Case 1:17-cv-00868-CFC-SRF Document 124 Filed 04/21/20 Page 1 of 3 PageID #: 4240
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`Frederick L. Cottrell III
`302-651-7509
`Cottrell@rlf.com
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`April 21, 2020
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`VIA CM/ECF
`The Honorable Sherry R. Fallon
`District Court of Delaware
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`J. Caleb Boggs Federal Building
`Wilmington, DE 19801-3567
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`Re: University of Massachusetts and Carmel Laboratories, LLC v. L’Oréal USA, Inc.,
`C.A. No. 17-868-CFC-SRF
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`Dear Judge Fallon:
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`Defendant L’Oréal USA, Inc. (“L’Oréal USA”) writes to address the issues discussed
`during the parties’ March 26, 2020 teleconference, as outlined in the parties’ Motion to Resolve
`Discovery Dispute (D.I. 118), pursuant to the Court’s order (D.I. 118).
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`1.
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`Plaintiffs’ Request for the Production of Further Marketing Documents
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`While Plaintiffs requested briefing regarding their Request for Production Nos. 31, 40,
`41, 42, 44, 45, 51, 62, 66, and 67 (D.I. 118 at 1), the parties did not address these specific
`requests during the March 26, 2020 teleconference. Rather, the parties discussed Plaintiffs’
`general request for additional marketing documents. After L’Oréal USA explained that it had
`completed its production of marketing materials pursuant to both Paragraph 6 of the Scheduling
`Order, and the parties’ October 2019 agreement, the Court denied Plaintiffs’ request, holding
`that:
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`[W]e have a scheduling order that puts into place certain
`requirements on production of different categories of documents.
`In addition to that, the parties appear to have reached an agreement
`in October of 2019 regarding the production of such materials and
`L’Oréal has represented that it has produced all documents subject
`to that agreement.
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`This dispute is rather a speculative one in some respects in that the
`plaintiffs want, are seeking a very general and broad order that
`allows them to basically go on a fishing expedition with respect to,
`quote unquote, “all documents” in order to sort out what it is they
`feel they don’t have but can’t really articulate to the Court what’s
`missing.
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`(Ex. A at 39:1-14 (Mar. 26 Hearing Tr.).) The Court ordered that the parties engage in further
`meet-and-confer discussions, directing that, “if the plaintiffs believe that there is something that
`is missing, they need to articulate it in the best fashion that they can to the defendants so the
`defendants can look for it or say we don’t have it, or if you look in Bates numbers blank through
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`Case 1:17-cv-00868-CFC-SRF Document 124 Filed 04/21/20 Page 2 of 3 PageID #: 4241
`The Honorable Sherry R. Fallon
`April 21, 2020
`Page 2
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`blank, you’ll find that we already produced it.” (Id. at 40:2-6.)
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`During a meet and confer on April 14, 2020, Plaintiffs clarified that they were seeking
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`launch books for the accused products. L’Oréal USA explained that it had produced launch
`books for many of the accused products already, and requested that Plaintiffs provide a list of
`products for which they contend launch books are missing. Plaintiffs provided L’Oréal USA
`with that list on April 15, 2020. (Ex. B at 1-2 (April 15 T. Lusztig Email to Counsel).) L’Oréal
`USA is investigating Plaintiffs’ request and will produce any additional launch books that exist
`for the products specified in Plaintiffs’ April 15th email that it is able to locate.
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`2.
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`Plaintiffs’ Request for the Production of Further Testing Materials
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`As discussed repeatedly with Plaintiffs and during the March 26, 2020 conference,
`L’Oréal USA has already produced the testing documents for every properly accused product it
`has been able to locate after a reasonable search, and, in previous correspondence on this issue,
`specifically identified the Bates ranges of those testing documents for many of the products
`about which Plaintiffs continue to complain. (See, e.g., Ex. C at 2 (April 7 S. Polatoglu Email to
`Counsel).)
