Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 1 of 94 PageID #: 7201
`
`Frederick L. Cottrell III
`302-651-7509
`Cottrell@rlf.com
`
`May 14, 2020
`
`VIA CM/ECF
`The Honorable Sherry R. Fallon
`District Court of Delaware
`J. Caleb Boggs Federal Building
`Wilmington, DE 19801-3567
`
`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”) writes to respond to the issues Plaintiffs
`raised in their May 13, 2019 letter brief (D.I. 159).
`
`Plaintiffs’ Interrogatory No. 3: As an initial matter, contrary to Plaintiffs’ assertion,
`this case is not about adenosine. Adenosine is a naturally occurring molecule that is present in
`every human cell. And the prior art is replete with references to adenosine’s use in cosmetic
`compositions, including at concentrations present in the accused products for years before
`Plaintiffs’ patents were even filed. The patents-in-suit relate to a very narrow method of using
`adenosine, which includes applying an adenosine composition such that, according to Plaintiffs,
`a particular adenosine concentration “reaches the dermal cell layer” (i.e., below the outer
`“epidermal” layer) of the user’s skin. To that end, Plaintiffs have not asserted that every
`adenosine-containing product that L’Oréal USA has sold infringes the patents-in-suit, nor can
`they.1 (See, e.g., Ex. A at 1 (“[T]he Accused Products are the subset of [adenosine-containing]
`products . . . .”); D.I. 93 at 2 (“[T]he Accused Products consist of the subset of those adenosine-
`containing products that meet the claim limitations of the asserted patents.”) (emphasis added).)
`L’Oréal USA has fully complied with its obligations at each stage of the discovery
`process with respect to Interrogatory No. 3. The Interrogatory, which was served in July 2019,
`asked L’Oréal USA to identify every product L’Oréal USA has ever sold containing adenosine
`(D.I. 159, Ex. A at 7). As the law requires Plaintiffs, not L’Oréal USA, to identify the products
`that underlie Plaintiffs’ infringement theories, L’Oréal USA did not interpret this Interrogatory
`(served in advance of Plaintiffs’ infringement contentions) as a request to locate possibly
`accused products. See, e.g., Magnadyne Corp. v. Best Buy Co., 2010 WL 11520525, at *2 (C.D.
`Cal. Feb. 22, 2010) (it is plaintiff’s responsibility to identify the accused products); Ethicon LLC
`v. Intuitive Surgical, Inc., 2018 WL 1392341, at *3 (D. Del. Feb. 12, 2018) (“‘[M]ere suspicion
`or speculation’ that [defendant]’s unaccused [product] will infringe the asserted patents . . . is not
`enough to render the requested discovery relevant to [plaintiff]’s infringement claims.”).
`Thus, L’Oréal USA objected to the Interrogatory as overbroad, unduly burdensome, and
`not proportionate to the needs of this case, but provided a substantive response to the
`Interrogatory, answering as much as it could, by identifying 126 products. (See D.I. 159, Ex. B
`
`1 Plaintiffs have thus necessarily had to assert infringement against the accused products in this
`case based on testing the concentration of adenosine at a particular skin location after application
`of those products. (See, e.g., Ex. D.I. 121 at Ex. A-C.)
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 2 of 94 PageID #: 7202
`The Honorable Sherry R. Fallon
`May 14, 2020
`Page 2
`
`at Response to Interrogatory No. 3.) See Fed. R. Civ. P. 33(b)(3) (requiring parties to respond to
`interrogatories to the extent not objectionable); Ahdom v. Lopez, 2017 WL 3537083, at *2 (E.D.
`Cal. Aug. 17, 2017) (“A responding party is not generally required to conduct extensive research
`in order to answer an interrogatory, but a reasonable effort to respond must be made.”). This was
`not an easy task, as L’Oréal USA had to manually review carton artwork for skincare products to
`confirm they contain adenosine. On October 10, 2019, Plaintiffs served their infringement
`contentions, which accused 181 products, but which excluded many of the products identified by
`L’Oréal USA.2 Thereafter, the parties discussed a workable approach to discovery in light of the
`vast number of accused products, and the appropriate bounds of the case and Interrogatory No. 3.
