From:
`
`Sent:
`To:
`
`Cc:
`
`Chris Marchese
`
`Thursday, May 21, 2020 4:16 PM
`Smyth, Jeffrey; Thad Kodish; Gupta, Raj; Sharma, Anand; Giannelli, Maximilienne;
`zhu@bsfllp.com;jfugate@bsfllp.com; dwillingham@bsfllp.com; UPL—NA—Tide—Team
`FRService—Tide1201@fr.com; Holderfield, Randal
`
`Subject:
`Attachments:
`
`RE: UPL v. Tide: Status of Stay/New Case Schedule
`RE: Joint Stay Request
`
`Jeff,
`
`Your email below indicates that yesterday UPL ”expected to be able to provide the Court with a proposal regarding the
`
`case schedule.” Prior to your email, we have no record of UPL stating that it intended to notify the Court on May 21 of a
`
`proposed schedule. This is the first we have heard ofthis.
`
`As I noted in my May 11 email, Tide already made its scheduling proposal to the Court in the joint status report to Judge
`
`Lew. UPL’s repeated inquiries in this email chain about the availability of witnesses and samples is contrary to the
`
`agreement the parties made when we put together the joint stay request to the Court.
`
`In the attached email from Thad
`
`Kodish to Raj Gupta, dated March 5, 2020, Thad ”mak[es] clear that discovery, including but not limited to demands
`
`made in correspondence, are stayed as well.” Moreover, the draft of the joint stay request that Thad attached to his
`
`email included the following redline: ”[The parties] jointly submit this request to temporarily stay all deadlines fl
`
`discovery in the case in view of complications arising from the coronavirus outbreak.” The underlining was an addition
`made by Tide, and is reflected in Thad’s statement in his email that discovery demands made in correspondence are also
`
`stayed. We have no record of anyone from your team responding to Thad’s email to dispute or modify his statement,
`
`and UPL adopted the underlined language in the final version submitted to the Court.
`
`Now, however, UPL through this email correspondence is doingjust what both parties agreed not to do: make demands
`
`regarding discovery.
`
`You have Tide’s proposal on the schedule. We are certainly open to receiving any proposal that UPL may have. But as
`
`stated above, UPL’s continuing demands about discovery are contrary to the agreement the parties made concerning
`
`the stay.
`
`Thanks,
`Chris
`
`From: Smyth, Jeffrey <Jef‘frey.Smyth@finnegan.com>
`
`Sent: Wednesday, May 20, 2020 2:44 PM
`
`To: Chris Marchese <marchese@fr.com>; Thad Kodish <TKodish@fr.com>; Gupta, Raj <Raj.Gupta@finnegan.com>;
`
`Sharma, Anand <Parmanand.Sharma@finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@finnegan.com>; zhu@bsfllp.com; jfugate@bsfllp.com; dwillingham@bsfllp.com; UPL—NA—Tide—
`
`Team <UPL—NA—Tide—Team@finnegan.com>
`
`Cc: FRService—Tidel201@fr.com; Holderfield, Randal <Randa|.Holderfield@finnegan.com>
`
`Subject: RE: UPL v. Tide: Status of Stay/New Case Schedule
`
`Ch ris,
`
`TIDE 1028
`
`TIDE 1028
`
`

