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`EXHIBIT A
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`EXHIBIT A
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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. )
`
`
`
`
`
`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
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`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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`THE COURT: Good morning,
`everyone. It's Magistrate Judge Sherry Fallon.
`I'm prepared to address the discovery dispute in
`U Mass versus L'Oreal. Let me find out who is
`on the call. First, do we have our court
`stenographer, Ms. Gunning?
`COURT REPORTER: Yes. This is
`Stacy Ingram from Hawkins, Your Honor.
`THE COURT: Oh, sorry, Stacy. I
`was informed it might be Val Gunning. Thank you
`for being available this morning. Is my law
`clerk, Ms. Polito, on the line?
`LAW CLERK: Yes, Judge, I'm on the
`
`line.
`
`THE COURT: All right. Thank you.
`And let's start with appearances of counsel for
`the University of Massachusetts, et al. Who is
`on the line starting with Delaware counsel?
`MR. FARNAN: Good morning, Your
`Honor. Brian Farnan on behalf of the plaintiff
`and with me is Justin Nelson, Tamar Lusztig and
`Beatrice Franklin, all from Susman Godfrey.
`THE COURT: All right. And who is
`on the line for L'Oreal?
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`MS. MOWERY: Good morning, Your
`Honor. This is Kate Mowery from Richards,
`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
`Hastings and Katherine Murray from Browne George
`Ross.
`
`MS. MURRAY: Good morning, Your
`
`Honor.
`
`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
`speaking. Since there is a slight delay since
`we're all remotely connected, please speak
`slowly so that the court stenographer can make
`an accurate record of our proceedings today and
`if you're not speaking, keep your phone on mute
`so there aren't any outside or extraneous noises
`interrupting or obscuring the audio on those who
`are speaking. If you're going to cite to any
`particular exhibits, the filings that I received
`for this dispute were rather lengthy, just give
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`me a minute to get to the docket so that I can
`pull up the same exhibit that you're looking at
`or discussing. And I think with those
`instructions we should be able to proceed
`through this fairly expeditiously.
`Where I thought we'd start were to
`discuss the new issues that have been raised by
`the parties. That seemed to be the order of the
`filings in this instance and it seemed to me to
`be a rather clean and, you know, appropriate way
`to proceed and then we'll revisit anything
`that's lingering from our last teleconference on
`March 26th.
`
`Since the plaintiffs filed the
`first submission at document number 120, I'll
`start with the plaintiffs' issues and I believe
`the first issue is the production of product
`development records. So who will take the lead
`for the plaintiff?
`MS. LUSZTIG: Tamar Lusztig from
`Susman Godfrey, Your Honor.
`THE COURT: Okay.
`MS. LUSZTIG: The issue here, Your
`Honor, is L'Oreal says on its public website and
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`a very small handful of documents that its
`produced that it includes adenosine in its
`product because of its anti-aging properties.
`That's exactly what we're claiming in our
`patent. We're looking for information related
`to L'Oreal's adenosine. So what research
`supported that decision? What testing supported
`those decisions? What benefits does L'Oreal
`think adenosine confers? What non-infringing
`alternatives has L'Oreal considered and why
`didn't it use those non-infringing alternatives?
`What was the timeline for those product
`decisions? Was it before or after L'Oreal
`learned about our patents? And those documents
`are important. They're critical to damages,
`they relate to notice and willfulness and we
`served extensive requests to get them.
`So document 120, exhibit 8, those
`are our RFPs or some of our RFPs and I'll wait
`for a minute for Your Honor to get there.
`THE COURT: Give me a moment.
`Just a question that I have pending once I get
`there that you can think about the response and
`point me in the right direction is a number of
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`the types or categories of information appear to
`be beyond request for production number 27,
`request for production number 32, request for
`production number 53 and interrogatory number 6,
`which I think are the primary requests, written
`requests that go along with this category of
`product development records. Part of the issues
`that I had in the prior conference or in prior
`conferences, as you know, are the Court's
`inability to fashion relief when requests are
`overbroad and are just throwing the net to
`capture vast categories of documents without
`honing in in a more targeted and precisely
`focused fashion what specific discovery
`responses are lacking in sufficiency.
`So I am at docket item number 120
`and I'm sorry, you were directing me to which
`exhibit, exhibit 8?
