Case 1:20-cv-00393-LO-TCB Document 493 Filed 03/17/21 Page 1 of 27 PageID# 11172
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`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`RAI STRATEGIC HOLDINGS, INC. AND R.J.
`REYNOLDS VAPOR COMPANY
`
`
`Plaintiffs and Counterclaim
`Defendants,
`
`
`v.
`
`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
`
`CONFIDENTIAL –
`FILED UNDER SEAL
`
`
`
`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ SECOND MOTION TO COMPEL
`PRODUCTION OF DOCUMENTS RELATED TO DEFENDANTS’
`’374 PATENT INFRINGEMENT COUNTERCLAIM
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`
`
`
`
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`

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`Case 1:20-cv-00393-LO-TCB Document 493 Filed 03/17/21 Page 2 of 27 PageID# 11173
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`
`
`I.
`
`II.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ...............................................................................................................1
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`FACTUAL BACKGROUND ..............................................................................................4
`
`A.
`
`B.
`
`Defendants’ Production Of Documents Leading Up To The Denial Of
`Reynolds’ First Motion To Compel And The Events Since Then ...........................4
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`Defendants’ Requests For And Production Of Smart Chip And MiniLogic
`Documents ...............................................................................................................8
`
`III.
`
`ARGUMENT .....................................................................................................................13
`
`A.
`
`B.
`
`Reynolds’ Renewed Motion To Compel Should Be Denied As An
`Improper Request For Reconsideration .................................................................13
`
`Reynolds’ Motion To Compel Further Production Of Defendants’
`Documents Should Be Denied ...............................................................................15
`
`1.
`
`2.
`
`There Was No Dispute At The Time Of Reynolds’ Filing Of Its
`Renewed Motion To Compel – And The Motion Is Now Moot in
`any Event ...................................................................................................15
`
`Reynolds’ Conjecture That “Other Such Documents Exist” Is
`Unfounded and Unsupported .....................................................................16
`
`C.
`
`Reynolds’s Motion To Compel Additional Documents From Smart Chip
`And MiniLogic Should Be Denied ........................................................................19
`
`1.
`
`2.
`
`Defendants Have Produced All Documents Received From Smart
`Chip And All Documents Within Smart Chip’s Possession,
`Custody, And Control ................................................................................19
`
`Although Not Within Defendants’ Control, Defendants Have
`Sought Documents From MiniLogic .........................................................20
`
`IV.
`
`CONCLUSION ..................................................................................................................22
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`
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`i
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`Case 1:20-cv-00393-LO-TCB Document 493 Filed 03/17/21 Page 3 of 27 PageID# 11174
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`
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`
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
`
`Albritton v. Johnson,
`No. 2:07-cv-356, 2008 WL 8178124 (E.D. Va. Sept. 19, 2008) ......................................... 15, 20
`
`Knisely v. Nat’l Better Living Ass’n,
`No. 3:14-CV-15, 2014 U.S. Dist. LEXIS 202924 (N.D. W.Va. Oct. 15, 2014) ................. 17, 19
`
`McLean v. Branch Banking & Trust Co.,
`No. 1:19-cv-1413, 2020 U.S. Dist. LEXIS 249204 (E.D. Va. June 24, 2020) .......................... 13
`
`Navient Sols., LLC v. Law Offices of Jeffrey Lohman, P.C.,
`No. 1:19-cv-461, 2020 WL 6379233 (E.D. Va. Sept. 4, 2020) ................................................. 13
`
`Pritchard v. Wal-Mart Stores, Inc.,
`3 F. App’x 52 (4th Cir. 2001) .................................................................................................... 13
`
`Susko v. City of Weirton,
`No. 5:09-cv-1, 2011 WL 98557 (N.D. W.Va. Jan. 12, 2011) ......................................... 3, 17, 18
`
`RULES
`
`Fed. R. Civ. P. 26(e) ............................................................................................................... 14, 16
`
`
`
`ii
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`Case 1:20-cv-00393-LO-TCB Document 493 Filed 03/17/21 Page 4 of 27 PageID# 11175
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`I.