`Plaintiffs confirmed during the parties’ discussions that they were accusing only a “subset” of
`products containing adenosine, and it was these products to which the case related. (See, e.g.,
`Ex. A at 1; see also D.I. 93 at 2.). As part of those discussions, L’Oréal USA asked Plaintiffs to
`provide any information they had on products they believed were missing from L’Oréal USA’s
`response to Interrogatory No. 3. (See, e.g., D.I. 159, Ex. C at 6.) Plaintiffs never responded. On
`November 27, 2019, L’Oréal USA served a supplemental response to Interrogatory No. 3 after
`confirming that the new products identified in Plaintiffs’ infringement contentions contained
`adenosine and were sold in the U.S. (D.I. 159, Ex. D at 64-66 (corrected version served on
`December 3).) For 111 days, Plaintiffs never raised any issues with this response.
`Plaintiffs may claim that Interrogatory No. 3 requires L’Oréal USA to now identify
`products beyond the accused products notwithstanding the objections served and maintained by
`L’Oréal USA since September. The law does not place such a burden on L’Oréal USA, see, e.g.,
`Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1326-27 (Fed. Cir. 1990), much less
`at this late stage of the proceedings. Indeed, the Micro Motion court stated: “The discovery
`rules are designed to assist a party to prove a claim it reasonably believes to be viable without
`discovery, not to find out if it has any basis for a claim.” Id. Plaintiffs’ expectations aside,
`consistent with this authority, L’Oréal USA amended its Interrogatory No. 3 response in
`November to identify the specific documents under FRCP 33(d) that relate to the accused
`products. If Plaintiffs truly had an issue with L’Oréal USA’s objections or responses to
`Interrogatory No. 3, they should have raised it then—particularly given the numerous categories
`of documents Plaintiffs have requested for each and every accused product—rather than seek to
`reset the litigation at this stage. Moreover, Plaintiffs’ request that L’Oréal USA conduct searches
`using the word “adenosine” to identify new products is not even workable,
`
`
`
`
` This is why L’Oréal USA had to manually review carton artwork, which provides
`the product name and ingredient list, to identify products containing adenosine. (See D.I. 159,
`Ex. G at 11-13.) This process was extensive.3
`Plaintiffs’ apparent quest to now expand the case beyond the more than 150 products
`already accused of infringement is improper, and would prejudice L’Oréal USA’s ability to
`prepare for depositions during this last month of discovery.
`
`
`2 Plaintiffs did not explain their decision not to accuse these additional identified products.
`3
`
`
`
`
`
`
`
`
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 3 of 94 PageID #: 7203
`The Honorable Sherry R. Fallon
`May 14, 2020
`Page 3
`
`Documents Regarding L’Oréal USA’s Knowledge of the Patents-in-Suit: As
`discussed above, this case is not about adenosine itself, or even the mere use of adenosine in
`cosmetic compositions by L’Oréal USA and many other companies for decades. Plaintiffs’
`letter, however, seeks to significantly broaden discovery at this late stage to burden L’Oréal USA
`when the parties should be focused on completing fact discovery and preparing expert reports
`due on June 19. L’Oréal USA has made tremendous efforts to produce relevant documents in
`this case, including in response to Plaintiffs’ ever-expanding, belated requests. (See, e.g., D.I.
`155, Ex. A (L’Oréal USA’s Supp. Responses to RFP Nos. 27, 32, 40-42, 53, 59).)
