Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 1 of 26 PageID #: 7472
`Case 1:17-cv-00868—CFC-SRF Document 203-1 Filed 06/12/20 Page 1 of 26 PageID #: 7472
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`EXHIBIT 1
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`EXHIBIT 1
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`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 2 of 26 PageID #: 7473
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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?
`
`line.
`
`LAW CLERK: Yes, Judge, I'm on the
`
`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?
`
`Hawkins Reporting Service
`
`112 Burning Tree Road - Dover, Delaware 19904
`
`(302) 658-6697 FAX (302) 658-8418
`
` 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
`
`
`
`
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
`
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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.
`
`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
`
`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
`
`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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`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
`
`1 of 49 sheets
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`Page 1 to 4 of 128
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`04/30/2020 02:54:00 AM
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 3 of 26 PageID #: 7474
`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.
`23
`MR. ASHKENAZI: Your Honor, if I
`24
`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
`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?
`
`THE COURT: L'Oreal, response?
`MS. MURRAY: This is Kathy Murray,
`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
`112
`what they're looking for is what L'Oreal said
`about these products. And that is what we've
`given them. We've given them the marketing for
`these products, we've given them the underlying
`testing that supported those claims. So it's a
`burden to L'Oreal to have to go look for a six
`year old investigation relating to claims made
`about the products and representations made
`about the products and the underlying science
`behind the products when all those underlying
`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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`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
`04/30/2020 02:54:00 AM
`
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`MS. MURRAY: Okay.
`MR. NELSON: Thank you, Your
`
`Honor.
`
`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 4 of 26 PageID #: 7475
`113
`115
`1
`THE COURT: On this request, I
`I'm not inclined to, you know, rule on whether
`2
`will grant plaintiffs' request to compel the
`or not the defendant should have done it sooner
`3
`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
`I'd rather, you know, if this is still an issue,
`5
`2014 FTC investigation cited by the plaintiff in
`if the parties can't work out what narrow
`6
`their letter brief, including the internal and
`background information, whatever that consists
`7
`external communications regarding the specific
`of plaintiff is to produce about the carmelites
`8
`FTC investigation. And I'll order that to be
`and any subsequent discovery that issues,
`9
`produced within two weeks of the date of this
`there's going to be a response to it at some
`10
`conference. Again, leaving it to the parties to
`point and if there are deficient -- allegations
`11
`meet and confer if L'Oreal is unable to meet
`of deficiencies in that response, shouldn't the
`12
`that deadline due to global circumstances or
`Court take it up in that time rather than this
`13
`national health emergency circumstances beyond
`time? I mean technically discovery hasn't
`14
`its control. That is my ruling.
`closed, so even if the defendants didn't pursue
`15
`MS. MURRAY: Could I clarify?
`that discovery in the time frame the Court
`16
`THE COURT: Go ahead.
`originally had in mind, technically there's time
`17
`MS. MURRAY: It wouldn't include
`to do it before discovery closes or maybe not.
`18
`any privileged issues, any privileged documents.
`I don't know what the official deadline is in
`19
`THE COURT: Any privileged
`May, if there's a 30-day turnaround time for the
`20
`documents create a privilege log. No, I'm not
`discovery to be answered, but this is a
`21
`saying there's a waiver of privilege without
`long-winded way of saying I don't think this
`22
`knowing what documents, if any, additional
`issue is ripe for me. And I addressed it at the
`23
`exist. I'm not making any -- I'm not previewing
`last conference. What is the problem still?
`24
`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
`114
`116
`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
`
`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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`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 5 of 26 PageID #: 7476
`Case 1:17-cv-00868—CFC-SRF Document 203-1 Filed 06/12/20 Page 5 of 26 PageID #: 7476
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`EXHIBIT 2
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`EXHIBIT 2
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`

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`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 6 of 26 PageID #: 7477
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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?
`
`line.
`
`LAW CLERK: Yes, Judge, I'm on the
`
`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?
`
`Hawkins Reporting Service
`
`112 Burning Tree Road - Dover, Delaware 19904
`
`(302) 658-6697 FAX (302) 658-8418
`
` 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
`
`
`
`
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
`
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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.
`
`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
`
`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
`
`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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`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 203-1 Filed 06/12/20 Page 7 of 26 PageID #: 7478
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`stack argument, the overbreadth and I guess to
`or the net from being cast unreasonably wide to
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`put you through paces that are truly burdensome
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`formally made at the prior hearing in denying
`and beyond the proportionality requirements of
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`the request without prejudice, because I wanted
`rule 26 for this case. But I've got nothing to
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`the plaintiffs to fine tune their request to
`show me that. I've got the plaintiffs coming
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`make it easier for your client to be able to
`back after I denied this request in March with
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`produce what was needed in this case. And I
`more fine-tuned requests now that they know your
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`find that, you know, you're talking out of both
`document retention policies, now that they had a
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`sides of your mouth, so to speak, where we're
`30(b)(6) deposition of one of your witnesses
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`going -- we're going to try and produce helpful
`with respect to document retention and storage.