`
`INTRODUCTION
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`
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`Reynolds’ Second Motion to Compel (“Renewed Motion to Compel”) is nothing more than
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`an improper request for reconsideration of its previously denied November 2020 motion to compel
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`(Dkt. No. 385, 388; “First Motion to Compel”). While the relief Reynolds seeks is anything but
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`clear, what is plain is that Defendants conducted a reasonable search for documents within their
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`custody, possession, and/or control, and have produced all responsive, non-privileged documents
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`located during that search. This was true when the Court denied Reynolds’ First Motion to Compel
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`on December 4, 2020, and it remains true today. Nothing has changed, much less anything
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`warranting granting Reynolds’ improper self-styled “Second Motion”/ request for reconsideration.
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`Reynolds’ Renewed Motion to Compel should be denied for at least four reasons.
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`First, Reynolds provides no basis for reconsidering this Court’s order denying Reynolds’
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`First Motion to Compel. The standard for reconsideration—which Reynolds wholly ignores and
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`does not even attempt to meet—is exacting, and this Court disfavors such motions. There have
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`been no intervening changes in existing law, no meaningful new evidence, and certainly no clear
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`error or manifest injustice in the Court’s prior ruling that warrants correction. Instead of taking on
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`this exacting standard, Reynolds simply rehashes and repeats the very facts previously presented
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`to this Court when it denied Reynolds’ First Motion. This is insufficient to meet Reynolds’ burden.
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`The only alleged “new” documents on which Reynolds relies are three documents that were
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`located, identified and produced shortly after the stay lifted, pursuant to Rule 26(e) and different
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`discovery requests. Defendants’ production of those three documents provides no basis for
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`reconsidering the Court’s denial of the First Motion to Compel. None of those documents are
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`responsive to Request for Production No. (“RFP”) 293—the only document request identified in
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`Reynolds’ Renewed Motion to Compel. Even if they were responsive, only one of these three
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`1
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`
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`documents—a product specification on an
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`—is even technical in nature. But
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`the
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` was already produced and, at a minimum, the new document is duplicative
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`of numerous other documents produced months ago, which Reynolds’ motion ignores. And none
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`of the three documents are relevant to Defendants’ validity positions. Further, Reynolds does not
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`even attempt to identify new facts since its First Motion to Compel warranting reconsideration of
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`this Court’s denial of Reynolds’ First Motion to Compel on the Smart Chip and MiniLogic
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`documents, and that relief should likewise be denied.
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`Second, on March 2, 2021, Reynolds asked—for the first time—that Defendants search for
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`certain specific additional documents within their custody and control. Defendants agreed to
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`search for and produce for any such documents. Defendants were in the process of doing so, when
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`Reynolds improperly and prematurely filed this Motion. Contrary to Reynolds’ representations
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`(Br. at 5), which tellingly omits any evidentiary support, the parties were never at an impasse and
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`Defendants never refused any of the relief Reynolds now seeks. Reynolds’ motion is premature
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`and should be separately denied on that basis. In any event, Defendants have now complied with
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`Reynolds’ new request, thereby mooting Reynolds’ requested relief.
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`Third, the crux of Reynolds’ motion—that the production of several duplicative documents
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`“strongly suggest[s] that Defendants have so far failed to live up to” their duties to produce
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`documents—is incorrect and rank speculation. Reynolds provides no basis for its unsupported
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`attorney speculation.1 None exists. Defendants have conducted reasonable searches in response
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`to RFP 293 (or otherwise) and have gone above and beyond to comply with Reynolds’
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`unreasonable requests. Defendants have produced hundreds of thousands of pages of documents
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`1 A more suspicious party may attribute Plaintiffs’ speculation to the theory of “projection,” a
`psychological phenomenon where one thinks everyone else is doing and thinking what they are.
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`2
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`
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`in this case, and the routine supplementation of a few duplicative documents provides no basis for
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`Reynolds’ overreach. Reynolds’ allegations should ring particularly hollow given that Reynolds
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`has produced over 91,000 pages since the “substantial completion” deadline in October 2020, and
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`over 6,000 pages in the past three weeks alone. Reynolds characterizes its own supplementations
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`as productions “in the normal course of updating Reynolds’ discovery responses.” Ex. 1 (3/10 J.
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`Michalik email). Reynolds’ unfounded assertion that Defendants’ production efforts in response
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`to RFP 293—or more generally—have been anything short of reasonable based upon Defendants’
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`supplementation of a handful of redundant documents provides no basis to grant a motion for
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`compel. Susko v. City of Weirton, No. 5:09-cv-1, 2011 WL 98557, at *4 (N.D. W.Va. Jan. 12,
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`2011).
