Case 1:20-cv-00393-LO-TCB Document 631 Filed 05/19/21 Page 1 of 11 PageID# 14248
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
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`Defendants and Counterclaim Plaintiffs.
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`Case No. 1:20-cv-00393-LO-TCB
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`REDACTED
`FILED UNDER SEAL
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`REYNOLDS’S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL DEPOSITION DATE
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................................................................ 1
`FACTUAL BACKGROUND ....................................................................................................................... 2
`ARGUMENT ................................................................................................................................................ 5
`CONCLUSION ............................................................................................................................................. 7
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`INTRODUCTION
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` already testified once in this case on Defendants’ Deposition Topics 54, 69 and 78.
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`Reynolds also offered his deposition on a number of injunction-related deposition topics (Topics 22, 79,
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`80, 84, 85, 93, 94, 96) by mid-June as part of the orderly course of injunction-related discovery.
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`Defendants’ motion asks the Court to compel an additional, separate deposition of
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`single deposition topic—Topic 22—that
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` with the other topics on which
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` will testify
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`again, if Defendants have their way, in June. The Court should not force
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` to testify twice in the
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`span of a couple weeks
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`To that end, during a meet and confer last week, the parties appeared to reach an agreement on an
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`orderly process for completing injunction-related discovery in a timely fashion. The parties agreed to
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`complete outstanding written discovery responses due this week, complete production of corresponding
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`documents responsive to those and other recent document requests served by both parties, and finally, no
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`sooner than five days after the completion of those document productions, schedule the depositions of the
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`parties’ three remaining fact witnesses—including
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`. Consistent with that timeline, Reynolds
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`indicated
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` would be available for deposition, including on Topic 22, in the first half of June.
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`Moreover, unlike Defendants’ stonewalling on Rule 30(b)(6) deposition topics that are the subject of
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`Reynolds’s May 14 motion to compel,
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` is slated to testify on the full scope of Topics 22, 79, 80,
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`84, 85, 93, 94, 96. Thus, there is nothing here for Defendants to compel.
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`Defendants appear to have filed a motion to compel
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` deposition date during May on a
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`single Rule 30(b)(6) topic not on its own merits, but instead as a counterweight to Reynolds’s legitimate
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`complaints about Defendants’ refusal to engage in discovery concerning PMP’s request for an injunction.
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`The Court should not be distracted by Defendants’ whataboutism.
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` deposition should proceed
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`consistent with the discovery timeline to which the parties agreed. That would see his deposition completed
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`in early June if Defendants meaningfully participate in discovery and move forward with prosecuting a
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`claim they introduced into this case.1 The Court should not force
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` to testify twice on the same
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`subject matter.
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`FACTUAL BACKGROUND
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`Defendants served their first Rule 30(b)(6) deposition notice on October 20, 2020. The notice
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`included Topic 22, directed to “[t]he facts and circumstances relating to Plaintiffs’ planned or actual
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`submission of RJR PMTAs for any of the RJR Accused Products.” (Defendants’ Ex. 1 [Defendants’ Oct.
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`20, 2020, 30(b)(6) Notice] at 10 (emphasis added).) Contrary to Defendants’ assertion that Reynolds
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`refused to identify a witness on this topic when originally served, Reynolds designated
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`November 30, 2020, to testify on Topic 22. (Ex. A [Nov. 23, 2020, Smith Email to Koh] at 1.) His
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`deposition was scheduled to go forward on January 8, 2021, before the case was stayed on December 4,
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`2020. (Ex. B [Nov. 27, 2020, Koh Email to Smith] at 1.) After the Court lifted the stay in February 2021,
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`Defendants contacted Reynolds on February 26 about rescheduling the
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` deposition. (Ex. C [Feb. 26,
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`2021, Koh Letter to Smith] at 1.) Following additional correspondence and a meet and confer in early
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`March, Reynolds confirmed on March 8 that it would instead designate
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` to testify on Topic 22.
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`(Ex. D [Mar. 8, 2021, Smith Email to Koh] at 1.) On March 12, Reynolds told Defendants that Reynolds
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`was trying to confirm an April 9 deposition for
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`. (Ex. E [Mar. 12, 2021, Smith Email to Koh] at
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`1.) That same day, however, Defendants served a third Rule 30(b)(6) deposition notice, this time including
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`Topic 79 directed to PMP’s newly-added injunction claim:
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`The factual bases underlying [Reynolds’s] contention…(i) that PMP has
`not suffered irreparable injury, (ii) that remedies available at law, such as
`monetary damages, are adequate to compensate for that injury, (iii) that
`considering the balance of hardships between [Reynolds] and PMP, a
`remedy in equity is unwarranted, and (iv) that the public interest would be
`disserved by a permanent injunction.