`

`Today is when we expected to be able to provide the Court with a proposal regarding the case schedule. In the April 20,
`
`2020 submission, Tide told the Court that the circumstances have changed since the parties originally requested the stay
`and that Tide believes discovery can resume now, but you still have not provided any information concerning the
`
`earliest availability of Tide’s witnesses and samples. We requested that information two weeks ago. Your unexplained
`
`refusal to provide this information is making it impossible for the parties to engage in a good faith discussion of how the
`
`case should proceed. We understand the circumstances in China are continuing to evolve and if you have information on
`
`the earliest expected availability of the witnesses and discovery requested in this case, we are simply asking that you
`
`provide it.
`
`Your silence on this has done nothing to alleviate our concern that Tide appears to be attempting to avoid providing
`
`certain witnesses and other information during discovery by prematurely advancing the discovery period. We reiterate
`
`our request from my email last week that if you are unwilling to participate in the process and provide the requested
`
`information, please so advise and explain the bases for your refusal. Otherwise, please promptly provide the requested
`
`information so that we may attempt to develop a proposed schedule that addresses the realities of Tide’s current
`
`situation in terms of witnesses, samples, and other discoverable information.
`
`Best,
`Jeff
`
`Jeffrey D. Smyth
`Partner
`
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`3300 Hillview Avenue, Palo Alto, CA 94304-1203
`650.849.6618 | fax 650.849.6666 |
`'effrey.smyth@finnegan.com | www.finnegan.com
`
`From: Smyth, Jeffrey
`
`Sent: Wednesday, May 13, 2020 7:54 PM
`
`To: IChris MarcheseI <marchese@_fr.com>; Thad Kodish <TKodish@_fr.com>,' Gupta, Raj <Ra'.Gu ta
`
`finne an.com>;
`
`Sharma, Anand <Parmanand.Sharma@_finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@_finnegan.com>; zhu@_bsfllp.com; ifugate@_bsfllp.com; dwillingham@bsfllp.com; UPL—NA—Tide—
`Team <UPL-NA-Tide-Team finne an.com>
`
`Cc: FRService-Tidel201@fr.com; Holderfield, Randal <Randal.Holderfield
`
`finne an.com>
`
`Subject: RE: UPL v. Tide: Status of Stay/New Case Schedule
`
`Ch ris,
`
`It has been and continues to be our concern that Tide appears to be attempting to avoid providing certain witnesses and
`
`other information during discovery by prematurely advancing the discovery period. Tide’s decision to disregard our
`
`requests to discuss an appropriate case schedule only heightens our concerns. And any delay in providing the requested
`
`information will only serve to slow things down.
`
`In the April 20, 2020 submission we proposed that the parties confer on an appropriate schedule and submit a proposal
`
`on May 20, 2020 that addresses the effects of Covid—19. To do so, we need to know when the depositions and samples
`
`we requested in discovery will be available. Circumstances are changing every day, and we are simply asking for an
`
`update on the earliest expected availability of this discovery. Tide has already told the court that it is ready to resume
`
`discovery right now, so we’re confused why Tide cannot now provide this basic information.
`
`If you are unwilling to participate in the process and provide the requested information, please so advise and explain the
`
`bases for your refusal. Otherwise, please promptly provide the requested information so that we may share a proposed
`
`schedule that addresses the realities of Tide’s current situation in terms of witnesses, samples, and other discoverable
`information.
`
`