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`Fourth, and separate from Reynolds’ infirm complaints above about Defendants’
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`document production, Reynolds’ Renewed Motion to Compel production of documents from third
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`parties Smart Chip and MiniLogic completely rehashes its prior motion; it should be denied again
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`for the same reasons. Initially, there is nothing to compel. Defendant/Counterclaim Plaintiff Altria
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`Client Services LLC (“ACS”) obtained the voluntary cooperation of Smart Chip, a foreign third
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`party located in Hong Kong, and has made extensive efforts to collect and produce all responsive
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`documents within Smart Chip’s possession, custody, and control. Smart Chip’s document
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`production is complete and a Smart Chip corporate representative will be deposed on those
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`documents on March 19. Likewise, even though it was not obligated to do so (contractually or
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`otherwise), ACS made extensive efforts to obtain MiniLogic’s voluntary cooperation. MiniLogic,
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`however, has refused to cooperate, and ACS lacks any ability to require MiniLogic to cooperate.
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`Other than repeating the same arguments from its First Motion to Compel—which the Court
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`denied—Reynolds cites no new additional facts, law, or other developments that would warrant
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`3
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`

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`reconsideration. Simply put, nothing has changed, and there is nothing to compel. Consequently,
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`Reynolds’ Renewed Motion to Compel as to Smart Chip and MiniLogic should be denied again
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`for the same reasons this Court denied Reynolds’ First Motion.
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`II.
`
`FACTUAL BACKGROUND
`A.
`
`Defendants’ Production Of Documents Leading Up To The Denial Of
`Reynolds’ First Motion To Compel And The Events Since Then
`
`Defendant ACS acquired U.S. Patent No. 10,420,374 (“the ’374 patent”) from Smart Chip
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`Microelectronic Company Limited (“Smart Chip”) in December 2016. The ’374 patent was
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`invented by a former MiniLogic Device Corporation (“MiniLogic”) employee, Andy Liu. Dkt.
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`39-2. In June 2020, ACS asserted the ’374 patent against Reynolds in this litigation. Dkt. 39.
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`In October 2020, Reynolds served several Requests for Production on Defendants,
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`including RFP Nos. 278-288, 293 and 294, seeking documents pertaining to validity of the ’374
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`patent. In response to those requests, Defendants agreed to produce responsive non-privileged
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`documents within Defendants’ possession, custody, and control. Dkt. 491 (Ex. E). Nevertheless,
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`Reynolds filed a motion to compel documents responsive to RFP Nos. 278-288, 293 and 294, in
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`November 2020. Dkt. 385. ACS produced 4,500 pages of responsive, non-privileged, non-
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`duplicative documents in response to those requests.
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`Despite this fulsome production, Reynolds filed a motion to compel documents responsive
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`to RFP Nos. 278-288, 293 and 294, in November 2020. Dkt. 385. The Court heard Reynolds’
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`motion to compel on December 4, 2020. Dkt. 406. ACS’s counsel represented at the December
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`4 hearing that the additional document production was completed, and the Court denied Reynolds’
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`motion to compel as moot, because the requested documents had been produced. Dkt. 444 (12/4
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`Hearing Tr.) at 9-10. That day, the Court also stayed the case pending PTAB resolution on inter
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`partes review petitions filed on other patents asserted by Reynolds. Dkts. 426, 432.
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`4
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`The Court lifted the stay on February 16, 2021. Opening reports were served shortly
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`thereafter, on February 24. Dkts. 456, 461. On February 24, ACS supplemented its production
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`with approximately 380 pages of documents on February 24, including the three documents
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`referenced in Reynolds’ motion that were cited in a footnote of the expert report of Paul Meyer,
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`Defendants’ damages expert. Ex. 13, McNeely Decl. ¶ 3; Dkt. 491 (Ex. G).
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`On March 2, Reynolds inquired about a single document in Defendants’ February 24
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`production—a product specification for an
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`—asking why it was
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`not produced earlier. Dkt. 491 (Ex. I) at 2 (citing ALTRIA_IQOS_EDVA9251). ACS explained
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`that it located the document after the stay was lifted in connection with searching for unrelated
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`documents, and it was promptly produced on February 24 pursuant to ACS’s continuing
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`obligations to supplement. Dkt. 491 (Ex. J) at 1; Ex. 2 (3/16 Koh email). ACS also explained that
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`the information in the
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` was largely (if not entirely) duplicative of
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`information contained in documents ACS already produced. Dkt. 391 (Ex. J) at 1. Defendants
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`reiterated that “Defendants conducted a reasonable search of its files, and completed its production
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`of responsive documents by December 4.” Id.
