Case 1:17-cv-00868-CFC-SRF Document 154 Filed 05/12/20 Page 1 of 7 PageID #: 4970
`
`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
`
`PUBLIC REDACTED VERSION
`
`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
` FTC investigation
` the
` 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 154 Filed 05/12/20 Page 2 of 7 PageID #: 4971
`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,
`
` 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
`
`
`
` 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
` irrespective of the burden of production on L’Oréal USA’s current
`counsel,2
` 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.)
`
`
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 154 Filed 05/12/20 Page 3 of 7 PageID #: 4972
`Case 1:17-cv-00868—CFC-SRF Document 154 Filed 05/12/20 Page 3 of 7 PageID #: 4972
`
`EXHIBIT A
`
`EXHIBIT A
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 154 Filed 05/12/20 Page 4 of 7 PageID #: 4973
`1
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`3
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` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
`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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`
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`
`
`Friday, April 24, 2020
`11:00 a.m.
`
`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
`
`
`
`
`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.
`
`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
`
`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
`
`have Fred Cottrell on the line as well from my
`
`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.
`
`MS. MURRAY: Good morning, Your
`
`THE COURT: Good morning,
`
`everyone. Just making my notes here. I'll just
`
`remind everyone, you're probably familiar with
`
`this from the last time we did the call, but
`
`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
`
`an accurate record of our proceedings today and
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`if you're not speaking, keep your phone on mute
`
`so there aren't any outside or extraneous noises
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`interrupting or obscuring the audio on those who
`
`are speaking. If you're going to cite to any
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`particular exhibits, the filings that I received
`
`for this dispute were rather lengthy, just give
`
`Hawkins Reporting Service
`
`112 Burning Tree Road - Dover, Delaware 19904
`
`(302) 658-6697 FAX (302) 658-8418
`
`APPEARANCES CONTINUED:
`
` RICHARDS, LAYTON & FINGER, P.A.
` BY: KATHERINE MOWERY, ESQ.
` BY: FRED COTTRELL, ESQ.
`
` -and-
`
` PAUL HASTINGS,
` BY: ISAAC ASHKENAZI, ESQ.
`
` -and-
`
` BROWNE GEORGE ROSS, LLP
` BY: KATHERINE MURRAY, ESQ.
`
` Counsel for the Defendants
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`(302) 658-6697 FAX (302) 658-8418
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`1 of 49 sheets
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`04/30/2020 02:54:00 AM
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`Case 1:17-cv-00868-CFC-SRF Document 154 Filed 05/12/20 Page 5 of 7 PageID #: 4974
`109
`111
`1
`you're still looking until it gets to the point
`governmental investigations to one particular
`2
`where you've done everything you can to find the
`FTC investigation that included alleged
`3
`underlying research, the document from the
`misstatements on the L'Oreal Paris line and the
`4
`research conducted by Abella and you cannot find
`Lancome Gentifique line that related to these
`5
`anything more.
`anti-aging claims. And as part of the
`6
`MR. ASHKENAZI: Your Honor, I
`settlement agreement for any now statement that
`7
`think that does make sense. I just want to
`they make publicly they have to have a
`8
`point out that, you know, it's not as if we
`scientific basis for that. And obviously we
`9
`haven't given -- produced any document on
`want to explore whether in telling the fTC or in
`10
`Abella. If there's a document that they said
`their internal communications about this
`11
`we've included in our website, I believe one of
`investigation or about their claims for it,
`12
`the exhibits we were discussing earlier today
`whether they're relying on adenosine to support
`13
`referenced the study that was to do with Abella.
`anti-aging properties of their lotions. And so
`14
`It's not as if we haven't produced anything,
`that is what we have specifically narrowed it
`15
`they're just asking for more. We will do that.
`down to. We don't think it's cumulative.
`16
`I believe, Your, Honor a status report that we
`Obviously it's relevant to the importance of the
`17
`could provide to them in two weeks and we will
`invention, the importance of the products. And
`18
`endeavor to do as much as we can and get it done
`they've not done anything with that and said
`19
`as fast as we can to get them the information.
`they're not going to do it and said it's
`20
`THE COURT: All right. Then in
`cumulative. I think it's actually well
`21
`that respect, the request is granted and I'll
`proffered.
`22
`instruct L'Oreal to proceed as we've done.
`
`2323
`MR. ASHKENAZI: Your Honor, if I
`
`2424
`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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`THE COURT: L'Oreal, response? THE COURT: L'Oreal, response?
`
`MS. MURRAY: This is Kathy Murray, MS. MURRAY: This is Kathy Murray,
`
`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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`110
`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: 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
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
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`112
`what they're looking for is what L'Oreal said
`what they're looking for is what L'Oreal said
`
`about these products. And that is what we've about these products. And that is what we've
`
`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
`
`testing that supported those claims. So it's a testing that supported those claims. So it's a
`
`burden to L'Oreal to have to go look for a six burden to L'Oreal to have to go look for a six
`
`year old investigation relating to claims made year old investigation relating to claims made
`
`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.
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
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`

`Case 1:17-cv-00868-CFC-SRF Document 154 Filed 05/12/20 Page 6 of 7 PageID #: 4975
`113
`115
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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
`2
`
`will grant plaintiffs' request to compel the will grant plaintiffs' request to compel the
`or not the defendant should have done it sooner
`3
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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.
`4
`
`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,
`5
`
`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
`6
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`their letter brief, including the internal and their letter brief, including the internal and
`background information, whatever that consists
`7
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`external communications regarding the specific external communications regarding the specific
`of plaintiff is to produce about the carmelites
`8
`
`
`
`FTC investigation. And I'll order that to be FTC investigation. And I'll order that to be.
`and any subsequent discovery that issues,
`9
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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
`10
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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
`11
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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
`12
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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
`13
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`national health emergency circumstances beyond national health emergency circumstances beyond
`time? I mean technically discovery hasn't
`14
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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
`15
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`MS. MURRAY: Could I clarify? MS. MURRAY: Could I clarify?
`that discovery in the time frame the Court
`16
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`THE COURT: Go ahead.THE COURT: Go ahead.
`originally had in mind, technically there's time
`17
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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.
`18
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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
`19
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`THE COURT: Any privileged THE COURT: Any privileged
`May, if there's a 30-day turnaround time for the
`20
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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
`21
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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
`22
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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
`23
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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?
`24
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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
`
`MS. MURRAY: Okay.
`MR. NELSON: Thank you, Your
`
`114
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`Honor.
`
`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
`(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
`04/30/2020 02:54:00 AM
`
`29 of 49 sheets
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`Page 113 to 116 of 128
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`thank you.
`
`THE COURT: Anything further from
`the defendants?
`MS. MURRAY: No, Your Honor.
`
`Thank you.
`
`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.)
`
`Case 1:17-cv-00868-CFC-SRF Document 154 Filed 05/12/20 Page 7 of 7 PageID #: 4976
`127
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`time, availability on May 15th, which is a
`MR. ASHKENAZI: No, Your Honor,
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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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`Thank you.
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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
`
`112 Burning Tree Road - Dover, Delaware 19904
`
`(302) 658-6697 FAX (302) 658-8418
`
`(302) 658-6697 FAX (302) 658-8418
`
`Hawkins Reporting Service
`
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`State of Delaware)
` )
`New Castle County)
`
`128
`
` 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
`
`
`Honor.
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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
`
`Page 125 to 128 of 128
`
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
`
`32 of 49 sheets
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