*1 Upon the joint motion of the named Plaintiffs and Defendants Santa Fe Natural Tobacco Company, Inc., Reynolds American Inc. (“RAI”)[1] and R.J. Reynolds Tobacco Company (collectively, the “Parties”), and for good cause shown, this Order is entered to govern discovery of electronically stored information (“ESI”) in this action, as a supplement to the Federal Rules of Civil Procedure and any other applicable orders and rules. This Order is subject to amendment or supplementation by subsequent agreement of the Parties and order of the Court, based upon anticipated future meet and confer conferences.

II. COOPERATION

The Parties agree to cooperate in good faith regarding the disclosure of appropriate custodians, repositories and reasonably likely relevant noncustodial sources of ESI that are to be used in the search for and/or collection of documents in response to discovery requests in this action. The Parties also agree to identify the methodologies used to search the text of ESI, such as e-mails, MSWord, PowerPoint and Excel documents (seeSection V, below).

III. LIAISON

The Parties have designated the e-discovery liaisons identified below, who will have primary responsibility for discussing their respective client’s ESI. Each liaison is knowledgeable about the technical aspects of e-discovery, including the location, nature, accessibility, format, collection, search methodologies, and production of ESI in this matter. The Parties will rely on the liaisons, as needed, to confer about ESI and to help resolve disputes without court intervention.

E-discovery liaison for Plaintiffs: Steven W. Teppler, steppler@abbottlawpa.com, 904.292.1111

E-discovery liaison for Defendants: R. Michael Leonard, MLeonard@wcsr.com, 336.721.3600

IV. SCOPE AND LIMITATIONS OF PRESERVATION AND PRODUCTION OF ESI

A. The Parties have preliminarily discussed the appropriate scope and limitations of both preservation and production of ESI in this case from both plaintiffs and defendants, including the number and identity of reasonably likely custodians and repositories; locations of reasonably likely relevant data; potential timing of productions (including potential phased productions); and ESI reasonably likely to be in the possession, custody or control of non-parties.

B. The Parties have discussed their preservation obligations and needs and agree that preservation of reasonably likely relevant ESI is reasonable and proportionate. Each Party represents that it has taken reasonable steps to preserve reasonably accessible sources of ESI, including prompt implementation of a litigation hold. In or about May, 2016, and during the post-MDL period, Plaintiffs' counsels notified their respective clients addressing their preservation obligations.[2] Defendants first implemented a litigation hold related to matters alleged in the FDA Warning Letter dated August 27, 2015 on September 1, 2015. A supplemental litigation hold was issued October 12, 2015, following the filing of the Sproule class action complaint in Florida. The Parties have discussed the types of ESI that they believe should be preserved. That ESI includes, among other things, emails, structured databases, and documents in formats such as MSWord, Powerpoint and Excel.

*2 C. Based on reasonable investigation undertaken by counsel to date, no Party is presently aware of any preservation issues that may impact the availability of reasonably likely relevant information or data as of the day of service on Defendants of the Sproule class action complaint. To the extent counsel for a Party becomes aware of such preservation issues, that Party shall take steps to promptly address the issue with opposing counsel to assess the impact on the litigation and the appropriate next steps.

D. The Parties agree to meet and confer regarding any disagreements that arise as a result of the implementation of this Order and agree to supplement it regarding any agreements reached, which will be subject to Court approval.

E. As defined in the Federal Rules of Civil Procedure, the Parties agree to take into account for purposes of production of discovery in this matter the proportionality considerations addressed in Fed. R. Civ. P. 26(b)(1) and 26(b)(2)(B) and (C). This Order is not intended either to limit the parties' discovery rights pursuant to the Federal Rules of Civil Procedure and relevant decisional authority, nor is it intended to expand the Parties' obligations under Federal Rule of Civil Procedure 26. Further, this Order does not prevent either Party from objecting to discovery requests, including objection that discovery requests exceed the bounds of proportionality established by Rule 26. Adopting a tiered or sequenced approach to electronic discovery may be appropriate, and the Parties agree to continue to consider and confer about the most efficient processes as discovery proceeds. Once the types of discoverable ESI have been disclosed, the Parties intend, pursuant to Federal Rule of Civil Procedure 34(a)(1), to discuss the concepts of testing and sampling, which contemplate that a Party may request to test or sample any designated documents or electronically stored information or tangible things that are within the proper scope of discovery.

1. Accessible ESI

Except as set forth in subparagraph (2) below, reasonably accessible sources of ESI include devices dedicated solely to e-mail storage, shared network drives, personal network drives, workstations, or laptop hard drives and reasonably identifiable storage devices. To the extent they exist, each Party already has conducted or will conduct a diligent search of those reasonably accessible sources in which it has reason to believe relevant ESI responsive to the opposing Party’s discovery requests will be found.