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`The gravamen of Reynolds’ motion is that the
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` produced in
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`February is a “newly-revealed” document that purportedly, for the first time, shows the
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`
`
` Dkt. 491 at 4, Ex. H. Reynolds’ motion relies
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`wholly on this false premise. The information in the “newly-revealed”
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`—specifically, the fact that the
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`
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`
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`—is duplicative of information contained in multiple documents ACS produced in December
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`2020. Indeed, ACS previously produced an almost identical version of the
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`5
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`ALTRIA_IQOS_EDVA695 1 .
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`In addition, other documents produced in December also show the—-
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`.an example of which15 shown below:
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`Ex. 4 (ALTRIA_IQOS_EDVA7524 at 7531); see also Ex. 3 (ALTRIA_IQOS_EDVA6941) at
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`

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`Although Reynolds alludes to (but does not cite) two additional “new” documents ACS
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`produced on February 24, these other two documents are not relevant to Reynolds’ invalidity
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`argument that a
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` was already existing technology as of
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`2015. The first document is a “
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`” that ACS’s damages expert relies on to show the cost
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`of the
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`. Ex. 5 (ALTRIA_IQOS_EDVA9267).
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`This document contains no information about the technical details of the
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`and Reynolds does not argue otherwise. See id. The second document is a
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`,
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`
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`on which ACS’s damages expert relies to, again, show the cost of the
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`. Ex. 6
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`(ALTRIA_IQOS_EDVA9365). Like the Cost Model, this document has no information relevant
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`to validity, and contains no information regarding the material of the
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`. At
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`bottom, neither of these two documents is relevant to Reynolds’ arguments regarding the alleged
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`use of puff sensors
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` before 2015, and thus neither document is responsive to
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`Reynolds’ RFP 293 (which requests documents showing awareness of certain persons of certain
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`puff sensors prior to July 2015).2
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`Thus, contrary to Reynolds’ speculative arguments, ACS did not belatedly produce “new”
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`documents “highly relevant” to Reynolds’ ’374 patent invalidity defense. Instead, ACS produced
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`a single technical document (
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`) duplicative of multiple other
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`2 Reynolds contends that its RFP 293 seeks all “documents relating to puff sensors ‘with non-
`metallic diaphragms, including diaphragms made from … PPS (Polyphenylene Sulfide).’” Dkt.
`491 at 2. RFP 293, which Reynolds fails to quote in its entirely, is not that broad—it is limited to
`documents concerning the “awareness of Loi Ying Liu, attorneys from Harness, Dickey & Pierce,
`P.L.C., individuals associated with ACS, or any other individuals involved in the prosecution of
`the ’374 patent of puff sensors in public use or on sale prior to July 7, 2015, including any puff
`sensors with non-metallic diaphragms, including diaphragms made from … metalized soft and
`resilient plastic materials such as a PPS (Polyphenylene Sulfide).” Dkt. 491 (Ex. A) at 12
`(emphasis added).
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`7
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`previously produced documents showing the
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`, as well as two
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`documents unrelated to validity that merely show the cost of the
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`.
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`On March 2, Reynolds also requested for the first time that Defendants produce documents
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`“sufficient to show Defendants’ first and last purchases” of the
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`. Dkt. 491 (Ex. I) at
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`2. Defendants responded that they would search for and produce any such documents that were
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`located. Even though Reynolds prematurely brought this motion before ACS completed their
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`search, Defendants have now completed that search and produced a small number of additional
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`documents located during the course of that additional requested search, which are largely
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`duplicative of documents already produced.
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`B.
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`Defendants’ Requests For And Production Of Smart Chip And MiniLogic
`Documents
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`Nothing has changed since the Court denied Reynolds’ First Motion to Compel seeking
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`additional documents from Smart Chip and MiniLogic. The only new fact is that Defendants have
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`made additional efforts to work with Smart Chip to search for and locate additional documents,
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`and has produced all responsive, non-privileged documents located after a reasonable search.
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`Likewise, Defendants have made additional efforts to secure cooperation from MiniLogic, but
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`MiniLogic continues to refuse to cooperate. Reynolds points to no new facts or changed
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`circumstances that would warrant this Court’s prior decision denying Reynolds’ First Motion to
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`Compel as to Smart Chip and MiniLogic.
