*2 2.4 “HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY” shall be limited to such documents, testimony, information or other things that the Designating Party believes, in good faith, contain information the disclosure of which is likely to cause substantial harm to the competitive position of the Designating Party, contain information subject to the right of privacy of any person, or contain information alleged to be a trade secret. None of the restrictions set forth in this Stipulated Protective Order shall apply to any documents or other information that are or become public knowledge by means not in violation of the provisions of this Stipulated Protective Order, or any law or statute.

7.3 Disclosure of “HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose Protected Material designated “HIGHLY CONFIDENTIAL ATTORNEY'S EYES ONLY” only to the following persons:

(a) the Receiving Party's Outside Counsel in this action;

(b) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

(c) the court and its personnel;

(d) court reporters and videographers and their staff;

(e) professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and

(f) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; and

(g) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions.

*3 SI No. 4:

If YOU contend that the “Super Creatine” in BANG creates positive health effects for drinkers, identify all publications, research papers, and DOCUMENTS supporting YOUR claim, and how that source supports YOUR claim that the “Super Creatine” in BANG creates positive health effects for drinkers.

Response to SI No. 4:

Responding Party objects to this Interrogatory to the extent it seeks privileged attorney client communications or work product. Responding Party further objects to this Interrogatory on the basis that it seeks information that is confidential and proprietary in nature and, as such, will not be produced until a Protective Order is in place. Responding Party objects to this Interrogatory as seeking proprietary information regarding trade secrets, including ingredients, recipes, formulations, formulae, which would be extremely detrimental to Defendant if disseminated or distributed publicly or if provided to Responding Party's competitors or potential competitors. Responding Party further objects to this Interrogatory as vague as to scope and time and seeking irrelevant information and documents. Responding Party further objects to this Interrogatory as unduly burdensome, harassing, and not proportional to the needs of this case under Rule 26(b)(1). Responding Party objects to this Interrogatory as vague and ambiguous as to the scope and time. Responding Party objects to the definitions of “BANG” and “SUPER CREATINE” as vague, ambiguous, overbroad, and harassing. Defendant objects to this Interrogatory as vague and ambiguous with respect to the undefined terms “supporting,” “YOUR claim,” “positive health effects,” “health effects.” Responding Party further objects to this Interrogatory to the extent this Interrogatory seeks information subject to expert analysis or opinion. To the extent information will be analyzed by an expert, such information may be provided in an expert's report as set forth according to the Court's schedule. Further, this Interrogatory appears to be duplicative of document requests, including specifically request no. 4 which seeks “All DOCUMENTS and COMMUNICATIONS relating to YOUR studies, research, and tests of BANG products, including but not limited to:

a. The amount of creatine in BANG products;

b. The amount of SUPER CREATINE in BANG products;

c. The amount of creatine in SUPER CREATINE;

d. The incremental effect of including additional SUPER CREATINE in BANG products;

e. The contents of BANG products;

f. Comparisons between BANG products and products manufactured or sold by MONSTER;

g. The health impacts of creatyl-l-leucine; and

h. Discussions or analyses relating to creatinine.”

Further, this Interrogatory is duplicative of request no. 50 which seeks “All DOCUMENTS and COMMUNICATIONS relating to the formulation or changes to the formulation of BANG products.” Responding Party incorporates by reference all objections made in response to Request for Documents, including but not limited to Nos. 4, 36, 37, 48, and 50. Responding Party further objects to the extent this request seeks information from third-parties. Responding Party further objects to this Interrogatory as seeking information that calls for a legal conclusion. Subject to the foregoing general and specific objections, Defendant responds as follows:

*4 Even though Responding Party is responding to this Interrogatory, Responding Party does not have the burden of proof as to the topic raised in this Interrogatory. See e.g., Order Denying Monster's Motion for a Preliminary Injunction, dated June 6, 2019, ECF 122, page 6. For example, Propounding Party has the burden of demonstrating that Creatyl-L-Leucine does not provide the benefits of creatine. This Interrogatory appears to seek expert testimony, which is improper prior to the deadline for expert reports. Expert reports and testimony will be served according to the Federal Rules and the Court's schedule. Responding Party reserves the right to provide a rebuttal to Propounding Party's position after Propounding Party provides its position, evidence, expert reports, or testimony. Responding Party incorporates by reference the declaration by Dr. Li in support of Defendants' Opposition to Monster's Motion for Preliminary Injunction, including Exhibit L3 (ECF 100 and exhibits 100-1 through 100-3). Exhibit L3 to Dr. Li's Declaration is a true and correct copy of the poster presentation for this latest study of BANG®. VPX sponsored a double-blind, placebo-controlled, crossover trial study of BANG®, performed by Nova Southeastern University, entitled “The Effects of BANG® Energy on Psychomotor Vigilance,” by Christopher Horn, Madaline Kenyon, Cassandra Carson, Anya Ellerbrock, Lia Jiannine, Tobin Silver, Corey Peacock, Jaime Tartar, and Jose Antonio. In conclusion, the BANG® energy drink resulted in a significantly lower (i.e., faster) (p<0.05) psychomotor vigilance mean reaction time versus the placebo as well as fewer lapses. Creatyl-l-leucine in certain BANG products is branded under the trademark SUPER CREATINE.

