Case 1:20-cv-00393-LO-TCB Document 491 Filed 03/12/21 Page 1 of 16 PageID# 10996
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`v.
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
`
`Plaintiffs and Counterclaim Defendants,
`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
`
`Defendants and Counterclaim Plaintiffs.
`
`
`
`Case No. 1:20-cv-00393-LO-TCB
`
`REDACTED
`
`PLAINTIFFS’ MEMORANDUM IN SUPPORT OF SECOND MOTION TO COMPEL
`PRODUCTION OF RESPONSIVE DOCUMENTS RELATED TO
`DEFENDANTS’ ’374 PATENT INFRINGEMENT COUNTERCLAIM
`
`
`
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`

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`Case 1:20-cv-00393-LO-TCB Document 491 Filed 03/12/21 Page 2 of 16 PageID# 10997
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`
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`TABLE OF CONTENTS
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`
`TABLE OF AUTHORITIES ...................................................................................................... ii
`INTRODUCTION........................................................................................................................ 1
`FACTUAL BACKGROUND ...................................................................................................... 1
`LEGAL STANDARD .................................................................................................................. 5
`ARGUMENT ................................................................................................................................ 6
`I.
`The Court Should Order Defendants To Produce Responsive Documents in
`Their Possession .............................................................................................................. 6
`The Court Should Order Defendants To Produce Responsive Documents in
`Possession of Smart Chip and Minilogic ...................................................................... 8
`CERTIFICATION ..................................................................................................................... 11
`CONCLUSION .......................................................................................................................... 11
`
`II.
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`
`
`
`
`-i-
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`Case 1:20-cv-00393-LO-TCB Document 491 Filed 03/12/21 Page 3 of 16 PageID# 10998
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`
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`
`
`CASES
`
`TABLE OF AUTHORITIES
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`Page(s)
`
`Castle v. Jallah,
`142 F.R.D. 618 (E.D. Va. 1992) ............................................................................................................. 6
`
`Doe v. Old Dominion Univ.,
`289 F. Supp. 3d 744 (E.D. Va. 2018) ..................................................................................................... 5
`
`E.I. DuPont de Nemours & Co. v. Kolon Indus., Inc.,
`286 F.R.D. 288 (E.D. Va. 2012) ............................................................................................................. 8
`
`Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prod. Grp., LLC,
`879 F.3d 1332 (Fed. Cir. 2018) .............................................................................................................. 7
`
`Fendi Adele v. Filene’s Basement, Inc.,
`No. 06 CIV. 244RMBMHD, 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009) ........................................... 7
`
`McKesson Info. Sols. LLC v. Epic Sys. Corp.,
`242 F.R.D. 689 (N.D. Ga. 2007) ............................................................................................................ 6
`
`Metro. Opera Ass’n, Inc. v. Local 100, Hotel Employees & Redt. Employees Int’l Union,
`212 F.R.D. 178 (S.D.N.Y. 2003) ............................................................................................................ 7
`
`Singletary v. Sterling Transp. Co.,
`289 F.R.D. 237 (E.D. Va. 2012) ............................................................................................................. 6
`
`OTHER AUTHORITIES
`
`Fed. R. Civ. P. 26 .......................................................................................................................................... 5
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`Fed. R. Civ. P. 34 .................................................................................................................................. 5, 7, 8
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`Fed. R. Civ. P. 37 .................................................................................................................................. 1, 5, 7
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`Local Civil Rule 37 ............................................................................................................................. 1, 5, 11
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`
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`ii
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`INTRODUCTION
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`For the second time, Plaintiffs RAI Strategic Holdings, Inc. and R.J. Reynolds Vapor
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`Company (“Reynolds”) respectfully move under Federal Rule of Civil Procedure 37(a)(3)(B) and
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`Local Civil Rule 37 for an order compelling Defendants Altria Client Services LLC, Philip Morris
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`USA Inc., and Philip Morris Products S.A. (collectively, “Defendants”) to produce all responsive
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`documents related to the ’374 patent that are within their control, as well as documents in the
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`possession of Defendants’ suppliers Smart Chip Microelectronic and Minilogic Device
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`Corporation. This motion is necessary because Defendants’ recent expert reports revealed that
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`they have not produced all responsive documents—despite assuring the Court (and Reynolds)
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`months ago that Defendants had completed that production in a successful attempt to avoid
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`Reynolds’s earlier motion to compel.
