Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 1 of 10 PageID# 14349
`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 1 of 10 Page|D# 14349
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF VIRGINIA
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`ALEXANDRIA DIVISION
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`RAI STRATEGIC HOLDINGS, INC. and
`RJ. REYNOLDS VAPOR COMPANY,
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`Plaintiffs,
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`ALTRIA CLIENT SERVICES LLC; PHILIP
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`MORRIS USA INC .; and PHlLIP MORRIS
`PRODUCTS S.A.
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`Defendants.
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`
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`Civil Action No. 1:20-cv-393
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`REPLY IN SUPPORT OF COUNTERCLAIM PLAINTIFFS’
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`MOTION TO COMPEL DEPOSITION DATES
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`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 2 of 10 PageID# 14350
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`
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`I.
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`II.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ...............................................................................................................1
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`ARGUMENT .......................................................................................................................2
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`A.
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`B.
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`After Requiring A Motion, Reynolds Has Withdrawn Its Refusal To Make
`Mr. Kodama Available For Deposition ...................................................................2
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`Reynolds Must Provide A Date For
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` Deposition...................................2
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`III.
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`CONCLUSION ....................................................................................................................5
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`i
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`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 3 of 10 PageID# 14351
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`
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`TABLE OF AUTHORITIES
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`CASES
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`Mizyed v. Travelers Home & Marine Ins. Co.,
`No. 12-1016, 2013 WL 12242011 (C. D. Ill. Apr. 9, 2013) ........................................................ 3
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`Projects Mgmt Co. v. DynCorp Int’l LLC,
`734 F.3d 366 (4th Cir. 2013) ....................................................................................................... 2
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`Trs. of Boston Univ. v. Everlight Elecs. Co.,
`No. 12-cv-12326, 2014 WL 12927018 (D. Mass. Sept. 26, 2014) ......................................... 3, 4
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`
`
`ii
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`

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`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 4 of 10 PageID# 14352
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`
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`I.
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`INTRODUCTION
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`Reynolds is persisting in thwarting Counterclaim Plaintiffs’ (“PMP/Altria”) completion of
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`their deposition discovery at every turn. Reynolds disregarded the basic principles of civility in
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`refusing to reschedule Mr. Kodama’s deposition due to the serious illness of the responsible
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`PMP/Altria attorney. Instead, Reynolds put PMP/Altria to the task of seeking Court intervention,
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`only to then withdraw its unreasonable, uncivil and tactical refusal to reschedule without
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`explanation.
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`Similarly, Reynolds has put PMP/Altria to the task of once again seeking Court
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`intervention simply to obtain a date for deposition that is not otherwise objected to. There is no
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`dispute that Reynolds must provide a personal and Rule 30(b)(6) deposition of
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`. Yet
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`Reynolds steadfastly refuses to provide a near-term date certain for his deposition—candidly
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`admitting that “Reynolds has not offered a specific date for
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` deposition on Topic 22
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`(or the other remaining deposition topics).” Dkt. 627 at 6.
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`Reynolds accuses PMP of “whataboutism” (i.e., the technique or practice of responding to
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`an accusation or difficult question by making a counteraccusation or raising a different issue),
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`while epitomizing just that. Rather than address the merits, or explain why Reynolds even now
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`refuses to provide a deposition date until some unspecified time over a month after the filing of
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`this motion to compel, Reynolds attempts to distract from its own refusal by pointing fingers at
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`the status of PMP’s discovery. Reynolds argues that it will only provide a deposition date for
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` “if Defendants commit to fulfilling their end of the bargain” and produce their documents
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`and witnesses first. Dkt. 627 at 5-6. Reynolds’ conditioning of its discovery compliance on PMP’s
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`discovery is facially improper. And in any event, PMP has been both timely and forthcoming in
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`its discovery obligations. PMP already provided its 35-page contention interrogatory responses
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`1
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`E
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`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 5 of 10 PageID# 14353
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`regarding its request for injunctive relief, agreed to provide fact witnesses to testify on the full
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`scope of Reynolds’ relevant 30(b)(6) topics on its claim for injunctive relief (see Dkt. 629),
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`provided dates for those depositions, and committed to produce any remaining documents at least
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`five days beforehand.
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`Reynolds should not be permitted to delay indefinitely PMP’s depositions further, and
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`certainly not to some unspecified date a month or more after the filing of PMP’s motion to compel.
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`History shows that Reynolds will continue to refuse to provide undisputedly relevant depositions
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`and discovery unless compelled to do so by the Court. See Dkt. 566. Reynolds should be
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`compelled to provide a date for
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` personal deposition and deposition on remaining
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`Topics 22 and 79-96.
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`II.
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`ARGUMENT
`A.