This Interrogatory specifically seeks documents from third parties: “all publications, research papers, and DOCUMENTS supporting YOUR claim.” Propounding Party will not produce “all” DOCUMENTS in response to this Interrogatory. Pursuant to Federal Rule of Civil Procedure 33(d), Defendant reserves the right to produce business records in this action from which the answer to the reasonable scope of this Interrogatory may be ascertained. The answer to this Interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing Responding Party business records (including electronically stored information), and the burden of deriving or ascertaining the answer will be substantially the same for either party. Responding Party will meet and confer with Propounding Party to narrow the scope of this Request so that the non- privileged information in Responding Party's possession, custody, or control sufficient to respond to this Request is proportionate to the needs of this case and will be produced subject to a Protective Order. Specifically, Responding Party will continue to meet and confer with Propounding Party regarding ESI protocols, custodians, search terms, and date ranges.

Supplemental Response to SI No. 4:

VPX maintains the foregoing and previously asserted general and special objections and supplements its response in light of meet and confer efforts to resolve the discovery dispute between the parties, as follows: The Parties have met and conferred as to email search terms and protocols and have agreed to review certain documents which appear targeted at this request and may be responsive to this Interrogatory, such as studies, etc. VPX is reviewing numerous documents and will supplement its rolling production and may supplement this Interrogatory if additional information is discovered. VPX maintains that Monster has the burden of proving all elements of each of the asserted causes of action. Monster has not done so. During meet and confer correspondence relating to this Interrogatory, while this Interrogatory does not seek information regarding the quantity of creatyl-l-leucine in BANG energy drinks, Monster claimed that the information regarding the quantity of creatyl-l-leucine and these interrogatories were relevant to claims 1-3 of the First Amended Complaint (FAC), which relate to claims of false advertising, specifically related to alleged statements made to consumers upon which those consumers would rely. In response to Paragraph 51 of the FAC, VPX responded that “Defendants admit Owoc has been asked on social media how much Super Creatine is in BANG® and that such is proprietary information.” Monster does not dispute that the BANG formula is a trade secret; in fact, Monster claims that its own formulas (e.g., REIGN) are trade secrets and such disclosure would harm the owner of the formula if such information was in the hands of a competitor. Monster does not allege that VPX has ever disclosed the formula for BANG or that any consumer has ever relied on any statements from VPX relating to the formula or quantities of ingredients, other than 300 mg of caffeine, in BANG. VPX maintains that its formula and the quantity of creatyl-l-leucine is proprietary and a valuable trade secret which Monster seeks for competitive reasons because VPX's BANG product is so successful that Monster introduced an almost identical product called REIGN with almost identical packaging, formula, and branding, which specifically targets and is directed to VPX's customers. In order to resolve discovery disputes during the discovery process in this case, VPX has disclosed through meet and confer efforts that the quantity of creatyl-l-leucine in a can of BANG® ready to drink cans of BANG® energy drinks with the reference to SUPER CREATINE® is less than 40 mg and caffeine is 300 mg. VPX has not disclosed the quantities of the other ingredients in BANG. VPX has not previously disclosed the quantity of creatyl-l-leucine in advertising or on the labels of its cans of BANG®, nor has VPX ever stated that there were more than 40 mg of creatyl-l-leucine in BANG® ready to drink cans. No competitors of VPX sell an energy drink with more creatyl-l-leucine than BANG. No consumers seeking a specific quantity of creatine in any form have been told by VPX how much creatyl-l-leucine is in the proprietary blend of BANG. Thus, no consumers could reasonably rely on such statements in advertisements (as VPX has not made those statements). In addition, no false statements of fact were made about the quantities of ingredients or their impact on consumers for this product, no consumer could have relied on or did rely on such statements, no statements deceived consumers or were likely to deceive consumers, and no alleged “deception” (as Monster alleges) was or would be material to a consumer. Further, Monster could not have been harmed by any statements relating to creatyl-l-leucine related to the BANG energy drink. As set forth through Dr. Li's Declaration and the patent, to VPX's knowledge, VPX is the first to use creatyl-l-leucine in an energy drink. To date, VPX is not aware of any competitors who have sold an energy drink containing creatyl-l-leucine. Upon information and belief, Monster has never made and does not sell an energy drink with creatyl-l-leucine or other form of creatine, even creatine monohydrate. See Monster Response to Request for Admission (“RFA”) Nos. 1-6 (RFA No. 1: “[M]onster admits that it has never released an energy drink product with Monster branding that contains creatine.”; RFA No. 2: “Monster admits that it has never released an energy drink product with Monster branding that contains creatyl-L-leucine.” Creatine supplements come in many forms in the marketplace and such supplements have been scientifically proven to provide positive health effects, including building muscle and strength and boosting athletic performance, and research has also shown that creatine supplements have the potential for helping with age-related neurological diseases, such as improving brain function and boosting memory. Dr. Li cites to some studies in his Declaration, other studies are available publicly, and studies that are responsive to Monster's proposed email search terms that are agreed upon by the parties will be reviewed and responsive, non-privileged documents will be produced. Further, there is no dispute that studies show that exercise, a healthy lifestyle, and low carbohydrate and low sugar diets can provide benefits (unlike many of Monster's energy drinks) can provide health benefits and new articles and studies come out all the time. See, e.g., an article dated today, October 30, 2019, in the Wall Street Journal, titled “The Link Between Diet, Exercise and Alzheimer's - A new study finds that lifestyle changes can improve cognition.” https://www.wsj.com/articles/the-link-betweendietexercise-and-alzheimers-11572427802. That article cites to a study released on October 30, 2019. The creatyl-l-leucine in a 16 oz. can of a BANG® energy drink is not intended to be a sole source of creatine and does not advertise that it is, but rather is a great tasting drink to add to a well-balanced diet that includes the consumption of other foods containing creatine, such as beef, chicken, pork, eggs, and fish. Further, Bang as a complete product with zero sugars and zero calories is a healthier option than most energy drinks manufactured by its competitors, including Monster, which contain large quantities of sugar, carbohydrates, and other more harmful ingredients. And, in addition to creatyl-l-leucine (Super Creatine), Bang contains many ingredients that have been characterized as providing positive health benefits, including caffeine, vitamins, electrolytes, CoQ10 and amino acids. In fact, as referenced above, a recent peer-reviewed double blind study of Bang RTD demonstrated that the BANG® energy drink resulted in a significantly lower (i.e., faster) (p<0.05) psychomotor vigilance mean reaction time versus the placebo as well as fewer lapses. VPX is not aware of any contentions VPX has made in this case or publicly about the quantity of the creatyl-l-leucine (Super Creatine) in a 16 oz. can of a BANG® energy drink or that the quantity of the creatyl-l-leucine (Super Creatine) in a 16-oz can creates “positive health effects for drinkers” as phrased in this Interrogatory, except as compared to other energy drinks offered by competitors. In fact, Monster introduced a similar product called REIGN in order to compete with VPX in a category of drinks third parties call the performance energy category. See e.g., Monster's Motion for a Preliminary Injunction Exhibit C and D to Emilie Tirre's Declaration in support of Monster's Motion, ECF 67-6.... [Table omitted.]