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`FACTUAL BACKGROUND
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`This Motion seeks documents relating to the ’374 patent on which Defendants base their
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`counterclaim alleging that Reynolds’s VUSE products infringe the patent. The patent concerns a
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`puff sensor—a component of an electronic cigarette that senses when the consumer is using the
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`device (i.e., begins to “puff”), triggering the heating process. Minilogic was the original owner of
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`the ’374 patent family, which later was acquired by Smart Chip and then Altria Client Services
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`(“ACS”).
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`Reynolds contends that the ’374 patent is invalid because it was not novel, having been
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`filed in 2015, years after Reynolds began selling its VUSE Solo product. Defendants contend that
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`the ’374 patent should be treated as if it were filed in 2010—before VUSE Solo—based on an
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`earlier patent application by the inventor of the ’374 patent, Loi Ying Liu, a Minilogic employee.
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`The validity of the ’374 patent over prior sales of the VUSE Solo product turns on whether the
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`2010 patent application fully describes the invention claimed in the ’374 patent or, as Reynolds
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`contends, it does not.
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`A.
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`In order to uncover the facts lmderlying Defendants’ priority claim and supporting
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`Reynolds’s invalidity and damages claims, Reynolds served discovery requests in October 2020
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`seat-a ataaaaabatt—
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`-, including information relating to Smart Chip’s, Minilogic’s, and Mr. Liu’s development
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`of the invention claimed in the ’374 patent; as well as their work on products embodying the
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`claimed invention; and Smart Chip’s, Minilogic’s, Mr. Liu’s, and Defendants’ knowledge of
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`relevant prior art. 03x. A.) For example, Reynolds’s Request for Production No. 293 specifically
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`called for the production of documents relating to puff sensors ‘With non-metallic diaphragms,
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`including diaphragms made from . ..
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`sofl and resilient plastic materials such as a PPS
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`(Polyphenylene Sulfide). . ..” (Ex. A, at 12.)1
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`Over the course of the following month, Defendants refused to produce all responsive
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`documents requested by Reynolds, citing a series of conflicting justifications. For example,
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`Defendants claimed they did not need to produce the documents because “[a]s the challenger of
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`the patent, it [was] Reynolds’s burden to show that the ’374 patent is not entitled to the earlier
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`priority date.” (Ex. B.) Then they stated they were “collecting” responsive documents, but they
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`still refused to make a production responsive to the full scope of Reynolds’s requests, disclaiming
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`a need to produce docrunents beyond those relating to the acquisition of the’ 374 patent. (Ex. C.)
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`Next, they stated that they would search for “additional . .. and relevant documents’
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`apparently
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`‘J
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`as defined by Defendants—and produce them “to the extent any are located.” (Ex. D.) Defendants
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`1
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`The use of non-metallic dia hra
`Mr. Liu’s 2015 a
`lication.
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`, such as those made from PPS, was first described in
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`then stated that they had “sought” and “produced” documents from Smart Chip and Minilogic (Ex.
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`B), before claiming that they were in the process of collecting such documents. (Ex. C.)
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`Defendants finally asserted that seeking documents from Minilogic was “plainly improper.” (Ex.
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`E.)
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`Defendants’ evasions forced Reynolds to seek the assistance of the Court in compelling
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`Defendants to comply with their discovery obligations. Upon Reynolds’s filing of its first motion
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`to compel on November 27, 2020, Defendants suddenly changed their tune. Instead of opposing
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`Reynolds’s requests, Defendants argued that Reynolds’s motion was moot because they already
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`had “produced responsive non-privileged, nonduplicative documents in their possession, custody,
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`and control, and [were] collecting and producing the final set of responsive documents this week.”
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`(Dkt. 406 at 1.) Defendants made a similar statement at the hearing: In response to the Court’s
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`desire that Defendants “produce everything,” lead counsel for Defendants assured the Court that
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`Defendants’ production of responsive documents was “complete.” (Ex. F, at 9 (“And I can confirm
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`for the Court that that production is complete.”).) The Court denied Reynolds’s motion to compel
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`as moot before staying the case on other grounds.
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`B.
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`It is clear, however, that Reynolds and the Court had been provided erroneous
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`information: Defendants’ production in response to these requests was not, in fact complete.
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`Reynolds discovered this on February 24, 2021, when Defendants produced and cited in their
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`expert reports new documents that were responsive to Reynolds’s prior requests. For example,
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`Defendants’ damages expert, Mr. Meyer, cited three documents for the proposition that
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`
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`yet none of these documents had been produced prior to February 24, 2021.
