the memorandum was incorrect under U.S. law and, in any case, inapplicable to the Lago Agrio case. While the LAPs argue that the expert's work was not thorough and would not be admissible in its present form at trial, it affords a sufficient factual basis to support the finding of probable cause given the standard applicable here -- probable cause to suspect a crime or fraud. Clapp Report. Chevron has submitted evidence showing that portions of the Clapp Report were included in an annex to the Cabrera Report. Mastro Decl. [DI 658], Ex. 3005 (Leonard Report) at 9-10, 13. Emails between Donziger and a Stratus employee make clear that [*34] they sought to keep the Clapp Report's true authorship secret, presumably to create the appearance that Cabrera had written it. See Hendricks Decl. [DI 34], Ex. 188 (Email from Doug Beltman at Stratus to Donziger stating "We have to talk to Clapp about that 5-pager, and how we have to limit its distribution. It CANNOT go into the Congressional Record as being authored by him."). The annex to the Cabrera report, however, "did not contain the entirety of the Clapp Report..., and portions that were not included appear in the judgment." DI 657, at 7; Mastro Decl. [DI 658], Ex. 3005 (Leonard Report) at 33-34. Chevron's expert notes that this includes a 34-word string which appears both in the Clapp Report and the Judgment, as well as two additional 16-word overlaps. Ex. 3006 (Juola Report) at 23, 24. The portions of the Clapp Report that appear in the Judgment appear nowhere else in the Lago Agrio court record. Id. at 29. The LAPs do not dispute that sections of the Clapp Report appear verbatim in the Judgment and are nowhere else in the Lago Agrio court record. They argue only that "Chevron has not proved that the materials [including the Clapp Report] were not provided to the [*35] Judge in some informal manner such that the materials did not get signed and numbered as part of the record." DI 712, at 5. But the LAPs point to no evidence that the Clapp Report ever was submitted to the judge in a manner that did not result in its being part of the court record much less that any such submission would not have been improper. Given the identity of language in parts of the Clapp Report and the Judgment and the absence of that language anywhere in the court record, this too supports the conclusion that there is probable cause to suspect fraud.

2013 U.S. Dist. LEXIS 36353, *35 Page 13 Fajardo Trust Email. The same can be said for the Fajardo Trust email. On June 18, 2009, Fajardo sent an email to Donziger and others concerning Ecuadorian trust law and the Andrade v. Conolec case. DI 401, Ex. 2174. Portions of that email -- including a misquotation of the Andrade case -- appear in the Judgment. The Court noted in its opinion on Chevron's motion for partial summary judgment that "Chevron has submitted no expert reports documenting alleged plagiarism in the Judgment from the Fajardo email, or indicating whether or not the Fajardo email was or was not a part of the Lago Agrio court record." Chevron v. Donziger, 886 F. Supp. 2d at 254 n.116. [*36] It recounted the LAPs' contention that any language that was common to the Fajardo Trust Email and the Judgment was merely "stock language" that could have been found4independently in the court record. Id. The Court therefore declined to find that there was no genuine issue of material fact that the Fajardo Trust Email had been submitted fraudulently to the court. Chevron's new evidence overcomes these deficiencies, at least for present purposes. Chevron's expert now concludes that "parts of the [Judgment] must likely have had their origin in the unfiled Fajardo Trust email." Mastro Decl. [DI 658] Ex. 3005(Leonard Decl.), at 33. This includes identical word strings which are found nowhere else in the court record, id. at 30, and improper reliance on Andrade, which both the Fajardo Trust email and the Judgment incorrectly cite as dealing with "the legal basis of the trust," although the case itself says nothing about trusts. Id. at 31. Furthermore, following a complete review of the Lago Agrio court record, Chevron's expert now has concluded that the Fajardo Trust Email is found nowhere within it. Hernandez Aff. [DI 548] 26. The LAPs do not attempt to explain how the language from [*37] the Fajardo Trust email ended up in the Judgment despite the fact that it was never part of the Lago Agrio court record. Thus, the Fajordo Trust Email further supports the probable cause finding. C. Evidence of Fraud With Respect to the Judicial Inspection Process 1. Dr. Calmbacher As indicated above, Dr. Charles Calmbacher was the LAPs' expert for some of the early judicial inspections. Indeed, two reports were filed with the Lago Agrio court under his name and with his signature. Those two reports, however, contained conclusions and findings that he later testified he did not reach. 79 The Court held on summary judgment that "the evidence is uncontradicted" that "[w]hile his signatures on the reports were genuine, the text associated with them was not." 80 The Court therefore concluded that "[i]t... is at least arguable that Chevron has established from Dr. Calmbacher's uncontradicted testimony... that the LAP lawyers wrote the reports submitted over Dr. Calmbacher's signatures and that Calmbacher did not in fact hold the views there stated." 81 But the Court declined to decide on summary judgment whether the submission of the purported Calmbacher report was fraudulent. The evidence, [*38] however, warrants a finding of probable cause, which the Court makes. 79 Chevron Corp. v. Donziger, 886 F. Supp. 2d at 288. 80 Id. 81 Id. 2. The Termination of the Judicial Inspections, Cabrera's Appointment, and the Cabrera Report As noted, the LAPs applied to the Lago Agrio court to terminate the judicial inspections that it had ordered. While that application was pending, Donziger drafted a misconduct complaint against the judge to whom the case then was assigned. The complaint accused the judge of "trading jobs for sex in the court." 82 Pablo Fajardo, the LAPs' principal Ecuadorian lawyer, then had ex parte meetings with the judge, during which he (1) attempted to persuade the judge to appoint Cabrera as the global expert, which ultimately occurred on March 19, 2007, and (2) "let [the judge] know [the LAPs] might file it [i.e., the misconduct complaint] if he does not adhere to the law and what we need." 83 82 Id. (internal quotation marks omitted). 83 Id. (internal quotation marks omitted). The Court held in its summary judgment opinion that there was no genuine issue of material fact that "the decisions to terminate judicial inspections, to pursue the global assessment, and to select Cabrera [*39] as the

2013 U.S. Dist. LEXIS 36353, *39 Page 14 global expert were tainted by the duress and coercion applied to [the judge] by Donziger, Fajardo, and perhaps other." 84 The Court held also that there was no genuine issue of fact that Cabrera's "report was not entirely or even predominantly his own work or that of any assistants or consultants working only for him. There is no genuine issue with respect to the facts that the LAP team secretly prepared his [i.e., Cabrera's] work plan, worked closely with him in carrying it out, and drafted most of the report and its annexes. Nor is there any genuine issue regarding the fact that the LAP team then publicly objected to the very report that they, in large part, secretly had drafted.... The answers filed by Cabrera in response to the LAPs' (and Chevron's) objections -- like the report itself -- were drafted at least in substantial part by the LAP team and written to read as if Cabrera had written them." 85 It concluded as well that, while the Lago Agrio court "disclaimed reliance" on the Cabrera report, Chevron had presented evidence from which it could be concluded that the Lago Agrio court had in fact relied on the Cabrera report at least for certain determinations. 86 84 Id. at 289. 85 Id. 86 Id. at 289-90. 3. [*40] New Evidence of Fraud in Respect of the Cabrera Report Subsequent to the partial summary judgment decision, Chevron submitted a declaration of Ramiro Fernando Reyes Cisneros ("Reyes"), 87 an Ecuadorian petroleum and environmental engineer, 88 that supports the conclusion that the object of terminating the original judicial inspections and appointing a single global expert was to obtain the appointment of someone chosen by the LAPs who would "play ball" with them. 87 Id. 3. 88 See Mastro Decl. [DI 658] Ex. 3014 (Reyes Decl.). Reyes' declaration states that he was asked by the LAPs' attorneys, before the termination of the judicial inspections and the appointment of Cabrera as the global expert, to serve as an independent expert to "monitor" the settling experts in the Lago Agrio case. Donziger explained to Reyes at the time that he was unhappy with the reports plaintiffs' then-experts had submitted and wanted Reyes to submit to the Lago Agrio court another report that established "that the findings of the settling experts' report... were wrong." 89 Reyes makes clear that Donziger and the other attorneys aimed to keep their relationship with Reyes secret so that his report would appear to [*41] be "independent." 90 He claims that, despite Donziger's wishes, he believed that "the evidence did not support Mr. Donziger's position and [he] could not twist [his] professional assessments to make them fit the plaintiffs' interests." 91 Accordingly, in the report Reyes prepared and showed to Donziger, he concluded that, while "the settling experts had failed to strictly follow their judicial mandate... their report contained enough information for the Court to make its own ruling." 92 Donziger was dissatisfied with Reyes' report and did not ask him to submit it to the court. 93 89 Id. 20. 90 Id. 15. 91 Id. 20. 92 Id. 93 Id. In 2006, after the Lago Agrio court halted the judicial inspections, Donziger and the other LAP lawyers informed Reyes that they wanted him to serve as the global "court-appointed" expert 94 and that he would "need... to state that Chevron was the only party responsible for environmental damages and the harm to the local community." 95 When Donziger later told Reyes that the "judge... was putting up hurdles to [Reyes'] appointment as expert," Reyes and Donziger discussed appointing Cabrera instead. 96 At a later meeting with Cabrera and certain LAP attorneys which [*42] Reyes attended, "Mr. Fajado, Mr. Yanza and Mr. Donziger dropped any pretense that Mr. Cabrera would act independently in writing an expert report that would be technically sound and executed according to professional standards. On the contrary, it was obvious that the plaintiffs had already predetermined the findings of the global assessment, that they themselves would write a report that would support their claim... and would simply put Mr. Cabrera's name on it." 97

2013 U.S. Dist. LEXIS 36353, *42 Page 15 94 Id. 22. 95 Id. 25. 96 Id. 29-30. 97 Id. 35. 4. The "Cleansing Reports" As the evidence of infirmities in and affecting the Cabrera fraud were coming to light, the LAP team privately began to "acknowledge[] problems associated with Cabrera's lack of independence." 98 The LAPs' lawyers' planned to hire a new expert to address Cabrera's findings and "submit an additional expert report to the Lago Agrio court that would appear to be independent of but, in fact, would rely on the data and conclusions reached in the Cabrera report." 99 One of the LAPs' lawyers explained that, with the cleansing report: "The path for an Ecuadorian decision will be simple. We would hope the judge would say/rule: There has been much controversy [*43] surrounding the Cabrera report, and objections to it. [Perhaps: The court did not anticipate that there was the degree of collaboration between plaintiffs' counsel and Cabrera, that they may have been. Given these issues, the court is not relying on Cabrera for its ruling.] However, the Court now has additional submissions from the parties... The court finds the new report (demonstrating damages of -- billion) to be persuasive, reliable and accurate and therefore rules...." 100 98 Chevron Corp. v. Donziger, 886 F. Supp. 2d at 261. 99 Id. 100 Champion Decl. [DI 400] Ex. 2060 (June 14, 2010 email). Ultimately, the LAPs petitioned the Lago Agrio court to allow the parties to submit "supplementary information to aid th[e] Court in the process of assessing the global damages." 101 The court granted the LAPs' request and the LAPs submitted seven new reports to the Lago Agrio court from newly hired experts. 102 The new experts had been instructed to rely on the Cabrera report, but were not told that it had been written by Stratus and the LAP team rather than Cabrera, 103 even though, in the words of Donziger, the LAP team's "general idea" had been that "Stratus would draft the report in a form [*44] that could be submitted directly to the Ecuadorian court by Mr. Cabrera." 104 "[T]he known [new] experts that submitted reports later admitted that they never had traveled to Ecuador for the purpose of gathering data to support their reports. At least four relied on the data and conclusions in the Cabrera report." 105 For example, one of the purportedly independent cleansing experts later admitted that he had "relied on parts of the Cabrera report" and "made no efforts to independently verify underlying data." 106 Another expert said he relied on "data series and cost figures" from the Cabrera report without "know[ing] one way or the other whether they're correct or not." 107 101 Stavers Decl. [DI 549] Ex. 2420 (Fajardo declaration submitted to Lago Agrio court (the "Fajardo Lago Agrio Decl.")), at 2. 102 Chevron Corp. v. Donziger, 886 F. Supp. 2d at 261. 103 See e.g., Stavers Decl. [DI 549] Ex. 2417 (Shefftz deposition transcript), at 68:14-24 (cleansing expert was told "that the Cabrera report was prepared by an independent [and neutral] expert"). 104 Hendricks Decl. [DI 8] Ex. 6 (Donziger deposition transcript), at 2253:5-11. 105 Chevron Corp. v. Donziger, 886 F. Supp. 2d at 261. 106 Champion Decl. [*45] [DI 400] Ex. 2073 (Allen deposition transcript), at 171:18-172:3. 107 Champion Decl. [DI 400] Ex. 2074 (Shefftz deposition transcript), at 63:3-21. In the Judgment, the Lago Agrio court disclaimed reliance on the Cabrera report. The Judgment, however, appears to reveal that the court in fact relied upon it by its reliance on the cleansing reports. For example, in assessing damages, the Lago Agrio court cited a cleansing report that "contain[ed] no damage assessment independent of that in the Cabrera report." 108 Thus, this Court concluded on the partial summary judgment motion that "[t]he uncontradicted evidence... shows that the Cabrera report was tainted and that the Lago Agrio court relied to some extent on that report, both directly and via its reliance on the [cleansing] report." 109 108 Chevron Corp. v. Donziger, 886 F. Supp. 2d