`

`Best,
`Jeff
`
`Jeffrey D. Smyth
`Partner
`
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`3300 Hillview Avenue, Palo Alto, CA 94304-1203
`650.849.6618 | fax 650.849.6666 | jeffrey.smyth@finnegan.com | www.finnegan.com
`
`From: Chris Marchese <marchese
`
`fr.com>
`
`Sent: Monday, May 11, 2020 5:44 PM
`
`To: Smyth, Jeffrey <Jeffrey.Smyth@finnegan.com>; Thad Kodish <TKodish@fr.com>; Gupta, Raj
`<Raj.Gupta@_finnegan.com>; Sharma, Anand <Parmanand.Sharma@finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@_finnegan.com>; zhu@_bsfllp.com; jfugate@_bsfllp.com; dwillingham@bsfllp.com; UPL—NA—Tide—
`Team <UPL-NA-Tide-Team finne an.com>
`
`Cc: FRService-Tidel201@fr.com; Holderfield, Randal <Randal.Holderfield
`
`finne an.com>
`
`Subject: RE: UPL v. Tide: Status of Stay/New Case Schedule
`
`Jeff,
`
`We are not looking to address the case schedule with the Court. Tide already provided its proposal regarding the
`
`schedule in the joint submission. We are only seeking to inquire about the status of the stay and ifthe Court can
`
`provide any guidance on when it will be lifted. We do not see how that specific inquiry requires Tide to answer
`
`questions that UPL is posing on availability of witnesses or samples, especially when Tide provided its proposal in the
`
`joint submission regarding conducting discovery post—stay.
`
`For example, in that submission Tide proposed that ”the parties can resume discovery by using remote technology,
`
`where applicable, and reaching compromises on discovery issues that may arise,” and that any dispute regarding ”UPL’s
`
`alleged disputes with the sufficiency of Tide’s production samples or document production
`
`can be addressed in a
`
`discovery motion.” Moreover, Tide offered ”a solution for depositions that would avoid the need for personal
`interaction and travel.”
`
`All we are seeking to do now is check on status of the stay given that the March 5 Joint Stipulation asked for a 60—day
`
`temporary stay and the Court’s March 6 Order granted the parties’ ”request [for] a temporary stay,” and we are now
`
`greater than sixty (60) days after the March 6 order. We believe it would be beneficial for both parties to know. We
`understand, from your response, that UPL does not agree.
`
`Thanks,
`Chris
`
`From: Smyth, Jeffrey <Jeffre .Sm th
`
`finne an.com>
`
`Sent: Friday, May 08, 2020 3:11 PM
`
`To: Chris Marchese <marchese@fr.com>; Thad Kodish <TKodish@fr.com>; Gupta, Raj <Ra'.Gu ta
`
`finne an.com>;
`
`Sharma, Anand <Parmanand.Sharma@finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@finnegan.com>; zhu@bsfllp.com; jfugateQbsfllgcom; dwillingham@b5f||9.com; UPL—NA—Tide—
`Team <UPL-NA-Tide-Team finne an.com>
`
`

`

`Cc: FRService-Tidel201@_fr.com; Holderfield, Randal <Randal.Holderfield
`
`finne an.com>
`
`Subject: RE: UPL V. Tide: Status of Stay/New Case Schedule
`
`Ch ris,
`
`We are simply requesting information from Tide about the expected near—term availability of its witnesses and samples
`
`so that the parties can discuss a schedule for moving forward. We do not want to delay this case any more than is
`
`necessary under these unique circumstances, but Tide appears to be attempting to avoid providing certain witnesses
`
`and other information during discovery based on COVlD—19 related limitations. It is also unclear which samples Tide is
`
`prepared to produce and when. If the requested witnesses and samples will not be provided in an orderly fashion, we
`
`need to know that now, so that the parties can discuss an appropriate schedule proposal. You seem to be unwilling to
`
`participate in that process.
`
`We need to understand Tide’s position on its readiness to meet its discovery obligations before we reach out to the
`
`Court about a proposed case schedule.
`
`Best,
`Jeff
`
`Jeffrey D. Smyth
`Partner
`
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`3300 Hillview Avenue, Palo Alto, CA 94304-1203
`650.849.6618 | fax 650.849.6666 |
`'effrey.smyth@finnegan.com | www.finnegan.com
`
`From: Chris Marchese <marchese
`
`fr.com>
`
`Sent: Thursday, May 7, 2020 9:08 PM
`
`To: Smyth, Jeffrey <Jeffrey.Smyth@finnegan.com>,' Thad Kodish <TKodish@_fr.com>,' Gupta, Raj
`
`<Rai.Gupta@_finnegan.com>; Sharma, Anand <Parmanand.Sharma@finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@_finnegan.com>; zhu@_bsfllp.com; jfugate@_bsfllp.com; dwillingham@bsfllp.com; UPL—NA—Tide—
`Team <UPL-NA-Tide-Team finne an.com>
`
`Cc: FRService-Tidel201@fr.com; Holderfield, Randal <Randal.Holderfield
`
`finne an.com>
`
`Subject: RE: UPL v. Tide: Status of Stay/New Case Schedule
`
`Jeff,
`
`We are disappointed that you have taken a simple question, refused to answer it, and instead turned it into a series of
`
`questions about deposition dates and production of samples. The original request for a 60-day stay has passed, the
`
`parties submitted a joint report with competing positions, and Tide is simply interested in checking status with the
`
`Court. We understand from your response that UPL is not.
`
`Thanks,
`Chris
`
`From: Smyth, Jeffrey <Jeffre .Sm th
`
`finne an.com>
`
`Sent: Wednesday, May 06, 2020 7:40 PM
`
`To: Chris Marchese <marchese@fr.com>; Thad Kodish <TKodish@fr.com>; Gupta, Raj <Ra'.Gu ta
`
`finne an.com>;
`
`4
`
`

