Case 1:17-cv-00868-CFC-SRF Document 161 Filed 05/13/20 Page 1 of 4 PageID #: 6349
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`VIA E-FILING
`The Honorable Sherry R. Fallon
`J. Caleb Boggs Federal Building
`844 N. King Street
`Wilmington, DE 19801-3568
`
`May 6, 2020
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`
`
`RE: University of Massachusetts, et al. v. L'Oreal U.S.A., Inc.
`(C.A. No. 17-cv-868-CFC-SRF)
`
`Dear Magistrate Judge Fallon,
`
`Plaintiffs oppose L’Oréal’s request to delay its objections to the District Court. First, Local
`Rule 7.1.5(b) specifically states: “Motions for reargument on a ruling made by a Magistrate Judge
`pursuant to Fed. R. Civ. P. 72 are not permitted.” L’Oréal’s request is nothing more than an attempt
`to raise new arguments that it never raised before in this Court. As L’Oréal candidly admits, it
`seeks an extension until after the next discovery conference on May 18 because “the discussion
`with this Court may obviate the need to file Objections.” D.I. 144 at 2. Moreover, as explained in
`more detail below, its current position flatly contradicts arguments made to this Court. Second,
`even if L’Oréal could overcome the rule expressly precluding reargument, an extension to appeal
`would prejudice Plaintiffs given the short time remaining in discovery. Notably, L’Oréal has not
`agreed to abide by any decision this Court may issue at the next hearing on May 18. Instead, if it
`loses this next bite at the apple too, it will object then and further delay its production of documents
`this Court has already ordered be produced.
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`I.
`
`L’Oréal Seeks to Undo This Court’s Prior Ruling by Raising New Arguments at
`the May 18 Hearing, which is Prohibited by the Rules
`
`On April 24, this Court “grant[ed] Plaintiffs’ request to compel production of documents
`responsive to request for production number 65 limited to the single 2014 FTC investigation,” and
`ordered production by May 8. Ex. 1. at 113. The Court left it “to the parties to meet and confer if
`L’Oreal is unable to meet that deadline due to global circumstances or national health emergency
`circumstances beyond its control.” Id. (emphasis added).
`
`L.R. 7.1.5(b) specifically prohibits reargument to this Court. The Standing Order on the
`Utilization of Magistrate Judges provides the same restriction. The only way to object is to file
`certified objections to the District Court under Rule 72. In re: Utilization of Magistrate Judges
`C.1.g. (D. Del 2011). But rearguing the motion it already lost is exactly what L’Oréal wants to do.
`
`Specifically, L’Oréal does not state that that it intends to produce responsive documents but
`needs more time due to COVID-19. Rather, L’Oréal argues that it might not produce responsive
`documents at all—an argument this Court already rejected. For example, L’Oréal now argues
`burden as a reason not to produce the documents. L’Oréal states in its letter it made the burden
`argument previously. This Court properly rejected it when it ordered production. Ex. 1 at 113. The
`forum to make a continued burden objection is to the District Court. See L.R. 7.1.5.(b). Put simply,
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`Case 1:17-cv-00868-CFC-SRF Document 161 Filed 05/13/20 Page 2 of 4 PageID #: 6350
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`L’Oréal has refused to commit to producing these documents, for reasons unrelated to the global
`health crisis.
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`The reality is that L’Oréal provided very little information to this Court or to Plaintiffs over
`the previous months. Despite repeated requests by Plaintiffs, evidently L’Oréal did not inquire into
`the specifics about these FTC documents until after the Court granted Plaintiffs’ request. Failure
`to do a proper investigation prior to a hearing is not an excuse for an untimely argument. This is
`particularly true where the FTC issue has been pending for months. Plaintiffs served their request
`for documents regarding this investigation in December 2019. The parties met and conferred
`several times about this request. L’Oréal consistently objected wholesale to producing any
`documents related to the FTC investigation, saying that the documents were either irrelevant or
`“cumulative” of documents that had already been produced. See Exs. 2 at 2, 3 at 2. When this issue
`was briefed before the Court, on both occasions L’Oréal’s only objection was that any documents
`“that would be relevant to this case would be duplicative and cumulative of documents that have
`already been produced,” D.I. No. 105 at 4, and that Plaintiffs could not “demonstrate that [their]
`request is non-cumulative,” D.I. 124 at 3. The Court itself already has heard this issue twice. Yet
`only now does L’Oréal raise these new issues.
`
`Perhaps due to this failure to investigate, L’Oréal now makes arguments flatly contradictory
`to what it previously told the Court. For example, L’Oréal claims that Plaintiffs “did not, in
`actuality narrow the request at all” because “the FTC investigation is the only investigation that
`was ever implicated by the Request.” D.I. 144 at 1 n.1. Yet L’Oréal told this Court the exact
`opposite at a prior hearing: “This request seeks all documents produced in any litigation or
`government investigation for any of the over 150 accused products in this case. . . . So now they
`want to know all our communications with any agency about any of those products.” Ex. 4 at
`75:11-13, 75:22-23.
