Case 1:17-cv-00868-CFC-SRF Document 232-1 Filed 06/30/20 Page 1 of 89 PageID #: 9314
`Case 1:17-cv-00868—CFC-SRF Document 232-1 Filed 06/30/20 Page 1 of 89 PageID #: 9314
`
`EXHIBIT “(cid:36)”
`
`EXHIBIT “A”
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 232-1 Filed 06/30/20 Page 2 of 89 PageID #: 9315
`
`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
`t the Accused Products are the subset of those
`the FAC are accused of infringement.” Docket No. 31, at 9. Given that 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,
`products whose use entails applying to the dermal cells a concentration of adenosine in the claimed ranges, L’Oreal has
`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 232-1 Filed 06/30/20 Page 3 of 89 PageID #: 9316
`
`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 232-1 Filed 06/30/20 Page 4 of 89 PageID #: 9317
`
`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 232-1 Filed 06/30/20 Page 5 of 89 PageID #: 9318
`
`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
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`

`

`Case 1:17-cv-00868-CFC-SRF Document 232-1 Filed 06/30/20 Page 6 of 89 PageID #: 9319
`
`(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 ingredient lists are missing, and said that you have asked
`L’Oreal to locate the documents for these products.
`
`Product packaging
`You said that you have requested, but not yet received, packaging for the following products:
`Biotherm Blue Therapy Eye
`(cid:120)
`Biotherm Blue Therapy Night
`(cid:120)
`Biotherm Blue Therapy Serum in Oil
`(cid:120)
`Biotherm Blue Therapy Eye-Opening Serum
`(cid:120)
`Biotherm Blue Therapy Accelerated Serum
`(cid:120)
`(cid:120) Decleor Orexcellence Energy Concentrate Youth Cream
`(cid:120) Decleor Orexcellence Energy Concentrate Youth Mask
`(cid:120) Decleor Orexcellence Energy Concentrate Youth Eye Care
`(cid:120) Giorgio Armani Crema Nera Extrema Supreme Reviving Serum
`(cid:120) Giorgio Armani Crema Nera Extrema Volume Reshaping Eye Serum
`(cid:120) Giorgio Armani Crema Nera Supreme Reviving Cream
`(cid:120) Giorgio Armani Crema Nera Terra Pantelleria
`(cid:120) Giorgio Armani Prima Smart Moisture Serum
`L'Oreal Paris Youth Code Day Lotion SPF 30
`(cid:120)
`L'Oreal Paris Age Perfect Rosy Tone SPF 30 Sunscreen Face Moisturizer
`(cid:120)
`L'Oreal Paris Visible Lift Radiance Booster (as previously noted, the packaging for the Visible Lift product already
`(cid:120)
`produced was for the cheek duo blush)
`L'Oreal Paris RevitaLift Volume Filler Night Cream
`Lancome Advanced Genifique Hydrogel Melting Sheet Mask
`Lancome Advanced Genifique Yeux Light-Pearl Hydrogel Melting Eye Mask
`Lancome Renergie French Lift
`Lancome Visionnaire Advanced Multi-Correcting Rich Cream
`Lancome Visionnaire Advanced Skin Corrector
`
`(cid:120)
`(cid:120)
`(cid:120)
`(cid:120)
`(cid:120)
`(cid:120)
`
`5
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 232-1 Filed 06/30/20 Page 7 of 89 PageID #: 9320
`
`You said that you will be producing packaging for the following products by the end of this week:
`Kiehl's Pure Vitality Skin Renewing Cream
`(cid:120)
`Kiehl's Age Defender Eye Repair
`(cid:120)
`
`You said that you had already produced packaging for the following products at the following Bates numbers:
`L'Oreal Paris RevitaLift Triple Power SPF 30 Day Lotion – LOUSA00002670
`(cid:120)
`o But this packaging is for L’Oreal Paris RevitaLift Anti-Wrinkle + Firming Day Moisturizer, which we
`understand to be a distinct product. Compare https://www.lorealparisusa.com/products/skin-
`care/products/face/revitalift-triple-power-day-lotion-spf-30.aspx?shade=revitalift-triple-power-day-
`lotion-spf-30 with https://www.lorealparisusa.com/products/skin-care/products/facial-
`moisturizers/revitalift-anti-wrinkle-firming-day-cream-spf-25.aspx?shade=anti-wrinkle-firming-day-
`cream-spf-25. Please produce the packaging for the Triple Power product.
`L'Oreal Paris Age Perfect Cell Renewal Day SPF 15 – LOUSA00002669
`o Like the Vichy products, the packaging here is blank (see attached). Please reproduce with the full text.