`Plaintiffs, however, are not entitled to every single document L’Oréal USA has regarding
`adenosine, much less under the guise of “knowledge of the patents-in-suit.” Thus, unlimited
`searches for “adenosine” or “75156”—which are anything but “tailored” terms—in central
`databases containing product testing and development documents would be overbroad, unduly
`burdensome, and certainly far exceed the scope required to assess whether L’Oréal USA had
`knowledge of the patents-in-suit.4 For the reasons discussed above, the search terms already run
`through MILOR (including, but not limited, “adenosine AND skin” and “adenosine AND
`(dermal OR dermis)”) are sufficient to capture documents relating to the use of adenosine as
`relevant to the patents-in-suit. (See, e.g., id. (Supp. Response to RFP No. 27).) Any other use of
`adenosine is irrelevant. Plaintiffs also complain that L’Oréal USA has searched only two
`custodians for “Dobson” and “Ethier.” That is not true: L’Oréal USA has used such terms in
`conjunction with “adenosine” to search the MILOR database and emails from R&I
`custodians. (See Ex. C at 3-4, 12.) Moreover, a search through MILOR for “Dobson” or
`“Ethier” by themselves did not return any additional responsive documents.
`Plaintiffs also request that L’Oréal USA search the files of non-party L’Oréal S.A.
`employees, including, for the first time, an indeterminate set of “custodians Defendant’s
`investigation has revealed.” (See Ex. D.I. 159, Proposed Order.) That request is overbroad and
`unrelated to whether L’Oréal USA had knowledge of the patents-in-suit, or whether L’Oréal USA
`infringes the patents-in-suit. Moreover, Plaintiffs have been aware of L’Oréal USA’s 26
`document custodians since March 18, when L’Oréal USA disclosed them in its supplemental
`response to Interrogatory No. 11.5 (Ex. D.) Plaintiffs’ request is also untimely: Plaintiffs did
`not raise this new, expanded request for more than a month, despite having ample opportunity
`(including an intervening Court conference) to do so. Finally, even the identification of high-
`level L’Oréal S.A. executives in Plaintiffs’ initial disclosures (e.g., CEO; Director of Corporate
`Acquisitions, Licensing, and External Business Development; Global Head of Patents) is an
`apparent attempt to harass L’Oréal USA and in no way proportional to the needs of the case.6
`Although L’Oréal USA has already exceeded its discovery obligations by producing documents
`from the central repositories of non-party L’Oréal S.A. and searching for files of L’Oréal S.A.
`employees Jean-Baptiste Galley and Marie-Laurence Abella, this new, belated, and untargeted
`
`
`4 For example, such terms would return entirely irrelevant documents, such as certificates of
`analysis from adenosine suppliers or those relating to research regarding the use of adenosine in
`products other than cosmetics.
`5 This search went above and beyond the 10 custodians required by the Court’s Default Standard
`for Discovery.
`6 As has become commonplace, Plaintiffs’ proposed order is so broad as to include unspecific
`custodians, including “any L’Oréal S.A. custodians Defendant’s investigation has revealed may
`have knowledge of the Patents-in-Suit or the inventors.” (D.I. 159, Proposed Order.)
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 4 of 94 PageID #: 7204
`The Honorable Sherry R. Fallon
`May 14, 2020
`Page 4
`
`request for documents from employee files of non-party L’Oréal S.A. custodians is a bridge too
`far, and is entirely irrelevant to determining L’Oréal USA’s knowledge of the patents-in-suit.
`With respect to “right to market” documents, L’Oréal USA offered to collect and log7
`such documents for the accused products. Plaintiffs refused that offer, and instead insisted on
`L’Oréal USA collecting such documents for any and all products containing adenosine, even if
`those products are not accused of infringement in this case. Given the multi-step, manual search
`necessary for identifying and collecting such “right to market” documents for each accused
`product individually (let alone for any and all products containing adenosine), and the fact that
`they will merely be logged given their privileged nature, this request is overly broad, unduly
`burdensome, and not proportional to the needs of the case.
`
`License Agreements and Litigation Hold: As L’Oréal USA explained during the
`March 26 conference, it has not located relevant license agreements. (Ex. E at 69:11-21.)
`Nonetheless, L’Oréal USA produced its license agreements with L’Oréal S.A., which cover the
`brands implicated in this case.8 In addition, yesterday, as agreed, L’Oréal USA provided
`Plaintiffs with the dates it issued litigation holds and the names of the recipients of those holds.