2013 U.S. Dist. LEXIS 36353, *45 Page 16 at 290. 109 Id. * * * Although this Court concluded that summary judgment was not warranted with respect to certain of the incidents described above -- e.g., the Calmbacher report and the preparation of the Judgment -- i.e., that the standard relevant to the crime-fraud exception to the work product doctrine and the attorney client privilege is less demanding. [*46] The privilege is overcome, in relevant part, by a showing of probable cause -- "a prudent person ha[s] a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud." 110 110 In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1934, 731 F.2d at 1039. This record establishes probable cause to suspect, taking the matters essentially in chronological order, that (1) the LAPs wrote the Calmbacher reports that were filed with the Lago Agrio court and attached Calmbacher's signatures to them, knowing that the reports did not reflect his views, (2) the judicial inspection process was terminated, the global expert proposal adopted, and Cabrera selected as the global expert as a result of the LAPs' threat that they would file a misconduct complaint against the judge if he did not accede to their wishes that he take these actions, (3) the LAPs secretly planned and wrote all or at least the great majority of Cabrera's report, were complicit in its presentation to the Lago Agrio court as Cabrera's independent work, and took other steps to bolster the false pretense that the report had been independent, (5) the LAPs entered into an improper relationship with Judge Zambrano [*47] during his first tenure as the presiding judge pursuant to which Judge Zambrano agreed "to quickly move the case along in their favor," (6) and the LAPs then entered into a supplementary and equally improper relationship with Guerra pursuant to which Guerra agreed to move the case quickly and limit Chevron's procedural options "by not granting their motions on alleged essential errors in rulings [Guerra] was to write, in exchange for payment by the LAPs' representatives of "approximately USD $1,000 per month for writing the court rulings Mr. Zambrano was supposed to write." In addition, there is probable cause also to suspect that LAP lawyers and other representatives later bribed Judge Zambrano to obtain the result they wanted and, pursuant to the arrangement they struck with him, actually wrote the decision to which he signed his named after some cosmetic and inconsequential editing by Guerra. IV. PB's Involvement PB argues that requiring it to produce documents would be inappropriate because, among other things, it was not retained until February 2010 and it neither participated in nor has much if any direct knowledge of the preceding events. But that is too facile and misleading [*48] a contention. Careful consideration of PB's role with respect to the Lago Agrio litigation, the Judgment, and certain other events, shows that PB participated heavily in certain critical activities that make it likely that it is an important and, in many respects, unique source of evidence of the alleged fraud that is available nowhere else and that at least some of the materials in its possession or control were in furtherance of crimes or frauds regardless of whether PB was aware of them. The period from PB's initial involvement, which apparently began in February 2010, through the filing of the Lago Agrio court's Judgment in February 2011 is particularly telling. It is important to understand where matters stood when PB came on the scene and then to focus on three of PB's activities that went on, in varying degrees, at the same time during this period: (1) PB's efforts to assist in preventing Chevron from obtaining discovery from Stratus in a Section 1782 proceeding it had begun in December 2009 -- discovery that eventually occurred and made clear that Stratus had had extensive contact with Cabrera and substantially written the Cabrera report, thus destroying or at least badly undermining [*49] the pretense that he had been an independent expert; (2) PB's role in recruiting and orchestrating the work of the so-called "cleansing experts," whose reports were submitted to the Lago Agrio court in order to provide a basis for a decision favorable to the LAPs; and (3) PB's role in drafting the final alegato -- the closing argument or closing briefs -- submitted on behalf of the LAPs to the Lago Agrio court. A. The Stratus Section 1782 Proceeding and Evidence of Fraud on the Court In December 2009, Chevron brought a Section 1782 proceeding against Stratus and related individuals in the District of Colorado. 111 Chevron argued that discovery was appropriate because similarities between the Cabrera

2013 U.S. Dist. LEXIS 36353, *49 Page 17 report and documents created by Stratus and its employees suggested that Stratus had written all or at least part of the Cabrera report. It contended that it was entitled to discovery to determine the degree to which that in fact was so as well as the LAPs' involvement in the process. 112 That application was pending when PB arrived on the LAP scene in February 2010. 111 Chevron v. Stratus Consulting, Inc., No. 10 Civ. 00047 (D. Colo.). 112 Id. DI 2 (Chevron Mem. of Points and Authorities in Support [*50] of Petition). The District of Colorado granted Chevron's Section 1782 application on March 4, 2010. 113 The LAPs, realizing that production from Stratus was virtually inevitable, were anxious to "minimize the effects" of the court-ordered production of Stratus' documents. 114 In an email to Donziger, Fajardo, and others, Julio Prieto, one of the LAPs' Ecuadorian lawyers wrote: "Today Pablo [Fajardo] and Luis [Yanza] were kind enough to tell us what was going on in Denver, and the fact that ALL will be made public, including correspondence.... Apparently this is normal in the U.S. and there is no risk there, but the problem, my friend, is that the effects are potentially devastating in Ecuador (apart from destroying the proceeding, all of us, your attorneys, might go to jail), and we are not willing to minimize our concern and to sit to wait for whatever happens. For us it is NOT acceptable for the correspondence, the e-mails, between Stratus and Juanpa [Saenz] and myself to be divulged." 115 A month later, the LAPs filed a motion for a protective order with the District of Colorado, claiming that the documents and testimony that Stratus had been ordered to produce were protected from [*51] disclosure by the attorney-client privilege and work product protection. 116 The motion was later supported by a declaration of Pablo Fajardo (the "Fajardo Declaration"), the LAPs' lead Ecuadorian counsel. 117 113 Id. DI 22. 114 Hendricks Decl. [DI 9], Ex. 11 (March 30, 2010 Email from Julio Prieto to Donziger, Fajardo and Others). 115 Id. (all emphasis added). 116 Chevron Corp. v. Stratus Consulting, Inc., No. 10 Civ. 00047, DI 68. 117 Id. DI 99 (filed May 5, 2010). PB was heavily involved in drafting the Fajardo Declaration 118 which, in the words of one PB partner, Eric Westenberger, was intended to "'cleanse any perceived impropriety related to the Cabrera Report." 119 The LAPs' American lawyers debated what the affidavit should reveal and whether Fajardo should be the one to sign it. When PB circulated a draft of the affidavit on May 3, 2010, one lawyer from Emery Celli Brincherhoff & Abady, LLC, which also represented the LAPs, responded: "I don't quite get the purpose of this affidavit. Pablo mentions one document submission but not the other. If he's submitting an affidavit about what happened, why omit the most important part? It seems misleading at best. I just don't see how he can sign [*52] an aff. that documents his submissions to Cabrera without mentioning that he sent documents that originated from Stratus which is the one thing the judge is going to want to know about.... [And] I wouldn't emphasize too much that Cabrera was independent and court-appointed. Once [Fajardo] says that in an American court, we'll never be able to back off from it." 120 Westenberger expressed his concern that Fajardo might "be subject to deposition[.] This is why we struggled with who would sign the declaration. If Steve [Donziger] signs, he will most certainly be deposed. Same for any other counsel in the US. We figured that with [Fajardo], they likely would not slow down the process by deposing him." 121 118 See Stavers Decl. [DI 549] Ex. 2407 (May 3, 2010 email from PB attorney to others attaching "a draft of Pablo Fajardo Mendoza's Declaration in support of our motion to be filed in Denver."). 119 Hendricks Decl. [DI 9] Ex. 13 (email from Westenberger to others). 120 Stavers Decl. [DI 549] Ex. 2407 (May 3, 2010 email from Ilann Maazel).

2013 U.S. Dist. LEXIS 36353, *52 Page 18 121 Id. (May 3, 2010 email from Westenberger). The Fajardo Declaration that ultimately was filed gave a bland description of the process by which the judicial [*53] inspections had been terminated, the global expert proposal adopted, and Cabrera in particular selected. But it failed to mention that Fajardo and Donziger had threatened the judge with a misconduct complaint unless the judge agreed to their demands and appointed Cabrera. And while it acknowledged that the LAPs had "delivered materials to Mr. Cabrera," 122 it did not mention the March 3, 2007 meeting at which the LAPs laid out the plan for Cabrera's report and indicated that the work would be done by them. 123 Nor did it reveal that Stratus and the LAPs' counsel in fact had written all or most of Cabrera's report. 124 In other words, it omitted what the Emery Celli lawyer said was "the most important part" -- that Fajardo "sent documents that originated from Stratus." The declaration similarly neglected to report that the LAPS "chang[ed] the focus of [Cabrera's] data at [their] offices." 125 122 Chevron Corp. v. Stratus Consulting, Inc., No. 10 Civ. 00047, DI 99, 17. 123 Chevron Corp. v. Donziger, 886 F. Supp. 2d at 258. 124 Id. at 258-260. 125 Hendricks Decl. [DI 32], Ex. 156 (July 17, 2007 email from Donziger) ("we think that Richard [Cabrera] should suspend his work in the field and we should [*54] not pay the team until after the recess. We just need him to tell the team and Texaco that he's going to start all over after the recess so there is nothing strange, everything appears normal.") Notwithstanding the Fajardo Declaration, the District of Colorado denied the LAPs' motion for a protective order and ultimately ordered Stratus to turn over its documents. 126 Following that ruling, the LAP team brainstormed ways to delay further the production of Stratus' documents and, realizing that production was inevitable, to mitigate its effects. One of the LAPs' lawyers sent an email to the LAP team emphasizing that "Stratus will be under a court order to produce all materials it gave Cabrera. Stratus will not risk a contempt motion, it will comply. Unless we want the Stratus/Cabrera revelation to come out in CO, which seems like the worst possible place, we need to make our submission in Ecuador and fast." 127 PB's Westenberger responded, "[w]hat about the following? Appeal; move for stay; if we win with [the District of Colorado] great; if we lose, we produce whatever we want (narrow read); [Gibson Dunn] complains and then we move for clarification. If we lose again, we think about another [*55] appeal." 128 126 Chevron Corp. v. Stratus Consulting, Inc., No. 10 Civ. 00047 (MSK) (MEH), 2010 U.S. Dist. LEXIS 55049, 2010 WL 2135217 (D. Colo. May 25, 2010) order clarified, No. 10 Civ. 00047 (MSK) (MEH), 2010 U.S. Dist. LEXIS 61821, 2010 WL 2232371 (D. Colo. June 1, 2010). 127 Hendricks Decl. [DI 47] Ex. 292 (May 27, 2010 email). 128 Id. Nearly five months after the court denied the LAPs' motion for a protective order, Chevron had yet to receive the majority of responsive documents from Stratus and filed a motion to compel production. The District of Colorado granted Chevron's motion on October 1, 2011;129 the LAPs filed an emergency motion to stay pending appeal three days later. The District of Colorado denied the LAPs' motion the next day, 130 and Stratus began producing documents. 129 Chevron Corp. v. Stratus Consulting, Inc., 2010 U.S. Dist. LEXIS 110023, 2010 WL 3923092, at *12. 130 Chevron Corp. v. Stratus Consulting, Inc., No. 10 Civ. 00047, DI 268. The Prieto email 131 makes it clear, or at least highly likely, that the LAPs' Ecuadorian counsel knew what had taken place among themselves, Stratus and Cabrera -- the Cabrera report was not the work of an independent expert but of Stratus, and the LAPs and the various statements and other tactics designed to portray the report [*56] as independent were, and were intended to be, highly misleading. They made at least a good part of that clear to the American lawyers. PB and Emery Celli, among others, then collaborated on the drafting of the Fajardo Declaration, which acknowledged having "delivered materials to Mr. Cabrera" without revealing that the LAPs had prepared the plan for the report he had filed, had extensive contacts with Cabrera, had had Stratus write all or most of the report itself. That declaration then was submitted to the court in Denver for the purpose of persuading it that nothing amiss had occurred with respect to the Cabrera report in an effort to prevent the