`MS. LUSZTIG: Yes, exhibit 8. And
`let's talk about those RFPs that Your Honor just
`named. We can start with number 27, which is on
`page 10.
`
`THE COURT: All right. Let me get
`there. Okay. I have request -- I have the
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`request for production number 27 up before me.
`Go ahead.
`
`MS. LUSZTIG: Okay. And I want to
`address the points that Your Honor just raised,
`which is whether this request is narrow and
`whether the documents we're seeking are
`specifically responsive here. The request 27
`asks for documents in L'Oreal's possession or
`control. Again, we don't need all documents
`relating or referring to adenosine, but what
`we're asking for here is documents related to
`their decision to include adenosine as an
`ingredient in your product. And specifically
`what we're asking for here is documents related
`to including adenosine in the accused product
`specifically. And we haven't really gotten
`anything like that. We've gotten maybe five
`documents. I cite them in a footnote to our
`letter related to why L'Oreal includes adenosine
`in only a very limited number of products. But
`L'Oreal does research, it does testing, it does
`analytical studies which it uses to decide what
`ingredients to include in its product, what
`benefits those ingredients confer and what other
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`ingredient might confer the same benefits. So
`what we're looking for here is a narrow set of
`documents that cover those issues related to the
`accused product specifically.
`Now, I'll note, Your Honor, that
`L'Oreal told us when it responded to these RFPs
`that it would search for and produce these
`documents and then when we discussed these
`issues in March it told us it had completed its
`investigation and produced responsive documents.
`So it's a little bit confusing now for L'Oreal
`to say that the documents aren't responsive or
`it's overbroad. It seems to contradict what it
`told us previously. And I'm happy to talk about
`rog 6 as well, but since Your Honor asked that
`question about whether the documents are
`responsive to this RFP, does Your Honor have any
`questions about that, because I'm happy to
`address it further.
`THE COURT: You've showed me the
`actual request. Where do I find L'Oreal's
`responses.
`
`MS. LUSZTIG: I believe they are
`not part of the record we submitted, but we can
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`send them to Your Honor right now to your clerk.
`THE COURT: With my clerk not here
`that does no good. I'm on the phone, we have
`over a thousand pages filed -- maybe not quite a
`thousand, but certainly more than 500 pages with
`respect to the issues all together in the
`aggregate and it would seem to me that if you're
`challenging the sufficiency of responses to
`particular requests for production that you
`would attach L'Oreal's responses so that the
`Court can determine if there are any, for
`instance, any date ranges of documents
`identified that I could ask plaintiff, have you
`reviewed these bates ranges, are they responsive
`in part, what still is lacking? And that's the
`difficulty for me. I want discovery to proceed
`as expeditiously as possible and I want both
`sides to have all of the information that they
`need to prosecute and defense and meet their
`burden, their respective burdens on each side,
`but it's very hard when I don't have the record
`in front of me. And lawyers want to supplement
`it in real time and it does me no good, because
`I'm going to make decisions today based on the
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`record that's been made today and not on future
`submission. So how do I address the sufficiency
`of L'Oreal's responses to these requests for
`production? How do you suggest I address it?
`MS. LUSZTIG: So, Your Honor,
`there is an e-mail between the parties on this
`issue directly that is in the record. It's
`docket 103, exhibit B.
`THE COURT: Give me a moment to
`transfer out of this document. I'm sorry, 103?
`MS. LUSZTIG: Correct.
`THE COURT: Okay. I'm on the 103.
`And I'm sorry, which exhibit, B as in boy or D
`as in David?
`MS. LUSZTIG: B as in boy.
`THE COURT: Okay. I have B and
`B-2. It's exhibit B?
`MS. LUSZTIG: Correct.
`THE COURT: Okay. I have it.
`MS. LUSZTIG: I'm on page 10.
`THE COURT: Okay. Let me scroll.
`Okay. I'm there.
`MS. LUSZTIG: And so there's a
`header there that says plaintiffs' requests for
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`production. And this is a summary of a call
`that we had with opposing counsel and we wrote
`there, after L'Oreal told us this on their call,
`was that they've completed their investigation
`and they've completed their production with
`respect to and there are a large number of
`requests listed here, but one of them is 27.
`That one you're just looking at where we asked
`for documents about L'Oreal's inclusion of
`adenosine in the accused products.
`THE COURT: I'm silent because I'm
`looking at it. Just give me one more moment,
`okay, and then I'll have a question?