`L'Oreal Paris Collagen Moisture Filler Day Lotion – LOUSA00001970
`o This packaging does not appear to contain the complete product text, including the product name (see
`attached). Please reproduce with the full text.
`Vichy products: the documents with bates numbers LOUSA0003086 to LOUSA0003090 do not contain text in the
`packaging (see attached); you said you would reproduce these files.
`
`(cid:120)
`
`(cid:120)
`
`(cid:120)
`
`You also stated that we had withdrawn Lancome Visionnaire Advanced Multi-Correcting Cream as an Accused Product;
`in fact, we withdrew the Advanced Multi-Correcting Cream with SPF. See Plaintiffs’ Second Amended Disclosure of
`Asserted Claims and Initial Infringement Contentions, at 11-12. Accordingly, we understand that you will look for and
`produce product packaging for the Multi-Correcting Cream.
`
`Marketing materials
`You said that you are planning to produce marketing materials for Kiehl’s and L’Oreal Paris products this week or next
`week. You also said that you do not have marketing materials for Vichy products because they are prepared by third
`parties; please confirm that L’Oreal does not have in its possession, custody, or control any marketing or advertising
`materials for any of the Vichy Accused Products. Finally, you said that you plan to look for and produce marketing
`materials for the other Accused Products within the next month.
`
`Case schedule
`We explained our position that we will not agree to move the February 8, 2021 trial date the Court has set for this case.
`We are, however, willing to extend the document production deadline by an additional 3 weeks, to February 28, 2020, if
`and only if L’Oreal will agree to remedy the deficiencies in its production pursuant to Paragraph 6 of the Scheduling
`Order no later than the current document production deadline of February 7, 2020. To be clear, this would entail
`producing all missing financial, technical, and marketing materials for all products detailed in the attached list, in
`addition to the product testing that Plaintiffs have repeatedly explained falls within Paragraph 6(a). Provided you
`represent that we will receive by February 7 the materials we were entitled to receive on December 20, 2019, we will
`agree to move the document production deadline. We do not believe any of the other interim dates need to be moved.
`
`If L’Oreal will not so agree by COB tomorrow, January 31, we will file our joint motion for a discovery conference on
`Monday. Please give us two additional dates to propose for the conference (besides February 14).
`
`Many thanks,
`Beatrice
`
`Beatrice Franklin | Susman Godfrey LLP
`
`6
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 232-1 Filed 06/30/20 Page 8 of 89 PageID #: 9321
`
`212.729.2021 (o) | 617.710.7850 (c)
`
`From: Murray, Katherine F. <katherinemurray@paulhastings.com>
`Sent: Thursday, January 30, 2020 11:36 AM
`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 ,
`
`We inadvertently provided the wrong proposed case schedule yesterday. Please see the attached schedule instead,
`which is the same proposed schedule we circulated in November, excluding dates that have already passed or that
`relate to Markman deadlines.
`
`Thanks,
`Kathy
`
`From: Murray, Katherine F.
`Sent: Wednesday, January 29, 2020 6:31 PM
`To: 'Beatrice Franklin'; Polatoglu, Serli; 'Michael J. Farnan'; 'Brian Farnan'; 'Bill Carmody'; 'Tamar Lusztig'; 'Justin A.
`Nelson'; 'Keeley Lombardo'; 'Rodney Polanco'
`Cc: 'Moyer, Jeffrey L.'; 'Cottrell, Fred'; 'Mowery, Katharine Lester'; PH-UMASS v. L’Oreal USDC
`Subject: RE: UMass v. L’Oréal U.S.A., Inc. - No. 17-868
`
`Counsel,
`
`Attached is L’Oréal USA’s proposed revision to the case schedule to discuss on tomorrow’s call, along with the
`outstanding issues regarding the scope and identification of accused products. We are available at 9am PT/ 12pm
`ET. Please confirm so we can circulate a calendar appointment.
`
`Thank you,
`Kathy
`
`From: Murray, Katherine F.
`Sent: Wednesday, January 29, 2020 10:43 AM
`To: Beatrice Franklin; Polatoglu, Serli; Michael J. Farnan; 'Brian Farnan'; Bill Carmody; Tamar Lusztig; Justin A. Nelson;
`Keeley Lombardo; Rodney Polanco
`Cc: 'Moyer, Jeffrey L.'; 'Cottrell, Fred'; 'Mowery, Katharine Lester'; PH-UMASS v. L’Oreal USDC
`Subject: RE: UMass v. L’Oréal U.S.A., Inc. - No. 17-868
`
`Counsel,
`
`We are not “refus[ing] to join” any call with the Court, as is clear from our correspondence. Rather, as we have
`explained, any such call would be premature at this time. Indeed, this is in line with the Court’s own procedures, as
`Judge Fallon recently confirmed that if there is a dispute as to whether a discovery conference is needed, a party can still
`seek a discovery conference, but only after there has been a meaningful meet and confer, which, based on our firm
`understanding, must be conducted verbally, unless that cannot be achieved. There is no reason why a verbal meet and
`confer cannot be achieved here, since you have indicated your availability for a call tomorrow. We will send you our
`7
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 232-1 Filed 06/30/20 Page 9 of 89 PageID #: 9322
`
`proposed case schedule under separate cover. We will also get back to you regarding a time for tomorrow’s meet and
`confer and other outstanding issues that you still have not addressed.