2. Not Reasonably Accessible ESI

The Parties will meet and confer to determine and agree about which sources of ESI are not reasonably accessible because of undue burden or cost, taking into account the requirements of Rule 26.

By October 7, 2016, Plaintiffs shall provide in writing to Defendants the information listed below, and by October 21, 2016, Defendants shall provide in writing to Plaintiffs the information listed below. Such disclosures shall be subject to the protections of the confidentiality order referenced in Section VII. A., below. The Parties agree and understand that their respective responses are based on their knowledge and understanding as of the date of the response and that further inquiry may reveal additional information pertinent to the efficient, effective collection of reasonably likely relevant materials. Each Party reserves its right to amend or supplement its responses to these items:

F. If the requesting Party intends to seek discovery of such wholly or partially inaccessible ESI, the Parties shall promptly (1) meet and confer in good faith in an effort to reach an agreement as to how they will proceed with retrieval and production, and, if necessary, (2) notify the Court that the Parties have a dispute regarding arguably or allegedly wholly or partially inaccessible electronic data for resolution that they were unable to resolve without the Court’s assistance.

V. SEARCH AND FILTERING

A. General

The Parties agree to meet and confer to determine search methodologies and protocols to be used in connection with the Parties' production of ESI, such as e-mails, MSWord, PowerPoint and Excel documents. In an effort to control costs and reduce the volume of ESI that is not relevant to the matter, the Parties may filter ESI, potentially including using the techniques described below.

1. Spam Filtering

The Parties may use domain names such as L.L. Bean, FTD Florist, Amazon, restaurants and other similar domain names to filter out irrelevant emails.

2. Search Terms

The Parties may use search terms to filter for relevancy prior to review and production. If they decide to do so, the Parties will agree upon a list of search terms to aid the Parties in identifying ESI that is subject to production in discovery (“Potentially Responsive Documents”) and filter out ESI that is not subject to discovery.

3. Duplicates

Each Party may remove duplicative ESI, including without limitation electronic mail, to reduce unnecessary cost of reviewing and producing duplicative ESI.

B. Supplemental Production

Each Party reserves the right to supplement production as required by the Federal Rules.

C. De-NISTing, De-duplication and other Data-Reduction Technologies

Electronic file collections will be “De-NISTed,” (the process by which non-user generated files are removed from review and production. The files removed are based on a list maintained by the National Institute of Standards and Technology and is updated four times per year.) The Parties will further globally de-duplicate identical ESI as described below.

1. Electronic Files

*4 Duplicate electronic files will be identified based upon calculated SHA-1, SHA-256, or MD5 Hash values for binary file content. File contents will be used for MD5 Hash value calculation and will not include operating system data. All files bearing an identical Hash value are a duplicate group. The Parties shall produce or log in a privilege log only one document image or native file for duplicate ESI documents within the group, provided, however, that such duplicates are identified in a duplicate source field.

2. Messaging Files

Duplicate messaging files will be identified based upon SHA-1, SHA-256, or MD5 Hash values for the message family, including parent object and attachments. Unique metadata (such as text, sent, to, cc,) will be used to identify duplicate messages, and duplicate messages will be identified at a family level, including message and attachments. All messages bearing an identical Hash value are a duplicate group. The Parties shall maintain information on which custodians had possession of the messaging file (including persons sending or receiving messaging files) and shall provide this information in a duplicate custodian field. The Parties shall produce or log in a privilege log only one document image or native file for duplicate ESI documents within the group.

3. E-mail Threading

The producing Party may identify e-mail threads in which all previous emails making 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 it plans to use email thread suppression on a specified production. The Parties agree to meet and confer regarding the format of such production and reserve the right to seek Court guidance on the issue should they be unable to reach an agreement. Notwithstanding anything contained herein to the contrary, if a thread with attachments is being produced, all of the attachments shall be included with each email in that thread or, a hash value for the attachment(s) associated with each email in that thread shall be mapped to each email in the thread.

4. Time Zones

All data shall be processed in Coordinated Universal Time (“UTC”).

VI. PRODUCTION FORMATS

A. Exhibit A sets forth technical specifications that the Parties agree shall govern the form of production of ESI in this litigation. Among other things, the proposed technical specifications incorporate the directive of Fed. R. Civ. P. 34(b)(2)(E)(iii) and provide that a Party need not produce ESI in more than one form, unless otherwise agreed to in limited circumstances (as contemplated in the technical specifications). The Parties agree to produce documents in the formats described in Exhibit A. If particular documents warrant a different format, the Parties will cooperate to arrange for the mutually acceptable production of such documents. Except as may result from the production of ESI permitted by this Order, the parties agree not to degrade the searchability of documents as part of the document production review.

