`Case 1:17-cv-00868—CFC-SRF Document 144-1 Filed 05/05/20 Page 1 of 5 PageID #: 4886
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`EXHIBIT A
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`EXHIBIT A
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`Case 1:17-cv-00868-CFC-SRF Document 144-1 Filed 05/05/20 Page 2 of 5 PageID #: 4887
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` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
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`UNIVERSITY OF MASSACHUSETTS )
`MEDICAL SCHOOL and CARMEL )
`LABORATORIES, LLC, )
` )
` Plaintiffs, ) C.A. No.17-868-CFC-SRF
` )
`v. )
` )
`L'OREAL S.A. and L'OREAL )
`USA, INC., )
` )
` Defendants. )
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`Friday, April 24, 2020
`11:00 a.m.
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`844 King Street
`Wilmington, Delaware
`
`BEFORE: THE HONORABLE SHERRY R. FALLON
` United States District Court Judge
`
`
`
`
`
`APPEARANCES:
`FARNAN LLP
`BY: BRIAN FARNAN, ESQ.
` -and-
` SUSMAN GODFREY, LLP
` BY: JUSTIN A. NELSON, ESQ.
` BY: TAMAR LUSZTIG, ESQ.
` BY: BEATRICE FRANKLIN, ESQ.
`
`Counsel for the Plaintiffs
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`
`
`
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
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`THE COURT: Good morning,
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`everyone. It's Magistrate Judge Sherry Fallon.
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`I'm prepared to address the discovery dispute in
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`U Mass versus L'Oreal. Let me find out who is
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`on the call. First, do we have our court
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`stenographer, Ms. Gunning?
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`COURT REPORTER: Yes. This is
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`Stacy Ingram from Hawkins, Your Honor.
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`THE COURT: Oh, sorry, Stacy. I
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`was informed it might be Val Gunning. Thank you
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`for being available this morning. Is my law
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`clerk, Ms. Polito, on the line?
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`LAW CLERK: Yes, Judge, I'm on the
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`line.
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`THE COURT: All right. Thank you.
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`And let's start with appearances of counsel for
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`the University of Massachusetts, et al. Who is
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`on the line starting with Delaware counsel?
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`MR. FARNAN: Good morning, Your
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`Honor. Brian Farnan on behalf of the plaintiff
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`and with me is Justin Nelson, Tamar Lusztig and
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`Beatrice Franklin, all from Susman Godfrey.
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`THE COURT: All right. And who is
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`on the line for L'Oreal?
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`Hawkins Reporting Service
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`112 Burning Tree Road - Dover, Delaware 19904
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`(302) 658-6697 FAX (302) 658-8418
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`MS. MOWERY: Good morning, Your
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`Honor. This is Kate Mowery from Richards,
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`Layton & Finger on the line for L'Oreal USA. I
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`have Fred Cottrell on the line as well from my
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`office and then Isaac Ashkenazi from Paul
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`Hastings and Katherine Murray from Browne George
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`Ross.
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`Honor.
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`MS. MURRAY: Good morning, Your
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`THE COURT: Good morning,
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`everyone. Just making my notes here. I'll just
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`remind everyone, you're probably familiar with
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`this from the last time we did the call, but
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`please announce your name before you start
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`speaking. Since there is a slight delay since
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`we're all remotely connected, please speak
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`slowly so that the court stenographer can make
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`an accurate record of our proceedings today and
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`if you're not speaking, keep your phone on mute
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`so there aren't any outside or extraneous noises
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`interrupting or obscuring the audio on those who
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`are speaking. If you're going to cite to any
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`particular exhibits, the filings that I received
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`for this dispute were rather lengthy, just give
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`Hawkins Reporting Service
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`112 Burning Tree Road - Dover, Delaware 19904
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`(302) 658-6697 FAX (302) 658-8418
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`APPEARANCES CONTINUED:
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` RICHARDS, LAYTON & FINGER, P.A.
` BY: KATHERINE MOWERY, ESQ.
` BY: FRED COTTRELL, ESQ.
`
` -and-
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` PAUL HASTINGS,
` BY: ISAAC ASHKENAZI, ESQ.
`
` -and-
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` BROWNE GEORGE ROSS, LLP
` BY: KATHERINE MURRAY, ESQ.