2013 U.S. Dist. LEXIS 36353, *56 Page 19 disclosure of Stratus' files, including "the e-mails between Stratus and Juanpa [Saenz] and myself" that Prieto was determined to keep concealed lest the case in Ecuador be destroyed and the LAPs' Ecuadorian attorneys "go to jail." 132 131 See supra pp. 30-31. 132 The LAPs argue that "a close[] reading" of Prieto's email suggests that the email betrayed concern that disclosure of the emails between Stratus, on the one hand, and Prieto and Saenz, on the other was not acceptable because it would have violated duties they owed to their clients as [*57] Ecuadorian lawyers, not, as Chevron maintains, that he was concerned that disclosure of what had occurred vis-a-vis Cabrera amounted to misconduct such that the lawyers might go to jail. DI 712, 10-11. Perhaps. But that contention, whatever impact it someday may have before a trier of fact, is neither material at this stage nor, in all the circumstances, persuasive. First, the issue for present purposes is whether "a prudent person [would have] a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud." In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d at 1039. Regardless of the Prieto email, the ultimate question with respect to the proceedings in Colorado is whether there is probable cause to suspect that the Fajardo declaration that was submitted to the district court there was fraudulent because it suggested that nothing was amiss with respect to Cabrera and his report but failed to disclose a host of highly material facts quite plainly suggesting the contrary. As discussed above, probable cause exists to suspect fraud in that respect independent of the interpretation of the Prieto email. The Prieto email goes to the motive for [*58] that nondisclosure, not to its deceptive nature. Moreover, even if the Prieto email shed light on the latter issue, and even if PB's interpretation were plausible, "a finding of probable cause," as discussed below, "is not negated by 'an innocent explanation which may be consistent with the facts alleged." United States v. McDonald, 01-CR-1168JSWDW, 2002 U.S. Dist. LEXIS 9866, 2002 WL 31956106, at *5 (E.D.N.Y. May 9, 2002) (quoting A.I.A. Holdings, S.A. v. Lehman Bros. Inc., 97 Civ. 4978 (LMM) (HBP), 1999 U.S. Dist. LEXIS 1183, 1999 WL 61442, at *5 (S.D.N.Y. Feb. 3, 1999) (citing United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985)). Second, Chevron's interpretation of the email is more plausible than PB's. Prieto's expressed concern was not only with potential criminal exposure for the Ecuadorian lawyers. He was concerned also that disclosure of what had gone on between Stratus and the Ecuadorian lawyers could or would "destroy[] the proceeding," i.e., the Lago Agrio case. It is quite improbable that a disclosure of the Stratus documents by the Ecuadorian lawyers in breach of professional responsibilities, even in criminal breach of such responsibilities, would have destroyed the Lago Agrio case, whatever consequences it might have [*59] had for the lawyers themselves. Indeed, the Stratus documents were disclosed and the Ecuadorian court entered the Judgment anyway. Finally, the suggestion that Prieto was concerned that the disclosure of the emails would have violated Article 335.1 of the Ecuadorian Judicial Code (DI 712, at 11) borders on the fanciful. Although the LAPs were desperately seeking to stop disclosure of the Stratus documents in Colorado, no such argument was made to that Court. Nor was any such argument made to this Court when Donziger's files were subpoenaed and produced in the 1782 proceeding or in the Count 9 action when the depositions of Ecuadorian lawyers were noticed. The notion that discovery from the Ecuadorian lawyers would violate Ecuadorian law first was raised in 2012 in this case, more than two years after the date of the Prieto email and almost two years after the submission of Fajardo's declaration to the Colorado district court. In these circumstances, there is probable cause to suspect that at least some of those involved, as alleged extensively in the amended complaint, 133 committed mail and/or wire fraud 134 and obstructed justice in at least the Stratus 1782 proceeding in Colorado by [*60] formulating and filing the Fajardo declaration, which was a seriously misleading account of what had happened. 133 See e.g., Am. Cpt. 266-303, 354-55, 359-65.

2013 U.S. Dist. LEXIS 36353, *60 Page 20 134 "The elements of mail or wire fraud are (i) a scheme to defraud (ii) to get money or property, (iii) furthered by the use of interstate mail or wires." United States v. Autuori, 212 F.3d 105, 115 (2d Cir. 2000). "[T]he well-settled meaning of 'fraud' require[s] a misrepresentation or concealment of material fact." Neder v. United States, 527 U.S. 1, 22, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (first emphasis added, second in original). Chevron alleged in its amended complaint that the RICO defendants committed wire fraud by the electronic filing of court papers that contained false and misleading statements. 354(e). For example, the Fajardo declaration "falsely attested that Cabrera was 'independent' and omitted from his declaration the substantial role he and other conspirators had played in securing Cabrera's appointment, his numerous personal meetings with Cabrera... and the massive, U.S. project to write, translate and submit the fraudulent Cabrera Report." 287. Chevron has submitted subsequently evidence that shows -- at the very least -- that there [*61] is probable cause to suspect that the Fajardo declaration -- which was filed electronically with several U.S. courts -- misrepresented or concealed material facts about the LAPs' relationship with Cabrera. PB's involvement in the Section 1782 proceedings was not limited to the one in Colorado. It has represented the Ecuadorian plaintiffs in at least six of the proceedings across the country 135 and was involved behind the scenes in others. 136 Just as in Colorado, the LAPs' employed PB's strategy of "fight[ing] hard on all fronts all the time and conced[ing] nothing, [to] buy as much time as possible." 137 Indeed, the LAPs filed the Fajardo Declaration in at least fifteen other Section 1782 proceedings across the country, including this one. 138 135 See Chevron Corporation v. Allen, No. 2:10-mc-00091-wks (D. Vt.); In re Chevron Corp., No. 1:10-mc-00053-SSB-KLL (S.D. Ohio); In re Chevron Corp., No. 7:10-mc-00067 (W.D. Va.); In re Chevron Corp., No. 2:10-mc-00208-JD (E.D. Pa.); Chevron Corp. v. Picone, No. 8:10-cv-02990-AW (D. Md.); In re Chevron Corp., No. 2:10-cv-02675-KM-MCA (D.N.J.). 136 See, e.g., Mastro Decl. [DI 658], Ex. 3010 (1/17/2011 text message from Westenberger to Donziger) ("I've [*62] convened a call for 1230 on the 1782s."); Stavers Decl. [DI 547] Ex. 241 (Dec. 13, 2010 E-mail from Eric Daleo of Patton Boggs) ("we have prepared for transfer documents that previously appeared on privilege logs in the Allen (Vermont), Picone (Maryland), Rourke (Maryland), and Scardina (Virginia) [Section 1782] proceedings.") 137 DI 496, Ex. 5; see also Hendricks Decl. [DI 48] Ex. 323 (email from Donziger explaining that it is important to "adhere to the fundamental principle of our strategy as outline by Jim" Tyrrell of Patton Boggs to "appeal everything on the theory that we gain a greater advantage by fighting them on everything, and tying them up, than conceding any one thing"). 138 Stavers Decl. [DI 549] 44; see In re Chevron Corp., 11-cv-24599 (S.D. Fla. June 26, 2012 & Apr. 16, 2012) Dkts. 55-26 & 86-26; Chevron Corp. v. Donziger, 11-cv-0691 (S.D.N.Y. Feb. 8, 2011 and Feb. 25, 2011) Dkts. 66-2 & 138-13; In re Application of Chevron Corp., No. 2:10-cv-02675-SRC-MAS (D.N.J. June 7, 2010 and May 17, 2011) Dkts. 5-15 & 54-10; Chevron Corp. v. Allen, No. 2:10-mc-00091-WKS (D. Vt. Nov. 16, 2010) Dkt. 23-9; In re Chevron Corp., No. 1:10-mc-0053-SSB-KLL (S.D. Oh. Nov. 16, 2010) Dkt. [*63] 20-10; Chevron Corp. v. Picone, No. 8:10-cv-02990 (D. Md. Nov. 16, 2010) Dkt. 19-9; In re Chevron Corp., No. 10-mc-10352 (D. Mass. Nov. 16, 2010) Dkt. 25-5; Chevron Corp. v. Scardina, No. 7:10cv-00549-JCT (W.D. Va. Nov. 16, 2010) Dkt. 15-9; In re Application of Chevron Corp., No. 10-mc-00021-JCH-LFG (D.N.M. Aug. 26, 2010) Dkt. 63-2; Chevron Corp. v. Champ, No. 10-mc-00027 (W.D.N.C. Aug. 24, 2010) Dkt. 20-10; In re Application of Chevron Corp., No. 3:10-cv-00686 (M.D. Tenn. Aug. 11, 2010) Dkt. 44-9; In re Application of Chevron Corp., No. 10-cv-01146-IEG-WMC (S.D. Cal. June 26, 2010) Dkt. 16-4; In re Application of Chevron Corp., No. 10-mc-00371-CKK (D.D.C. June 11, 2010) Dkt. 22-2; Chevron Corp. v. 3TM Int'l, Inc., No. 4:10-mc-00134 (S.D. Tex. May 18, 2010) Dkt. 49-3; In re Chevron Corp., No. 10-cv-00047 (D. Colo. May, 5, 2010).

2013 U.S. Dist. LEXIS 36353, *63 Page 21 B. The Cleansing Reports In May 2010, the District of Colorado granted discovery from Stratus, although documents were not produced until much later. Also in May 2010, this Court granted Chevron's application to subpoena the Crude outtakes from the filmmaker, Joseph Berlinger. 139 The outtakes further supported Chevron's contention that Donziger and the LAPs had [*64] orchestrated Cabrera's appointment and written his report in whole or in major part. In this context, PB then led efforts -- in the words chosen by PB's Mr. Westenberger--to "cleanse any perceived impropriety related to the Cabrera Report." 140 139 In re Chevron Corp., 709 F. Supp. 2d 283 (S.D.N.Y. 2010). 140 Hendricks Decl. [DI 9] Ex. 13 (email from Westenberger to others). First, as explained above, the LAP team -- by way of another Fajardo declaration -- petitioned the Lago Agrio court to order supplemental reports on the issue of damages. 141 The declaration, drafted by PB and other LAP American lawyers, also was intended to argue that the submissions the LAPs' had made to Cabrera were appropriate and acceptable under Ecuadorian law. Discovery has shown, however, that the LAPs' lawyers debated whether and to what extent the declaration should reveal the LAPs' "meetings with Cabrera" 142 and the nature and extent of their relationship with him. A June 5, 2010 email by PB lawyer Edward Yennock said: "The sole open issue [with the declaration] is the specificity with which we describe the 'meetings' with Cabrera... If we... are to have no more certainty than we do today, we are inclined [*65] to revise this to include little or no information about the meetings, as much as we'd like to be able to use this submission to fully air the facts. However, two events might occur to change that approach: (1) The Stratus emails are expeditiously uploaded into a searchable format that allows us to identify any communications related to the meetings by early next week; and/or (2) we are somehow able to review the relevant Crude outtakes." 143 Yennock made clear that understanding what the Crude outtakes and the Stratus documents would reveal was crucial to determining whether to disclose the true nature of the LAPs' relationship with Cabrera. He wrote that "the pivotal nature of this submission, and the potentially devastating effect of making a representation that is later proven to be wrong or incomplete by way of the emails or the outtakes (assuming Chevron gets them), would seem to warrant a review [of the documents and the outtakes] if it can be done quickly." 144 141 Stavers Decl. [DI 549] Ex. 2420 (Fajardo Declaration submitted to Lago Agrio court); Hendricks Decl. [DI 9] Ex. 13 (email from Westenberger at PB to others attaching draft outline of petition to be filed in Ecuadorian [*66] court.) 142 Champion Decl. [DI 400] Ex. 2060 (June 5, 2010 Email from PB lawyer Edward Yennock). 143 Id. 144 Id. An Emery Celli lawyer responded that there was not enough time to review the outtakes and the Stratus emails because "a court ruling -- relying solely on Cabrera -- is potentially imminent [in Ecuador] if we don't get something on file immediately." 145 He proposed that they: "[T]ake out any references to alleged 'contacts' between Cabrera and plaintiffs' counsel and/or with plaintiffs' consulting experts and just confess to having authored specific portions of the report. We emphasize we think there was nothing wrong with this..... The 'contacts' issue is too uncertain and gaining clarity will take too long. If we cop to having written portions of the report, the details of exactly how that might have been accomplished will be for another day, when and if the relevant people are deposed as part of the 1782s, but hopefully by that time, the process of having both sides cure this with new submissions will be under way and render the details of the Cabrera report a thing of the past." 146 145 Id. (June 14, 2010 email).

