Case 1:22-cv-00311-WCB Document 481 Filed 04/18/24 Page 1 of 6 PageID #: 27899
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 22-311-WCB
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`JURY TRIAL DEMANDED
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`))))))))))
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`IMPOSSIBLE FOODS INC.,
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`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
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`Plaintiff,
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`v.
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`Defendants.
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`IMPOSSIBLE FOODS INC.’S RESPONSIVE LETTER BRIEF REGARDING GINKGO
`BIOWORKS INC.’S MOTION TO COMPEL SLACK MESSAGES
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`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew M. Moshos (#6685)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`amoshos@potteranderson.com
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`Attorneys for Plaintiff Impossible Foods Inc.
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`OF COUNSEL:
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`Wendy L. Devine
`Kristina M. Hanson
`Shannon P. Gillespie McComb
`Jessica Ramsey
`Joyce K. Yao
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`Tel: (415) 947-2000
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`Matthew R. Reed
`Jeffrey Nall
`Quincy Rush
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Tel: (650) 493-9300
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`Lori P. Westin
`Natalie J. Morgan
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El Camino Real
`San Diego, CA 92130
`Tel: (858) 350-2300
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`Michael T. Rosato
`Sonja R. Gerrard
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`PUBLIC VERSION
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`Case 1:22-cv-00311-WCB Document 481 Filed 04/18/24 Page 2 of 6 PageID #: 27900
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`WILSON SONSINI GOODRICH & ROSATI, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`Tel: (206) 883-2529
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`Matthew Macdonald
`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`953 East Third Street, Suite 100
`Los Angeles, CA 90013
`Tel: (323) 210-2953
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`Dated: April 11, 2024
`11442891 /20200.00002
`Public Version Dated: April 18, 2024
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`

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`Case 1:22-cv-00311-WCB Document 481 Filed 04/18/24 Page 3 of 6 PageID #: 27901
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`Dear Judge Bryson:
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`Impossible respectfully requests the Court deny Ginkgo’s motion to compel Impossible to
`produce documents from its
`. Rather than a good faith request for relevant
`information, Ginkgo’s motion is a request for quid pro quo discovery into a duplicative, non-
`custodial data source and would impose an undue burden on Impossible.
`I.
`Background of Dispute
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`Pursuant to Delaware’s Default Standard for Discovery, Impossible and Ginkgo exchanged
`Paragraph 3 Disclosures late last year. In its list of “non-custodial data sources that are most
`likely to contain non-duplicative discoverable information for preservation and production
`consideration, from the most likely to the least likely,” Ginkgo affirmatively identified
` as the very first item. Ex. A at 6-7 (emphasis
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`added). In contrast,
`” and did not identify Slack as an item on its disclosure. Ex. B at 3 (emphasis added).
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`After Impossible reiterated it had disclosed relevant information in the Food Product Patents
`Case (Ex. C) (which at the time included all patents), Ginkgo requested Impossible modify its
`list of custodians and proposed that both parties forego collection from
`. Ex. D at 3
`(“Please confirm that Impossible does not use instant messaging services such as Slack, Teams,
`or other similar service . . . To the extent Impossible believes such searching is not proportional
`to the needs of this case, Ginkgo would consider agreeing that such repositories need not be
`searched, provided that any such agreement is bilateral.”). Impossible modified its custodian list
`and responded that it would consider Ginkgo’s proposal to not search Slack. Ex. E at 1 (“We
`will follow up shortly regarding your proposal that the parties agree not to search messaging
`services.”).
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`The parties met and conferred on December 12, 2023 to discuss Slack, among other issues, and
`Impossible determined it could not agree to such a proposal with Ginkgo even though it had
`reached a similar agreement with Motif. Ex. F at 1 (“. . . in light of Ginkgo’s representation that
`Slack is the repository most likely to have relevant, non-duplicative data, Impossible believes
`that Ginkgo should collect, search, and produce documents from its Slack repository.”)
`(emphasis added).
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`Nearly a month later, on January 10, Ginkgo responded by stating “[i]f Impossible wants Ginkgo
`to search Slack, Impossible must also search Slack.” Ex. G at 1. However, as Impossible
`repeatedly told Ginkgo, the parties are differently situated: “Impossible is differently situated in
`this regard; Slack is not Impossible’s primary non-custodial repository and therefore is not likely
`to contain relevant, non-duplicative data. Impossible does not agree it should have to collect and
`produce from Slack simply because Ginkgo must do so.” D.I. 446-1, Ex. 17 at 1.
`II. Minimal Relevance of Impossible’s Slack Documents
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`Impossible has produced over 60,000 documents in this litigation, more than 15,000 of which
`resulted from additional discovery efforts related to Ginkgo’s requests in the Yeast Patents Case.
`Hanson Decl., ¶ 6. Within these documents, Slack is mentioned only 339 times, including some
`documents which are duplicative, such as repetitive email chains. Id., ¶ 7. By way of
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`Case 1:22-cv-00311-WCB Document 481 Filed 04/18/24 Page 4 of 6 PageID #: 27902
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`The Honorable William C. Bryson
`April 11, 2024
`Page 2
`comparison, Ginkgo has produced fewer than 15,000 total documents. Of those, apparently half
`are from Slack. D.I. 446 at 1. Ginkgo’s citation to the volume of its own production of Slack
`documents must be considered in this context, especially given that Ginkgo identified Slack as
`the non-custodial data source “most likely” to contain non-duplicative discoverable information.