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`Simply put, third-party Smart Chip has fully complied with Reynolds’ requests for
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`documents.3 At multiple points in this litigation, ACS has contacted Smart Chip through its
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`3 Although not the subject of this motion, Smart Chip and its director Mr. Lam are fully
`cooperating in Reynolds’ request for a deposition. Reynolds has requested a personal and
`corporate deposition of Mr. Lam and Smart Chip. Mr. Lam, who is one of the two employees of
`Smart Chip, has agreed to voluntarily sit for deposition in both his personal capacity and as a
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`8
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`director, Mr. Henry Lam—one of only two Smart Chip employees—and has asked him to search
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`for documents responsive to Reynolds’ various Requests for Production. Ex. 7, Lam Decl. Mr.
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`Lam has conducted extensive searches for documents responsive to these requests, including
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`specifically in response to Reynolds’ Requests for Production Nos. 278-288, 293, and 294. Mr.
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`Lam, on behalf of Smart Chip thoroughly searched Smart Chip’s records for documents responsive
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`to these Requests, provided all responsive documents to counsel for ACS, and those documents
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`have been produced in this case. Id. at ¶ 5. In fact, Mr. Lam personally spent more than 10 hours
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`searching for documents responsive to the Requests described above, which ostensibly are the
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`subject of this Motion. Id.
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`ACS and Mr. Lam’s efforts continued even after the Court denied Reynolds’ First Motion
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`to Compel. In March 2021, counsel for ACS contacted Smart Chip through Mr. Lam to collect
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`any additional documents Smart Chip may have responsive to Reynolds’ most recent Requests for
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`Production Nos. 334-352.4 While not the subject of this Motion, Smart Chip performed a thorough
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`search looking for documents responsive to these Requests as well, provided responsive
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`documents to counsel for ACS, who in turn produced them to Reynolds in this case.5 Id. at ¶ 7.
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`Reynolds assertion that ACS only contacted Smart Chip after Reynolds filed its First
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`Motion to Compel is false, and plainly contradicted by the facts, Mr. Lam’s prior declaration (Dkt.
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`403-2), and Mr. Lam’s declaration submitted in support of this Opposition. Ex. 7, Lam Decl.6 The
`
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`corporate representative of Smart Chip, subject to Smart Chip’s objections to Reynolds’ notice on
`March 19.
`4 RFP Nos. 353 to 358 in the same set relate to the ’911 patent, which is not at issue in this motion.
`5 Indeed, all but one of the documents produced by Smart Chip in response to Reynolds’ most
`recent Requests for Production are duplicative of documents already produced by ACS.
`6 As discussed above, ACS produced the documents obtained from Smart Chip as part of the
`acquisition of the ’374 patent prior to the date for substantial completion of discovery.
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`9
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`record plainly shows that Counsel for ACS contacted Smart Chip through Mr. Lam multiple times
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`during this litigation to collect documents, including as early as September 2020. Mr. Lam’s
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`Declaration further confirms that he provided all non-duplicative responsive documents in Smart
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`Chip’s possession, custody, and control, and that Smart Chip’s document production is complete.
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`Reynolds’ assertion that “Reynolds almost certainly has not received responsive
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`documents material to its defense of this case” is speculative, unsupported, and wrong. Dkt. 491
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`at 10. Reynolds provides no basis to second-guess the facts in Mr. Lam’s sworn declaration.
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`Moreover, Smart Chip is a two-person IP holding company that, unsurprisingly, does not have a
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`substantial volume of documents. Id. at 2; See also Ex. 8, 2016 Patent Purchase Agreement,
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`Appendix B at 19
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`
`
`).
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`As described ACS’s Opposition to Reynolds’ First Motion to Compel, MiniLogic is a IC
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`design company that
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`. It is
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`undisputed that MiniLogic and ACS have no current relationship, contractual or otherwise. While
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`Reynolds relies on the 2016 IP Purchase agreement between ACS and Smart Chip, nothing about
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`the agreement obligates MiniLogic—
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`. To the contrary, the agreement merely obligates
`
`
`
`
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`. See Ex. L (Dkt. 491-12). And
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`while that agreement may have required MiniLogic and Smart Chip
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` (Dkt. 491 at 9; Ex. L, at 1, ¶ 11.3),
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`
`
`
`
`
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` Ex. M (Dkt. 491-13). There is no separate agreement titled an “Authorized
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`Contractor Agreement.” Ex. 7, Lam Decl. ¶ 11. Reynolds acknowledges that the 2017 Service
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`10
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`Agreement
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`10 (compare Ex. L at
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` Dkt. 491 at 10.