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` Counsel for the Defendants
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`Case 1:17-cv-00868-CFC-SRF Document 144-1 Filed 05/05/20 Page 3 of 5 PageID #: 4888
`109
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`you're still looking until it gets to the point
`governmental investigations to one particular
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`where you've done everything you can to find the
`FTC investigation that included alleged
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`underlying research, the document from the
`misstatements on the L'Oreal Paris line and the
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`research conducted by Abella and you cannot find
`Lancome Gentifique line that related to these
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`anything more.
`anti-aging claims. And as part of the
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`MR. ASHKENAZI: Your Honor, I
`settlement agreement for any now statement that
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`think that does make sense. I just want to
`they make publicly they have to have a
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`point out that, you know, it's not as if we
`scientific basis for that. And obviously we
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`haven't given -- produced any document on
`want to explore whether in telling the fTC or in
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`Abella. If there's a document that they said
`their internal communications about this
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`we've included in our website, I believe one of
`investigation or about their claims for it,
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`the exhibits we were discussing earlier today
`whether they're relying on adenosine to support
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`referenced the study that was to do with Abella.
`anti-aging properties of their lotions. And so
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`It's not as if we haven't produced anything,
`that is what we have specifically narrowed it
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`they're just asking for more. We will do that.
`down to. We don't think it's cumulative.
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`I believe, Your, Honor a status report that we
`Obviously it's relevant to the importance of the
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`could provide to them in two weeks and we will
`invention, the importance of the products. And
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`endeavor to do as much as we can and get it done
`they've not done anything with that and said
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`as fast as we can to get them the information.
`they're not going to do it and said it's
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`THE COURT: All right. Then in
`cumulative. I think it's actually well
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`that respect, the request is granted and I'll
`proffered.
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`instruct L'Oreal to proceed as we've done.
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`MR. ASHKENAZI: Your Honor, if I
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`can, just on that point, the request that -- the
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
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`order, just so we're clear on the request, it's
`to find additional documents that may be
`relevant to the study regarding the Abella
`study?
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`THE COURT: L'Oreal, response? THE COURT: L'Oreal, response?
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`MS. MURRAY: This is Kathy Murray, MS. MURRAY: This is Kathy Murray,
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`Your Honor. So based on our meet and confers Your Honor. So based on our meet and confers
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
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`what they're looking for is what L'Oreal said
`what they're looking for is what L'Oreal said
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`about these products. And that is what we've about these products. And that is what we've
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`given them. We've given them the marketing for given them. We've given them the marketing for
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`these products, we've given them the underlying these products, we've given them the underlying
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`testing that supported those claims. So it's a testing that supported those claims. So it's a
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`burden to L'Oreal to have to go look for a six burden to L'Oreal to have to go look for a six
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`year old investigation relating to claims made year old investigation relating to claims made
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`about the products and representations made about the products and representations made
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`about the products and the underlying science about the products and the underlying science
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`behind the products when all those underlying behind the products when all those underlying
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`products have already been produced in the case.products have already been produced in the case.
`MR. NELSON: Response, Your Honor?
`THE COURT: Go ahead.
`MR. NELSON: Obviously that goes
`to some of the other underlying issue -- what
`they say specifically about the FTC
`investigation and the misleading claim that's
`alleged by the FTC and what supports those
`claims is not cumulative of what would be
`produced except for what's in that investigation
`or communications about that investigation.
`THE COURT: All right. Anything
`further, Ms. Murray?
`MS. MURRAY: No, Your Honor.
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`112 Burning Tree Road - Dover, Delaware 19904
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`THE COURT: The study or the
`actual research conducted by Abella.
`MR. ASHKENAZI: Okay. Thank you
`very much.
`THE COURT: All right. Did I get
`that right, Ms. Lusztig?
`MS. LUSZTIG: Yes, Your Honor.
`THE COURT: All right. The next
`issue is this FTC investigation. Again, I was
`concerned about it being overbroad with respect
`to agency investigations that were requested by
`plaintiffs at the last hearing. I understand
`that now plaintiff has made an effort to correct
`the concern that the Court had previously. Let
`me hear from plaintiffs on what has been done in
`that respect and then I'll hear from L'Oreal.
`MR. NELSON: Yes, Your Honor.
