Case 1:17-cv-00868-CFC-SRF Document 144 Filed 05/05/20 Page 1 of 2 PageID #: 4884
`
`
`Frederick L. Cottrell III
`302-651-7509
`Cottrell@rlf.com
`
`May 5, 2020
`
`
`VIA CM/ECF
`The Honorable Sherry R. Fallon
`District Court of Delaware
`
`J. Caleb Boggs Federal Building
`Wilmington, DE 19801-3567
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CONFIDENTIAL --
`FILED UNDER SEAL
`
`Re: University of Massachusetts and Carmel Laboratories, LLC. v. L’Oréal USA, Inc.,
`C.A. No. 17-868-CFC-SRF
`
`Dear Judge Fallon:
`
`Defendant L’Oréal USA, Inc. (“L’Oréal USA”) by letter motion hereby requests an 11-
`day extension, until May 19, 2020, to file Objections to one of the rulings issued by the Court
`during the April 24, 2020 discovery teleconference. (See Ex. A, 126:12-23.) See Standing Order
`for Objections Filed Under Fed. R. Civ. P. 72 (D. Del.) ¶ 6 (“[A]pplications for extension of time
`to file or respond to objections shall be reviewed by the Magistrate Judge.”). L’Oréal USA has
`asked Plaintiffs to agree to this extension, but they are unwilling to do so.
`
`During the April 24, 2020 discovery teleconference, the Court addressed Plaintiffs’
`renewed request for documents relating to an FTC investigation involving some of the accused
`products. The Court granted Plaintiffs’ request “to compel the production of documents
`responsive to requests for production number 65,” which the Court viewed as “limited to the
`single 2014 FTC investigation cited by the plaintiff in their letter brief, including the internal and
`external communications regarding the specific FTC investigation.”1 (Id. at 113:1-8.) The Court
`ordered that L’Oréal USA produce these documents by May 8, 2020, but “le[ft] it to the parties
`to meet and confer if L’Oréal is unable to meet that deadline due to global circumstance or
`national health emergency circumstances beyond its control.” (Id. at 113:8-14.) The Court also
`stated that it was not ordering the production of privileged documents. (Id. at 113:15-24.)
`
`Pursuant to the Court’s instructions, L’Oréal USA reached out to Plaintiffs to discuss the
`logistical complications related to the production of any responsive documents (which are in the
`possession of L’Oréal USA’s counsel at that time, Debevoise and Plimpton LLP) during the
`current shelter-at-home orders. L’Oréal USA explained that the current shelter-at-home orders
`would make it impossible to produce the documents by May 8, 2020. Further, notwithstanding
`the limitation of the Request to the multi-year FTC investigation that concluded in 2014, the
`volume of documents implicated by the Order also makes it impossible to complete a review of
`any documents by L’Oréal USA’s current counsel for production by May 8th. The Court’s ruling
`may also raise privilege questions that L’Oréal USA would seek to clarify with the Court during
`
`
`1 While Plaintiffs asserted that they were “limiting” their (previously denied without prejudice)
`Request for Production No. 65 (the “Request”) to a single FTC investigation, they did not, in
`actuality, narrow the Request at all, as the FTC investigation in question is the only investigation
`
`that was ever implicated by the Request.
`
`
`
`
`
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 144 Filed 05/05/20 Page 2 of 2 PageID #: 4885
`The Honorable Sherry R. Fallon
`May 5, 2020
`Page 2
`
`the upcoming May 18, 2020 discovery teleconference, including the timing for the production of
`a privilege log, given the vast amount of documents that may need to be reviewed and added to
`the log. As the discussion with this Court may obviate the need to file Objections, L’Oréal USA
`requests an extension, until May 19, 2020, to file any such Objections.
`
`Counsel for L’Oréal USA continues to assess the matter, and has shared much
`information with opposing counsel on the issue. What counsel for L’Oréal USA can say at this
`time is that it is informed and believes there may be an opportunity to access through L’Oréal
`USA’s former counsel external communications with the FTC regarding the FTC’s investigation.
`L’Oréal USA is willing to produce this correspondence once reviewed, if it can be obtained
`subject to the protective order. (D.I. 48.) There is also believed to be a collection of documents
`maintained electronically that are source documents for the aforementioned communications
`with the FTC that should be able to be accessed by L’Oréal USA’s former counsel and
`transmitted to L’Oréal USA’s current counsel for review. We do not presently know the precise
`volume of these documents, or when they can be received by L’Oréal USA’s current counsel for
`potential review and production. However, we would be in a position to advise the Court of this
`by the conference on May 18th.
`
`We understand counsel for Plaintiffs to be interested in these underlying documents as
`well as the correspondence, irrespective of the burden of production on L’Oréal USA’s current
`counsel,2 even if it requires review of hundreds of thousands of pages of material. We would be
`prepared to represent the magnitude of this review at the time of the conference on May 18th as
`well, so the Court could assist the parties in answering the question of the timing of the
`completion of that review and the production of any privilege log related thereto.
`
`As such, L’Oréal USA respectfully requests an 11-day extension, until May 19, 2020, to
`file Objections to one of the rulings issued by the Court during the April 24, 2020 discovery
`teleconference, and respectfully requests that the Court rule on L’Oréal USA’s request prior to
`the current deadline to file Objections, May 8, 2020.
`
`Respectfully,
`
`/s/ Frederick L. Cottrell, III
`
`Frederick L. Cottrell, III (#2555)
`
`
`cc: Counsel of Record (via CM/ECF and E-Mail)
`
`
`
`
`2 Counsel for L’Oréal USA noted the potential “burden to L’Oréal to have to go look for
`[documents relating to] a six year old investigation” during the April 24th discovery
`teleconference, which has since been determined to be significant. (See Ex. A at 111:22-112:11.)
`
`
`
`