*5 Further in Exhibit D to Tirre's Declaration, Monster cites to a report from Guggenheim which claims that “Monster has one of the most attractive long-term growth algorithms in our Food and Beverage coverage as we expect organic sales and EPS CAGR of 10% and 14%, respectively. The sustainable growth outlook is supported by ... 3) innovation in energy-adjacent segments such as coffee and “performance energy” with REIGN ...[ .]” Monster's counsel stated during meet and confer correspondence that certain paragraphs of the First Amended Complaint were the basis of Monster's Interrogatories Nos. 4, 7, and 8, specifically paragraphs 46 to 48 of the First Amended Complaint (“FAC”). Paragraphs 46-48 of the FAC, however, do not provide any context for where those statements come from, none of these alleged statements are full quotes, and Monster provided no citations to where these statements were made. As such, it does not appear from the quoted language or the descriptions made by Monster in Paragraphs 46 to 48 that these statements are about any specific health effects of creatyl-l-leucine in a can of BANG ready to drink energy drinks or related to the quantity of creatyl-l-leucine in a can. Monster does not allege that these statements were made in public, to consumers, or in advertisements. The fact that those statements are not in quotes indicates that the statements are taken out of context and that none of them are about Super Creatine when considered in context. Further, as stated in the prior objections, there is no evidence from Monster or its experts that any of these statements are false. VPX has already addressed and denied many of these statements in a post on its website: https://bang-energy.com/blog/ca-based-monster-energy-file-third-frivolouslawsuit-against-vpx/, including the following statement by Jack Owoc addressing numerous false allegations in Monster's Complaint: “I never claim that Bang can reverse intellectual disability and help cure diseases such as Alzheimer's, Parkinson's, Huntington's and other forms of dementia. Bang is infinitely safer and healthier than Monster – consumption of Monster is associated with 17 deaths, heart attack, heartbeat irregularities and countless adverse event reports.”

SI No. 7:

If YOU contend that the Super Creatine contained in BANG has an effect on the VITALS and SUBSTANCES in the human body, identify all such effects and all DOCUMENTS that support YOUR contention.

Response to SI No. 7:

Responding Party objects to this Interrogatory on the basis that it seeks information that is confidential and proprietary in nature and is subject to the Protective Order. Responding Party further objects to this Interrogatory as vague as to scope and time and seeking irrelevant information and documents. Responding Party further objects to this Interrogatory as overbroad, vague, and ambiguous as to the terms “BANG” (as defined), “Super Creatine” (as it is not defined in this set of Interrogatories), “contend/contention,” “an effect/all such effects,” “VITALS,” and “SUBSTANCES,” as defined in this Interrogatory and the terms used in the definitions of VITALS and SUBSTANCES including the overbroad phrase “including” used in in the definitions. Responding Party further objects to this Interrogatory as irrelevant, unduly burdensome, harassing, and not proportional to the needs of this case under Rule 26(b)(1). Propounding Party further objects to this Interrogatory to the extent it seeks information regarding documents and nonwritten files that may be within the scope of electronic requests for emails, and the Parties are meeting and conferring regarding document production, including custodians, search terms, and objections. Responding Party will not produce documents that are publicly available in response to this Request. Responding Party has no obligation to investigate and discover information and materials from third parties or sources that are equally accessible to Propounding Party such as, for example and without limitation, third party information regarding testing and studies. Responding Party further objects to this Interrogatory as seeking information that calls for expert opinion or a legal conclusion. To the extent information will be analyzed by an expert, such information may be provided in an expert's report as set forth according to the Court's schedule. Further, this Interrogatory appears to be duplicative of document requests, including specifically request No. 4, 36, and 37. Responding Party incorporates by reference all objections made in response to Request for Documents, including but not limited to Nos. 4, 36, and 37. Subject to the foregoing general and specific objections, Responding Party responds as follows:

Even though Responding Party is responding to this Interrogatory, to the extent this Interrogatory seeks relevant information, Responding Party does not have the burden of proof as to the topic raised in this Interrogatory. See e.g., Order Denying Monster's Motion for a Preliminary Injunction, dated June 6, 2019, ECF 122, page 6. For example, Propounding Party has the burden of demonstrating that Creatyl-L-Leucine or Creatyl-L-Glutamine do not provide the benefits of creatine. This Interrogatory appears to seek expert testimony, which is premature at this time and improper prior to the deadline for expert reports. Expert reports and testimony will be served according to the Federal Rules and the Court's schedule. Responding Party reserves the right to provide a rebuttal to Propounding Party's position after Propounding Party provides its position, evidence, expert reports, and/or testimony. While Responding Party is not aware of any previous contention that Responding Party has made in this litigation that SUPER CREATINE in BANG® has “an effect” on “VITALS” or “SUBSTANCES,” as those terms are defined in this Interrogatory, and because any such contention in an expert report would be premature at this time, Responding Party explicitly reserves the right to make that contention in this case in the future. To the extent Propounding Party is referring to a specific contention that Propounding Party believes Responding Party has made about effects on VITALS or SUBSTANCES as those terms are defined, Responding Party objects to this Interrogatory as vague in scope and Responding Party seeks that information from Responding Party so that the scope of this Interrogatory can be clearly defined and Responding Party can respond to any specific contention(s) to which this Interrogatory is targeted. Responding Party incorporates by reference the declaration by Dr. Li in support of Defendants' Opposition to Monster's Motion for Preliminary Injunction, including Exhibit L3 (ECF 100 and exhibits 100-1 through 100-3) and documents referred to therein, including United States Patent No. 8,445,466. Exhibit L3 to Dr. Li's Declaration is a true and correct copy of the poster presentation for this latest study of BANG®. VPX sponsored a double-blind, placebo-controlled, crossover trial study of BANG®, performed by Nova Southeastern University, entitled “The Effects of BANG® Energy on Psychomotor Vigilance,” by Christopher Horn, Madaline Kenyon, Cassandra Carson, Anya Ellerbrock, Lia Jiannine, Tobin Silver, Corey Peacock, Jaime Tartar, and Jose Antonio. In conclusion, the BANG® energy drink resulted in a significantly lower (i.e., faster) (p<0.05) psychomotor vigilance mean reaction time versus the placebo as well as fewer lapses. Both Creatyl-L-leucine and Creatyl-L-glutamine in certain BANG® products have been branded under the trademark SUPER CREATINE.

*6 This Interrogatory specifically seeks documents from third parties: “identify all such effects and all DOCUMENTS that support YOUR contention.” Propounding Party will not produce “all” DOCUMENTS in response to this Interrogatory. Pursuant to Federal Rule of Civil Procedure 33(d), Defendant reserves the right to produce business records in this action from which the answer to the reasonable scope of this Interrogatory may be ascertained. The answer to this Interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing Responding Party business records (including electronically stored information), and the burden of deriving or ascertaining the answer will be substantially the same for either party. Responding Party will meet and confer with Propounding Party to narrow the scope of this Request so that the nonprivileged information in Responding Party's possession, custody, or control sufficient to respond to this Request is proportionate to the needs of this case and will be produced subject to a Protective Order. Specifically, Responding Party will continue to meet and confer with Propounding Party regarding ESI protocols, custodians, search terms, and date ranges.

Supplemental Response to SI No. 7:

VPX maintains the foregoing and previously asserted general and special objections and supplements its response in light of meet and confer efforts to resolve the discovery dispute between the parties, as follows:

The Parties have met and conferred as to email search terms and protocols and have agreed to review certain documents which appear targeted at this request and may be responsive to this Interrogatory, such as studies, etc. VPX is reviewing numerous documents and will supplement its rolling production and may supplement this Interrogatory if additional information is discovered. VPX maintains that Monster has the burden of proving all elements of each of the asserted causes of action. Monster has not done so. During meet and confer correspondence relating to this Interrogatory, while this Interrogatory does not seek information regarding the quantity of creatyl-l-leucine in BANG energy drinks, Monster claimed that the information regarding the quantity of creatyl-l-leucine and these interrogatories were relevant to claims 1-3 of the First Amended Complaint (FAC), which relate to claims of false advertising, specifically related to alleged statements made to consumers upon which those consumers would rely. In response to Paragraph 51 of the FAC, VPX responded that “Defendants admit Owoc has been asked on social media how much Super Creatine is in BANG® and that such is proprietary information.” Monster does not dispute that the BANG formula is a trade secret; in fact, Monster claims that its own formulas (e.g., REIGN) are trade secrets and such disclosure would harm the owner of the formula if such information was in the hands of a competitor. Monster does not allege that VPX has ever disclosed the formula for BANG or that any consumer has ever relied on any statements from VPX relating to the formula or quantities of ingredients, other than 300 mg of caffeine, in BANG. VPX maintains that its formula and the quantity of creatyl-l-leucine is proprietary and a valuable trade secret which Monster seeks for competitive reasons because VPX's BANG product is so successful that Monster introduced an almost identical product called REIGN with almost identical packaging, formula, and branding, which specifically targets and is directed to VPX's customers. In order to resolve discovery disputes during the discovery process in this case, VPX has disclosed through meet and confer efforts that the quantity of creatyl-l-leucine in a can of BANG® ready to drink cans of BANG® energy drinks with the reference to SUPER CREATINE® is less than 40 mg and caffeine is 300 mg. VPX has not disclosed the quantities of the other ingredients in BANG. VPX has not previously disclosed the quantity of creatyl-l-leucine in advertising or on the labels of its cans of BANG®, nor has VPX ever stated that there were more than 40 mg of creatyl-l-leucine in BANG® ready to drink cans. No competitors of VPX sell an energy drink with more creatyl-l-leucine than BANG. No consumers seeking a specific quantity of creatine in any form have been told by VPX how much creatyl-l-leucine is in the proprietary blend of BANG. Thus, no consumers could reasonably rely on such statements in advertisements (as VPX has not made those statements). In addition, no false statements of fact were made about the quantities of ingredients or their impact on consumers for this product, no consumer could have relied on or did rely on such statements, no statements deceived consumers or were likely to deceive consumers, and no alleged “deception” (as Monster alleges) was or would be material to a consumer. Further, Monster could not have been harmed by any statements relating to creatyl-l-leucine related to the BANG energy drink. As set forth through Dr. Li's Declaration and the patent, to VPX's knowledge, VPX is the first to use creatyl-l-leucine in an energy drink. To date, VPX is not aware of any competitors who have sold an energy drink containing creatyl-l-leucine. Upon information and belief, Monster has never made and does not sell an energy drink with creatyl-l-leucine or other form of creatine, even creatine monohydrate. See Monster Response to Request for Admission (“RFA”) Nos. 1-6 (RFA No. 1: “[M]onster admits that it has never released an energy drink product with Monster branding that contains creatine.”; RFA No. 2: “Monster admits that it has never released an energy drink product with Monster branding that contains creatyl-l leucine.” Creatine supplements come in many forms in the marketplace and such supplements have been scientifically proven to provide positive health effects, including building muscle and strength and boosting athletic performance, and research has also shown that creatine supplements have the potential for helping with age-related neurological diseases, such as improving brain function and boosting memory. Dr. Li cites to some studies in his Declaration, other studies are available publicly, and studies that are responsive to Monster's proposed email search terms that are agreed upon by the parties will be reviewed and responsive, non-privileged documents will be produced. Further, there is no dispute that studies show that exercise, a healthy lifestyle, and low carbohydrate and low sugar diets can provide benefits (unlike many of Monster's energy drinks) can provide health benefits and new articles and studies come out all the time. See, e.g., an article dated today, October 30, 2019, in the Wall Street Journal, titled “The Link Between Diet, Exercise and Alzheimer's - A new study finds that lifestyle changes can improve cognition.” https://www.wsj.com/articles/the-link-between-dietexercise- and-alzheimers-11572427802. That article cites to a study released on October 30, 2019. The creatyl-l-leucine in a 16 oz. can of a BANG® energy drink is not intended to be a sole source of creatine and does not advertise that it is, but rather is a great tasting drink to add to a well-balanced diet that includes the consumption of other foods containing creatine, such as beef, chicken, pork, eggs, and fish. Further, Bang as a complete product with zero sugars and zero calories is a healthier option than most energy drinks manufactured by its competitors, including Monster, which contain large quantities of sugar, carbohydrates, and other more harmful ingredients. And, in addition to creatyl-l-leucine (Super Creatine), Bang contains many ingredients that have been characterized as providing positive health benefits, including caffeine, vitamins, electrolytes, CoQ10 and amino acids. In fact, as referenced above, a recent peer-reviewed double blind study of Bang RTD demonstrated that the BANG® energy drink resulted in a significantly lower (i.e., faster) (p<0.05) psychomotor vigilance mean reaction time versus the placebo as well as fewer lapses. VPX is not aware of any contentions VPX has made in this case or publicly about the quantity of the creatyl-l-leucine (Super Creatine) in a 16 oz. can of a BANG® energy drink or that the quantity of the creatyl-l-leucine (Super Creatine) in a 16-oz can has “an effect on the VITALS and SUBSTANCES in the human body” as phrased in this Interrogatory, as those terms are defined or understood by VPX, or provides specific health benefits except as compared to other energy drinks offered by competitors. In fact, Monster introduced a similar product called REIGN in order to compete with VPX in a category of drinks third parties call the performance energy category. See e.g., Monster's Motion for a Preliminary Injunction Exhibit C and D to Emilie Tirre's Declaration in support of Monster's Motion, ECF 67-6. Below is an excerpt from Exhibit C, page 24 of 27, showing Reign's description of ingredients mirroring BANG's description. [Table omitted.]