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`(Ex. G, at 252; Ex. H.) These documents included
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`3
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`—all of which should have been produced in response to Reynolds’s Requests for
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`Production because they relate to
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` and Defendants’
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`knowledge of puff sensors before 2015. (Ex. A.) Moreover, the
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`. (Ex. H.).
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`On March 2, 2021, Reynolds wrote a letter identifying the newly-revealed responsive
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`documents and requesting that Defendants produce straightaway any other withheld responsive
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`documents, including those in the possession of Smart Chip and Minilogic. (Ex. I, at 2.) More
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`generally, Reynolds noted deficiencies in Defendants’ attempts to identify and produce documents
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`in the possession Smartchip and Minilogic. (Ex. I, at 3.) Specifically, Reynolds referred back to
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`the events relating to Reynolds’s first motion to compel, when Defendants revealed that they had
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`been in contact with Henry Lam—a director at Smart Chip—since September 2020 but only
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`“recently” asked him for documents responsive to Reynolds’s Requests for Production. (Ex. I, at
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`3.) And, when Reynolds’s first motion to compel was already pending, Smart Chip made its first
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`production of documents—consisting of only two documents showing
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` (copies of which had already been produced by Defendants
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`from their own files) and a copy of the patent application that led to the ’374 patent (a public
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`document). Minilogic made no production from its own files.
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`Three days later, Defendants responded, maintaining that they had completed their
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`production of documents responsive to Reynolds’s requests in December 2020 and asserting that
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`the new documents produced on the same day as Defendants’ expert report were “predominantly
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`duplicative of documents already produced.” (Ex. J, at 1.) Based on that unsubstantiated
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`characterization, Defendants dismissed Reynolds’s concern about other unproduced documents as
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`“conjecture and wholly unsupported.” (Ex. J, at 1.) Nonetheless, Defendants conceded that they
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`needed to search for additional responsive documents in response to Reynolds’s letter. (Ex. J, at
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`1 (noting that Defendants were “checking whether any such documents exist” and would “produce
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`those if so”).) Since that March 5 communication, Defendants have produced no further
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`documents to date. Pursuant to Local Civil Rule 37(E), Reynolds’s counsel conferred with
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`Defendants’ counsel on March 8, 2021, but they were unable to reach a resolution prior to the
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`filing of this motion. Reynolds therefore seeks the assistance of the Court in compelling
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`Defendants to meet their discovery obligations.
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`LEGAL STANDARD
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`The Federal Rules of Civil Procedure “contemplate the broadest discovery possible in the
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`search of the truth.” Doe v. Old Dominion Univ., 289 F. Supp. 3d 744, 749 (E.D. Va. 2018). Rule
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`26 provides that a party “may obtain discovery regarding any nonprivileged matter that is relevant
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`to a parties’ claim or defense” and, of course, “[r]elevant information need not be admissible at
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`trial if the discovery appears reasonably calculated to lead to the discovery of admissible
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`evidence.” See Fed. R. Civ. P. 26(b)(1).
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`Under Federal Rule of Civil Procedure 34, “a party” may request “any other party” to
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`produce documents if the documents are in that responding party’s “possession, custody, or
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`control.” Fed. R. Civ. P. 34(a)(1). The responding party must state that it will produce the
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`documents or state with specificity its objection to any part of the request—but simply withholding
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`documents is not an option. Fed. R. Civ. P. 34(b)(2)(B). And “an evasive or incomplete disclosure,
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`answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P.
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`37(a)(4).
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`Faced with noncompliance, a requesting party “may move for an order compelling
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`disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). The burden of proof is with the party objecting
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`5
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`to the discovery to establish that the challenged discovery request should not be permitted. See,
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`e.g., Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 241 (E.D. Va. 2012); Castle v. Jallah, 142
`
`F.R.D. 618, 620 (E.D. Va. 1992).
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`ARGUMENT
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`
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`This Court should compel Defendants to produce documents responsive to Reynolds’s
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`requests related to the ’374 patent. This production consists of documents vital to Reynolds’s
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`defense against Defendants’ charge of infringement of the ’374 patent. Specifically, without
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`access to the documents concerning the priority date of—and the prior art predating—the ’374
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`patent, which are solely within Defendants’ possession or control, Reynolds will be materially
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`prejudiced in presenting its arguments on those issues. Indeed, Defendants’ failure to comply with
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`their discovery obligations is already prejudicing Reynolds: Reynolds likely still does not have
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`all responsive documents, even though opening expert reports already have been served and the
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`end of the discovery period—in which Reynolds must take the discovery that will set up its defense
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`and any dispositive motions based on it—is mere weeks away. The Court therefore should compel
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`Defendants to live up to their discovery obligations and produce all remaining responsive
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`documents in their possession or control.