`
`L’Oréal USA’s Privilege Log: L’Oréal USA has invested considerable time and effort
`in ensuring its privilege log includes enough factual detail for Plaintiffs to assess L’Oréal USA’s
`privilege claims, even with respect to entries of questionable relevance to this case. Plaintiffs
`have not explained how any of the alleged deficiencies actually impact their privilege analysis,
`nor have they addressed L’Oréal USA’s repeatedly stated concern that Plaintiffs’ positions are at
`odds with their own privilege log. (Ex. F at 1; Ex. G at 1, 12.) For example, “many of the
`entries [in Plaintiffs’ log] do not include any attorney, either in the to/from/cc fields, nor in the
`entry’s description.” (D.I. 159 at 4; D.I. 160, Ex. K at Entry Nos. 1-12, 176.)9 Likewise,
`Plaintiffs’ supplemental log contains entries that are substantively indistinguishable from those
`they complain about in L’Oréal USA’s log. (See, e.g., D.I. 160, Ex. K at Entry Nos. 133, 136-37
`(“re. patent prosecution”) and 4-12, 152-65 (“reflecting legal advice”).) Finally, L’Oréal USA
`has already indicated that it will provide a redaction log, and is diligently working to do so, even
`as it continues to produce more documents. Regardless, in an attempt to avoid burdening the
`Court with this peripheral issue, L’Oréal USA offered to agree to a mutual exchange of
`supplemental privilege logs to address Plaintiffs’ concerns to the extent possible, which Plaintiffs
`refused. (See also D.I. 160 at 4 n.5.) Plaintiffs’ request should be denied or, in the alternative,
`the Court should order a mutual supplementation.
`
`
`7 Because they involve a determination that there is no legal obstacle to bringing the product at
`issue to market, these right to market documents are by their very nature privileged.
`
`8 Plaintiffs’ reliance on deposition testimony to argue that L’Oréal USA did not search for license
`agreements is misplaced.
`
`
`
`
`
`
`
`
`
`9 Plaintiffs’ May 11 supplement did not correct this incongruity. (D.I. 160, Ex. L at 1.) Nor
`have Plaintiffs indicated the names associated with many email addresses appearing on their
`privilege log, let alone explained which names or email addresses correspond to attorneys.
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 5 of 94 PageID #: 7205
`The Honorable Sherry R. Fallon
`May 14, 2020
`Page 5
`
`
`
`Respectfully,
`
`/s/ Frederick L. Cottrell, III
`
`Frederick L. Cottrell, III (#2555)
`
`
`cc: Counsel of Record (via CM/ECF and E-Mail)
`Attachments
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 6 of 94 PageID #: 7206
`Case 1:17-cv-00868—CFC-SRF Document 175 Filed 05/21/20 Page 6 of 94 PageID #: 7206
`
`EXHIBIT “(cid:36)”
`
`EXHIBIT “A”
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 7 of 94 PageID #: 7207
`
`From:
`Sent:
`To:
`
`Cc:
`
`Subject:
`Attachments:
`
`Counsel,
`
`Beatrice Franklin <BFranklin@susmangodfrey.com>
`Monday, February 3, 2020 6:48 AM
`Murray, Katherine F.; Polatoglu, Serli; 'Michael J. Farnan'; 'Brian Farnan'; Bill Carmody;
`Tamar Lusztig; Justin A. Nelson; Keeley Lombardo; Rodney Polanco
`'Moyer, Jeffrey L.'; 'Cottrell, Fred'; 'Mowery, Katharine Lester'; PH-UMASS v. L’Oreal
`USDC
`[EXT] RE: UMass v. L’Oréal U.S.A., Inc. - No. 17-868
`2020.02.03 Motion for Discovery Teleconference.DOCX
`
`We cannot continue to postpone our receipt of the product information which, per the Court’s order, we were supposed
`to receive on December 20, 2019. As Judge Fallon observed in her order denying L’Oreal USA’s motion to dismiss,
`Plaintiffs’ complaint put L’Oreal “on notice that products containing adenosine made by the eighteen brands specified in
`the FAC are accused of infringement.” Docket No. 31, at 9. Given that the Accused Products are the subset of those
`t the Accused Products are the subset of those
`products whose use entails applying to the dermal cells a concentration of adenosine in the claimed ranges, L’Oreal has
`products whose use entails applying to the dermal cells a concentration of adenosine in the claimed ranges,
`been on notice of the scope of this case for years, as we have repeatedly explained. L’Oreal’s continued delay in
`providing the necessary information for these products, without any guarantee of when the required information will be
`provided, means that Court intervention is needed to ensure timely compliance with the Court’s schedule. Accordingly,
`we will file the attached letter at COB on Monday; please let us know if you have any edits before 2pm ET.