`
`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
`
`From: Beatrice Franklin <BFranklin@susmangodfrey.com>
`Sent: Wednesday, January 29, 2020 7:35 AM
`To: Polatoglu, Serli <serlipolatoglu@paulhastings.com>; Murray, Katherine F. <katherinemurray@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,
`
`We are happy to meet and confer on January 30 after noon ET to discuss your proposed extension to the case schedule;
`please send us your proposed schedule beforehand, so we can review. The parties have already met and conferred with
`respect to L’Oreal’s deficient production, and the parties are clearly at an impasse. Again, you have not named any
`Accused Products that L’Oreal cannot identify; with respect to products you allege are improperly accused, we have no
`intention of accusing products that post-date the patent’s expiration, but do not have complete information on which
`products post-date expiration. And you have not explained or agreed to remedy promptly the deficiencies in L’Oreal’s
`December 20 production. We will file a motion letter with the Court and note L’Oreal’s refusal to join.
`
`All the best,
`Beatrice
`
`Beatrice Franklin | Susman Godfrey LLP
`212.729.2021 (o) | 617.710.7850 (c)
`
`From: Polatoglu, Serli <serlipolatoglu@paulhastings.com>
`Sent: Tuesday, January 28, 2020 4:54 PM
`To: Beatrice Franklin <BFranklin@susmangodfrey.com>; Murray, Katherine F. <katherinemurray@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,
`
`8
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 232-1 Filed 06/30/20 Page 10 of 89 PageID #:
`9323
`
`We agree with your email from this morning that the parties have not adequately met and conferred on the issues,
`rendering a discovery call with the Court premature at this time. We are available to meet and confer on Thursday,
`January 30th. Please let us know if that works with your schedule. We are still waiting on your responses to questions
`we’ve raised in prior emails, and expect you to be prepared to discuss those matters during the meet and confer to
`ensure a fruitful conversation. At that time we can also discuss our repeated request to amend the case schedule, which
`you still have not meaningfully responded to.
`
`To the extent you intend to go forward with your unilateral request for a discovery conference with the Court, which we
`maintain would be improper, we are available on February 14th. This would give you an opportunity to review the
`documents produced by February 7th and assess whether a discovery conference is even necessary.
`
`Best,
`-Serli
`
`From: Beatrice Franklin <BFranklin@susmangodfrey.com>
`Sent: Tuesday, January 28, 2020 12:11 PM
`To: Polatoglu, Serli <serlipolatoglu@paulhastings.com>; Murray, Katherine F. <katherinemurray@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,
`
`Following up on the below. We’d like to get this issue before the Court promptly, so please provide us with dates by the
`end of today.
`
`All the best,
`Beatrice
`
`Beatrice Franklin | Susman Godfrey LLP
`212.729.2021 (o) | 617.710.7850 (c)
`
`From: Beatrice Franklin
`Sent: Tuesday, January 28, 2020 10:50 AM
`To: Polatoglu, Serli <serlipolatoglu@paulhastings.com>; Murray, Katherine F. <katherinemurray@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,
`
`9
`
`

`

`Case 1:17-cv-00868-CFC-SRF Document 232-1 Filed 06/30/20 Page 11 of 89 PageID #:
`9324
`You have not requested an additional meet-and-confer on the disputed production issues, nor have you proposed a
`schedule for a discovery extension or offered to meet and confer on such an extension. You have not named a single
`Accused Product—which, as we’ve shown, are named based on L’Oreal’s public product names—that you are unable to
`identify. You have not explained why financial data continues to be missing for several products altogether, and for
`multiple divisions before 2013. You do not identify what “new issues” we raised for the first time on January 27. Finally,
`you have never explained why satisfying L’Oreal’s overall discovery obligations (obligations which you have made clear
`L’Oreal does not intend to fulfill pursuant to the Court’s schedule) would mitigate its failure to produce the documents
`and information required by Paragraph 6 of the Scheduling Order.
`
`Please