`This is Justin Nelson. We, as Your Honor
`instructed, went back and took guidance from
`Your Honor and narrowed the request from all
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`(302) 658-6697 FAX (302) 658-8418
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`MS. MURRAY: Okay.
`MR. NELSON: Thank you, Your
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`Honor.
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`Case 1:17-cv-00868-CFC-SRF Document 144-1 Filed 05/05/20 Page 4 of 5 PageID #: 4889
`113
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`THE COURT: On this request, I
`I'm not inclined to, you know, rule on whether
`THE COURT: On this request, I
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`will grant plaintiffs' request to compel the will grant plaintiffs' request to compel the
`or not the defendant should have done it sooner
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`production of documents responsive to requests production of documents responsive to requests
`or if they do it now it should be precluded.
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`for production number 65 limited to the single for production number 65 limited to the single
`I'd rather, you know, if this is still an issue,
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`2014 FTC investigation cited by the plaintiff in 2014 FTC investigation cited by the plaintiff in
`if the parties can't work out what narrow
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`their letter brief, including the internal and their letter brief, including the internal and
`background information, whatever that consists
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`external communications regarding the specific external communications regarding the specific
`of plaintiff is to produce about the carmelites
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`FTC investigation. And I'll order that to be FTC investigation. And I'll order that to be.
`and any subsequent discovery that issues,
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`produced within two weeks of the date of this produced within two weeks of the date of this
`there's going to be a response to it at some
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`conference. Again, leaving it to the parties to conference. Again, leaving it to the parties to
`point and if there are deficient -- allegations
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`meet and confer if L'Oreal is unable to meet meet and confer if L'Oreal is unable to meet
`of deficiencies in that response, shouldn't the
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`that deadline due to global circumstances or that deadline due to global circumstances or
`Court take it up in that time rather than this
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`national health emergency circumstances beyond national health emergency circumstances beyond
`time? I mean technically discovery hasn't
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`its control. That is my ruling.its control. That is my ruling.
`closed, so even if the defendants didn't pursue
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`MS. MURRAY: Could I clarify? MS. MURRAY: Could I clarify?
`that discovery in the time frame the Court
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`THE COURT: Go ahead.THE COURT: Go ahead.
`originally had in mind, technically there's time
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`MS. MURRAY: It wouldn't include MS. MURRAY: It wouldn't include
`to do it before discovery closes or maybe not.
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`any privileged issues, any privileged documents. any privileged issues, any privileged documents.
`I don't know what the official deadline is in
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`THE COURT: Any privileged THE COURT: Any privileged
`May, if there's a 30-day turnaround time for the
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`documents create a privilege log. No, I'm not documents create a privilege log. No, I'm not
`discovery to be answered, but this is a
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`saying there's a waiver of privilege without saying there's a waiver of privilege without
`long-winded way of saying I don't think this
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`knowing what documents, if any, additional knowing what documents, if any, additional
`issue is ripe for me. And I addressed it at the
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`exist. I'm not making any -- I'm not previewing exist. I'm not making any -- I'm not previewing
`last conference. What is the problem still?
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`any waiver of privilege.any waiver of privilege.
`Let me hear from L'Oreal.
`Hawkins Reporting Service
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
`(302) 658-6697 FAX (302) 658-8418
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`MS. MURRAY: This is Kathy Murray.
`I think we can just give you a quick response.
`We put it in here because the Court wanted to
`know what was lingering from the last to give
`you a status check, but basically we did reach
`out, we agreed to edit the stipulation. We sent
`that, but they pulled back a lot on what they're
`willing or not willing to do with the
`stipulation. So, you know, they want to be able
`to say talk about Teresian carmelites as trial,
`but they don't want it to go into other issues
`about Teresian Carmelites, so they want to be
`able to say what's helpful to them, but prevent
`us from taking discovery. So we're at an
`impasse on the stipulation. And we did, because
`we -- and we were trying to reach an agreement
`on the stipulation. It didn't happen. As a
`result of that, we did serve a discovery. We
`didn't serve it immediately because we were
`hoping to reach agreement on a stip, but it just
`didn't happen. So we have served that
`discovery. If they want to bring Teresian
`Carmelites to trial, then we want to get
`discovery on those issues. We served that
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
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`THE COURT: All right. Then that
`leads us to, I guess, an issue back to the
`Teresian Carmelites, which honestly I read with
`both sides on this and I thought I had fixed
`this at the last conference and then I guess
`L'Oreal, and again, I'll hear from the parties
`if I'm paraphrasing incorrectly. The way I read
`the papers was L'Oreal never quite took up my,
`you know, offer, I suppose you could call it
`that, or direction, to send a more streamlined
`request for what it was seeking to the, you
`know, to kind of frame what the plaintiff might
`possibly want to introduce when the plaintiffs
`referred to just simple background information
`at trial. And now, having plaintiffs brought
`it -- having it be brought to the attention of
`the Court again by the plaintiffs, defendants
`say, well, you know, now we'll go ahead and, you
`know, take the Court up on its directive to give
`you another request for production. Where does
`this stand? Because I don't think it's ripe and
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
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`thank you.