B. The Parties share a desire to ensure that ESI is produced in an acceptable, searchable format. To that end, the Parties have discussed but have not yet identified reasonably likely relevant ESI that would not be amenable to the proposed technical specifications. The Parties agree to meet and confer in good faith to address any issues that may arise in this regard, and to seek judicial intervention only if their efforts to resolve the issues on an informal basis are unsuccessful. The Parties also recognize that certain information produced in discovery may warrant production in an alternative form for purposes of depositions and/or trial. To the extent that becomes necessary, the Parties will meet and confer to reach agreement about such form and will seek Court intervention only if necessary.

VII. CONFIDENTIALITY, PRIVACY, AND SECURITY OF INFORMATION

*5 A. The Parties will negotiate and seek to present to the Court, for approval and entry, a proposed Stipulated Protective Order to govern the confidential treatment of certain confidential, proprietary, commercially sensitive, or trade secret information. To the extent the Parties are unable to agree, any disputed issues will be presented to the Court for resolution.

B. The prosecution and defense of these actions will require the processing and review of electronically stored information disclosing trade secrets or information of a confidential, proprietary, or commercially sensitive nature, possibly including data containing Personally Identifiable Information (“PII”) or Personal Health Information (“PHI”). The Parties acknowledge the reasonable expectation of the privacy of this information and commit to address protections commensurate with the sensitivity of the information to be disclosed.

C. In the interest of addressing privacy and security concerns, and in order to facilitate the processing and production of documents containing such data, the Parties are prepared to discuss appropriate precautions and arrangements for reviewing such data, including, potentially, reviewing certain highly sensitive information maintained by the producing Party on a dedicated document repository to be contracted for and managed by the producing Party. The Parties' discussions concerning the nature of information and data meriting this specialized treatment, the accessibility of this data, and the specific parameters to govern specialized review arrangements are ongoing.

VIII. DOCUMENTS PROTECTED FROM DISCOVERY

A. Pursuant to Federal Rule of Evidence 502(d) and (e), the Parties agree that the inadvertent production of a privileged or work-product-protected document shall not constitute waiver of the attorney-client privilege or work product immunity or any other applicable privilege or immunity from discovery. The Parties will move jointly for entry of a Rule 502(d) order.

B. The Parties agree that communications involving trial counsel dated after August 27, 2015, need not be placed on a privilege log. Insofar as the Parties must identify the authors and recipients of a purportedly privileged communication, they may do so by listing the author and recipient fields included in the communication’s metadata.

C. As to documents redacted for privilege, (1) the redactions on redacted pages will be labeled “Privilege Material Redacted” (2) the privilege log will identify the page redacted, the author of the redacted language and describe the privilege asserted and the basis of the claim, and (3) the document will be provided with a delimited text file containing a field indicating that the document is produced as redacted.

IX. MODIFICATION

This Order may be modified by one or more parties by motion or by the Court for good cause shown.

Exhibit A

Technical Specifications for Production

I. PRODUCTION OF DOCUMENTS ORIGINATING AS PAPER

A. For documents that have originated in paper format, the following specifications should be used for their production:

B. Text should be delivered on a document level in an appropriately formatted text file (.txt) that is named to match the first bates number of the document.

C. A text cross reference load file should also be included with the production delivery that lists the beginning bates number of the document and the relative path to the text file for that document on the production media. It is acceptable to include this cross reference information within the “OCR/ExtractedText Path” field in metadata TXT file.

II. PRODUCTION OF EMAIL AND ELECTRONIC DOCUMENTS

A. Electronic documents should be produced with file path information, if available, indicating the electronic source of the document and, if available, information will be provided regarding natural persons who were the custodians of the electronic document.

B. Attachments, enclosures, and/or exhibits to any parent documents should also be produced and proximately linked to the respective parent documents containing the attachments, enclosures, and/or exhibits.

C. A delimited text file (using the delimiters detailed above) containing the following fields, where they exist in or are created for the file being produced, shall be provided:

D. In addition to tiff images, extracted full text (not OCR text) should also be delivered for each electronic document where available. The extracted full text should be delivered on a document level according to the specifications above similar to paper documents.

E. Foreign language text files and metadata should be delivered with the correct encoding to enable the preservation of the documents' original language.

F. For standard documents, emails, and presentations originating in electronic form, documents should be produced as tiff images using the specifications above with the following exceptions:

III. PRODUCTION OF DATABASES AND OTHER STRUCTURED DATA

A. Structured databases may contain relevant data and such data should be produced in a mutually agreeable report or data exchange format.

By joining Santa Fe in this Stipulation, RAI does not waive its right to challenge personal jurisdiction at the appropriate time.

During the pre-MDL period, certain of Plaintiffs' counsels notified their respective clients in connection with their preservation obligations.