`
`As stated previously, Plaintiffs do not agree to an extension of the Court-ordered schedule for this case.
`
`We can confirm that we understand “Lancome Absolue Rich Cream” and “Lancome Absolue Revitalizing & Brightening
`Rich Face Cream with Grand Rose Extracts” to be the same product.
`
`All the best,
`Beatrice
`
`Beatrice Franklin | Susman Godfrey LLP
`212.729.2021 (o) | 617.710.7850 (c)
`
`From: Murray, Katherine F. <katherinemurray@paulhastings.com>
`Sent: Friday, January 31, 2020 6:06 PM
`To: Beatrice Franklin <BFranklin@susmangodfrey.com>; Polatoglu, Serli <serlipolatoglu@paulhastings.com>; 'Michael J.
`Farnan' <mfarnan@farnanlaw.com>; 'Brian Farnan' <bfarnan@farnanlaw.com>; Bill Carmody
`<bcarmody@SusmanGodfrey.com>; Tamar Lusztig <TLusztig@susmangodfrey.com>; Justin A. Nelson
`<jnelson@SusmanGodfrey.com>; Keeley Lombardo <KLombardo@susmangodfrey.com>; Rodney Polanco
`<RPolanco@susmangodfrey.com>
`Cc: 'Moyer, Jeffrey L.' <moyer@RLF.com>; 'Cottrell, Fred' <Cottrell@RLF.com>; 'Mowery, Katharine Lester'
`<Mowery@rlf.com>; PH-UMASS v. L’Oreal USDC <PH-UMass-LOreal-USDC@paulhastings.com>
`Subject: RE: UMass v. L’Oréal U.S.A., Inc. - No. 17-868
`
`Counsel,
`
`Thank you for your time yesterday. We believe it was helpful to discuss the scope of the accused products, which, by
`our count, total 156. We did not hear you state otherwise on the call, but if you have a different count, please let us
`1
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 8 of 94 PageID #: 7208
`
`know. It also would be helpful for you to provide an updated list of accused products so that we are all on the same
`page.
`
`Unidentifiable Products
`With respect to the unidentifiable products listed in your email, we did not say that L’Oréal USA could not identify Kiehl's
`Clearly Corrective Brightening Smoothing Moisture Treatment. Rather, we explained that L’Oréal USA has been unable
`to locate financial data for this product in its current database. However, as we explained for many of these products,
`we are working with the client to see if they can gather the financial data from other sources. With respect to Lancôme
`Absolue L'Extrait Day Cream, the bates numbers you provided referenced website printouts that are undated and
`identify this as an out of stock product. The source of the document is also not provided. Nevertheless, as we indicated
`on the call, we are working with the client to try to locate data for this product. Regarding Lancôme Renergie Night,
`L’Oréal USA has been unable to locate this product in its financial database. Further, ADENOSINE_00003470-73 appears
`to be a picture of a product that has a sticker on it that is not typical of a L’Oréal USA product, which may indicate this
`product was purchased or sold abroad. Please let us know where you obtained the products depicted in
`ADENOSINE_00003470-73. However, we do note that ADENOSINE_00003475 also identifies the product as Anti-Wrinkle
`– Restoring Night Moisturizer, which is not a name you previously provided. We will provide this name to L’Oréal USA to
`see if it turns up any information. As for Lancôme Teint Visionnaire, while the source of ADENOSINE_00002130 is
`unknown, ADENOSINE_00002132, ADENOSINE_00002135, and ADENOSINE_00002139 show that these pages were not
`printed from Lancôme USA’s website. As you know, this is one of the products that could not be located in L’Oréal USA’s
`financial database. However, we are looking again to confirm whether this product was ever sold in the U.S.