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`Regarding L’Oréal USA’s production of adenosine-related basic research documents,
`L’Oréal USA has produced such documents from its central report repository. During a meet
`and confer on April 14, Plaintiffs identified their particular interest in documents underlying a
`2006 publication by M.L. Abella in the peer-reviewed International Journal of Cosmetic Science
`(Ex. D).1 L’Oréal USA explained that its general search for adenosine-related documents would
`have captured the available documents relating to that study, as demonstrated by the summaries
`of and references to that study in documents already produced. Plaintiffs were unable to
`articulate a reason why the methodology and results laid out in the publication itself were
`insufficient for them to understand the study, or why additional documents would not be
`cumulative over that study. Nonetheless, L’Oréal USA agreed to make reasonable efforts to
`identify additional documents that may be relevant to this study.
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`3.
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`Plaintiffs’ Request for the Production of Documents Regarding the FTC
`Investigation into the Accused Products
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`The Court denied Plaintiffs’ request for documents responsive to Plaintiffs’ Request for
`Production No. 65 during the March 26, 2020 conference, which broadly sought documents
`concerning “any representations [L’Oréal USA] made about the marketing or testing of the
`Accused Products.” (D.I. 103 at 4.) The Court held that this Request was cumulative, as it
`sought the “cumulative production of documents that have already been produced by L’Oréal
`with regard to testing and marketing of products.” (Ex. A at 78:1-4 (Mar. 26 Hearing Tr.).) The
`Court further held that this Request sought irrelevant information, and was not proportional to
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`1 Unlike the insufficient testing documents produced by Plaintiffs (see D.I. 121), this publicly
`available article that was subject to a peer-review process provides information regarding the
`experiments reported therein, including the rationale for the experiments, a detailed discussion
`on the subjects and methods involved in the experiment, detailed information regarding the
`results (including graphs of the data), and a discussion of those results.
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`Case 1:17-cv-00868-CFC-SRF Document 124 Filed 04/21/20 Page 3 of 3 PageID #: 4242
`The Honorable Sherry R. Fallon
`April 21, 2020
`Page 3
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`the needs of the case. Indeed, the Court found that Plaintiffs were essentially requesting “a
`general blanket approval of a request for all documents from all interactions with all government
`entities or agencies”—i.e., a license to conduct a “fishing expedition.” (Id. at 78:8.)
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`The Court provided that, “to the extent that plaintiffs are aware of a federal investigation
`and have a reasonable belief that the document production from L’Oréal does not address
`documents that were produced in connection with that federal investigation in which plaintiffs
`can make a showing are relevant and reasonably proportional to the needs of the case,” Plaintiffs
`could renew their request for a narrowed subset of documents sought by this Request. But
`Plaintiffs have not met this burden. (Id. at 78:9-17.) Plaintiffs have not meaningfully narrowed
`their request, as they continue to seek documents regarding FTC investigations into every
`Accused Product. (D.I. 118 at 1.) Moreover, even if Plaintiffs had narrowed their request to
`seek only documents pertaining to an investigation of a single product or line of products—the
`L’Oréal USA Paris Youth Code products—they cannot demonstrate that such a request is non-
`cumulative. L’Oréal USA has already produced the underlying marketing materials for those
`products, as well as the testing documents that support the marketing claims made therein.
`Forcing L’Oréal USA to search for communications relating to an investigation that does not
`relate to the claims made in this litigation, and that was resolved nearly six years ago, is not
`proportionate to the needs of the case.
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`4.
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`The Parties’ Stipulation Regarding the Teresian Carmelites
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`The parties have been meeting and conferring regarding a stipulation that addresses
`information, if any, regarding the Teresian Carmelites that is admissible in this case. During a
`meet and confer on April 20, 2020, the parties reached an impasse on this issue and were unable
`to agree to a stipulation. As such, L’Oréal USA will serve discovery on this issue per the Court’s
`March 26, 2020 Order.
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`5.
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`The Case Schedule
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`Despite Plaintiffs’ representation to the Court that they “are going to be more than
`reasonable to accommodate any type of discovery extension or other manner to accommodate
`the challenges that [the health crisis] is going to impose on all of us” (Ex. A at 82:17-20 (Mar. 26
`Hearing Tr.)), Plaintiffs have refused to work with L’Oréal USA on necessary extensions of the
`case schedule.
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`Respectfully,
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`/s/ Frederick L. Cottrell, III
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`Frederick L. Cottrell, III (#2555)
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`cc: Counsel of Record (via CM/ECF and E-Mail)
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