Case 1:20-cv-00393-LO-TCB Document 1231 Filed 05/19/22 Page 1 of 4 PageID# 32333
`Maximilian A. Grant
`555 Eleventh Street, N.W., Suite 1000
`Direct Dial: +1.202.637.2267
`Washington, D.C. 20004-1304
`max.grant@lw.com
`Tel: +1.202.637.2200 Fax: +1.202.637.2201
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`May 19, 2022
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`VIA ECF FILING
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`Re: RAI Strategic Holdings, Inc. et al. v. Altria Client Services LLC, et al.,
`No. 1:20-cv-393-LO-TCB (E.D. Va.)
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`The Honorable Liam O’Grady
`United States District Judge
`Albert V. Bryan U.S. Courthouse
`401 Courthouse Square
`Alexandria, VA 22314
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`Dear Judge O’Grady:
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`We write on behalf of Plaintiffs Altria Client Services LLC, Philip Morris USA Inc., and
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`Philip Morris Products S.A. (“Philip Morris”) regarding two issues that recently arose and that we
`are compelled to bring to the Court’s attention before the May 20, 2022 hearing. First, on May 6,
`just one month before trial, Reynolds produced over 1,000 documents spanning nearly 23,000
`pages. Second, on April 28, Reynolds disclosed five purported recent “conversations” on which
`Reynolds intends to rely at trial between Dr. James Figlar, Reynolds’ retired Executive Vice
`President and 30(b)(6) designee on various topics, and other Reynolds’ employees, presumably by
`having Dr. Figlar contend he has personal knowledge based on these hearsay discussions. These
`documents and the substance of Dr. Figlar’s hearsay “conversations” with individuals absent from
`Reynold’s initial disclosures and trial witness list should be excluded.
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`First, on May 6, 2022, Reynolds produced over 1,000 documents spanning nearly 23,000
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`pages. The production included a Premarket Tobacco Product Application (“PMTA”) concerning
`the accused VUSE Alto product, which Reynolds submitted to the FDA on April 12, 2022. This
`is now the second Alto PMTA submission that Reynolds produced after fact discovery closed
`nearly a year ago.1 Consequently, Reynolds’ technical 30(b)(6) witness, Eric Hunt, was never
`deposed on these two late-produced PMTA submissions. Nor have the parties’ technical experts
`opined about them. Instead, the parties and their technical experts all relied on the original Alto
`PMTA dated September 2020—which Mr. Hunt testified on behalf of Reynolds “is an accurate
`reflection of the [Alto] product that we sell in the market.” Hunt 11/16/20 Dep. at 22:21-23:16.
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`1 In April 2021, after the close of fact discovery, Reynolds produced its first set of amendments to
`the original Alto PMTA.
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`Philip Morris asked Reynolds to explain the timing of its last-minute production and
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`confirm that it will not rely on the late produced documents at trial. Reynolds refused without
`explanation. To date, with limited exception, Reynolds has not sought to amend its exhibit list to
`include the tardily-produced documents.2
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`Given the timing of Reynolds’ recent production, Philip Morris respectfully requests that
`the Court preclude Reynolds from using the documents produced in May 2022—including these
`PMTA submissions—for any purpose at trial. For example, Reynolds should not be permitted to
`suggest, whether through attorney arguments, its witnesses, or cross-examination, that the
`September 2020 PMTA is irrelevant, outdated, or otherwise unreliable to establish infringement
`or damages. FED. R. CIV. P. 37(c)(1). Should the Court permit Reynolds to address these untimely
`PMTA submissions, Philip Morris requests leave to serve supplemental expert report(s) to address
`them.
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`Second, on April 28, 2022, Reynolds disclosed new “conversations” between its Rule
`30(b)(6) designee, Dr. James Figlar, and five other Reynolds’ employees that allegedly occurred
`in April 2022, that Reynolds plans to have Dr. Figlar testify about at trial. These individuals are:
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`(i)
`(ii)
`(iii)
`(iv)
`(v)
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`Aaron Williams (Senior VP Scientific & Regulatory Affairs),
`Elaine Round (Senior Director, Scientific & Regulatory Affairs)
`Jorge Araya (Executive VP & Chief Commercial Officer)
`Patrick Doyle (position unknown), and
`Barry Bratcher (position unknown).
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`According to Reynolds, the subject matter of these conversations relates to “the status of FDA’s
`review of Reynolds’ other pending PMTAs,” “marketing of VUSE products,” “financial
`information related to the VUSE products,” and “a vaccine project.”3 Reynolds seeks to rely on
`these conversations at trial, but provides no explanation for these belated adjustments to the factual
`record developed in discovery. What is plain is that Reynolds is now either trying to cure a lack
`of preparation of its 30(b)(6) witness—or otherwise trying to “back door” into evidence hearsay
`from these five individuals—none of whom were (i) disclosed in Reynold’s Rule 26 Disclosures,
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`2 Reynolds added several newly-produced documents to its exhibit list. Philip Morris does not
`object to their inclusion, subject to the Court’s in limine rulings and evidentiary objections at trial.