`
`Financial data
`We can confirm that of the 156 accused products, we have provided financial data for 123 products, with additional
`financial information being produced today. We can also confirm that for the products listed in your email, L’Oréal USA
`has not been able to locate financial information for the relevant time period in its current databases. However,
`assuming these products were sold in the United States, L’Oréal USA is looking to see if it can obtain the data from other
`sources. Moreover, as we explained on the call, for some of the above-named products that have variations (such as a
`soft cream and a rich cream, or a fragrance version and a fragrance-free version), those financials may be reported
`together under the main product name. Also, please clarify that Lancôme Absolue Rich Cream is the same as Lancôme
`Absolue Revitalizing & Brightening Rich Face Cream with Grand Rose Extract. Regarding the Kiehl’s Pure Vitality Skin
`Renewing Cream referenced in your email, we stated that marketing materials for that product would be produced by
`the end of the week, as would financial information for all of the remaining L’Oréal Paris products.
`
`Regarding your comment that we have not explained why financial data for several divisions is not available before
`2013, that is not accurate. To clarify, all pre-2013 financial data has been provided for the CPD and PPD divisions, as
`applicable. Two divisions, Luxe and Active, are searching for pre-2013 data for the accused products to the extent those
`products were sold in the U.S. by L’Oréal USA during that time period. As you can see from the data already produced,
`at least 37 products in the Luxe and Active divisions were not even launched as of 2013, so there would not be any
`additional financial data for those products beyond what already has been produced. As we have explained ad
`nauseam, there are many reasons why financial information for certain products may not be available before 2013,
`including: the products may not have been sold earlier than 2013, the products were not sold in the U.S. by L’Oréal USA,
`and/or the product cannot be identified by the marketing name provided. Nonetheless, as we have explained, we are
`working with the client to try to locate earlier data, to the extent it exists.
`
`Technical Information
`We can confirm that officialization documents/formulation lists have been produced for 136 products. As to the
`remaining handful of products, we have had difficulty in matching the formula numbers to the product names you have
`provided. As we explained during the call, a formula number is required to obtain an officialization or formulation
`document. Nonetheless, we are working with L’Oréal USA to identify correct formula numbers for these products and to
`provide any remaining officialization documents, to the extent they exist. With respect to L’Oréal Paris RevitaLift Triple
`Power Intensive Anti-Aging Day Cream Moisturizer Fragrance Free, we have confirmed that this product does not have
`its own officialization document. Please see LOUSA_575-589. Further, please clarify that “Lancome Absolue Rich
`
`2
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 9 of 94 PageID #: 7209
`
`Cream” on your list is actually referring to Lancome Absolue Revitalizing & Brightening Rich Face Cream with Grand Rose
`Extract.
`
`Marketing
`We can confirm that we will be producing carton artwork for all of the remaining Kiehl’s products by the end of this
`week and that we have not been able to locate carton artwork for limited number of products listed in your email, which
`may not have been sold by L’Oréal USA in the US, but we are taking another look. As we stated on the call, carton
`artwork for Lancôme Visionnaire Advanced Skin Corrector was produced at LOUSA_2870 and LOUSA_1998. Regarding
`L’Oréal Paris RevitaLift Triple Power SPF 30 Day Lotion – LOUSA00002670, we are looking into whether this is a different
`product than L’Oréal Paris RevitaLift Anti-Wrinkle + Firming Day Moisturizer. As for L’Oréal Paris Age Perfect Cell
`Renewal Day SPF, L’Oréal Paris Collagen Moisture Filler Day Lotion and the Vichy products at LOUSA0003086 to
`LOUSA0003090, we will re-produce the carton artwork for those products so that the hidden text is showing. Thank you
`for also clarifying that you withdrew only the SPF version of Lancôme Visionnaire Advanced Multi-Correcting Cream. We
`will request packaging for the non-SPF version.