`MS. LUSZTIG: Sure.
`THE COURT: Okay. So under the
`heading plaintiffs' request for production,
`there are a number of the requests for
`production listed there and it just repeats that
`you were told by L'Oreal that they completed
`their investigation and don't know of anything
`outstanding. Then the next paragraph refers to
`a collection of requests for production, among
`them is one that's been mentioned in this call,
`it's number 53. But it didn't deal specifically
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`with the content that's being sought in terms of
`a response to number 53. It deals with
`searching ESI custodians. And this one, this
`specific request number 53, as I understand it,
`is for all documents relating to your decision
`to include adenosine in certain skincare
`products following the Korean Food & Drug
`Administration declaration. And then it goes on
`to quote it, as described in your supplemental
`objections and response to interrogatory number
`6. So I don't see that that paragraph is
`responsive to what you're seeking here. And
`then there are other specific requests for
`production for which it, you know, reiterated
`that what you were told by L'Oreal, but there's
`nothing in terms of what plaintiffs' contend are
`still lacking or insufficient. So I'm sorry,
`but this e-mail does not help answer my question
`about what is insufficient about L'Oreal's
`responses.
`
`MS. LUSZTIG: Sure. Let me find
`one other document that I think will be helpful.
`It's DI 120, exhibit 2.
`THE COURT: All right. I have
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`exhibit 2.
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`MS. LUSZTIG: Okay. And this is
`an excerpt of a document, Your Honor. It's not
`the whole thing. The whole thing was quite a
`bit longer, but we only wanted to give Your
`Honor the relevant pages. This is an example of
`the kind of document we're looking for in
`response to this request. So it relates to one
`specific product, the Lancome product on the
`second page. And then if you turn to the third
`page, it discusses in quite a lot of detail what
`benefits of adenosine are, what kind of studies
`L'Oreal relied on to include adenosine in this
`particular product, what the results of those
`studies are. And it goes on for several pages
`to explain why adenosine was included in this
`particular product for its anti-wrinkle effects,
`which is exactly what the patents-in-suit claim.
`THE COURT: I think you're about
`to anticipate my question. Go ahead.
`MS. LUSZTIG: Yeah, we've only
`gotten a document like this for approximately
`five products. And what we're looking for is
`for similar documents, documents like this one
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`specific to all the other accused products so we
`can know not for just this one product but for
`all the other products accused why L'Oreal is
`including it in the accused products.
`THE COURT: I think we've been
`down this road. And clarify for me if I'm
`overlapping issues that you feel are apples and
`oranges so to speak, but I recall going down
`this road at the last conference and L'Oreal
`explaining that for the 150 or so accused
`products there may not be information like this
`because some products are bundled in a group
`with similar products and they haven't gone the
`distance on explaining the characteristics or
`features of the product or there may be just
`like a thumbnail picture of it bundled with the
`product that they're really trying to sell as
`the, quote unquote, leader of the group that
`will bundle the other products with it. So
`there may not exist, based on what L'Oreal's
`represented in the past on other conferences,
`there may not exist documents like this tied to
`each and every of the 150 or so accused
`products. So am I correct in, you know, we've
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`addressed this before and how had the parties
`come up with a means of at least sampling or
`trying to target a collection of what's out
`there? I understand the difficulty with
`accepting what L'Oreal has produced thus far if
`it's only related to five of these numerous
`accused products, but we're in between two
`extremes here, that if things don't exist for
`all 150 and you've gotten five, where does the
`needle land in that gap, in that bracket as to
`what L'Oreal should be expected to be capable of
`producing?
`
`MS. LUSZTIG: Well, I have two
`responses, Your Honor. The first one relates to
`that interrogatory that we served, that relates
`to the same issue, interrogatory number 6. The
`second one relates to the 30(b)(6) deposition
`that we took yesterday of L'Oreal's witness
`about exactly the searches that they did do in
`order to find responsive documents here. And
`I'm not sure if that's properly before Your
`Honor. I believe my colleague, Mr. Nelson, can
`address it if Your Honor does want to get into
`it, but my understanding --
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`THE COURT: Well --
`MS. LUSZTIG: Go ahead.