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`).
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`
`
`
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`. Ex. M at
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`
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`Despite the plain language of the 2017 Smart Chip-MiniLogic Services Agreement and the
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`undisputed absence of any agreement between ACS and MiniLogic, Reynolds contends that
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`“under the express terms of the intellectual property purchase agreement, ACS has the legal right
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`to compel Smart Chip and Minilogic—as Smart Chip’s authorized contractor—to search for and
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`produce documents in support of Defendants’ enforcement of their ’374 patent.” Dkt. 491 at 9.
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`That assertion is unsupported. Notably, Reynolds identifies no agreement between ACS and
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`MiniLogic, much less a specific provision in such an agreement requiring MiniLogic to cooperate
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`in this case. That is because there is none.
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`While Reynolds states, that “Defendants have not contacted Minilogic again despite Mr.
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`Liu’s past relationship with the company and his current employment with its parent company,
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`Megalogic” (Dkt. 491 at 10), Reynolds knows that counsel for ACS reached out to MiniLogic to
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`see if MiniLogic would provide a witness at a deposition or authorize Mr. Lam or Mr. Liu to testify
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`on its behalf. Ex. 9, March 9, 2021 McNeely email. Further, Mr. Liu is employed by Binary
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`Semiconductor Company Ltd., not Megalogic as Reynolds asserts without support. McNelly Decl.
`
`¶ 5.
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`Even though it is not contractually required to do so, ACS has made repeated efforts to
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`obtain documents from MiniLogic, working through Mr. Lam (a former employee of MiniLogic
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`who left the company in 2019) as their point of contact and intermediary. Ex. 7 at ¶¶ 8-12, Lam
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`11
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`Decl. MiniLogic, however, has consistently and repeatedly refused Mr. Lam’s requests for
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`MiniLogic to cooperate. As explained in his declaration, MiniLogic informed Mr. Lam that all
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`but one MiniLogic employee left the company due to challenging economic circumstances, and
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`the sole remaining employee has no relevant knowledge or responsive documents and, even if he
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`had such knowledge or documents, is unwilling to assist in document collection or sit for
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`deposition. Ex. 7, Lam Decl.; Ex. O, MiniLogic Ltr. in Response to Subpoena.
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`Accordingly, Reynolds’ unsupported assertion that Defendants have not attempted to
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`search for and obtain documents (and testimony) from MiniLogic is simply false. No additional
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`documents from MiniLogic, beyond those already produced from either ACS or Smart Chip’s
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`files, are available to Defendants, much less within their possession, custody or control. Because
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`Defendants have no ongoing relationship (contractual or otherwise) with MiniLogic, Defendants
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`have no ability or leverage to obtain further MiniLogic documents or testimony. Defendants have
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`done all that they can do to elicit MiniLogic’s voluntary production of documents (and testimony).
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`ACS has diligently attempted to secure the cooperation of these third parties. Smart Chip
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`has agreed to comply, has conducted a reasonable and thorough search of its files, and has
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`produced its documents. Further, Smart Chip is producing a knowledgeable witness for
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`deposition. MiniLogic has to date refused to comply with ACS’s multiple requests for documents
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`or witnesses.
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`12
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`Case 1:20-cv-00393-LO-TCB Document 493 Filed 03/17/21 Page 16 of 27 PageID# 11187
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`
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`III. ARGUMENT
`A.
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`Reynolds’ Renewed Motion To Compel Should Be Denied As An Improper
`Request For Reconsideration
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`Reynolds’s Renewed Motion to Compel is a veiled motion for reconsideration. Reynolds
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`cannot meet the appropriate standard for reconsideration – and has not even tried.7 Motions for
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`reconsideration are “disfavored” and only granted “sparingly” “(1) to accommodate an intervening
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`change in controlling law; (2) to account for new evidence not available earlier; or (3) to correct a
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`clear error of law or prevent manifest injustice.” Navient Sols., LLC v. Law Offices of Jeffrey
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`Lohman, P.C., No. 1:19-cv-461, 2020 WL 6379233, at *3 (E.D. Va. Sept. 4, 2020) (citations
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`omitted).