`

`Sharma, Anand <Parmanand.Sharma@_finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@_finnegan.com>; zhu@_bsfllp.com; jfugate@_bsfllp.com; dwillingham@bsfllp.com; UPL—NA—Tide—
`Team <UPL-NA-Tide-Team finne an.com>
`
`Cc: FRService-Tidel201@_fr.com,' Holderfield, Randal <Randal.Holderfield
`
`finne an.com>
`
`Subject: RE: UPL V. Tide: Status of Stay/New Case Schedule
`
`Ch ris,
`
`As noted in the joint statement, there are certain depositions and samples we requested in discovery, but which were
`
`unavailable due to COVlD—19, leading the parties to jointly request the stay. Such discovery is important and should be
`
`provided well before the close of fact discovery. As we consider your request and whether reopening discovery is likely
`
`to be productive, and to also facilitate our ability to discuss an appropriate schedule for the remainder of the case,
`
`please provide the following information:
`
`(1) the earliest dates of availability for Jeff Allison, Charles Guo, Amber Dong, Yang Kui, and Dennis Pfeiffer to
`
`provide Rule 30(b)(1) deposition testimony, and
`
`(2) the date when we can expect to receive previously requested samples, including: (a) Terwet 1221, (b) two
`
`samples of Tide Acephate 90 WDG (from different manufacturing lots than the sample provided), and (c) three
`
`samples of Acephate 90 WDG (EPA Reg. No. 34704—1051), requested in RFP No. 65.
`
`We expect that you should be able to provide this information soon. Once received, we will promptly respond to your
`request.
`
`Best,
`Jeff
`
`Jeffrey D. Smyth
`Partner
`
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`3300 Hillview Avenue, Palo Alto, CA 94304-1203
`650.849.6618 | fax 650.849.6666 |
`'effrey.smyth@finnegan.com | www.finnegan.com
`
`From: Chris Marchese <marchese
`
`fr.com>
`
`Sent: Wednesday, May 6, 2020 12:44 PM
`
`To: Smyth, Jeffrey <Jeffrey.Smyth@finnegan.com>; Thad Kodish <TKodish@fr.com>; Gupta, Raj
`
`<Raj.Gupta@finnegan.com>; Sharma, Anand <Parmanand.Sharma@finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@finnegan.com>; zhu@bsfllp.com; '|fugate@bsfllp.com; dwillingham@bsfllp.com; UPL—NA—Tide—
`Team <UPL-NA-Tide-Team finne an.com>
`
`Cc: FRService-Tidel201@fr.com; Holderfield, Randal <Randal.Holderfield
`
`finne an.com>
`
`Subject: RE: UPL v. Tide: Status of Stay/New Case Schedule
`
`EXTERNAL Email:
`
`Jeff,
`
`Would you prefer that the parties submit a joint email to the clerk rather than a phone call, or is UPL declining entirely
`
`to contact the Court for guidance? If the latter, what is UPL’s position as to whether discovery has reopened?
`
`Thanks,
`Chris
`
`