2013 U.S. Dist. LEXIS 36353, *66 Page 22 146 Id. (emphasis added). Ultimately, the declaration informed the [*67] court that the LAPs had made submissions to Cabrera but did not actually "confess to having authored specific portions of the report." 147 Instead, it stated that "Chevron enjoyed the same opportunity as the Plaintiffs to provide information to Cabrera in support of its position in the case," 148 and, while "Chevron elected to ignore this opportunity... [t]he Plaintiffs... took advantage of the opportunity to defend their own findings, conclusions and valuations to Cabrera in order for the latter to consider potentially adopting them. The information the plaintiff provided to Cabrera included proposed factual findings and economic valuations of the environmental and other damages Texpet's practices and contamination caused. Naturally, Cabrera was free to adopt the plaintiff's viewpoint, proposed findings and valuations. And of course, because he apparently considered them credible, Cabrera adopted the plaintiffs' proposals, analysis and conclusions regarding the damages and assessment." 149 147 Id. 148 Stavers Decl. [DI 549] Ex. 2020 (Fajardo Declaration submitted to Lago Agrio court), at 6. 149 Id. at 6-7. This declaration went farther than that filed in Denver with its statement that [*68] the plaintiffs had provided Cabrera with "proposed factual findings and economic valuations of the... damages" and its contention that Cabrera adopted them "because he apparently considered them credible." But that too appears to have been deceptive, whether or not PB then was aware of the extent to which that was the case. There is at least probable cause to suspect that Cabrera was handpicked by the Lago Agrio plaintiffs because he would "play ball" with them, that the entire report was planned and written by the LAPs and Stratus, and that Cabrera "played ball" by simply affixing his name to it, acting all the while under the pretense -- fostered by the LAPs -- that the report was Cabrera's independent work. The Lago Agrio court granted the LAPs' request to file additional damages assessments, and the LAPs put together the new team. PB "hired the Weinberg Group to manage the [cleansing] process," 150 in August 2010. 151 The two firms facilitated the hiring of new experts. PB was the "lead" 152 in developing the strategy for the new expert reports, 153 and had continuous "interaction" with the Weinberg Group and the cleansing experts. 154 150 Stavers Decl. [DI 549] Ex. 2406 (Donziger deposition [*69] transcript), at 1666. 151 Hendricks Decl. [DI 36] Ex. 215 (Weinberg retention agreement). 152 Stavers Decl. [DI 549] Ex. 2406 (Donziger deposition transcript), at 1666. 153 See, e.g., Hendricks Decl. [DI 36] Ex. 214 (Aug. 18, 2010 email from PB lawyer Adlai Small to others). 154 Stavers Decl. [DI 549] Ex. 2406, at 1666-67. As explained previously, the new experts were instructed to use Cabrera's data as a "starting point... to develop [their] own valuation[s]." 155 But at least one of the experts has testified that he was not told that Stratus and the LAPs had written all or at least most of Cabrera's report 156 Another has admitted that he relied directly on parts of the Cabrera report and made no efforts independently to verify Cabrera's data. 157 None of the new experts ever traveled to Ecuador to gather their own data. Indeed, as one PB attorney wrote to Donziger, the purpose of the cleansing reports was to "address Cabrera's findings in such a subtle way that someone reading the new expert report (the Court in Lago or an enforcement court elsewhere) might feel comfortable concluding that certain aspects of Cabrera [were] a valid basis for damages.'" 158 155 Champion Decl. [DI 400] Ex. 2073 [*70] (Allen deposition transcript), at 140:25-141:11. 156 Stavers Decl. [DI 549] Ex. 2417 (Shefftz deposition transcript), at 68:14-24. 157 Champion Decl. [DI 400] Ex. 2073 (Allen deposition transcript), at 140:25-141:11. 158 Hendricks Decl. [DI 36] Ex. 214. In the end, seven new reports were filed with the Lago Agrio court on September 16, 2010. Six of the seven were by U.S. experts; one was anonymous. 159 159 Chevron Corp. v. Donziger, 886 F. Supp. 2d at 261.

2013 U.S. Dist. LEXIS 36353, *70 Page 23 The Lago Agrio court issued the Judgment in February 2011. It disclaimed reliance on the Cabrera report, but noted that it had considered other expert assessments, including some of the reports submitted by the new experts hired by PB, in rendering the Judgment.160 160 DI 168 (Lago Agrio Judgment) at 48-51. C. Post-Trial Submissions to the Lago Agrio Court PB was involved also in drafting the LAPs' post-trial submissions to the Lago Agrio court. Beginning no later than March 2010, it revised and re-wrote the alegatos -- post-trial briefs--before they were filed. 161 It "handle[d] the alegato assignments" 162 and worked on "re-draft[ing]" and "complet[ing]" the alegatos before they ultimately were submitted to the Lago Agrio court in December 2010 and [*71] January 2011. 163 161 On March 6, 2010, Aaron Marr Page, who worked for Donziger, sent an email to Donziger, attaching the draft alegato and explaining that "I think the draft attached here can be sent to selected counsel, as we discussed.... I think that may be precisely what new counsel needs to see to understand where we are in the process and to start thinking about how they can effectively engage." Mastro Decl. [DI 658] Ex. 3007. On April 8, 2010, Laura Garr, another individual working for Donziger, sent an email to Eric Westenberger attaching "the latest working draft of the Alegato in the Ecuador trial." Hendricks Decl. [DI 355] Ex. 1135. 162 Mastro Decl. [DI 658] Ex. 3010 (text message on 1/14/11 at 1:00 p.m. from Westenberger to Donziger saying "I'll handle alegato assignments"); DI 558 (PB Mem. Of Law in Support of Mot. to Quash the Subpoena), at 8 ("Recognizing that these filings may be read by U.S. courts and abroad... Patton Boggs provided drafting assistance."). 163 Stavers Decl. [DI 549] Ex. 2439. D. PB's Other Activities PB's role has gone beyond that described above. PB authored an undated memorandum called "Invictus," which laid out a plan to enforce the Judgment "quickly, [*72] if not immediately, on multiple enforcement fronts -- in the United States and abroad." 164 The memorandum, which recognized that enforcement of the Judgment may be difficult in the United States, emphasized that "Patton Boggs' current and former representation of numerous, geographically diverse foreign governments means that barriers to judgment recognition in a given country may not necessarily preclude enforcement there." 165 It further elaborated that "Patton Boggs will use its political connections and strategic alliances to ascertain which nations' governments are not beholden to Chevron, so as to minimize the prospect of adverse governmental interference in the enforcement process." 166 Subsequently, PB has been heavily involved in the LAPs' efforts to enforce of the Judgment in other countries. 164 Hendricks Decl. [DI 6] Ex. 341 (Invictus Memorandum), at 12. 165 Id. at 19. 166 Id. PB also controls, at least to some degree, how the LAP team spends the money it receives to fund the litigation. In October 2010, the LAPs entered into a funding agreement with Treca Financial pursuant to which Treca agreed to provide for legal expenses in return for a stake in the Judgment. 167 Not only did [*73] PB play the "primary role" in "convincing [Treca's financial advisor] to invest in the Lago Agrio litigation,"168 it also had authority over how the funds Treca provided were spent. Indeed, "fees and out-ofpocket expenses of lawyers... advisors, experts, witnesses and others...." were subject to the approval of "James Tyrrell (the lead partner at Patton Boggs LLP)," as well as Donziger. 169 Any costs associated with court proceedings, arbitral tribunals, fees relating to claims or counterclaims by or against the LAPs, and fees and expenses of LAPs' counsel were subject also to Tyrrell's and Donziger's approval. 170 167 11 Civ. 3718 (LAK), Champion Decl. [DI 44] Ex. 46 (Treca Funding Agreement). 168 Stavers Decl. [DI 549] Ex. 2406 (Donziger deposition transcript), at 3239:22-2340:03. 169 11 Civ. 3718 (LAK), Champion Decl. [DI 44] Ex. 46 (Treca Funding Agreement), at 2. 170 Id. Treca has since terminated its relationship with the LAPs. On September 29, 2011, the Burford Group, Treca's financial advisor, sent a letter to Donziger and the LAPs,

2013 U.S. Dist. LEXIS 36353, *73 Page 24 stating that "[i]t is clear from the evidence that has come to light subsequent to our discussions with you and Treca's entry into the Funding Agreement [*74] that [you] have engaged in conduct and activity that gives rise to numerous breaches of the Funding Agreement. In addition to breaching the Funding Agreement -- through misrepresentations and other failures -- the conduct discovered amounts to fraud." Elliot Decl. [DI 714] Ex. 1. Finally, PB itself has become an active litigant in cases related to this one. PB has brought three actions against Chevron in which PB itself is the plaintiff -- two in the District Court for the District of Columbia 171 and one in the District of New Jersey, which recently was transferred to this Court. 172 171 Patton Boggs, LLP v. Chevron Corp., No. 10 Civ. 1975 (HHK) (D. DC); Patton Boggs LLP v. Chevron Corp., No 11-00799 (HHK) (D.DC). 172 Patton Boggs, LLP v. Chevron Corp., No. 12 Civ. 9176 (LAK). IV. Proceedings With Respect to the PB Subpoena The Subpoena was served on June 15, 2012, and contained 58 discrete requests for the production of documents. A. PB's Motion to Quash PB moved to quash on July 20, 2012. 173 It argued principally that the Subpoena would require it to disclose privileged or other protected material and that compliance would subject it to undue burden. 174 173 DI 522. 174 See DI 527. On the issue of [*75] privilege, the Court held that (1) "there [was] reason to doubt whether many -- if any -- of the subpoenaed documents [were] protected by the attorney-client privilege," 175 (2) PB's motion "essentially ignore[d] the fact that the protection accorded to attorney work product in important respects is less extensive than that accorded to attorney client communications," 176 and (3) PB had failed to show that it was not in possession of responsive documents obtained from third parties that were not protected from disclosure. 177 Moreover, the Court noted that certain of the protected documents might be subject to disclosure under the crime-fraud exception to the attorney client privilege and the work product doctrine. 178 175 DI 571 at 2. 176 Id. at 3. 177 Id. at 4. 178 Id. at 4-5. With respect to burden, the Court determined that it was premature to quash the Subpoena as unduly burdensome before its scope had been resolved. 179 The Court noted also that "it is far from clear that the burden of complying with this subpoena... would be out of line with what occurs in comparable litigation in this electronic age." 180 179 Id. at 6. 180 Id. at 7. The Court denied the motion to quash without prejudice to PB's [*76] privilege and burden claims, which it would consider in connection with any Rule 45(c)(2)(B) objections PB might raise. The Court deferred PB's obligation to produce a privilege log until further notice. 181 181 Id. at 8. B. Argument and the Initial Narrowing of the Subpoena PB then served Chevron with 186 pages of objections to the Subpoena. The Court held a hearing on September 25 and 27, 2012 to address them, ruling on the majority during the hearings 182 and the balance in a November 16, 2012, order (the "November Order"), which also memorialized the rulings it had made at the hearings. The Court sustained PB's objections to 15 of the 58 requests and limited 10 others. 183 182 The Court made clear that its rulings rested not only on relevancy, but on Fed. R. Civ. P. 26(b)(2)(C), which "gives district courts discretion to limit the extent of discovery, even of relevant matters, for several reasons. One of them is that its burden or expense outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues." It sustained many objections in whole

2013 U.S. Dist. LEXIS 36353, *77 Page 25 [*77] or in part in order to reduce alleged burden on PB and intrusion into its role as litigating counsel rather than on the ground that the information sought was not relevant. See e.g., Tr., Sept. 25, 2012, at 6-7. 183 See DI 621. Both sides agree that the Court's rulings substantially limited the Subpoena's scope and the extent of the effort that would be necessary to comply with it as modified. According to Chevron's experts, the effect of the Court's rulings was to reduce by 90 to 99 percent the amount of data that would have to be searched and reviewed in order to comply 184 and reduced the cost of compliance by 85 percent. 185 PB's experts estimate that, even using Chevron's proposed search terms, the November Order reduced the cost of reviewing and logging responsive documents by over 80 percent. 186 184 DI 713, at 7-8. 185 Id. 186 Compare DI 665, at 2-3 (To review and log the documents resulting from Chevron's search terms will likely... cost between $1,060,000 and $1,290,000.") with DI 527, at 2-3 ("At a minimum, it is estimated that the review of electronic documents alone will cost the firm between $6.35 million and $7.75 million dollars, plus roughly $550,000 for electronic document [*78] collection"). Subsequent to the November Order, the Court received supplemental briefing on (1) the extent to which the Subpoena as modified is unduly burdensome, and (2) whether the Subpoena in its modified form sought materials in areas in which "the first of the two prongs of the crime-fraud exception [to the attorney client privilege] is satisfied." 187 187 Sept. 27, 2012 Tr., at 139. PB contends that the Subpoena still is impermissibly overbroad. PB complains principally that Chevron seeks information from its "adversary's litigation counsel" that "it will likely obtain... from the parties or other nonparties." 188 Moreover, PB claims that the Subpoena seeks documents concerning events in which PB had no involvement and asks that the Court "limit its areas of inquiry to Chevron's allegations of Patton Boggs' purported misconduct or alleged conduct witnessed by counsel and to exclude historical information learned in Patton Boggs' role as counsel." 189 Finally, PB argues that most of the documents it has are privileged or attorney work product and that the crime-fraud exception does not apply. 188 DI 665, at 3. 189 Id. at 4. Chevron argues that compliance with the Subpoena -- at least given [*79] the extent to which it has been narrowed by the Court and the parties' agreements -- would impose no undue burden. 190 Moreover, Chevron contends that it has provided sufficient evidence to satisfy the first prong of the crime-fraud exception to the work product doctrine and attorney client privilege. 190 See DI 713. V. Chevron's Unsuccessful Attempts to Obtain Discovery from the LAP Representatives' Agents in Ecuador and From the Defendants It is important to recognize that the LAPs and their Ecuadorian lawyers and associates have refused to provide any meaningful discovery of documents and witnesses located in Ecuador or to include information from Ecuador in their own responses to discovery requests. A. Defendants' Refusal To Produce Documents and Evidence from Ecuador In both this action and the Count 9 action, 191 defendants have refused to produce any documents in the possession, custody, or control of their attorneys and agents in Ecuador despite orders by this Court compelling them to do so. While the bottom line has been consistent, the rationale has changed. 191 "Count 9 action" refers to 11 Civ. 3718 (LAK), which came into existence by the severance of Count 9 of Chevron's amended [*80] complaint in this action. The Count 9 action has been dismissed. In the Count 9 action, defendants contended that they were unable to produce those documents because the Ecuadorian attorneys were not their agents and therefore were not subject to their control. After the Court held otherwise and ordered the documents produced, 192 defendants refused again, arguing that collecting, reviewing, and producing documents from their