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`information, but we're going to hold back
`And so the most -- what I'm going to do here is
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`because it's outside of the agreement and I'm
`I'm going to direct that L'Oreal supplement its
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`not really sure that I understand on this call
`responses to requests for production number 40,
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`exactly where L'Oreal stands and I'm also faced
`41, 42 and 66, provide supplemental responses to
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`with the prospect that your client's response to
`that and in the meantime also -- and do that
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`requests for production are basically
`within two weeks, because obviously documents
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`unresponsive because they're just full of
`have already been produced which are arguably
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`objections and they state that well,
`responsive to some or all of these requests.
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`notwithstanding the objections, if we find
`And in the meantime meet and confer with the
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`something that we think is relevant, we'll give
`plaintiffs. If you still continue to feel that
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`it to you. That's not the way discovery is
`they're going above and beyond what is
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`reasonable and proportional, then have that
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`discovery request doesn't necessarily get to
`discussion with them. You've already agreed on
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`pick and choose out of a universe of documents
`this call. You've kind of checked the list of
`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
`102
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`what it's going to produce and then as to the
`what documents you're trying to look for anyway,
`rest without really the other side knowing what
`even notwithstanding your position as to whether
`the rest consists of, oh, don't worry about the
`or not you should be or overly burdensome, et
`rest, you know, it's too burdensome for us to
`cetera. You're going to look for documents
`get together and it's not going to really be
`anyway. Continue to fine tune and try to reach
`relevant under rule 26 anyway. I just can't --
`a meeting of the minds on what additional
`you know, we can't proceed in the case on that
`documents will take these requests for marketing
`type of a posture with respect to discovery. At
`materials. And again, my ruling is without
`the very least, if you feel that you've been
`prejudice. If there's still issues about the
`more than adequate in responding to what I'll
`completeness of this, then I'll hear it. And if
`give the general label as marketing materials,
`the response is going to be based on burden or
`even though it has all these subparts that we've
`proportionality, then L'Oreal should be prepared
`been discussing by reference to the document
`to make its record on that.
`retention policies, just referring to all of
`MS. LUSZTIG: That's fine. We can
`that generally as marketing materials, if you
`do that, Your Honor.
`really feel that there's been a pretty
`THE COURT: All right. Turning to
`substantial production, again, what I'm looking
`the next issue, it's this ML Abella testing that
`for in the responses to requests for production
`the plaintiffs were seeking, as I understand it.
`are bates ranges of documents and certain
`And I'm paraphrasing horribly, because I'm
`categories that you feel truly are responsive to
`getting a little bit weary having been at this
`the specific requests. And if there is a
`two hours, so why don't I just turn it over to
`problem with burden or proportionality, that
`the plaintiff to articulate more thoroughly than
`that's really made to the satisfaction of the
`I can what it is their seeking of this request.
`Court to prevent the door from being wide open
`MS. LUSZTIG: Thank you, Your
`Hawkins Reporting Service
`Hawkins Reporting Service
`112 Burning Tree Road - Dover, Delaware 19904
`112 Burning Tree Road - Dover, Delaware 19904
`(302) 658-6697 FAX (302) 658-8418
`(302) 658-6697 FAX (302) 658-8418
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`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 8 of 26 PageID #: 7479
`Case 1:17-cv-00868—CFC-SRF Document 203-1 Filed 06/12/20 Page 8 of 26 PageID #: 7479
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`EXHIBIT 3
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`EXHIBIT 3
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`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 9 of 26 PageID #: 7480
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`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
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`UNIVERSITY OF MASSACHUSETTS
`and CARMEL LABORATORIES,
`LLC,
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` Plaintiffs,
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`1 2 3 4 5 6 7 8 9
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`CIVIL ACTION
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`NO. 17-868-CFC-SRF
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`:::::::::::
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` vs.
`L'ORÉAL USA, INC.,
` Defendant.
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` - - -
` Wilmington, Delaware
` Monday, May 18, 2020
` 9:00 o'clock, a.m.
` ***Telephone conference
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` - - -
`BEFORE: HONORABLE SHERRY R. FALLON, U.S. MAGISTRATE JUDGE
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`APPEARANCES:
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` Valerie J. Gunning
` Official Court Reporter
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`1 of 50 sheets
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`Page 1 to 1 of 125
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`05/19/2020 05:59:31 AM
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` FARNAN LLP
` BY: BRIAN E. FARNAN, ESQ.
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`

`2
`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 10 of 26 PageID #:
`7481
`APPEARANCES (Continued):
`
`4
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` SUSMAN GODFREY L.L.P.
` BY: BEATRICE C. FRANKLIN, ESQ.,
` TAMAR LUSZTIG, ESQ. and
` DAVIDA BROOK, ESQ.
` (New York, New York)
`
` -and-
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` SUSMAN GODFREY L.L.P.
` BY: JUSTIN A. NELSON, ESQ.