`THE COURT: Let me mention that,
`because it's kind of getting ahead of me. When
`we revisit the lingering issues that have
`persisted since the March 26th conference, one
`of my questions was going to be did that
`30(b)(6) deposition go forward, because I think
`part of the basis or rationale for some of my
`bench rulings in that conference was that
`plaintiff had been unable to articulate in a
`descriptive and detailed way what documents it
`was seeking and I think part of the problem was
`not knowing what universe of documents exist
`which was supposed to be helped a bit, I
`thought, by granting the 30(b)(6) deposition and
`having that deposition serve as a point to fine
`tune some of these requests. And so you've
`answered my question. Problem is I don't have
`that transcript and I'm reluctant to get into
`discussions in a granular way of things that are
`a transcript that I don't have in front of me
`and I don't know the extent to which the parties
`had met and conferred following that deposition
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`about revelations that came about from that
`transcript.
`
`So those are my concerns, but I
`don't want to preclude plaintiffs from making
`their full argument. I just think I'm going to
`have a little bit of difficulty. And again, I
`go back to the point where if you're going to
`bring a discovery dispute, attach the decision
`or the allegedly deficient responses so I can
`see, you know, concretely in front of me on an
`exhibit, what's, you know, the way it's been
`answered and what the problems are that the
`plaintiff has with the way its been answered.
`MR. NELSON: This is Justin Nelson
`from Susman Godfrey and I appreciate Your Honor
`and I entirely agree with Your Honor.
`THE COURT: You cut out Mr.
`Nelson. I'm sorry.
`MR. NELSON: I apologize, Your
`Honor. That is premature -- can you hear me
`now?
`
`THE COURT: Yes, thank you.
`MR. NELSON: It's premature to
`base any rulings upon the 30(b)(6) document
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`deposition yesterday. I do just want to note
`that we got a bunch of I don't knows yesterday.
`And perhaps that if it would be helpful for Your
`Honor, that we -- and I agree with Your Honor's
`comment that we should meet and confer. There
`are numerous issues that have come up after
`yesterday's deposition. And again, not to base
`your rulings on, but, for example, we had asked
`for well, what does your directory in the share
`file look like and which files did you search?
`Did you search this file or that based upon the
`document, the document retention policies and
`destruction policies based on specific
`categories and we just got a bunch of I don't
`knows. So I do think that perhaps as early as
`middle of next week this court can set another
`hearing, give us time to meet and confer, even
`today, on the issues that came up with respect
`to it and try to resolve as many as possible. I
`do think -- and I apologize that the
`interrogatories, the requests for production
`responses from L'Oreal are not attached to the
`record, but -- and L'Oreal's counsel will
`correct me if I'm wrong, but what we are talking
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`about for these is there's not a list of bates
`numbers to say here they are. What they say is
`they have a list of rogue form objections. And
`then for these it says L'Oreal USA will produce
`responsive relevant non-privileged documents in
`its possession, custody or control that L'Oreal
`USA has been able to locate after a reasonably
`diligent search, if any. And that's what they
`say in these responses. And so -- and the other
`thing that came up on the 30(b)(6) deposition
`yesterday is that in October they, you know,
`this marketing, supposed agreement, which was
`not, as I think the record makes clear. But in
`that same e-mail, which is exhibit 1 to our
`docket number 123 -- and if Your Honor wants to
`go there, I'm happy to wait until Your Honor
`arrives there.
`THE COURT: Yeah. Let me get it.
`I'm clicking on it, but because these documents
`are under seal it takes a bit to come up. I
`have it in front of me. It's a 12-page
`document.
`
`MR. NELSON: It's actually the
`first entry. You'll see actually it's -- the
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`second entry which is what some of the briefing
`is focused on specific to request for production
`31. But the issue above that is the rule
`30(b)(6). We had asked for the rule 30(b)(6)
`deposition of L'Oreal to determine whether the
`documents in L'Oreal USA's possession to be
`produced and whether they were agents for
`purposes of discovery and they said and you can
`see in this e-mail, they said don't worry about
`it, that with respect to relevance documents we
`are not going to insist the plaintiffs proceed
`with the Hague to obtain documents from L'Oreal
`SA, rather we will make a reasonable effort to
`collect and produce any relevant documents
`retained by L'Oreal SA. What we learned
`yesterday is they haven't done any search. The
`answer to how many searches they've done on
`L'Oreal's SA, it's zero. They've done --
`there's numerous issues that just -- the
`fundamental lack of searching that we have. And
`as Your Honor knows and can see from the record,
`we have been expeditious from literally the
`first day that discovery started to try to get
`documents. We issued requests for production.