`3 Reynolds appears to plan to inject non-relevant facts about a COVID vaccine that Dr. Figlar
`purportedly worked on in 2020, prior to his depositions in this case. Setting aside Reynolds’
`improper attempt to belatedly augment the factual record, evidence about Reynolds’ purported
`COVID vaccine efforts are inadmissible and should be excluded. They are irrelevant to the issues
`at trial. In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2020 WL 6450290, at *9 (N.D.
`Ohio Nov. 3, 2020) (excluding evidence of “good deeds” related to COVID-19 as irrelevant);
`Ocasio v. C.R. Bard, Inc., No. 13-cv-1962, 2021 WL 2787993, at *4 (M.D. Fla. July 5, 2021)
`(similar). Even if there were some marginal probative value (there is not), it is substantially
`outweighed by the risk of misleading the jury and unfairly prejudicing Philip Morris.
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`(ii) consulted previously by Dr. Figlar in preparation for his corporate deposition, or (iii) are on
`Reynolds’ trial witness list.
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`These curated eleventh hour conversations should be excluded. First, they are inadmissible
`hearsay. Reynolds attempts to sidestep the prohibitions against hearsay by asserting these recent
`conversations pertain to one of the corporate topics for which Dr. Figlar was designated over a
`year ago, i.e., “facts and circumstances relating to Plaintiffs’ planned or actual submissions of RJR
`PMTAs for any of the RJR Accused Products.” But Reynolds cannot use Dr. Figlar’s status as a
`corporate witness at his deposition to flout the Federal Rules of Evidence and adduce
`impermissible hearsay testimony from him at trial on topics for which Dr. Figlar—admittedly,
`since he had to obtain this information from others—lacks personal knowledge.
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`Second, Dr. Figlar is not competent to testify at trial as to information conveyed to him by
`other individuals after his retirement from Reynolds. He is no longer an executive and he no longer
`is in a position to rely on Reynolds’ employees to provide him information in the scope of his
`corporate responsibilities—he has none. And, to the extent Reynolds claims such information was
`already known to Dr. Figlar, no further deposition is required and Dr. Figlar has no need to rely
`on information obtained from others.
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`Third, the conversations with these individuals occurred nearly a year after Dr. Figlar’s last
`30(b)(6) deposition, in June 2021.4 Dr. Figlar did not disclose or rely on conversations with these
`individuals at any of his prior depositions. Nor did Reynolds disclose any of these employees on
`its initial disclosures or trial witness list. Fact and expert discovery closed long ago, and the parties
`are in the midst of final trial preparations. Reynolds should not be permitted to elicit testimony
`from non-witnesses, voiced through Dr. Figlar, frustrating Philip Morris’ ability to both conduct
`discovery on them during the discovery period or to effectively cross-examine Dr. Figlar about
`such testimony at trial. Permitting Reynolds to now cure whatever deficiencies they are attempting
`to cure in Dr. Figlar’s 30(b)(6) testimony would severely prejudice Philip Morris.
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`Reynolds contends that Philip Morris can simply re-depose Dr. Figlar to cure any potential
`prejudice.5 That is nonsense. Such new testimony could not be fairly presented without deposing
`the five individuals and Dr. Figlar, and probably also supplementation or amendment of expert
`reports, and new expert depositions. That is infeasible at this eleventh hour.6
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`Reynolds next contends that the hearsay communicated to Dr. Figlar “has[s] not
`substantively changed [Dr. Figlar’s] testimony on behalf of the company.” 4/28/2022 E-mail from
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`4 A deposition that Reynolds tried repeatedly to delay and avoid, which only occurred after Philip
`Morris moved to compel it. See Dkt. 614.
`5 The Court may recall that Dr. Figlar, a retired Reynolds executive, was the witness whose three-
`week vacation – taking a trip to Italy – conflicted with the Court’s proposed alternative trial dates
`and needlessly complicated setting a new trial date. See, e.g., Dkt. 1135 (2/7/22 Hr’g Tr.) at 5:1-
`8.
`6 Reynolds has refused to identify the substance of the new information received by Dr. Figlar
`from others, except in the broadest possible listing of general “topics.”
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`J. Michalik. That is hard to believe, but if so, only confirms that the subject information is not
`required and, at best, cumulative of Dr. Figlar’s prior testimony. FED. R. EVID. 401, 403. Taking
`Reynolds’ representation at face value, there is no harm from barring Dr. Figlar from testifying
`regarding any information provided in these five April 2022 conversations at trial.
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`In a context where the purpose of the discovery rules in civil cases is to prevent trial by
`ambush, the Court can come to its own conclusions about Reynolds’ attempt to inject nearly 23,000
`pages of documents and unspecified hearsay into this case one month before trial. Philip Morris
`respectfully requests that the Court preclude (i) Reynolds from relying on or using these documents
`at trial and (ii) Dr. Figlar (and any other Reynolds trial witness) from testifying about any
`information supposedly learned from the “recent,” conversations that Dr. Figlar had with the five
`Reynolds employees identified above. The Court should also require Reynolds to make a written
`proffer about the substance of these conversations so that the Court and Philip Morris can properly
`police the scope of Dr. Figlar’s pre-April 2022 personal knowledge.
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`Sincerely,
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`/s/ Maximilian A. Grant
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`Maximilian A. Grant
`of LATHAM & WATKINS LLP
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