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`This Court has routinely denied motions to compel where, as here, they are simply motions
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`for reconsideration that cannot meet the exacting legal standard. See, e.g., Navient Sols., 2020 WL
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`6379233, at *4 (Buchanan, MJ) (denying motion for reconsideration of order denying motion to
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`compel because movant merely “raised arguments that the Court already considered and rejected”
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`citing Pritchard v. Wal-Mart Stores, Inc., 3 F. App’x 52, 53 (4th Cir. 2001)); LaFleur v. Dollar
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`Tree Stores, Inc., No. 2:12-cv-00363, 2014 WL 2121563, at *1 (E.D.V.A. May 20, 2014) (denying
`
`motion for reconsideration of denial of decertification where the motion was Defendant’s “attempt
`
`to reargue issues that the Court has addressed or present new case law to support theories that have
`
`already been rejected”); McLean v. Branch Banking & Trust Co., No. 1:19-cv-1413, 2020 U.S.
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`Dist. LEXIS 249204, at *3 (E.D. Va. June 24, 2020) (Buchanan, MJ) (denying motion for
`
`reconsideration where Plaintiff “merely request[ed] that the Court ‘change its mind’”). The same
`
`
`7 Reynolds’s prior motion was not stayed, it was denied as moot. Dkt. 426.
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`13
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`Case 1:20-cv-00393-LO-TCB Document 493 Filed 03/17/21 Page 17 of 27 PageID# 11188
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`
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`result follows here. Reynolds makes no attempt to show a change in law, new facts, or a clear
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`error of law—that is because none exist.
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`To the extent Reynolds suggests that Defendants’ February 24 supplemental production of
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`documents is “new evidence,” Reynolds waived that argument by not making it in its motion. In
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`any event, this small production of documents does not warrant reconsideration. Such
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`supplementation is not only not extraordinary, it is required under Fed. R. Civ. P. 26(e). Reynolds
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`cannot complain about Defendants’ very modest supplementation—which, as described above, is
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`largely if not entirely duplicative of information in previously-produced documents—when
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`Reynolds itself produced over 6,000 pages of additional documents over the last several weeks.
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`See Ex. 13, McNeely Decl. at ¶¶ 3-4.
`
`The same is true for Reynolds’ complaints about Smart Chip and MiniLogic. As discussed
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`below, there are no new facts, evidence, or clear error that justify reconsideration of this Court’s
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`prior order. It is undisputed that ACS has not refused to contact either Smart Chip or MiniLogic
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`to collect documents; in fact, it is undisputed that ACS has contacted (either directly or indirectly)
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`both companies, and that all responsive, non-privileged, non-duplicative documents have been
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`produced.8
`
`
`8 The recently received and produced letter from MiniLogic objecting to the subpoena and refusing
`to cooperate, is not new evidence warranting reconsideration, but rather simply corroborates the
`information conveyed by Mr. Lam in his original declaration. See Ex. O, MiniLogic Ltr. in
`Response to Subpoena. Contra Mr. Lam’s prior declaration (Dkt. 403-2).
`
`14
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`Case 1:20-cv-00393-LO-TCB Document 493 Filed 03/17/21 Page 18 of 27 PageID# 11189
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`
`
`B.
`
`Reynolds’ Motion To Compel Further Production Of Defendants’
`Documents Should Be Denied
`1.
`
`There Was No Dispute At The Time Of Reynolds’ Filing Of Its
`Renewed Motion To Compel – And The Motion Is Now Moot in any
`Event
`
`Reynolds’ Renewed Motion to Compel as to Defendants’ document production was
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`improperly and prematurely filed, and is now moot in any event. The parties were not an impasse
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`when Reynolds filed this motion—ACS was still searching for documents responsive to Reynolds’
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`requests and subsequent inquiries. If Reynolds had waited until ACS completed this search it
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`would know, as described below, that ACS has produced all responsive, non-privileged
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`documents.9
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`Despite ACS’s representations that it conducted a reasonable search and produced all
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`responsive documents, including any documents “sufficient to show first and last purchases” of
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`the
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`, Reynolds filed this motion to compel “all remaining responsive documents.” Dkt.
`
`491 at 6. The parties had not reached an impasse, as Defendants had not refused to produce any
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`documents. Accordingly, the Court should deny Reynolds’ motion because all responsive non-
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`privileged documents located after a reasonable search have been produced. See Albritton v.
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`Johnson, No. 2:07-cv-356, 2008 WL 8178124, at *1 (E.D. Va. Sept. 19, 2008) (denying plaintiff’s
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`motion to compel when defend