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`1
` Rule 30(b)(6) deposition on injunction-related deposition topics would be mooted, for now, if
`the Court grants Reynolds’s forthcoming motion to stay all further proceedings (including fact and expert discovery)
`relating to PMP’s claim for injunctive relief based on the recent ruling in co-pending ITC Inv. No. 337-TA-1199. If
`Reynolds’s motion to stay is granted, Reynolds will make
` available for his Rule 30(b)(1) deposition along
`with his deposition as Reynolds’s Rule 30(b)(6) designee on Topic 22 in late May or early June, depending on his
`and counsel’s availability.
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`(Defendants’ Ex. 5 [Defendants‘ Mar. 12. 2021. 30(b)(6) Notice] at 6.) Reynolds subsequently asked
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`Defendants to reschedule- deposition from April 9 to April 16 or 19 in View ofloosening COVlD
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`restrictions in-that would permit- to testify from an office with good connectivity. instead of
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`from home. (Ex. F [Apr. 6. 2021. Smith Email to Koh] at 1.) Then. afier analyzing Defendants’ third notice
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`of Rule 30(b)(6) deposition Reynolds confmned on April 13 that it would designate- on Topic
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`79 as well. (Ex. G [Apr. 13. 2021. Smith Email to Koh] at 1.) On April 14. Defendants agreed to reschedule
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`- deposition so he could address all the deposition topics for which he had been designated in
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`one sitting.2 (Ex. H [Apr. 14. 2021. Koh Email to Smith] at 1.)
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`On April 15. the parties held a meet and confer in which Reynolds maintained that the deposition
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`of PMP’s corporate designee(s) covering injmiction-related deposition topics should precede-
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`gven that PMP bears the burden of proof 011 that issue. Following the C omt‘s ruling 011 Defendants‘ motion
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`to compel testimony on Topics 54 and 78 (related to non-injmiction issues) on April 16. Reynolds
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`designated- to testify on those two topics.
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`(Ex. I [Apr. 19. 2021. Smith Email to Koh] at 1.)
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`Subsequently. 011 April 21. Reynolds offered- deposition on Topics 54 and 78 (the motion to
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`compel topics) on May 6.
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`(Ex. J [Apr. 21. 2021. Smith and Koh Emails] at 2.) Defendants rejected the
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`date. (Id. at 1.)
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`That same day. April 21. Defendants served yet another Rule 30(b)(6) deposition notice—their
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`fourth—with additional topics directed to PMP's claim for injunctive relief. including additional topics
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`directed to the status of Reynolds‘s PMTAs.
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`(Defendants' Ex. 6 [Defendants‘ Apr. 21. 2021. 30(b)(6)
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`Notice].) These topics included:
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`2 In that same April 14 correspondence. Defendants also postponed the deposition of_. PMP’s
`designee on numerous Rule 30(b)(6) topics because Defendants intended to designate her on at least a portion of the
`topics in Reynolds‘s Rule 30(b)(6) deposition notice directed to PMP‘s claim for injunctive relief. (Ex. H [Apr. 14.
`2021. Koh Email to Smith] at 1.) As explained in Dkt. 610. and below. Defendants have obstructed Reynolds‘s
`eflorts to complete the depositions of PMP‘s injunction-related designees. including—
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`(Id. at 6. 8.) As Reynolds explained dm‘ing an Aplil 22 meet and confer with Defendants. the new topics
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`—. and my mm m mes—
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`—. (See Ex. K [Apll 22. 2021. Smith Letter to Koh] at 23.)
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`On April 26. following this Com’t‘s ruling on a motion to compel. Reynolds also designated I
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`- to cover non-injtuiction-related Topics 54 and 78. (Ex. L [Apr 26. 2021. Smith Email to Koh] at 1.)
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`That same day. April 26. Defendants again postponed_ 30(b)(1) and 30(b)(6) depositions so
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`that she could address fact and injunction issues in a single deposition.
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`(Defendants‘ Ex. 8 [Apr. 26-27.
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`2021. Smith and K011 Emails] at 1-2.) The next day. April 27. Reynolds told Defendants- would
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`testify only on Topics 54. 69 and 78 at his May 3 deposition.3 (Id, at 1.) Reynolds explained that-
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`would testify on Topics 22 and 79 at a later date because—like Defendants had with _—
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`Reynolds expected to designate- on the new topics (including 84 and 93) served by Defendants
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`on April 21. and Reynolds was tmwilling to offer- to testify twice—.
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`(Id) Defendants opted to proceed with- deposition limited to Topics 54. 69. and 78 on May 3.
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`(Ex. M [Apr 27. 2021. K011 Email to Smith] at 1.)
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`Following an exchange of emails between counsel concerning depositions of the parties” respective
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`designees on injunction-related Rule 30(b)(6) topics. the parties held a meet and confer on May 13. Dining
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`the meet and confer. Reynolds proposed that the— (another PMP designee on injunction-
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`3- had previously been designated on Topic 69.