`With respect to additional marketing documents, per our agreement from October, these documents are being
`produced in phases. As we noted, we will be producing additional marketing materials for Kiehl’s and Garnier this
`week. We did not say that the Vichy marketing materials were prepared by a third party; rather we stated that Vichy
`has not located marketing materials for the accused products, but they are searching again.
`
`Discovery teleconference
`To the extent you intend to pursue a discovery conference with the Court, we propose the parties provide the Court
`with a joint letter, informing it of the status of the document production efforts in light of the large number of accused
`products which, as you indicated on the call, Plaintiffs are refusing to reduce. As you also indicated that L’Oréal USA was
`on notice that every product containing adenosine was at issue (only to later retract that position), we also intend to
`inform the Court that Plaintiffs’ case is (under any interpretation) improperly overbroad and not tied to the asserted
`patents. As for a date for a discovery conference, in addition to February 14th, we can be available on February 11th and
`February 18th.
`
`Case schedule
`We do not understand your proposal, and disagree with its premise. As you know, we do not agree that all of the
`documents that you demand be produced right now were due in December. For example, as we’ve pointed out (and
`you have consistently refused to respond to), Plaintiffs did not produce testing data with their infringement contentions,
`confirming that such a production was not called for by the Scheduling Order. Nonetheless, as we have repeatedly
`stated, we have been producing responsive documents as soon as they are available and will continue to do so. We
`cannot guarantee that the entire production will be completed by February 7, 2020, nor is it appropriate to attach
`conditions to a discovery extension. We therefore ask that Plaintiffs consider an extension of some of the discovery
`deadlines in good faith. Assuming Plaintiffs are unwilling to do so, then we intend to seek relief from the Court, and
`demand that a discussion of the case schedule be included as part of the parties’ joint submission.
`
`Thank you,
`Kathy
`
`Katherine Murray | Of Counsel, Litigation Department
`Paul Hastings LLP | 515 South Flower Street, Twenty-Fifth Floor, Los Angeles, CA 90071
`Direct: +1.213.683.6273 | Main: +1.213.683.6000 | Fax: +1.213.627.0705 |
`katherinemurray@paulhastings.com | www.paulhastings.com
`
`3
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 10 of 94 PageID #: 7210
`
`From: Beatrice Franklin <BFranklin@susmangodfrey.com>
`Sent: Thursday, January 30, 2020 3:53 PM
`To: Murray, Katherine F. <katherinemurray@paulhastings.com>; Polatoglu, Serli <serlipolatoglu@paulhastings.com>;
`'Michael J. Farnan' <mfarnan@farnanlaw.com>; 'Brian Farnan' <bfarnan@farnanlaw.com>; Bill Carmody
`<bcarmody@SusmanGodfrey.com>; Tamar Lusztig <TLusztig@susmangodfrey.com>; Justin A. Nelson
`<jnelson@SusmanGodfrey.com>; Keeley Lombardo <KLombardo@susmangodfrey.com>; Rodney Polanco
`<RPolanco@susmangodfrey.com>
`Cc: 'Moyer, Jeffrey L.' <moyer@RLF.com>; 'Cottrell, Fred' <Cottrell@RLF.com>; 'Mowery, Katharine Lester'
`<Mowery@rlf.com>; PH-UMASS v. L’Oreal USDC <PH-UMass-LOreal-USDC@paulhastings.com>
`Subject: [EXT] RE: UMass v. L’Oréal U.S.A., Inc. - No. 17-868
`
`Counsel,
`
`Thanks for taking the time to speak today. Here’s our understanding of where we are with respect to the products with
`missing information (an updated chart is attached):
`
`(cid:120)
`
`Unidentifiable products