2013 U.S. Dist. LEXIS 36353, *80 Page 26 "approximately 87 lawyers" in Ecuador would be too burdensome. 193 192 11 Civ. 3718, DI 101, at 2-3. 193 See 11 Civ. 3718, DI 240, at 7. In this action, defendants' obstinance with respect to discovery of evidence from Ecuador has reached a new level. Chevron moved on August 13, 2012 to compel the LAP Representatives and the Donziger Defendants to produce documents in the hands of their Ecuadorian lawyers and other associates. 194 Although this time they conceded that Fajardo is the LAP Representatives' agent, the LAP Representatives nevertheless resisted, arguing inter alia that the motion was premature and, in any case, that the Ecuadorian lawyers were precluded from complying by Ecuadorian law and that the defendants here therefore did not control them. 195 They submitted [*81] a declaration by an Ecuadorian lawyer that purported to support their position. Chevron replied with, inter alia, a declaration by another Ecuadorian lawyer that disputed the conclusions of the first. 196 And while that motion was pending, Chevron renewed its contention in a second motion to compel on November 6, 2012. 197 In due course, the Court ordered production regardless of whether responsive documents are in Ecuador. 198 These defendants, however, have refused to comply with the order. 199 Now, however, they advance a new basis. 194 DI 562. 195 DI 563, DI 564. 196 Ltr., Randy Mastro, Sept. 5, 2012. 197 DI 608, at 4. 198 DI 787. 199 See DI 836, DI 841. While Chevron's motion was pending and unbeknownst to the Court or to Chevron, Attorney Smyser, counsel for the LAP Representatives in this case, by his own admission, "suggest[ed] to the Ecuadorian legal team that someone should consider seeking an Ecuadorian court ruling on the issue of document production." 200 In consequence, a lawsuit was filed in Ecuador in October 2012 in the name of one of the non-appearing LAPs, Octavio Ismael Cordova Huanca, against Cordova's attorneys -- Fajardo, Saenz, and Prieto as well as the head of the Amazon Defense [*82] Front, Luis Yanza -- to bar them from turning over any information in discovery in this case. The case obviously was collusive in the sense that, as the judgment recites, the ostensible defendants agreed with the ostensible plaintiff. 201 Indeed, section FOUR quotes Fajardo at length in support of the arguments advanced, supposedly against Fajardo, on behalf of Mr. Cordova. 202 The Ecuadorian court did what all of the parties before it -- the plaintiff and the defendants -- asked it to do: it entered an order barring disclosure to this Court of any information possessed by or known to the defendants in that case concerning the Chevron litigation. 203 200 Ltr., Craig Smyser and Larry R. Veselka, Mar. 8, 2013, at 2. 201 DI 734, Ex. A (Ecuadorian Judgment). In addition, Fajardo holds a broad power of attorney on behalf of all of the LAPs. Hendricks [DI 106] Ex. 481. He thus was in a position to facilitate all of the U.S. discovery on behalf of all of them, not to mention himself, had he wished to do so. He likewise was in a position to have resisted the Cordova suit, both individually and on behalf of the other LAPs, had he so desired. Moreover, it bears noting that Fajardo held the power to institute [*83] the action against himself and his colleagues in Mr. Cordova's name. To this it must be added that Mr. Smyser claims, in an unsworn letter, that "the two parties to the [Ecuadorian] proceeding were represented by separate counsel." Supra note 200. On that last point, however, there is no evidence of record that this was indeed the case. The record does disclose, however, that only one attorney appearance is noted on the decision -- that of Fajardo. 202 DI 734, Ex. A. 203 Id. at 4-5. The fact that this collusive lawsuit was brought in the name of one of the LAPs against his own lawyers likewise is troublesome, especially when one recognizes that the only attorney appearance listed on the decision is that of Fajardo. The fact that this was done behind the back both of Chevron and of this Court while a motion to compel was pending is even more troublesome. The Court notes also the following: Section FIVE of the Ecuadorian court's decision, which contains its reasoning, begins as follows: "The plaintiff, in bringing a suit for the protection of constitutional rights, must prove that rights referred to that might be violated will cause him serious harm,

2013 U.S. Dist. LEXIS 36353, *83 Page 27 which has been proven in this case. Therefore, [*84] it is appropriate to apply Section 21 of Art. 66, and Arts. 75 and 76 of the Constitution of the Republic of Ecuador referred to by the plaintiff. On pages 51 et seq. of the record and in the public hearing, the plaintiff submitted documentation with a translation into Spanish by [name omitted], in which it appears that the Judge of the United States of American Lewis A. Kaplan of the second district of the State of New York demands our confidential information in favor of his jurisdiction, this has been requested from our attorneys..." 204 Note that the writer of the decision on line 2 spoke of the plaintiff in the third person -- as "him." Two sentences later, however, in lines 8 and 9, the writer referred to the confidential information and the LAPs' attorneys as "our" information and "our" attorneys instead of the plaintiff's information and the plaintiff's attorneys. For present purposes, however, it is unnecessary to decide exactly how, why, and by whom the decision came to be written in this curious way. 204 Id. at 4 (emphasis added). But the bottom line here is that the LAP Representatives and the Donziger Defendants are defying this Court's order to produce information in the [*85] hands of their Ecuadorian attorneys and even their non-lawyer associates. Rather than attempt to facilitate the full and fair disclosure to which any litigant is entitled, they have engaged in extraordinary efforts to raise obstacles to such disclosure. This episode lends further strength to Chevron's contention that relevant disclosure from PB -- which is at the heart of the LAPs' and Donziger's efforts both in the United States and, it appears in Ecuador and elsewhere -- is extremely important and certainly unlikely to be forthcoming from Ecuador. B. Defendants' Refusal to Comply with Their Other Discovery Obligations Chevron has fared no better in getting the LAPs (or their agents and experts) to submit to deposition 205 or to provide adequate responses to its interrogatories and requests for admission ("RFAs"). In both the Count 9 action and this one, the LAPs have made many baseless objections and arguments in efforts to justify their refusal to respond adequately to Chevron's RFAs. 206 In the Count 9 action, the LAPs claimed not to have knowledge of or recollect the information necessary to answer many of Chevron's interrogatories. 207 In this action, the LAPs and Donziger initially [*86] refused to respond to a single interrogatory propounded by Chevron based on an unfounded numerosity objection. 208 205 The LAP Representatives refused to submit to deposition in New York in the Count 9 action. See 11 Civ. 3718, DI 225. And in that action, counsel for one or the other group of these defendants repeatedly directed witnesses Aaron Page, Laura Garr, and Andrew Woods, the latter two of whom were employed by Donziger at various points, not to answer questions on ground of alleged privilege despite prior rulings by magistrate judges in both the District of Maryland and this Court that the claimed privileges had been waived, vitiated by the crime-fraud exception or both. DI 797, at 1-2. Most recently in this action, when Chevron noticed the deposition of Saenz -- one of the LAPs' Ecuadorian lawyers -- counsel for the LAPs informed Chevron that Saenz refused to make himself available for deposition. See Champion Decl. [Ex. 770] Ex. 4; see also DI 778. 206 For example, in the Count 9 action, the LAPs refused to respond to any of Chevron's RFAs because they claimed the term "drafted" was ambiguous. See 11 Civ. 3718, DI 71, Ex. 3. 207 See 11 Civ. 3718, DI 72, Ex. 3, 4. 208 DI 781 Exs. 4, [*87] 5; DI 809 (Order Granting Chevron's Motion to Compel). Donziger has been little more forthcoming in certain respects. When Chevron subpoenaed him in the Section 1782 proceeding, Donziger sought to avoid complying with the subpoena, first by moving unsuccessfully to quash it on burden and privilege grounds 209 and then by providing an untimely privilege log that was 2,000 pages long and claimed privilege as to 8,652 documents. 210 In fact, however, not one of the documents "was written by or addressed to any of the Lago Agrio plaintiffs -- the clients whose privilege supposedly [was] being asserted."211 Moreover, Donziger's motion and the privilege log lacked any detail or substance, which "foreclosed any serious attempt to come to grips with the specific privilege claims," and "served the tactical

2013 U.S. Dist. LEXIS 36353, *87 Page 28 interests of Donziger and the Lago Agrio plaintiffs and substantially prejudiced the parties seeking discovery." 212 And when Donziger was deposed in the Section 1782 proceeding, he "gave many unresponsive, self-serving answers to questions that should have been answered directly, with no embellishment." 213 So evasive and unresponsive was Donziger at the outset that the Special Master overseeing [*88] the proceeding requested that this Court intervene to order his compliance. 214 209 In re Chevron Corp. 749 F. Supp. 2d 135, 140 (S.D.N.Y. 2010). 210 In re Chevron Corp., 749 F. Supp. 2d 170, 173 (S.D.N.Y. 2010). 211 Id. 212 Id. at 183. 213 Hendricks Decl. [DI 48], Ex. 336 (Feb. 6, 2011 Order). 214 See id. ("I have cautioned [Mr. Donziger] many times and have stricken unresponsive, evasive, self-serving testimony... [but] my instructions to the witness and striking portions of his answers seemed to have little effect."). Chevron's inability to obtain appropriate discovery underscores its need to get it from PB, to the extent it may do so consistent with governing principles. PB has been intimately involved in shaping and carrying out defendants' strategy since early 2010 -- a role that necessarily involves awareness not only of what has transpired since it came onto the matter, but of what occurred before. It is against this backdrop that the Court proceeds to resolve the remaining issues concerning the Subpoena. Discussion I. In re Friedman The Subpoena is directed to a law firm. Although PB has not formally appeared before this Court in this case, it has been involved in the Court of Appeals. It [*89] has assisted the LAPs in the Ecuadorian litigation, and it has appeared on their behalf in other U.S. litigation relating to the broad controversy at issue here. There is an obvious tension between ensuring a lawyer's ability to represent the lawyer's clients vigorously and preserving an adverse party's right to obtain evidence necessary to prosecute its case. Where, as here, discovery is sought from attorneys, especially attorneys actively involved in litigation against an adversary seeking discovery from such attorneys, "[c]ourts have been especially concerned about the burdens imposed on the adversary process... and have resisted the idea that lawyers should routinely be subject to broad discovery." 215 Nevertheless, the Second Circuit has made clear that the fact that a party seeks discovery from a lawyer "does not automatically insulate [the lawyer]... nor automatically require prior resort to alternative discovery devices." 216 In In re Subpoena Issued to Dennis Friedman, it instructed courts to take a "flexible approach" to discovery of lawyers "whereby the [court]... takes into consideration all of the relevant facts and circumstances to determine whether the proposed [*90] [discovery] would entail an inappropriate burden or hardship." 217 These include "the need to [get discovery from] the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted." 218 215 In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 (2d Cir. 2003). 216 Id. at 72. 217 Friedman, 350 F.3d at 72. 218 Id. As a preliminary matter, the Court turns first to Chevron's argument that Friedman has no bearing here because PB quite deliberately has not appeared in the district court in this case. It argues that Friedman is inapplicable because it involved depositions of opposing litigation counsel whereas this Subpoena seeks only documents and those from a firm that is not formally involved in this action. While PB's avoidance of an appearance before this Court may be relevant in some respects, the Court sees no reason to disregard Friedman's wise teachings entirely on that account. It cannot be gainsaid that PB, whatever its formal role before this Court, is broadly involved in this controversy as an adversary to Chevron. [*91] Many of the concerns that arise when an adverse trial counsel is subjected to deposition -- e.g., possible compromise of the attorney-client relationship or intrusion on an attorney's work product -- also are present when a law firm involved behind the scenes is required to provide documents to an adversary. Chevron has presented no compelling reason that the Court should not be guided by