`
`This Court relied on these representations from L’Oréal. In its March 26 Order, which
`
`preceded its April 24 order requiring L’Oréal to produce documents from this FTC investigation,
`this Court held that the request for “all documents from all government entities or agencies
`overbroad and not relevant or proportional.” Ex. 4 at 78:5-7. The Court then allowed Plaintiffs to
`narrow their request to a particular investigation, and stated that “L’Oreal can confer with the
`plaintiffs on . . . whether there’s anything to produce, or whether it resists production, or whatever
`the response from L’Oreal is.” Id. at 78:17-19. Yet when Plaintiffs attempted to engage L’Oréal
`to determine what it had that was responsive to this particular FTC investigation, L’Oréal refused
`to provide any details.
`
`Similarly, L’Oréal’s letter hints that it might not produce documents due to privilege issues.
`The privilege it has identified to Plaintiffs is not between L’Oréal and its counsel. Rather, L’Oréal
`has told Plaintiffs it may assert a broad governmental investigation privilege. Plaintiffs have told
`L’Oreal that this argument is contrary to binding law, and in fact would be frivolous. See, e.g.,
`Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414 (3d Cir. 1991) (rejecting
`government investigation privilege). Regardless, L’Oréal could have and should have made this
`argument to this Court. Either L’Oreal knew about this governmental privilege issue at the last
`hearing and chose not to raise it specifically in the briefing or to the Court, or it did not know and
`is raising this new argument for the first time.
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`To be clear, Plaintiffs believe that L’Oréal’s new arguments on burden and privilege are not
`well-founded and are simply a further excuse not to produce what the Court ordered. Plaintiffs will
`address these substantive arguments in later briefing as appropriate.
`
`Plaintiffs have expressed their willingness to work through any accessibility and timing issues
`as they relate to the global health emergency. But L’Oréal wants to reconsider issues this Court
`already has ruled on, and raise new issues in order to overturn this Court’s order that L’Oréal needs
`to produce documents responsive to the particular FTC investigation at issue. Indeed, the very fact
`that L’Oréal intends to file an objection demonstrates that its goal here is not a timing one. It is to
`reconsider what the Court has ruled. This Court should not allow it.
`
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`II.
`
`Regardless of the Rules Prohibiting Reargument, Plaintiffs Would Suffer
`Prejudice from Further Delay
`
`
`
`The close of fact discovery is rapidly approaching. Under the new schedule agreed to by the
`parties, L’Oréal has until May 8 to finish producing documents. Plaintiffs have until June 19 to
`take depositions of L’Oréal witnesses as well as to submit any expert report aside from damages.
`D.I. 139. This schedule does not move the summary judgment deadline nor the trial date. Even
`assuming L’Oréal could overcome the procedural obstacles, pushing the objection deadline until
`May 19 would make it virtually impossible for the issue to be resolved by mid-June.
`
`L’Oréal could have ascertained the scope of the potential FTC production months ago, when
`Plaintiffs first requested these documents, and included specific details in the arguments it made
`to the Court. It did not. L’Oréal should not be rewarded with an opportunity to reargue a ruling it
`does not like and to present new arguments it could have made months ago. This is particularly
`true when the clock is running out on discovery, and Plaintiffs will need time to review these
`documents once they are produced so that they are able to use them in upcoming depositions.
`
`Finally, it is revealing that L’Oréal is not agreeing to be bound by any order the Court may
`issue on May 18. Putting aside the procedural hurdles, L’Oréal wants the option to appeal if its
`third bite at the apple does not succeed. L’Oréal’s insistence on filing objections should the Court
`not resolve the issue to its satisfaction demonstrates the impropriety of L’Oréal’s extension request
`and the prejudice it would cause Plaintiffs given this late date.
`
`In conclusion, this Court should not allow L’Oréal more time to file its objections under Rule
`72. L’Oréal explicitly states that the reason for this extension is for this Court to address the issue
`a third time. L’Oréal is attempting to use this extension request to relitigate an issue on which the
`Court has already ruled, by providing additional argument that it could have—but did not—raise
`in either of the two hearings where the Court heard argument on these FTC documents, in the
`related briefing, or in the parties’ conferences prior to those hearings. This attempt to reargue is
`expressly foreclosed by Local Rule 7.1.5(b) and any delay in filing these Rule 72 objections would
`prejudice Plaintiffs.
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`Case 1:17-cv-00868-CFC-SRF Document 161 Filed 05/13/20 Page 4 of 4 PageID #: 6352
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`cc: Counsel of Record (Via E-Mail)
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`Respectfully submitted,
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`/s/ Brian E. Farnan
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`Brian E. Farnan
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