*7 Further in Exhibit D to Tirre's Declaration, Monster cites to a report from Guggenheim which claims that “Monster has one of the most attractive long-term growth algorithms in our Food and Beverage coverage as we expect organic sales and EPS CAGR of 10% and 14%, respectively. The sustainable growth outlook is supported by ... 3) innovation in energy-adjacent segments such as coffee and “performance energy” with REIGN ....” Monster's counsel stated during meet and confer correspondence that certain paragraphs of the First Amended Complaint were the basis of Monster's Interrogatories Nos. 4, 7, and 8, specifically paragraphs 46 to 48 of the First Amended Complaint (“FAC”). Paragraphs 46-48 of the FAC, however, do not provide any context for where those statements come from, none of these alleged statements are full quotes, and Monster provided no citations to where these statements were made. As such, it does not appear from the quoted language or the descriptions made by Monster in Paragraphs 46 to 48 that these statements are about any specific health effects of creatyl-l-leucine in a can of BANG ready to drink energy drinks or related to the quantity of creatyl-l-leucine in a can. Monster does not allege that these statements were made in public, to consumers, or in advertisements. The fact that those statements are not in quotes indicates that the statements are taken out of context and that none of them are about Super Creatine when considered in context. Further, as stated in the prior objections, there is no evidence from Monster or its experts that any of these statements are false. VPX has already addressed and denied many of these statements in a post on its website: https://bang-energy.com/blog/ca-based-monster-energy-file-third-frivolouslawsuit-against-vpx/, including the following statement by Jack Owoc addressing numerous false allegations in Monster's Complaint: “I never claim that Bang can reverse intellectual disability and help cure diseases such as Alzheimer's, Parkinson's, Huntington's and other forms of dementia. Bang is infinitely safer and healthier than Monster – consumption of Monster is associated with 17 deaths, heart attack, heartbeat irregularities and countless adverse event reports.”

SI No. 8:

If YOU contend that the Super Creatine contained in BANG increases the circulating levels of creatine or creatinine in the human body, identify all bases supporting YOUR contention, including the approximate amount of the alleged increases.

Response to SI No. 8:

Responding Party objects to this Interrogatory on the basis that it seeks information that is confidential and proprietary in nature and is subject to the Protective Order. Responding Party further objects to this Interrogatory as vague as to scope and time and seeking irrelevant information and documents. Responding Party further objects to this Interrogatory as vague and ambiguous as to the terms “BANG” (as defined), “Super Creatine” (as it is not defined in this set of Interrogatories), “contend/contention,” “increases the circulating levels,” “creatine,” and “alleged increases.” Responding Party further objects to this Interrogatory as irrelevant, unduly burdensome, harassing, and not proportional to the needs of this case under Rule 26(b)(1). Propounding Party further objects to this Interrogatory to the extent it seeks information regarding documents and nonwritten files that may be within the scope of electronic requests for emails, and the Parties are meeting and conferring regarding document production, including custodians, search terms, and objections. Responding Party will not produce documents that are publicly available in response to this Request. Responding Party has no obligation to investigate and discover information and materials from third parties or sources that are equally accessible to Propounding Party such as, for example and without limitation, third party information regarding testing and studies. Responding Party further objects to this Interrogatory as seeking information that calls for expert opinion or a legal conclusion. To the extent information will be analyzed by an expert, such information may be provided in an expert's report as set forth according to the Court's schedule. Further, this Interrogatory appears to be duplicative of document requests, including specifically request No. 4. Responding Party incorporates by reference all objections made in response to Request for Documents, including but not limited to Nos. 4, 36, and 37. Subject to the foregoing general and specific objections, Responding Party responds as follows:

Even though Responding Party is responding to this Interrogatory, to the extent this Interrogatory seeks relevant information, Responding Party does not have the burden of proof as to the topic raised in this Interrogatory. See e.g., Order Denying Monster's Motion for a Preliminary Injunction, dated June 6, 2019, ECF 122, page 6. For example, Propounding Party has the burden of demonstrating that Creatyl-L-Leucine or Creatyl-L-Glutamine do not provide the benefits of creatine. This Interrogatory appears to seek expert testimony, which is premature at this time and improper prior to the deadline for expert reports. Expert reports and testimony will be served according to the Federal Rules and the Court's schedule. Responding Party reserves the right to provide a rebuttal to Propounding Party's position after Propounding Party provides its position, evidence, expert reports, and/or testimony. While Responding Party is not aware of any previous contention that Responding Party has made in this litigation that SUPER CREATINE in BANG® “increases the circulating levels of creatine or creatinine in the human body” by any “alleged increase” as those terms are used in this Interrogatory, and because any such contention in an expert report would be premature at this time, Responding Party explicitly reserves the right to make that contention in this case in the future. To the extent Propounding Party is referring to a specific contention that Propounding Party believes Responding Party has made about SUPER CREATINE increasing “the circulating levels of creatine or creatinine in the human body,” Responding Party objects to this Interrogatory as vague in scope and Responding Party seeks that information from Responding Party so that the scope of this Interrogatory can be clearly defined and Responding Party can respond to any specific contention(s) to which this Interrogatory is targeted. Responding Party incorporates by reference the declaration by Dr. Li in support of Defendants' Opposition to Monster's Motion for Preliminary Injunction, including Exhibit L3 (ECF 100 and exhibits 100-1 through 100-3) and documents referred to therein, including United States Patent No. 8,445,466. Exhibit L3 to Dr. Li's Declaration is a true and correct copy of the poster presentation for this latest study of BANG®. VPX sponsored a double-blind, placebo-controlled, crossover trial study of BANG®, performed by Nova Southeastern University, entitled “The Effects of BANG® Energy on Psychomotor Vigilance,” by Christopher Horn, Madaline Kenyon, Cassandra Carson, Anya Ellerbrock, Lia Jiannine, Tobin Silver, Corey Peacock, Jaime Tartar, and Jose Antonio. In conclusion, the BANG® energy drink resulted in a significantly lower (i.e., faster) (p<0.05) psychomotor vigilance mean reaction time versus the placebo as well as fewer lapses. Both Creatyl-L-leucine and Creatyl-L-glutamine in certain BANG® products have been branded under the trademark SUPER CREATINE.