2013 U.S. Dist. LEXIS 36353, *91 Page 29 the factors set forth in Friedman, taking account of all of the relevant circumstances. That said, it must be recognized that this Subpoena presents a very unusual situation. The Subpoena in major part -- but not entirely -- seeks discovery with respect to subjects on which the LAPs' Ecuadorian lawyers and non-lawyer associates reasonably might be expected to have the most complete information. If they, their clients, and the Donziger Defendants were fully cooperative and responsive in discovery, there might be only very limited need to pursue discovery from PB. But the LAP Representatives and the Donziger Defendants have refused to produce documents or give fully responsive replies to other discovery requests, claiming that the Ecuadorians will not provide the information. Yet PB has been interacting [*92] with the Ecuadorians for over three years now and doing so with respect to many of the subjects on which the LAP Representatives, their Ecuadorian lawyers and associates, and the Donziger Defendants decline to provide discovery. As will appear below, it is entirely likely that PB has responsive documents -- especially but not only emails and other correspondence with the Ecuadorians about critically important events in Ecuador -- that in the circumstances of this case are not practically available from anyone else. Moreover, PB has been a primary actor in a number of key events. With these preliminary comments, the Court turns to the Friedman factors. It begins with the question whether enforcement of the modified Subpoena would entail attorney-client privilege and work product difficulties that are so substantial as to refuse enforcement altogether and whether any such problems can be ameliorated. It then will proceed to the remaining factors. A. Attorney-Client Privilege and Work Product 1. Basic Principles (a) Attorney-Client Privilege A party invoking the attorney-client privilege must demonstrate that the communication as to which privilege is asserted was "(1) a communication between [*93] client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice." 219 As the Court noted in its opinion denying Donziger's motion to quash the subpoena served on him in a Section 1782 proceeding: "The 'predominant purpose' of a communication must involve legal advice. A court should determine predominant purpose of a communication 'dynamically and in light of the advice being sought or rendered, as well as the relationship, between advice that can be rendered only consulting the legal authorities and advice that can be given by a non-lawyer'." 220 cuong 219 United States v. Constr. Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996). 220 In re Chevron Corp., 749 F. Supp. 2d at 165 (quoting In re County of Erie, 473 F.3d 413, 420-21 (2d Cir. 2007). (b) Work Product Doctrine The work product doctrine "provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial." 221 The doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy 'with an eye towards litigation,' free from unnecessary [*94] intrusion by his adversaries." 222 The doctrine now is codified in Rule 26(b) of the Federal Rules of Civil Procedure. "The Rule states that documents 'prepared in anticipation of litigation or for trial' are discoverable only upon a showing of substantial need of the materials and inability, without undue hardship, to obtain their substantial equivalent elsewhere. Even where this showing has been made, however, the Rule provides that the court 'shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.'" 223 221 In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002, 318 F.3d 379, 383 (2d

2013 U.S. Dist. LEXIS 36353, *94 Page 30 Cir. 2003). 222 United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir.1998) (quoting Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947)). 223 United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998) (quoting Fed. R. Civ. P. 26(b)(3)). The party invoking work product protection "bears the burden of establishing its applicability to the case at hand." 224 Thus, once a party establishes that the material in question constitutes work product, the party seeking disclosure of that material must show [*95] that it has a "substantial need" for the otherwise protected documents225 and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.'" 226 224 In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002, 318 F.3d at 384. 225 In re Grand Jury Proceedings, 219 F.3d 175, 190 (2d Cir. 2000). 226 In re Grand Jury Subpoenas Dated March 19, 2002 & August 2, 2002, 318 F.3d at 383 (quoting Fed. R. Civ. P. 26(b)(3)). "As for work-product that shows 'mental impressions, conclusions, opinions, or legal theories of an attorney,'" the Second Circuit has suggested that, "at a minimum such material is to be protected unless a highly persuasive showing [of need] is made." 227 227 In re Grand Jury Proceedings, 219 F.3d at 190 (quoting Fed. R. Civ. P. 26(b)(3)). (c) The Crime-Fraud Exception "It is well-established that communications that otherwise would be protected by the attorney-client privilege or the attorney work product privilege are not protected if they relate to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct." 228 Importantly, especially in this case, communications in furtherance of contemplated [*96] or ongoing criminal or fraudulent conduct "are properly excluded from the scope of the privilege even if the attorney is unaware that his advice is sought in furtherance of such an improper purpose." 229 228 In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984). 229 Id. In order successfully to invoke the crime-fraud exception, a party seeking disclosure must demonstrate that there is "probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud." 230 Probable cause exists where "a prudent person ha[s] a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof." 231 Moreover, "a finding of probable cause is not negated by 'an innocent explanation which may be consistent with the facts alleged." 232 Thus, in order to obtain disclosure of otherwise privileged or protected evidence by means of the crime-fraud exception, the party seeking disclosure must show a factual basis to support a conclusion that there is probable cause to believe that (1) a crime or fraud was or is being committed, [*97] and (2) the communication in question was or is in furtherance of the crime or fraud. 233 230 United States v. Jacobs, 117 F.3d 82, 87 (2d Cir. 1997). 231 In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d at 1039 (2d Cir. 1984). 232 United States v. McDonald, 01-CR-1168JSWDW, 2002 U.S. Dist. LEXIS 9866, 2002 WL 31956106, at *5 (E.D.N.Y. May 9, 2002) (quoting A.I.A. Holdings, S.A. v. Lehman Bros. Inc., 97 Civ. 4978 (LMM) HBP, 1999 U.S. Dist. LEXIS 1183, 1999 WL 61442, at *5 (S.D.N.Y. Feb. 3, 1999) (citing United States v. Farma, 758 F.2d 834, 838 (2d. Cir. 1985)). 233 United States v. Jacobs, 117 F.3d at 87. Once the party has satisfied the first of these requirements, "the decision whether to engage in an in camera review of the evidence lies in the discretion of the district court.... [I]f and when there has been an in camera review, the district court exercises its discretion again to determine whether the facts are such that the exception applies." Id. 2. Application in this Case Although one normally would expect that a subpoena such as this would encounter substantial privilege and work product obstacles, the extent to which that is so here

2013 U.S. Dist. LEXIS 36353, *97 Page 31 is very much more limited than one might expect for three reasons. First, it is unlikely [*98] that there are many, if any, responsive attorney-client communications. Second, Chevron has overcome the work product protection as to any documents that contain only ordinary work product. Third, to whatever extent there are any attorney-client communications or documents that constitute opinion work product, the crime-fraud exception may well vitiate any protection. (a) Improbability of Many Responsive Attorney-Client Communications, If Any In considering whether PB's responsive documents include many attorney-client communications, one must keep in mind the characteristics and location of the clients whose privilege PB asserts. The LAP Representatives have been described by their counsel as "a campesino and a canoe operator living in the remote Ecuadorian jungle." 234 PB's Tyrrell has called the LAPs "indigenous people living in the jungle in Ecuador." 235 As the Court noted in denying PB's motion to quash the Subpoena, "[t]he likelihood of any material number of attorney-client communications between the LAPs and PB, which are the sole focus of the attorney-client privilege... is slim." 236 PB has not suggested that it has any responsive documents that are or memorialize confidential [*99] communications involving any of the LAPs. Moreover, when Chevron served Donziger with a subpoena in the Section 1782 proceeding, Donziger -- who has been involved in these matters since their inception about twenty years ago -- moved to quash the subpoena, objecting, inter alia, that the information Chevron sought from him was privileged. When he (belatedly) filed a privilege log, it did not list even a single document said to involve a communication with any of the LAPs. 234 DI 518 (LAP Reps. Memo in Support of Motion to Dismiss for Lack of Personal Jurisdiction), at 1. 235 Smyser Decl. [DI 445] Ex. N (Transcript of September 16, 2011 oral argument in Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2011)), at 88:9. 236 DI 571, at 2. A second factor further supports the view that the extent to which attorney-client privilege will play a role here is extremely limited. Major foci of the Subpoena include evidence of communications between the LAP lawyers and non-lawyer associates, on the one hand, and Cabrera or Ecuadorian judges and officials on the other.237 None of these persons stands in a privileged relationship either with PB or with anyone else on the LAP side of the case. Attorney-client [*100] privilege by definition does not extend to such materials. 237 See, e.g., Specification Nos. 14 (documents related to drafting of orders by Lago Agrio court); 18 (communications with Calmbacher); 19 (communications with court experts); 20 (communications with Cabrera); 26 (communications with the Lago Agrio court); 27 (communications with Ecuadorian judges); 30 (documents provided by LAPs to author of Lago Agrio court). (b) Chevron's Substantial Need Overcomes Ordinary Work Product Protection While it is unlikely that there are many responsive documents that even arguably come within the attorney-client privilege, the same is not true with respect to work product. But it is important to bear in mind that there are two kinds of work product -- materials that are nothing more than documents prepared in anticipation of litigation and materials that, in addition, include mental impressions, conclusions, opinions, or legal theories of an attorney. As noted above, the former are discoverable on a showing of substantial need and inability to obtain their substantial equivalent elsewhere without undue hardship. Chevron has made that showing. First, most of the events about which the Subpoena as [*101] narrowed seeks documents -- e.g., the Calmbacher report, the appointment of Cabrera and submission of his report, and the authorship of the Judgment -- took place to a material degree, although most certainly not entirely 238 -- in Ecuador. These events underlie many of the RICO and fraud allegations in Chevron's complaint. "A substantial need for work product materials exists where the information sought is 'essential' to the party's defense, is 'crucial' to the determination of whether the defendant could be held liable for the acts alleged, or carries great probative value on contested issues." 239 Chevron is in substantial need of documents concerning these events, and it is unlikely to obtain them from other sources, for reasons previously discussed. 238 For example, the Cabrera report, or most of

2013 U.S. Dist. LEXIS 36353, *101 Page 32 it, was written by Stratus, which is located in Denver. Donziger, a central figure, is based in New York. 239 Nat'l Cong. for Puerto Rican Rights v. City of New York, 194 F.R.D. 105, 110 (S.D.N.Y. 2000) (internal citations omitted) (plaintiff established substantial need where withheld documents contained information that was "directly relevant to plaintiffs' claims"). PB contends, however, that [*102] Chevron has already received "millions of document pages" from the Section 1782 proceedings, Donziger, and the third parties it has subpoenaed in this action and does not need further discovery from PB. 240 Moreover, many of the events that Chevron contends were tainted by fraud -- e.g., the writing and filing of the Calmbacher and Cabrera reports -- occurred before PB was brought on in early 2010. PB argues that Chevron does not need from PB documents about events that preceded its involvement in the case. The Court disagrees. 240 DI 718, at 22. While it is true that Chevron has received a substantial number of documents from Donziger and others in the Section 1782 proceedings, the documents it has obtained do not tell the whole story of what went on in Ecuador and elsewhere leading to the Judgment. Understanding that entire story is vital to the resolution of this case. Moreover, as noted above, it is clear that Chevron will be unable to obtain these documents from the people who were on the ground in Ecuador -- e.g., Fajardo, Prieto, Saenz, and others--and were directly involved in orchestrating these events. Defendants have refused to produce documents or other information from their Ecuadorian [*103] agents. And, although PB was not yet on the LAP team when the Calmbacher and Cabrera reports were written and submitted, PB was brought on specifically to deal with their fallout. Indeed, PB worked with the Ecuadorian lawyers, to whom it has referred as its "Ecuadorian co-counsel," 241 to come up with a strategy to delay production from Stratus and to cleanse the Cabrera report. PB drafted the Fajardo declarations that were submitted to the Colorado and Ecuadorian courts. PB gave the marching orders to the new experts to "subtly address" Cabrera's findings. And PB drafted the final post-trial briefs the LAPs submitted to the Lago Agrio court. PB undoubtedly has documents concerning these events and those they were intended to "cleanse." As Chevron is unable to obtain them from the LAPs' Ecuadorian counsel, it needs them from PB. 241 DI 718, at 10. Second, sight cannot be lost of the fact that PB is an alleged co-conspirator in this case. Chevron alleges that PB "developed the RICO Defendants' strategy for pursuing the assets of Chevron and its subsidiaries around the world on the basis of the fraudulent judgment in Ecuador, and has also been instrumental in the cover-up and obstruction [*104] of Chevron's U.S. discovery proceedings." 242 In order for Chevron to link PB to the alleged conspiracy, which could prove essential to hold the defendants responsible for its actions, it must show not only that there was a conspiracy, but that PB knowingly and intentionally acted to further the conspiracy's aim. While inferences of PB's knowledge and involvement -- particularly with respect to the Fajardo Declaration -- can be drawn from certain emails and documents produced thus far, PB is in the unique position to provide documents that will shed further light on the extent -- if any -- of PB's involvement in the alleged conspiracy. 242 18(s). Chevron has shown that it has a substantial need for the documents responsive to the remaining specifications of the Subpoena with which the Court has concluded that PB should comply and that Chevron cannot obtain their equivalent elsewhere without undue hardship. As a practical matter, therefore, the question comes down to whether there will be substantial issues as to the second category of work product -- so called "opinion" work product -- if the Subpoena is enforced. That brings us to the crime-fraud exception. (c) The Crime-Fraud Exception As the [*105] Court already has noted, Chevron has established that "a prudent person ha[s] a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud" 243 -- in other words, probable cause -- in the following respects: 243 In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d at 1039. First, the Guerra declaration, in and of itself,