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`related topics) depositions be scheduled no earlier than 5 days after PMP completes its document production
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`on all outstanding requests for production. [Defendants’ Ex. 11 [May 13. 2021. Smith Email to K011] at 2.)
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`Reynolds also expressed its willingness to do the same with respect to_ deposition, which
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`Reynolds reiterated should occur after the depositions of PMP‘s designees and after the parties complete
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`their respective production of documents responsive to each other‘s recent document requests.
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`(Id. at 2-3 .)
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`Both parties insisted their remaining fact witnesses sit for deposition only once more. Finally, Reynolds
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`told Defendants it expected that the parties could complete all three depositions by early to mid-June if
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`PMP would commit to completing its document productions relevant to the topics on which its designees
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`would be testifying. (Id)
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`Rather than take yes for an answer, Defendants filed a motion to compel_ deposition on
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`Topic 22 before the end of May—
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`ARGUlVIENT
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`As the facts recited above demonstrate, Reynolds has not refused_ deposition, either in
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`his personal capacity or as Reynolds‘s corporate designee on Topic 22. Instead, Reynolds has insisted that
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`- be required to sit for only one more deposition in this case covering all the remaining topics on
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`which he has been designated, including Topic 22 and related new topics—.
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`Defendants’ motion, however. insists that- sit for a deposition in May on Topic 22. Defendants
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`will then insist- sit for a third deposition on the additional remaining— topics on
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`which he has been designated.
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`Defendants’ position is untenable. Reynolds has proposed an orderly schedule to complete all
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`remaining fact discovery on PMP’s claim for injunctive relief. Defendants will complete their written
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`responses to injunction-related RFPs this week. The parties should complete their productions of
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`responsive documents shortly thereafter. And then they should schedule the depositions of their remaining
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`three fact witnesses no sooner than five days after that. This all can be completed by mid-June, if
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`Defendants commit to fulfilling their end of the bargain.4 Defendants seemingly agree with Reynolds’s
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`proposed timeline for completing fact discovery. except they now insist on a separate deposition of
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`- on Topic 22 in May. But subjecting- to two._ depositions in the span of
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`two weeks makes little sense.
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`Defendants’ motion is correct in one respect. Reynolds has not offered a specific date for
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`- deposition on Topic 22 (or the other remaining deposition topics). But that is because the
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`parties had seemed to agree to a schedule for completing fact discovery on injunction—related issues. The
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`agreement specified that the dates for Rule 30(b)(6) depositions are tied to the completion of the parties’
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`respective document productions. Reynolds is working to complete its production in response to
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`PMP’s latest round of document requests.5 PMP previously tried to put the cart before the horse.
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`insisting Reynolds complete depositions of PMP’s designees before PMP has even completed its
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`injtmction—related document productions.
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`But
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`in the May 13 meet and confer. Defendants
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`seemingly agreed to Reynolds’s proposed timeline for completing fact discovery. And the logical
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`progression of discovery under Reynolds’s proposal would not require - to sit for two
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`depositions_ Nor would it require- to sit for any deposition
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`before Reynolds completes its document production and PMP’s witnesses testify on topics directed to the
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`issues on which PMP bears the burden of proof. The Court should reject Defendants’ request to depart
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`from this orderly process and deny their motion for a deposition of- on Topic 22 in May.
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`Defendants’ motion to compel Mr. Kodama’s deposition is moot. The parties have agreed to jointly
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`request that the Comt move the deadline for filing motions for summary judgment to June 2. and Reynolds
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`4 Reynolds’s motion to compel filed last week (Dkts. 610. 612) outlines the ways in which PMP so far has
`refused to fulfill its discovery obligations on its claim for injunctive relief such that discovery can move forward and
`be completed in a timely manner. PMP should commit to fulfilling its discovery obligations. or it should abandon
`its claim for injunctive relief.
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`5 Afler representing to the Court that its injunction claim would require very little additional discovery.
`PMP has served 58 additional document requests. 68 additional requests for admissions. and two Rule 30(b)(6)
`notices seeking testimony on 17 additional topics.
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`has confirmed Mr. Kodama’s deposition for May 28, thereby alleviating any potential prejudice to either
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`side.
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`For the foregoing reasons, Defendants’ motion to compel should be denied.
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`CONCLUSION
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`Respectfully submitted,
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` /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
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`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
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`
`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
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`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
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`Counsel for Plaintiffs RAI Strategic Holdings,
`Inc. and R.J. Reynolds Vapor Company
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`Dated: May 19, 2021
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`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
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`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
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`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
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`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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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 19th day of May, 2021, a true and correct copy of the foregoing
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`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
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`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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