` (Houston, Texas)
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` Counsel for Plaintiffs
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` RICHARDS, LAYTON & FINGER, P.A.
` BY: FREDERICK L. COTTRELL, III, ESQ. and
` KATHARINE L. MOWERY, ESQ.
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` -and-
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` PAUL HASTINGS LLP
` BY: ISAAC S. ASHKENAZI, ESQ.
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` -and-
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` BROWNE GEORGE ROSS LLP
` BY: DENNIS S. ELLIS, ESQ. and
` KATHERINE MURRAY, ESQ.
` (New York, New York)
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` Counsel for Defendants
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`thank you for entering your appearance.
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`MS. FARNAN: I'm sorry about that, Your Honor.
`I forgot Ms. Brook. I apologize.
`THE COURT: That's all right.
`For the defendants?
`MS. MOWERY: Good morning, Your Honor. Kate
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`Mowery from Richards, Layton & Finger.
`On the line with me today is Fred Cottrell from
`my office, Isaac Ashkenazi from Paul Hastings, and Dennis
`Ellis and Katherine Murray, both from Browne George Ross.
`THE COURT: All right. Very good. All right.
`
`Good morning, everyone.
`A couple of things. I set aside a few hours,
`essentially, from 9:00 to 11:00, if it takes that long for
`this hearing, so use your time wisely, please. If we're not
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`concluded by 11:00, the Court will be concluded and I will
`have to decide any remaining issues that were not argued on
`this call based on the letter briefs.
`Also, just to indicate that the number of
`exhibits attached to the moving exhibits have been a bit
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`overwhelming. They have been quite voluminous, so I will
`instruct you that if you are referring to a particular
`exhibit, please identify it by docket item number and
`exhibit number and give me a moment or two to get to it on
`my computer screen. Speak slowly. Do not speak over one
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`(The telephone conference was held beginning at
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`9:00 a.m.)
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`THE COURT: Good morning, everyone. This is
`Magistrate Judge Sherry Fallon. I've just joined the call.
`This is in the matter of University of Massachusetts, et al
`versus, et al.
`First of all, thank you for accommodating an
`earlier teleconference for this discovery dispute. I had
`something unexpected come up late morning that I have to
`address and I appreciate the accommodation.
`Thank you. We'll now do appearances of counsel.
`MR. FARNAN: Good morning, Your Honor. Brian
`Farnan on behalf of the plaintiff, and with me is Justin
`Nelson, Tamir Lusztig and Beatrice Franklin, all from Susman
`Godfrey.
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`And it would be helpful given the number of
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`issues in this case if you would be succinct about framing
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`the alleged deficiency, whether any efforts have been made
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`to remedy that deficiency since the letter briefs were
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`submitted, and specifically address the specific relief that
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`the moving party is seeking.
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`I would prefer to refrain from hearing from each
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`side an opportunity for venting. I recognize that there is
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`we're living in in dealing with discovery issues remotely,
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`and I can appreciate the frustration on both sides, and
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`that's why the Court is here to see how we can work through
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`it, but the venting is not a good use of the limited time
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`that we have for the disputes. So focus on the alleged
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`deficiency, focus on what has been done, if anything, to
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`remedy it, and focus on the remedy that you are seeking.
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`So with those instruction, I want to turn first
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`to the issue that carried over from the previous discovery
`THE COURT: All right. Very well.
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`conference in April concerning the 2014 FTC investigation.
`MS. BROOK: Pardon me, Your Honor. Also here
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`Since I entered my oral order on May 7th with
`for plaintiffs is Davida Brook. I am new to the plate for
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`respect to that lingering issue, an objection has been filed
`the plaintiffs' lawyers, also from Susman Godfrey.
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`by Judge Connolly, although prior to the time that objection
`THE COURT: Okay. I'm having a little bit of
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`was filed, I had ordered that the defendants shall be
`difficulty hearing you, Ms. Brook. If you could speak into
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`the microphone, and you were breaking up a little bit, but
`prepared to address certain issues at this discovery
`05/19/2020 05:59:31 AM
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`Case 1:17-cv-00868-CFC-SRF Document 203-1 Filed 06/12/20 Page 11 of 26 PageID #:
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`conference.
`It's my view that we will not revisit that issue
`pending Judge Connolly's ruling on the objection, but I do
`wish to hear from defendants with respect to those
`particular items that were listed in my oral order on
`May 7th and why that information was not gathered and
`provided to the Court in an anticipation of the previous
`discovery conference on April 24th. So let me hear from
`L'Oreal on that.
`MR. ELLIS: Thank you, Your Honor. This is
`Dennis Ellis. I appreciate the opportunity to address this
`issue.
`
`To update the Court, on May 8, 2020, in
`accordance with the Courts' order, we produced to plaintiffs
`127 documents totaling approximately 1,100 pages, which
`encompasses the entirety of the external communications
`L'Oreal USA had with the Federal Trade Commission concerning
`Inves