2013 U.S. Dist. LEXIS 36353, *105 Page 33 establishes probable cause to suspect that the LAPs' representatives, including Fajardo, Donziger, and Yanza, bribed Judge Zambrano to obtain their desired result in the Ecuadorian case and the privilege of writing the Judgment and that they took advantage of the latter. The latter point, moreover, is supported by abundant evidence that portions of the Judgment are identical or substantially similar to internal documents prepared by the LAPs that never were filed with the Court. Second, as explained above, additional evidence establishes, at a minimum, probable cause to suspect that a crime or fraud occurred with respect to o the Calmbacher report, o the termination of the judicial inspection process, and o the selection and appointment of Cabrera, the preparation and submission of his report to the Lago Agrio court, and its presentation [*106] as his independent work. Third, the evidence concerning the representations made to the United States District Court for the District of Colorado in an effort to prevent the disclosure of the Stratus documents that confirmed that Stratus had written all or most of the Cabrera report -- most importantly the Fajardo declaration filed there and in many other courts -- establishes probable cause to suspect that the LAPs committed wire fraud and obstructed justice in that respect. To be sure, PB contends otherwise. But its arguments are speculative and unpersuasive when one bears in mind the relevant legal standard that governs the first prong of the crime-fraud analysis -- whether Chevron has provided a factual basis that would "strike a prudent person as constituting a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud." 244 Chevron has done so, and neither the LAPs nor PB have presented any compelling evidence or arguments to the contrary. 244 Jacobs, 117 F.3d at 87 (internal citation and quotation marks omitted). This leaves one significant question with respect to the existence of probable cause -- whether there is a sufficient basis to suspect that there [*107] was criminal or fraudulent activity with regard to the cleansing reports. Chevron's fundamental contention is that the cleansing reports were developed at PB's instance in collaboration with the Weinberg Group as a means "to backdoor Cabrera's findings into the Ecuadorian record"245 in the guise of new expert reports not subject to the attack that had been made on Cabrera. It points to the fact that the new experts developed no new substantive analysis, were instructed to rely on the Cabrera report, and were not told that the Cabrera report had been written, at least in major part, by the LAPs and Stratus. The point of the exercise, as described in an email by a PB lawyer, was to "address Cabrera's findings in such a subtle way that someone reading the new expert report... might feel comfortable concluding that certain parts of Cabrera are a valid basis for damages." 246 245 DI 541, at 12. 246 See id. (quoting Hendricks Decl. [DI 36] Ex. 214). PB, for its part, says that nothing in the preparation, submission or subsequent litigation about the cleansing reports can be regarded as fraudulent. The LAPs sought leave of the Lago Agrio court to submit additional reports to show that the theories [*108] advanced in the Cabrera report, whatever its authorship, were sound. While four of the reports relied on data from the Cabrera report, that reliance was fully disclosed. As an initial matter, PB is wrong in asserting that there was nothing that can be regarded as fraudulent with respect to the submission of the cleansing reports. As noted previously, the Fajardo declaration that was submitted to the Lago Agrio court in support of the application for leave to submit those reports was deceptive, whether or not PB knew it at the time. As noted earlier, "[t]here is at least probable cause to suspect that Cabrera was handpicked by the Lago Agrio plaintiffs because he would "play ball" with them, that the entire report was planned and written by the LAPs and Stratus, and that Cabrera "played ball" by simply affixing his name to it, acting all the while under the pretense -- fostered by the LAPs -- that the report was Cabrera's independent work." None of that was disclosed to the court. So there is probable cause to suspect that the reports got in through courthouse door as a result of fraud.

2013 U.S. Dist. LEXIS 36353, *108 Page 34 That said, the fact remains that Chevron has not pointed to anything in the cleansing reports themselves [*109] that appears to have been fraudulent. It may be that the experts would not have reached the same conclusions, or would have declined their engagements altogether, if they had been told the full truth about the relationship among the LAPs, Stratus, and Cabrera and his report. But their reliance on Cabrera in most cases was disclosed in their reports. In the last analysis, then, the Court concludes that, on the present record, there is insufficient factual basis to suspect that the cleansing reports themselves were fraudulent, whatever may have been done to convince the Ecuadorian court to permit their filing. * * * In sum, the likelihood of privilege and work product issues so substantial as to defeat the attempt to enforce the Subpoena is greatly limited. PB has not shown any material likelihood of the existence of any significant number of responsive documents as to which the attorney-client privilege could apply. Insofar as the Subpoena seeks "ordinary" work product, Chevron has overcome the qualified protection that enjoys, at least with respect to responsive documents going to the subjects as to which it has established probable cause. It has satisfied the first of the two prong test [*110] that governs the crime-fraud exception as to a number of key subjects. This leaves determination with respect to documents concerning those subjects only the question whether particular responsive documents -- regardless of whether they include so-called "opinion" work product or, less likely, attorney-client communications -- were in furtherance of a crime or fraud. And even this issue can be further limited by a further narrowing of the Subpoena. 3. Further Limitation of the Subpoena As noted above, Friedman requires that a Court confronted with an effort to obtain discovery from an attorney involved in litigating against the discovering party consider the need for the discovery. Similarly, Federal Rule of Civil Procedure 26(b)(2)(C) permits a court to limit the frequency or extent of discovery otherwise allowed if it determines that (1) the discovery sought is unreasonably cumulative or duplicative, or more readily obtainable from another source; (2) the party seeking discovery already has had ample opportunity to obtain the information sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. 247 247 FED. R. CIV. P. 26(b)(2)(i)-(iii). Here, the Subpoena [*111] seeks discovery which, although limited already to a considerable degree, touches on a variety of topics. In view of the desirability of focusing only on that which is most important, of limiting the discovery required from these adversary attorneys, and of avoiding unduly complicated or time consuming privilege issues to the extent that would be fair and reasonable, the Court has concluded that the Subpoena should be further limited, at least at the present time. Chevron has established probable cause -- and thus satisfied the first of the two prong test that governs the crime-fraud exception to attorney-client privilege and work product protection -- as to six subjects: o The alleged bribery of the Ecuadorian judge and the writing of the Judgment and other judicial documents in the Lago Agrio case. o The claim that the LAPs wrote the reports submitted over Calmbacher's signature and affixed signature pages, knowing that the reports did not reflect his views. o The circumstances in which the Lago Agrio court terminated the judicial inspection process. o The selection and appointment of Cabrera, the preparation and submission of his report to the Lago Agrio court, and its presentation as [*112] his independent work. o The submission of deceptive accounts of the LAPs' and Stratus' relationship with Cabrera in the District of Colorado and elsewhere in Section 1782 proceedings. Accordingly, the Subpoena in substance will be limited further by confining its analysis, at least for now, to those specifications that seek documents relating to the foregoing subjects. The Court now proceeds to consider

2013 U.S. Dist. LEXIS 36353, *112 Page 35 the remaining aspects of the Friedman analysis 248 and the remaining arguments with respect to the Subpoena as thus effectively limited. B. PB's Role 248 This involves consideration only of the remaining specifications, which are: 2, 14, 18, 19, 21, 22, 26, 28 through 32, 35, 49, 55 though 58, as modified below. Friedman directs the Court to focus on the role of the lawyer from whom discovery is sought both in the litigation in question and in relation to the subjects on which disclosure is sought. "The first of these considerations bears on the extent to which the discovery would disrupt the litigation by injecting one of the lawyers charged with its conduct into the case as a witness or by making the advocate's conduct or knowledge an issue in the proceeding." 249 The second "goes at least [*113] in part to the issue whether the lawyer is likely to have first-hand evidence that is important to the resolution of the lawsuit." 250 Both of these factors cut in favor of requiring PB to produce the documents requested in the Subpoena as modified thus far. 249 In re Chevron Corp., 749 F. Supp. 2d 141, at 163 (S.D.N.Y. 2010). 250 Id. (1) Whether Discovery Would Disrupt the Litigation First, enforcement of what remains of the Subpoena would not inject a lawyer charged with the conduct of this case as a witness. PB has deliberately avoiding appearing before this Court in this case, which is conducted on behalf of the LAP Representatives by other counsel. Second, enforcement of what remains would not place an advocate's conduct or knowledge in issue. PB is named in the amended complaint as an alleged co-conspirator. Its actions and knowledge will be issues in this case regardless of whether the Subpoena is enforced. (2) Whether PB Likely Has Relevant Evidence Given the nature and extent of PB's involvement, it doubtless has firsthand knowledge that is important to the resolution of this lawsuit. PB was brought on to the LAP team one year before Zambrano issued the Judgment that allegedly was written [*114] by the LAPs. PB was involved in hiring and overseeing the cleansing experts -- whose reports Judge Zambrano ultimately claimed to have relied upon -- and it took the lead on drafting the final brief filed with the court. PB worked with the LAPs to draft the Fajardo Declaration, which was intended to delay discovery and convince courts across the country that the LAPs' involvement in the judicial inspection process and Cabrera report was entirely proper. And PB is leading the LAPs' efforts to enforce the Judgment throughout the world. Given PB's role as strategist since the time it became involved and as architect of the LAPs' closing arguments and submissions made to the Lago Agrio court, this Court has every reason to expect that PB has documents that bear directly on the question whether the Judgment was obtained by fraud, including documents containing statements by other persons directly involved in events at which PB was not present. C. The Need for Discovery from Patton Boggs and the Extent of Discovery Already Conducted The last two Friedman factors focus on the need to obtain the discovery from PB and the extent to which that discovery has already been conducted. As the extent [*115] of discovery already conducted informs the degree to which Chevron needs discovery from PB, the Court analyzes these factors together. Chevron contends that it needs discovery from PB because PB "likely possesses critical relevant documents that Chevron cannot obtain from any other sources precisely because PB played a key role in planning, executing, and perpetuating the fraud against Chevron."251 PB claims that Chevron does not need discovery from PB because (1) it already has amassed an enormous amount of discovery, and (2) "it is in the midst of a discovery campaign in this action that is largely cumulative and duplicative of what Chevron has requested from" PB. 252 251 DI 713, at 19. 252 DI 665, at 12. PB is correct that, to the extent Chevron can obtain or has obtained documents from the third parties it has subpoenaed, it does not need them from PB. But it is doubtful that these parties will provide Chevron with the discovery it seeks from PB. None of the parties has been nearly as involved in this overall dispute since early 2010

2013 U.S. Dist. LEXIS 36353, *115 Page 36 as PB, which has had a hand in almost every major development in this action and related ones since it joined the LAP team. And, as previously described, [*116] although Chevron has obtained a substantial number of documents from Donziger and others in the Section 1782 proceedings, it has been unable to obtain any documents from PB's "co-counsel in Ecuador"-- documents which are crucial to this case -- except to the limited extent that they were emails or other communications produced by Donziger. Substantial information from and communications with those co-counsel and non-lawyers in Ecuador -- emails, correspondence, and memoranda, if not more -- are likely to be in PB's files. Especially in light of defendants' obstinate refusal to provide Chevron with discovery from Ecuador, Chevron has shown that it needs discovery from PB. * * * In sum, the Friedman factors cut strongly in favor of requiring this limited production from PB, particularly in light of the fact that PB has never appeared before this Court. II. Alleged Undue Burden and Cost Shifting In a recent submission to the Court, PB estimated that "it will take between 30 and 40 weeks to complete the review, production, and privilege logging of the email and non-email [electronically stored information]" required to comply with the Subpoena, even as modified by the September 2012 hearing and [*117] the November Order. 253 Moreover, PB contends that Chevron should bear the costs associated with PB's efforts to comply with the Subpoena because PB "is not a party to this action and does not have a direct interest in the outcome of the RICO action." 254 253 DI 847, at 2-3. Chevron submitted a response on March 7, 2013. Given that the Court did not ask for or permit a response from Chevron, and that Chevron waited nearly two weeks to submit it, the Court does not consider Chevron's response, nor any submissions made in reply to it. 254 DI 527, at 30-31. PB has not sustained its burden of persuasion. As an initial matter, PB is no ordinary, unrelated non-party witness. It is an alleged co-conspirator and some of its actions are at issue in this case regardless of whether the Subpoena as narrowed is enforced. Moreover, it stands to reap a fee that has been estimated at hundreds of millions of dollars if the Judgment is enforced and collected. Like any lawyer's contingent fee matter, whether the contingency is all or just part of the compensation arrangements, certain investments of time and money are necessary in order to obtain the potential benefit of a successful outcome. PB's attempt to [*118] portray itself as a nonparty with no interest in the matter is unsupportable. Second, PB has overstated the burden of compliance, in terms both of the cost and the required time and has avoided engaging with options that give strong promise of reducing that cost and burden. For example: o At the September 2012 hearing, the Court urged the parties to analyze, in their subsequent submissions with respect to burden, whether and to what extent predictive coding 255 could "reduce the burden and effort" required to comply with the Subpoena. 256 Apart from one footnote, 257 PB's submission ignored the subject entirely. The logical inference is that PB failed to address the subject because it would not have aided its argument. o PB's cost and time estimates presuppose that every document would be reviewed at least twice by "Patton Boggs attorneys" 258 and that it would take 15 to 20 lawyers working an average of 40 hours per week approximately 40 weeks to complete the review. But the Court sees no legitimate reason why (1) far less costly contract attorneys could not do all or most of the review, as is common in the legal community today, (2) two or certainly three levels of review are necessary, [*119] or (3) more reviewers could not be used. 255 Predictive coding is an automated method that credible sources say has been demonstrated to result in more accurate searches at a fraction of