`You said that L’Oreal has been unable to identify the following products:
`Kiehl's Clearly Corrective Brightening Smoothing Moisture Treatment
`(cid:120)
`o See images produced at ADENOSINE_00000232, ADENOSINE_00000233; see also, e.g.,
`https://www.kiehls.com/skincare/moisturizers/clearly-corrective-brightening-and-smoothing-moisture-
`treatment/KHL4598.html
`Lancome Absolue L'Extrait Day Cream
`o See images produced at ADENOSINE_00000358, ADENOSINE_00000367; see also, e.g.,
`https://www.lancome-usa.com/skin-care/collections/absolue-l-extrait/absolue-lextrait-day-
`cream/1990790.html
`Lancome Renergie Night
`o See images produced at ADENOSINE_00003470-3498; see also, e.g., https://www.lancome-
`usa.com/skin-care/moisturizers/night-creams/renergie-night-cream/990764.html
`Lancome Teint Visionnaire
`o See images produced at ADENOSINE_00002130-2136; see also, e.g., https://www.lancome-
`usa.com/discontinued-products/teint-visionnaire-foundation/100041.html
`
`(cid:120)
`
`(cid:120)
`
`Financial data
`You said that you have requested, but not yet received, data for the following products:
`(cid:120) Giorgio Armani Armani Prima Glow-On Moisturizing Cream
`(cid:120) Giorgio Armani Crema Nera Light Reviving Eye Cream
`(cid:120) Giorgio Armani Crema Nera Supreme Light Reviving Cream
`(cid:120) Giorgio Armani Crema Nera Supreme Reviving Cream
`IT Cosmetics Bye Bye Lines Serum
`(cid:120)
`IT Cosmetics No. 50 Serum Anti-Aging Collagen Veil Primer
`(cid:120)
`Lancome Absolue Revitalizing Brightening Soft Cream
`(cid:120)
`Lancome Absolue Revitalizing Oleo Serum
`(cid:120)
`Lancome Absolue Rich Cream
`(cid:120)
`Lancome Absolue Ultimate Elixir-Concentrate
`(cid:120)
`Lancome Advanced Genifique Hydrogel Melting Sheet Mask
`(cid:120)
`Lancome Advanced Genifique Yeux Light-Pearl Hydrogel Melting Eye Mask
`(cid:120)
`Lancome High Resolution Refill-3x Triple Action Renewal Cream
`(cid:120)
`Lancome Renergie Lift Multi-Action Firming Mask
`(cid:120)
`Lancome Rénergie Lift Volumetry Volumetric Lifting and Reshaping Cream SPF 15
`(cid:120)
`
`4
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 175 Filed 05/21/20 Page 11 of 94 PageID #: 7211
`
`(cid:120)
`(cid:120)
`(cid:120)
`(cid:120)
`(cid:120)
`(cid:120)
`(cid:120)
`
`Lancome Absolue Revitalizing Eye Cream
`Vichy ProEven Daily Dark Spot Serum Corrector
`Vichy Neovadiol Compensating Complex
`Vichy Neovadiol Eye & Lip Contours
`Yves Saint Laurent Forever Youth Liberator Eye Zone Serum
`Yves Saint Laurent Top Secrets All-in-One BB Cream
`Yves Saint Laurent Top Secrets Eye Perfecting Fluid
`
`You said that data for these products will produced by the end of next week:
`Kiehl's Pure Vitality Skin Renewing Cream
`(cid:120)
`Additional unspecified L’Oreal Paris products
`(cid:120)
`
`You have still not explained why financial data for several divisions is not available before 2013. Please do so. You also
`said that you would identify products that had no US sales before 2019.
`
`No technical/marketing information
`There are some products for which we are missing any ingredient lists, product packaging, or marketing data. Beyond
`the four products listed as “unidentifiable” above, you have not specified products that you are unable to identify.
`Nevertheless, the attached list – as did previous lists – includes the bates numbers for product images for each of the
`products for which we are missing technical documents. Our understanding is that for these products, you are looking
`for this information but do not yet have it.
`
`Officialization documents/formulation lists
`You acknowledged that there are several products for which ingr