*8 This Interrogatory specifically seeks documents from third parties: “identify all bases supporting YOUR contention.” Propounding Party will not produce “all” DOCUMENTS that provide any bases or support for any contention(s) in response to this Interrogatory. Pursuant to Federal Rule of Civil Procedure 33(d), Defendant reserves the right to produce business records in this action from which the answer to the reasonable scope of this Interrogatory may be ascertained. The answer to this Interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing Responding Party business records (including electronically stored information), and the burden of deriving or ascertaining the answer will be substantially the same for either party. Responding Party will meet and confer with Propounding Party to narrow the scope of this Request so that the nonprivileged information in Responding Party's possession, custody, or control sufficient to respond to this Request is proportionate to the needs of this case and will be produced subject to a Protective Order. Specifically, Responding Party will continue to meet and confer with Propounding Party regarding ESI protocols, custodians, search terms, and date ranges.

Supplemental Response to SI No. 8:

VPX maintains the foregoing and previously asserted general and special objections and supplements its response in light of meet and confer efforts to resolve the discovery dispute between the parties, as follows:

The Parties have met and conferred as to email search terms and protocols and have agreed to review certain documents which appear targeted at this request and may be responsive to this Interrogatory, such as studies, etc. VPX is reviewing numerous documents and will supplement its rolling production and may supplement this Interrogatory if additional information is discovered. VPX maintains that Monster has the burden of proving all elements of each of the asserted causes of action. Monster has not done so. During meet and confer correspondence relating to this Interrogatory, while this Interrogatory does not seek information regarding the quantity of creatyl-l-leucine in BANG energy drinks, Monster claimed that the information regarding the quantity of creatyl-l-leucine and these interrogatories were relevant to claims 1-3 of the First Amended Complaint (FAC), which relate to claims of false advertising, specifically related to alleged statements made to consumers upon which those consumers would rely. In response to Paragraph 51 of the FAC, VPX responded that “Defendants admit Owoc has been asked on social media how much Super Creatine is in BANG® and that such is proprietary information.” Monster does not dispute that the BANG formula is a trade secret; in fact, Monster claims that its own formulas (e.g., REIGN) are trade secrets and such disclosure would harm the owner of the formula if such information was in the hands of a competitor. Monster does not allege that VPX has ever disclosed the formula for BANG or that any consumer has ever relied on any statements from VPX relating to the formula or quantities of ingredients, other than 300 mg of caffeine, in BANG. VPX maintains that its formula and the quantity of creatyl-l-leucine is proprietary and a valuable trade secret which Monster seeks for competitive reasons because VPX's BANG product is so successful that Monster introduced an almost identical product called REIGN with almost identical packaging, formula, and branding, which specifically targets and is directed to VPX's customers. In order to resolve discovery disputes during the discovery process in this case, VPX has disclosed through meet and confer efforts that the quantity of creatyl-l-leucine in a can of BANG® ready to drink cans of BANG® energy drinks with the reference to SUPER CREATINE® is less than 40 mg and caffeine is 300 mg. VPX has not disclosed the quantities of the other ingredients in BANG. VPX has not previously disclosed the quantity of creatyl-l-leucine in advertising or on the labels of its cans of BANG®, nor has VPX ever stated that there were more than 40 mg of creatyl-l-leucine in BANG® ready to drink cans. No competitors of VPX sell an energy drink with more creatyl-l-leucine than BANG. No consumers seeking a specific quantity of creatine in any form have been told by VPX how much creatyl-l-leucine is in the proprietary blend of BANG. Thus, no consumers could reasonably rely on such statements in advertisements (as VPX has not made those statements). In addition, no false statements of fact were made about the quantities of ingredients or their impact on consumers for this product, no consumer could have relied on or did rely on such statements, no statements deceived consumers or were likely to deceive consumers, and no alleged “deception” (as Monster alleges) was or would be material to a consumer. Further, Monster could not have been harmed by any statements relating to creatyl-l-leucine related to the BANG energy drink. As set forth through Dr. Li's Declaration and the patent, to VPX's knowledge, VPX is the first to use creatyl-l-leucine in an energy drink. To date, VPX is not aware of any competitors who have sold an energy drink containing creatyl-l-leucine. Upon information and belief, Monster has never made and does not sell an energy drink with creatyl-l-leucine or other form of creatine, even creatine monohydrate. See Monster Response to Request for Admission (“RFA”) Nos. 1-6 (RFA No. 1: “[M]onster admits that it has never released an energy drink product with Monster branding that contains creatine.”; RFA No. 2: “Monster admits that it has never released an energy drink product with Monster branding that