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`Ginkgo’s citations to Impossible production documents are similarly unpersuasive.
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`. Furthermore, many of these
`examples are pulled from the Food R&D department and contain information that would not be
`pertinent to the Yeast Patents Case. Id., Exs. 12, 13, 14, 15.
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`Ginkgo notes its “offers” to take depositions or inspect Impossible’s documents, but fails to
`mention that Impossible did not “ignore” Ginkgo’s offers and instead addressed them at a meet
`and confer. Hanson Decl., ¶ 8. That is, Impossible informed Ginkgo it could not prepare a
`30(b)(6) witness to testify about how “Impossible” uses Slack because each individual at the
`company could use it differently, and Impossible had grave concerns about allowing Ginkgo
`unfettered—even if supervised—access to Impossible’s Slack repository. Impossible declined
`an onsite inspection of Slack at least in part because Impossible could not grant Ginkgo’s
`counsel access to Slack messages. Licon Decl., ¶ 4. An onsite inspection would be futile, as
`well as invasive and potentially risk a waiver of privilege. Likewise, it was impracticable to
`prepare a declaration on how Impossible uses Slack because use varies among individuals.
`III. Burden of Slack Collection, Review, and Production
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`“On motion or on its own, the court must limit the frequency or extent of discovery otherwise
`allowed by these rules or by local rule if it determines that: (i) the discovery sought is
`unreasonably cumulative or duplicative, or can be obtained from some other source that is more
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`Case 1:22-cv-00311-WCB Document 481 Filed 04/18/24 Page 5 of 6 PageID #: 27903
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`The Honorable William C. Bryson
`April 11, 2024
`Page 3
`convenient, less burdensome, or less expensive . . .” F.R.C.P. Rule 26(b)(2)(C); Micron Tech.,
`Inc. v. Rambus Inc., C.A. No. 00-792-KAJ, 2006 WL 8452038, at *4 (D. Del. July 11, 2006),
`(“Micron has not sustained its burden to show that the benefit it may receive is likely to
`outweigh the burden to Rambus.”). Impossible at all times objected to the production of Slack as
`unreasonably duplicative of sources already searched in this case. While maintaining its
`objection, Impossible has nevertheless diligently explored the burden to collect, process, review,
`and produce Slack data. Ex. H at 7, 1-2; Licon Decl., ¶¶ 6-11; Ex. I at 1-6. Given that
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`Licon Decl., ¶ 5. Impossible informed Ginkgo this would impose an undue burden.
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`Counsel for Impossible later (and only recently) learned of a workaround for collecting Slack
`data for a much lower cost and Impossible’s IT proceeded to collect such data as expeditiously as
`possible. Licon Decl. ¶¶ 6-10. The Slack representative communicating with Impossible about
`data collection did not initially disclose this option to Impossible. Id., ¶ 7. Likewise, counsel for
`Ginkgo did not disclose (or was equally unaware) of this option as of the parties’ March 16, 2024
`meet and confer. Ex. I at 3-5. Once Impossible learned of a reasonably-priced collection
`method, Impossible started taking steps to determine whether the burden to process, review and
`produce Slack data remains high. Licon Decl., ¶¶ 7-11. Despite Impossible’s transparency with
`Ginkgo about its efforts, Ginkgo demanded an unequivocal commitment that Impossible would
`produce responsive documents. Impossible cannot agree without knowing the cost, and now
`anticipates it will have that information by April 16. Ginkgo would not wait for Impossible to
`complete its investigation before filing the present motion.
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`As of today (April 11), Impossible’s vendor is processing the collected Slack data to determine
`its volume. The vendor completed processing of the portion of the Slack data corresponding to
`Impossible’s identified custodians and about ten of Impossible’s Slack “channels.” This data has
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`. While a small number of channels appear to be facially non-relevant
`based on their names (e.g. “
`”), the majority of these channels are being
`processed. Ex. J. The
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`. Hanson Decl., ¶ 5. Once the documents
`have been processed with all of the documents (and based on size, about 1/3 of the data has been
`processed), Impossible will have the ability to run search terms and receive a quote for review to
`assess the burden for review and production.
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`Impossible continues to assess the remaining burden. Ex. I at 1-5. Although Impossible kept
`Ginkgo appraised of its efforts to obtain and process Slack data, Impossible cannot
`unequivocally commit to reviewing and producing data without assessing the burden. Id. at 1.
`IV. Conclusion
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`Impossible respectfully requests the Court deny Ginkgo’s motion to compel Slack data from
`Impossible.
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`Case 1:22-cv-00311-WCB Document 481 Filed 04/18/24 Page 6 of 6 PageID #: 27904
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`The Honorable William C. Bryson
`April 11, 2024
`Page 4
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`Respectfully,
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`/s/ Bindu A. Palapura
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`Bindu A. Palapura (#5370)
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`BAP/mes/1144289/20200.00002
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`Enclosures
`cc:
`Clerk of the Court (via hand delivery)
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`Counsel of Record (via electronic mail)
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