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`I.
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`The Court Should Order Defendants To Produce Responsive Documents in Their
`Possession
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`The Court should compel Defendants to produce all responsive documents within their
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`possession pursuant to Rules 34 and 37. As explained in Reynolds’s first motion to compel (Dkt.
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`No. 380, at 8–9), the documents it seeks are unquestionably relevant to its invalidity defense: The
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`documents concern the priority date of the ’374 patent, which determines what counts as
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`invalidating prior art, making the documents “unquestionably relevant to a claim or defense.’”
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`McKesson Info. Sols. LLC v. Epic Sys. Corp., 242 F.R.D. 689, 692 (N.D. Ga. 2007). In addition,
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`6
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`the requested documents are relevant to damages. See Exmark Mfg. Co. Inc. v. Briggs & Stratton
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`Power Prod. Grp., LLC, 879 F.3d 1332, 1352 (Fed. Cir. 2018) (holding district court abused its
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`discretion by ruling that prior art was relevant to damages only to the extent it was
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`commercialized). In short, these requests seek production of relevant documents, which
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`Defendants have a duty to produce under Rule 34. See Fed. R. Civ. P. 34(b)(2); Fed. R. Civ. P.
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`37(a)(3)(b)(4) (providing for motion to compel production of documents for failure to produce
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`under Rule 34). And that duty to produce carries with it a duty to carry out a reasonable search,
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`with diligence, to ensure that all responsive documents have been produced. Fendi Adele v.
`
`Filene’s Basement, Inc., No. 06 CIV. 244RMBMHD, 2009 WL 855955, at *8 (S.D.N.Y. Mar. 24,
`
`2009) (“It should not require reiteration that litigants have an obligation, when discovery is sought
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`from them, to make reasonable efforts to locate responsive documents, including setting up ‘a
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`reasonable procedure to distribute discovery requests to all employees and agents … potentially
`
`possessing responsive information, and to account for the collection and subsequent production of
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`the information ….” (quoting Metro. Opera Ass’n, Inc. v. Local 100, Hotel Employees & Redt.
`
`Employees Int’l Union, 212 F.R.D. 178, 223 (S.D.N.Y. 2003))).
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`The recent production of new documents strongly suggests that Defendants have so far
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`have failed to live up to those duties. As noted above, the unproduced documents that Defendants
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`included with their expert reports were responsive to Reynolds’s Requests for Production. And
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`they are vital to Reynolds’s defense with respect to the ’374 patent: For example, the documents
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`invalidity argument by demonstrating that
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` actually support Reynolds’s
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`. Given the production of these new highly relevant
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`documents, it is likely that other such documents exist and have not yet been found or produced.
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`7
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`In light of that fact and Defendants’ prior incorrect statements that production was complete, the
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`Court should not leave Reynolds to take Defendants’ word that production is complete.2 Rather,
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`the Court should compel Defendants to fulfill their discovery obligations by conducting a complete
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`investigation into the existence of responsive docmnents and producing those documents as soon
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`as possible, thereby preventing any finther prejudice to Reynolds in its defense of the ’374 patent.
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`H.
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`The Court Should Order Defendants To Produce Responsive Documents in
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`Possession of Smart Chip and Minilogic
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`In addition to compelling Defendants to provide documents within their possession, the
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`Court should also compel Defendants to produce docrnnents within Smart Chip’s and Minilogic’s
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`possession because Defendants have control over those documents. Rule 34 provides that parties
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`must produce requested d0c1nnents in their “possession, custody, or control.” Fed. R. Civ. P.
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`34(a)(1). For purposes of Rule 34, “[c]ontrol does not require that the party have legal ownership
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`or actual physical possession of the documents at issue, but rather ‘the right, authority or practical
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`ability to obtain the documents from a nonparty to the action. ”’ E.I. DuPont de Nemom's & Co. v.
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`Kolon Indus., Inc, 286 F.R.D. 288, 292 (ED. Va. 2012). Indeed, this Comt looked to this rule in
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`requiring Reynolds to produce docrnnents in the possession of its third—party suppliers. (Ex. K, at
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`1 1—12.)