contains creatyl-l-leucine.” Creatine supplements come in many forms in the marketplace and such supplements have been scientifically proven to provide positive health effects, including building muscle and strength and boosting athletic performance, and research has also shown that creatine supplements have the potential for helping with age-related neurological diseases, such as improving brain function and boosting memory. Dr. Li cites to some studies in his Declaration, other studies are available publicly, and studies that are responsive to Monster's proposed email search terms that are agreed upon by the parties will be reviewed and responsive, non-privileged documents will be produced. Further, there is no dispute that studies show that exercise, a healthy lifestyle, and low carbohydrate and low sugar diets can provide benefits (unlike many of Monster's energy drinks) can provide health benefits and new articles and studies come out all the time. See, e.g., an article dated today, October 30, 2019, in the Wall Street Journal, titled “The Link Between Diet, Exercise and Alzheimer's - A new study finds that lifestyle changes can improve cognition.” https://www.wsj.com/articles/the-link-between-dietexercise-and-alzheimers-11572427802. That article cites to a study released on October 30, 2019. The creatyl-l-leucine in a 16 oz. can of a BANG® energy drink is not intended to be a sole source of creatine and does not advertise that it is, but rather is a great tasting drink to add to a well-balanced diet that includes the consumption of other foods containing creatine, such as beef, chicken, pork, eggs, and fish. Further, Bang as a complete product with zero sugars and zero calories is a healthier option than most energy drinks manufactured by its competitors, including Monster, which contain large quantities of sugar, carbohydrates, and other more harmful ingredients. And, in addition to creatyl-l-leucine (Super Creatine), Bang contains many ingredients that have been characterized as providing positive health benefits, including caffeine, vitamins, electrolytes, CoQ10 and amino acids. In fact, as referenced above, a recent peer-reviewed double blind study of Bang RTD demonstrated that the BANG® energy drink resulted in a significantly lower (i.e., faster) (p<0.05) psychomotor vigilance mean reaction time versus the placebo as well as fewer lapses. VPX is not aware of any contentions VPX has made in this case or publicly about the quantity of the creatyl-l-leucine (Super Creatine) in a 16 oz. can of a BANG® energy drink or that the quantity of the creatyl-l-leucine (Super Creatine) in a 16-oz can “increases the circulating levels of creatine or creatinine in the human body” as phrased in this Interrogatory, or have specific health benefits except as compared to other energy drinks offered by competitors. In fact, Monster introduced a similar product called REIGN in order to compete with VPX in a category of drinks third parties call the performance energy category. See e.g., Monster's Motion for a Preliminary Injunction Exhibit C and D to Emilie Tirre's Declaration in support of Monster's Motion, ECF 67-6. Below is an excerpt from Exhibit C, page 24 of 27, showing Reign's description of ingredients mirroring BANG's description. [Table omitted.]

*9 Further in Exhibit D to Tirre's Declaration, Monster cites to a report from Guggenheim which claims that “Monster has one of the most attractive long-term growth algorithms in our Food and Beverage coverage as we expect organic sales and EPS CAGR of 10% and 14%, respectively. The sustainable growth outlook is supported by ... 3) innovation in energy-adjacent segments such as coffee and “performance energy” with REIGN ...” Monster's counsel stated during meet and confer correspondence that certain paragraphs of the [FAC] were the basis of Monster's Interrogatories Nos. 4, 7, and 8, specifically paragraphs 46 to 48 of the [FAC]. Paragraphs 46-48 of the FAC, however, do not provide any context for where those statements come from, none of these alleged statements are full quotes, and Monster provided no citations to where these statements were made. As such, it does not appear from the quoted language or the descriptions made by Monster in Paragraphs 46 to 48 that these statements are about any specific health effects of creatyl-l-leucine in a can of BANG ready to drink energy drinks or related to the quantity of creatyl-l-leucine in a can. Monster does not allege that these statements were made in public, to consumers, or in advertisements. The fact that those statements are not in quotes indicates that the statements are taken out of context and that none of them are about Super Creatine when considered in context. Further, as stated in the prior objections, there is no evidence from Monster or its experts that any of these statements are false. VPX has already addressed and denied many of these statements in a post on its website: https://bang-energy.com/blog/ca-based-monster-energy-file-third-frivolouslawsuit-against-vpx/, including the following statement by Jack Owoc addressing numerous false allegations in Monster's Complaint: “I never claim that Bang can reverse intellectual disability and help cure diseases such as Alzheimer's, Parkinson's, Huntington's and other forms of dementia. Bang is infinitely safer and healthier than Monster – consumption of Monster is associated with 17 deaths, heart attack, heartbeat irregularities and countless adverse event reports.”

Fed. R. Civ. P. 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L.Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense' and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)).