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`THE COURT: Anything further from
`the defendants?
`MS. MURRAY: No, Your Honor.
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`Thank you.
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`THE COURT: All right. Everyone
`continue to be safe, take your precautions and
`perhaps we'll be discussing issues again on May
`18th. Take care. We're adjourned.
`(End at 1:32 p.m.)
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`MR. ASHKENAZI: No, Your Honor,
`time, availability on May 15th, which is a
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`Friday three weeks from now.
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`MR. ASHKENAZI: Your Honor, this
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`is Isaac Ashkenazi for L'Oreal. I just wonder
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`if we're going to be submitting stuff to them by
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`Friday the 8th, if we're going to -- the 15th,
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`you know, makes sense, it's a week later, except
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`when we have to brief things and then that means
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`we're going to be briefing things before there's
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`meet and confers. It just doesn't make much
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`sense. I think we go into the beginning of the
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`following week.
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`THE COURT: Monday the 18th?
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`MR. NELSON: This is Justin Nelson
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`again. That works for plaintiffs, Your Honor.
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`THE COURT: All right.
`MR. ASHKENAZI: I should ask my
`colleague, Ms. Murray, if the 18th makes sense.
`MS. MURRAY: Yeah, that's fine.
`THE COURT: Okay. Same time,
`should we start at 11?
`MR. ASHKENAZI: That works with
`plaintiffs. We're at the discretion of Your
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
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`Honor.
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`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
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`State of Delaware)
` )
`New Castle County)
`
`128
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` CERTIFICATE OF REPORTER
`
` I, Stacy M. Ingram, Certified Court Reporter
`and Notary Public, do hereby certify that the
`foregoing record, Pages 1 to 128 inclusive, is a true
`and accurate transcript of my stenographic notes
`taken on April 24, 2020, in the above-captioned
`matter.
`
` IN WITNESS WHEREOF, I have hereunto set my
`hand and seal this 24th day of April 2020, at
`Wilmington.
`
` /s/ Stacy M. Ingram
` Stacy M. Ingram, CCR
`
`
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`THE COURT: I'll put it down for
`11. This way it gives the parties some time in
`the morning to continue to talk if there's some
`issues that can come off. So 11 seems to be a
`time that's available on my calendar, so May
`18th at 11. And if the parties don't need it,
`then I invite all of you to tip me off and let
`me know that it can come off the calendar but it
`is -- if it's needed it will be Monday, May 18th
`at 11 and I'll put a note on the docket.
`Otherwise, as you're familiar with
`Otherwise, as you're familiar with
`all my rulings from the bench on this transcript
`all my rulings from the bench on this transcript
`are made under rule 72A of the federal rules of
`are made under rule 72A of the federal rules of
`civil procedure. They are non-dispositive
`civil procedure. They are non-dispositive
`rulings and the parties may take up timely
`rulings and the parties may take up timely
`objections to Judge Connolly and he will review
`objections to Judge Connolly and he will review
`my orders to determine whether they're clearly
`my orders to determine whether they're clearly
`erroneous or contrary to law. I will not be
`erroneous or contrary to law. I will not be
`issuing a separate written memorandum opinion
`issuing a separate written memorandum opinion
`and order. My bench rulings will be stated as
`and order. My bench rulings will be stated as
`they are on the transcript and that will serve
`they are on the transcript and that will serve
`as the order of the Court.
`as the order of the Court. So with that, is
`there anything further from plaintiffs?
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
`04/30/2020 02:54:00 AM
`
`