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`Case 1:17-cv-00868-CFC-SRF Document 170-1 Filed 05/19/20 Page 23 of 210 PageID #:
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`The very first day of discovery L'Oreal
`responded to our first request for production in
`September. We met and conferred about that and
`then there's this October. And then after this
`we had served requests for production in
`January. They responded after, you know, this
`October and said they were going to produce some
`of these documents. And so that's the issue
`that we face when they say we've completed
`production. We look at the production and it's
`just minimal. And so, Your Honor, I think that
`rounds out what we're talking about and perhaps
`a way forward for some of the old and new
`disputes to try to narrow the issues and figure
`out what's going on.
`THE COURT: All right. Anything
`further on the product development records
`before I hear from L'Oreal?
`MS. LUSZTIG: Yeah. I'd like to
`address interrogatory number 6, Your Honor.
`This is Tamar Lusztig again, if you don't mind.
`THE COURT: Go ahead.
`MS. LUSZTIG: Sure. I'm looking
`at docket 120, exhibit 5.
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`THE COURT: One moment. All
`right. I have it.
`MS. LUSZTIG: So this one seeks
`the same kind of information I was talking about
`previously. It ask for L'Oreal to describe in
`detail when and the reasons why it determined to
`use adenosine in the product and including what
`testing and research was relevant. And if you
`see, if you scroll down to the last page, the
`response that we got. It relates to this Korean
`FDA decision and that's not consistent with that
`document I showed Your Honor previously with
`respect to the specific Lancome product. And
`that's really kind of the heart of the issue
`that we're talking about. You know, we've
`gotten a handful of documents from them. If
`there aren't other documents -- and again, we
`think their submissions have been insufficient,
`but to the extent that there aren't documents,
`the very least it could give us is responsive
`information in the interrogatories, which it has
`not done. It's not nearly enough detail in
`addition to being contradicted by its documents.
`We need this information on a product by product
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`basis, especially the non-infringing
`alternatives L'Oreal considered and the timeline
`of this decision, which again is highly relevant
`to damages and to notice and willfulness.
`And I'd also like to address what
`L'Oreal said. It sort of misrepresented or at
`least said something we don't agree with with
`respect to what the parties discussed this week
`with respect to this interrogatory, which seems
`to be -- their position seems to be that we
`waived our right to receive documents in
`exchange for an interrogatory response that we
`haven't even seen, so they say now that they'll
`supplement this response to interrogatory number
`6, but we haven't seen that response, we have no
`idea if it would give us any information we
`need. So obviously it makes no sense that we
`have would have waived our rights to receive
`documents in response to an interrogatory that
`we have not seen. What we said was, that
`L'Oreal's failure to give us the documents we
`were discussing was compounded by a failure to
`provide a rog response adequately. So what
`we're looking at here, we're trying to narrow
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`the dispute instead of saying hey, what's the
`complete rog response, which is another thing
`we've asked the Court to order today. That
`might narrow the issues, the documents that we
`need so much and work to get us some kind of
`compromise so we wouldn't need court
`intervention, but of course we haven't gotten
`that interrogatory response, so there cannot be
`that narrowing at this point. We don't know if
`what they're planning to serve adequately
`answers any of the questions that I just
`mentioned with respect to on a product by
`product basis why adenosine is included, what
`non-infringing alternatives were considered and
`what the dates were for those decisions. So in
`any event, if they supplement this interrogatory
`and consult documents to do that, as opposed to
`simply interviewing witnesses, those documents
`would be responsive to our RFPs as well. For
`example, we served an RFP asking for documents
`related to our interrogatory. So to the extent
`L'Oreal is agreeing to supplement this
`interrogatory, Your Honor, which it seems from
`its letter it's now doing, although it did not
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`do so on our meet and confer and did not agree
`to meet and confer again after it served this
`letter, that's fine, but we'd like a date
`certain for that. We would like L'Oreal to
`explain on the record what it plans to include
`in this response and to the extent it consults
`documents while preparing that response, we'd
`like those documents produced if they haven't
`been already.
`THE COURT: All right. Let me
`hear from L'Oreal.
`MS. MURRAY: This is Kathy Mur
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