`

`From: Smyth, Jeffrey <Jeffre .Sm th
`
`finne an.com>
`
`Sent: Tuesday, May 05, 2020 4:58 PM
`
`To: Chris Marchese <marchese@fr.com>; Thad Kodish <TKodish@fr.com>; Gupta, Raj <Ra'.Gu ta
`
`finne an.com>;
`
`Sharma, Anand <Parmanand.Sharma@finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@finnegan.com>; zhu@bsfllp.com; '|fugate@bsfllp.com; dwillingham@b5f||9.com; UPL—NA—Tide—
`Team <UPL-NA-Tide-Team finne an.com>
`
`Cc: FRService-Tidel201@fr.com; Holderfield, Randal <Randal.Holderfield
`
`finne an.com>
`
`Subject: RE: UPL V. Tide: Status of Stay/New Case Schedule
`
`[Cautionz This is an external email. Do not click links or open attachments unless you recognize the sender
`and know the content is safe.]
`Chris,
`
`We disagree with your proposed approach. The April 20, 2020 joint status report already provided the Court with the
`
`parties’ respective positions regarding the stay. We expect that the Court will provide guidance and/or seek additional
`information from the parties in due course. It would be inappropriate for you to engage in an ex parte communication
`
`with the Court, and we object to the extent you intend to do so.
`
`Best,
`Jeff
`
`Jeffrey D. Smyth
`Partner
`
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`3300 Hillview Avenue, Palo Alto, CA 94304-1203
`650.849.6618 | fax 650.849.6666 |
`'effrey.smyth@finnegan.com | www.finnegan.com
`
`From: Chris Marchese <marchese
`
`fr.com>
`
`Sent: Monday, May 4, 2020 5:09 PM
`
`To: Smyth, Jeffrey <Jeffrey.Smyth@finnegan.com>; Thad Kodish <TKodish@fr.com>; Gupta, Raj
`
`<Raj.Gupta@finnegan.com>; Sharma, Anand <Parmanand.Sharma@finnegan.com>; Giannelli, Maximilienne
`
`<Maximilienne.Giannelli@finnegan.com>; zhu@bsfllp.com; jfugateQbsfllgcom; dwillingham@b5f||9.com; UPL—NA—Tide—
`Team <UPL-NA-Tide-Team finne an.com>
`
`Cc: FRService-Tidel201@fr.com; Holderfield, Randal <Randal.Holderfield
`
`finne an.com>
`
`Subject: UPL v. Tide: Status of Stay/New Case Schedule
`
`UPL counsel:
`
`Iftomorrow passes without an order from the Court concerning the stay and/or a new case schedule, we invite you to
`join us in calling the clerk on Wednesday to inquire. As you know, tomorrow is the last day of the 60-day stay request,
`
`and it’s unclear where things stand going forward. Please let us know if 103m PST or another time works on Wednesday
`
`for one or more of you to join us for this call.
`
`Regards,
`Chris
`
`~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k*~k
`
`6
`
`

`

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`This email message is for the sole use of the intended recipient(s)
`and may contain confidential
`If you are not the
`and privileged information. Any unauthorized use or disclosure is prohibited.
`intended recipient, please contact the sender by reply email and destroy all copies of the original
`message.
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`This e—mail message is intended only for individual(s) to whom it is addressed and may contain information that is privileged, confidential, proprietary, or otherwise
`exempt from disclosure under applicable law. If you believe you have received this message in error, please advise the sender by return e-mail and delete it from
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`This email message is for the sole use of the intended recipient(s)
`and may contain confidential
`If you are not the
`and privileged information. Any unauthorized use or disclosure is prohibited.
`intended recipient, please contact the sender by reply email and destroy all copies of the original
`message.
`***************************************************************************************************
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`
`This e—mail message is intended only for individual(s) to whom it is addressed and may contain information that is privileged, confidential, proprietary, or othenNise
`exempt from disclosure under applicable law. If you believe you have received this message in error, please advise the sender by return e-mail and delete it from
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