2013 U.S. Dist. LEXIS 36353, *119 Page 37 the cost of human reviewers. See e.g., Moore v. Publicis Groupe, 287 F.R.D. 182, 191 (S.D.N.Y. 2012) adopted sub nom. Moore v. Publicis Groupe SA, 11 Civ. 1279 ALC AJP, 2012 U.S. Dist. LEXIS 58742, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012) ("Computer-assisted review appears to be better than the available alternatives, and thus should be used in appropriate cases."); DI 713, at 9; Joe Palazzolo, How a Coputer Did the Work of Many Lawyers, WSJ LAW BLOG, Jan. 17, 2013. 256 Tr., Sept. 27, 2012, at 138:24-139:7. 257 DI 665, at 9 n.10 ("the use of predictive coding is still under investigation"). 258 DI 847, at 2-3. It estimates that 15 percent of the documents would be reviewed a third time by "senior attorneys." Id. at 3. Third, all of the cost and time estimates upon which PB relies antedate the further and substantial narrowing of the Subpoena effected by this opinion. They are obsolete. But putting all that aside, PB's last estimate of the cost of reviewing and logging the documents in order to comply with the Subpoena was in the range of [*120] $1,060,000 and $1,290,000. 259 Even assuming that were accurate today, and the Court does not so assume, the burden on PB would not be undue given its role in this case, its size (reportedly over $300 million in gross revenues in 2012), and its economic interest in this controversy. Indeed, there is no persuasive evidence that the compliance costs are out of line with what would be typical for nonparty witness in complex commercial litigation. 259 DI 665, at 2-3. Nor is the Court persuaded that any part of the cost should be shifted to Chevron. Many of the events in which it was involved underlie Chevron's main allegations. "Where a nonparty was substantially involved in the underlying transaction and could have anticipated that [it] would reasonably spawn some litigation, expenses should not be awarded." 260 Here, PB was well aware of Chevron's fraud allegations when it joined the LAP team -- indeed it was brought on to combat them -- and understood Chevron's intention to fight this matter vigorously. Any failure to have anticipated that its involvement could lead to discovery obligations and expenditures on its own behalf, if there was such a failure, would have reflected an uncommon lack [*121] of foresight. 261 Conclusion 260 In re First Am. Corp., 184 F.R.D. 234, 242 (S.D.N.Y. 1998) (internal citation and quotation marks omitted). 261 Furthermore, PB has initiated three separate suits against Chevron. Where "nonparties were involved in litigation arising out of the same facts, courts have viewed such parties as 'not neutral' for purposes of awarding costs." Id. (internal citation and quotation marks omitted). PB shall produce documents responsive to the following specifications, as modified by the November 2012 Order: 2, 14, 18, 19, 21, 22, 26, 28 through 32, 35, 49, and 55 though 58 and, in addition, specification 20 insofar as it seeks documents described in the margin. 262 262 Specification 20 is modified to seek "All DOCUMENTS or draft DOCUMENTS or other writings filed with the LAGO AGRIO COURT under the signature of or in the name CABRERA." Thus, PB is being compelled to comply with only 19 of the Subpoena's 58 specifications. To the extent PB claims that any documents responsive to these requests are protected by the attorney-client privilege or the protection afforded to "opinion" work product, such claims shall be asserted in conformity with S.D.N.Y. Local Civil Rule 26.2. [*122] To the extent PB claims that any documents responsive to these requests constitute fact work product, Chevron has overcome its burden, and PB must produce them. Production both of documents and the privilege log shall take place on a rolling basis commencing no later than March 28, 2013, with continuing production of each to occur no less than weekly. The Court recognizes that there is some uncertainty in present circumstances as to how quickly compliance reasonably can be achieved. For the present, the complete privilege log shall be due and production of all responsive documents not scheduled on the privilege log shall be completed on or before May 1, 2013. While the Court will consider a well supported request for additional time, any motion for an extension of the May 1 date shall made no later than April 14, 2013.

2013 U.S. Dist. LEXIS 36353, *122 Page 38 SO ORDERED. Dated: March 15, 2013 Lewis A. Kaplan United States District Judge /s/ Lewis A. Kaplan

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION IN RE: BIOMET M2a MAGNUM HIP ) IMPLANT PRODUCTS LIABILITY ) LITIGATION (MDL 2391) ) CAUSE NO. 3:12-MD-2391 ) ) ) This Document Relates to All Cases ) ) ORDER REGARDING DISCOVERY OF ESI Biomet has produced 2.5 million documents to plaintiffs in this docket s constituent cases, and the Plaintiffs Steering Committee believes production should run to something closer to 10 million documents. The parties have set forth their positions on the procedures or protocols that should be used to facilitate identification, retrieval, and production of electronically stored information in submissions filed on April 1 and 5. The parties seek my guidance as to the direction discovery of ESI should take, and I believe the parties need a prompt ruling more than they need extensive discussion of each point they raise. Biomet began producing documents in cases eventually centralized here in the summer of 2012. Some plaintiffs counsel, anticipating this docket s formation, told Biomet (occasionally in forceful terms) not to begin document production until the Judicial Panel on Multidistrict Litigation decided whether to centralize. Biomet, neither sold on centralization nor free of judicial exhortations in other cases against it, started the process of identifying and producing documents. Page 1 of 7

Biomet used a combination of electronic search functions to identify relevant documents. Keyword culling was used first, reducing the universe of documents and attachments from 19.5 million documents to 3.9 million documents, comprising 1.5 terabytes of data. Removal of duplicates left 2.5 million documents and attachments. Statistical sampling tests of a random sample projected, with a 99 percent confidence rate, that between.55 and 1.33 percent of the unselected documents would be responsive and (with the same confidence level) that between 1.37 and 2.47 percent of the original 19.5 million documents were responsive. In comparison, Biomet s keyword/deduplication approach had identified 16 percent of the original 19.5 million. Biomet then employed technology-assisted review, or predictive coding, to identify the relevant documents to be produced from the 2.5 million that emerged from the keyword and deduplication processes. Predictive coding has found many uses on the Internet. Under predictive coding, the software learns a user s preferences or goals; as it learns, the software identifies with greater accuracy just which items the user wants, whether it be a song, a product, or a search topic. Biomet used a predictive coding service called Axelerate and eight contract attorneys to review a sampling of the 2.5 million documents. After one round of find more like this interaction between the attorneys and the software, the contract attorneys (together with other software recommended by Biomet s e- discovery vendor) reviewed documents for relevancy, confidentiality, and privilege. Page 2 of 7

To date, Biomet s e-discovery costs are about $1.07 million and will total between $2 million and $3.25 million. Biomet invited the Plaintiffs Steering Committee to suggest additional search terms and offered to produce the rest of the non-privileged documents from the post-keyword 2.5 million so the Steering Committee can verify that Biomet is producing the relevant documents. The Steering Committee has declined those offers, believing they are too little to assure proper document production. The Steering Committee contends Biomet s initial use of the keyword approach has tainted the process. They point to a recent article that mentioned unidentified literature stating that linear review would generate a responsive rate of 60 percent and key word searches only 20 percent, and [the defendants in the case being discussed] proposed that predictive coding at a 75 percent responsive rate would be sufficient. Barry Kazan and David Wilson, TECHNOLOGY-ASSISTED REVIEW IS A PROMISING TOOL FOR DOCUMENT PRODUCTION, New York Law Journal (Mar. 18, 2013). The Steering Committee sees Biomet s approach as insufficient because, although it employed predictive coding, Biomet began with the less accurate keyword search. The Steering Committee sees Biomet s offer to let the Steering Committee propose search terms as unhelpful because the Steering Committee s unfamiliarity with Biomet terminology prevents them from making suggestions advisedly. The Steering Committee wants Biomet to go back to its 19.5 million documents and employ predictive coding, with plaintiffs and defendants jointly Page 3 of 7

entering the find more like this commands. Biomet objects on a variety of grounds, including its estimate that virtually starting over would cost it millions more than the millions it already has spent in document production. The Steering Committee responds that Biomet gambled when it spent millions on document production that several of plaintiffs counsel warned Biomet not to undertake until the Panel had centralized the cases. The issue before me today isn t whether predictive coding is a better way of doing things than keyword searching prior to predictive coding. I must decide whether Biomet s procedure satisfies its discovery obligations and, if so, whether it must also do what the Steering Committee seeks. What Biomet has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2). I don t see anything inconsistent with the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information. Principle 1.02 requires cooperation, but I don t read it as requiring counsel from both sides to sit in adjoining seats while rummaging through millions of files that haven t been reviewed for confidentiality or privilege. Both sides cite reports from the Sedona Conference project, e.g., The Sedona Conference, The Sedona Conference Commentary on Proportionality in Electronic Discovery (Jan. 2013); The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189 (2007); and The Sedona Conference, Conducting E-Discovery After Amendments: Page 4 of 7

The Second Wave, 10 Sedona Conf. J. 215 (2009), and I don t see Biomet s approach as running afoul of any of the principles set forth in those publications. In contrast, the Steering Committee s request that Biomet go back to Square One (more accurately Square Two, since Biomet first collected the 19.5 million documents) and institute predictive coding at that earlier stage sits uneasily with the proportionality standard in Rule 26(b)(2)(C). Doing so would entail a cost in the low seven-figures. The confidence tests Biomet ran as part of its process suggest a comparatively modest number of documents would be found. The Steering Committee challenges that conclusion by pointing to studies (one in 1985) indicating that, on average, Boolean searches identify less than a quarter of the relevant documents in a set of documents. Boolean language provides the basis for keyword searches, though I can t find anything in this record that equates today s keyword searches to Boolean searches. In contrast, the Steering Committee says predictive coding identified 75 to 95 percent of the relevant documents about four times more efficient than keyword searches. The 75 percent figure appears to come from the previously-cited recent New York Law Journal article about technology-assisted review as part of document production. The article itself doesn t vouch for the accuracy of the 75 percent figure; the article simply notes that in a Virginia state court case, Global Aerospace v. Landow Aviation, No. CL 61040 (Va. Cir. Ct., Loudon County, Apr. 23, 2012), the defendants proposed that predictive coding at a 75 percent responsive rate would be sufficient. I can find no source for the 95 percent figure. Page 5 of 7

It might well be that predictive coding, instead of a keyword search, at Stage Two of the process would unearth additional relevant documents. But it would cost Biomet a million, or millions, of dollars to test the Steering Committee s theory that predictive coding would produce a significantly greater number of relevant documents. Even in light of the needs of the hundreds of plaintiffs in this case, the very large amount in controversy, the parties resources, the importance of the issues at stake, and the importance of this discovery in resolving the issues, I can t find that the likely benefits of the discovery proposed by the Steering Committee equals or outweighs its additional burden on, and additional expense to, Biomet. FED. R. CIV. P. 26(b)(2)(C). The Steering Committee appears to argue that Biomet is estopped from relying on proportionality arguments based on the incremental cost of what the Steering Committee seeks because Biomet embarked on its document identification in disregard of pre-centralization warnings and advice from some counsel for plaintiffs in individual cases. It might be that the Steering Committee s argument could carry the day in some cases, but this one doesn t seem to be such a case. The Steering Committee hasn t argued (and I assume it can t argue) that Biomet had no disclosure or document identification obligation in any of the cases that were awaiting a ruling on (or even the filing of) the centralization petition. Until the MDL Panel enters a centralization order under 28 U.S.C. 1407 (or transfers a tag along pursuant to an earlier centralization order), a transferee court is free to act on pending matters. Indeed, through its conditional transfer Page 6 of 7

orders, the Panel regularly encourages transferee courts to do so. To hold that a party that behaves as the transferee court directs, or that follows the transferee court s standing procedures, does so only by forfeiture of the proportionality provision of Rule 26(b)(2)(C), seems an uncongenial exercise of whatever discretion I have. It also would seem inconsistent with the purposes of centralization under 1407. In making this ruling, I assume that Biomet will remain open to meeting and conferring on additional reasonably-targeted search terms and to producing the non-privileged documents included in the statistical sample. Beyond that, if the Steering Committee wishes production of documents that can be identified only through re-commenced processing, predictive coding, review, and production, the Steering Committee will have to bear the expense. ENTERED: April 18, 2013 /s/ Robert L. Miller, Jr. Judge, United States District Court Northern District of Indiana Page 7 of 7