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`Here, Defendants have control over documents within Smart Chip’s and Minilogic’s
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`2 Indeed, Defendants’ counsel’s letter to Reynolds on March 5, 2021 states that Defendants are
`‘
`‘checkin whether any
`docrunents exist” related to
`l
`*, conceding that more improduced responsrve ocuments
`e y exrst. Ex. J.
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`Moreover, this is not the only time Defendants have said one thing about production or knowledge
`of docrunents and then suddenly produced more documents contrary to those prior statements. At
`deposition, Defendants’ 30
`6 witness, when asked about Defendants’ dealin s with Minilogic,
`said
`, but he later
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`provr e
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`oc1unents an
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`111 er
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`ormation on
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`to De en
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`ts’ expert.
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`Case 1:20-cv-00393-LO-TCB Document 491 Filed 03/12/21 Page 12 of 16 PageID# 11007
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`. AC S acquired the rights to the ’374 patent developed by Smalt Chip
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`and 33313333.
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`3333 L3—
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`By the
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`(Ex. L. at 1.11 11.3.)
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`— 333 L133 3333333 33333»—
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`_ 3333 L1
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`333313
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`added).) In other words.
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`
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`(13111.11 11.2.
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`Moreover,
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`- (EM
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`u—
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`— (Ex-N.) mus.
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`And Defendants’ to-date revelations concerning their efforts to collect relevant docrunents
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`from Smart Chip and Minilogic reinforce that
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`those efforts are inadequate and have left
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`unproduced responsive documents in the control of Smart Chip and Minilogic: Defendants only
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`requested responsive documents from Mr. Lam shortly before filing their opposition to Reynolds’s
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`first motion to compel (after having been in contact with him for two months): Smart Chip made
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`its fn‘st production after Reynolds’s motion was already pending and produced only two
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`docrunents—one Reynolds had already received from Defendants and another that was publicly
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`available; Minilogic produced no documents; and Defendants have not contacted Minilogic again
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`despite Mr. Liu’s past relationship with the company and his current employment with its parent
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`company, Megalogic.
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`As a result, Reynolds ahnost certainly has not received responsive
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`5
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`5 On March 5, 2021‘ Defendants sent Re
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`olds a letter—dated December 2, 202
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`(Ex. 0.) This belatedly disclosed
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`cannot a so ve De en nts o t err uty to pro uce t e requested docrunents or at least take
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`10
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`documents material to its defense of this case. The Court therefore should compel Defendants to
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`immediately produce any and all responsive documents in the possession or control of Smart Chip
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`and Minilogic.
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`CERTIFICATION
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`Pursuant to Local Civil Rule 37(E), undersigned counsel certifies that they conferred with
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`Defendants’ counsel on March 8, 2021, and that they were unable to reach a resolution prior to the
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`filing of this motion.
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`CONCLUSION
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`For these reasons, Reynolds respectfully requests that the Court enter an order compelling
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`Defendants to: (1) conduct a complete investigation for the existence of responsive documents in
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`Defendants’ possession or control and immediately produce those documents, and (2) conduct a
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`complete investigation for the existence of responsive documents in Smart Chip’s and Minilogic’s
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`possession or control and immediately produce those documents.
`
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`reasonable efforts to identify them. It does not, for example, warrant a refusal of ACS to (1) follow
`up with Minilogic in a further effort to locate documents or (2) ask Mr. Liu—with whom
`Defendants remain in contact—for further assistance in light of his status as a former employee of
`Minilogic and a current employee of Minilogic’s parent company, Megalogic.
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`11
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`Case 1:20-cv-00393-LO-TCB Document 491 Filed 03/12/21 Page 15 of 16 PageID# 11010
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`Respectfully submitted,
`
`
`
`
`
` /s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
`
`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
`
`Charles B. Molster, III Va. Bar No. 23613
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
`
`Counsel for Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
`
`
`Dated: March 12, 2021
`
`
`
`Stephanie E. Parker
`JONES DAY
`1420 Peachtree Street, N.E.
`Suite 800
`Atlanta, GA 30309
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`
`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
`
`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
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`Case 1:20-cv-00393-LO-TCB Document 491 Filed 03/12/21 Page 16 of 16 PageID# 11011
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 12th day of March, 2021, a true and correct copy of the
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`foregoing was served using the Court’s CM/ECF system, with electronic notification of such filing
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`to all counsel of record.
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`/s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
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`Counsel for Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
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