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`After Requiring A Motion, Reynolds Has Withdrawn Its Refusal To Make
`Mr. Kodama Available For Deposition
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`Reynolds has now withdrawn its refusal to make Mr. Kodama available for deposition on
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`a different date. Reynolds has agreed to provide Mr. Kodama for deposition on May 28—but only
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`after requiring a motion to this Court. Dkt. 627 at 6-7. Reynolds’ obstreperousness must come to
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`an end.1
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`B.
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`Reynolds Must Provide A Date For
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` Deposition
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`Reynolds mischaracterizes PMP/Altria’s motion to compel. PMP/Altria are not seeking a
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`“separate deposition of
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` on Topic 22 in May.” Dkt. 627 at 5-6. Nothing in PMP/Altria’s
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`motion, in the correspondence, or the meet and confer process, suggests otherwise. This “straw
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`1 See Projects Mgmt Co. v. DynCorp Int’l LLC, 734 F.3d 366, 375 (4th Cir. 2013) (“a district court
`exercising its inherent authority to impose sanctions may do so sua sponte and must consider the
`whole of the case in choosing the appropriate action.”)
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`2
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`man” argument should be rejected, but is unfortunately symptomatic of Reynolds’ continuing
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`dilatory discovery conduct. As PMP/Altria made plain in their motion, PMP/Altria seek a
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`deposition date for
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` personal deposition and for all remaining Topics 22 and 79-96 (for
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`which Reynolds has designated only
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`). Reynolds has refused to provide (i.e., not
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`provided) any date for
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` personal and Rule 30(b)(6) deposition. Instead, even in the
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`face of this motion, Reynolds tells the Court it need not do so, and will only provide
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` at
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`some unspecified date, a month or more after the filing of PMP/Altria’s motion, and conditioned
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`on Reynolds’ sole determination that PMP has first complied with its discovery demands.
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`Reynolds proposes a formula for more delay.
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`Reynolds contends that it need not provide a date for
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` deposition until after
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`PMP’s corporate designees are first deposed on topics relating to injunctive relief because “PMP
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`bears the burden of proof on that issue.” Dkt. 627 at 3. Reynolds provides no support for the
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`proposition that the order of fact depositions must proceed based on the “burden of proof.” That
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`is because burdens of proof have nothing to do with the sequencing of fact discovery. See, e.g.,
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`Mizyed v. Travelers Home & Marine Ins. Co., No. 12-1016, 2013 WL 12242011, at *2 (C. D. Ill.
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`Apr. 9, 2013) (“Rule 26 makes clear that the scope of discovery encompasses both the claims and
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`the defenses of the parties; it is not somehow limited by burden of proof issues. This entire
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`argument is irrelevant.”); Trs. of Boston Univ. v. Everlight Elecs. Co., No. 12-cv-12326, 2014 WL
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`12927018, at *3 (D. Mass. Sept. 26, 2014) (“The issue is not which party bears the burden of proof;
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`rather, whether [the discovery request] seeks discoverable information. The Court finds that it
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`does.”) And even if Reynolds was correct (it is not), Reynolds’ argument still fails.
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`deposition is relevant to other issues in the case such as infringement and damages, for which all
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`other fact depositions—other than
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`—have already concluded. All other fact (and
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`3
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`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 7 of 10 PageID# 14355
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`expert) depositions in this case have already been scheduled and taken place without regard to
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`“burden of proof.” Reynolds’ “burden of proof” argument ignores the law, the Rules of Civil
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`Procedure, and this Court’s rules; it is nothing more than misdirection.
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`Reynolds next contends that it only intends to make
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` available for deposition “if
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`Defendants commit to fulfilling their end of the bargain.” Dkt. 627 at 5-6. Nonsense. If Reynolds
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`believes that PMP has allegedly “refused to fulfill its discovery obligations on its claim for
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`injunctive relief,” it should take that up with the Court. Reynolds is not entitled to unilaterally
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`judge the parties’ “fulfilment” of their obligations and withhold discovery on that basis. See Dkt.
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`627 at 6 n.4. The Court should (once again) reject Reynolds’ improper “tit-for-tat” discovery
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`tactics. Trs. of Boston Univ., 2014 WL 12927018, at *3 (party may not “condition its compliance
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`with its discovery obligations on receiving discovery from its opponent”) (citation omitted).
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`Regardless, PMP has fulfilled its discovery obligations. PMP timely provided a 35-page,
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`detailed interrogatory response on its contention that injunctive relief is warranted.2 And PMP’s
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`opposition to Reynolds’ motion to compel Rule 30(b)(6) depositions on injunctive relief makes
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`plain that PMP previously committed to provide fact witnesses to testify on the full scope of
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`Reynolds’ relevant 30(b)(6) topics—before Reynolds filed its improper motion. See Dkt. 629.
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`PMP also provided dates for its witnesses and committed that remaining documents would be
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`produced at least five days beforehand.
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`Reynolds also appears to argue that it need not produce any witnesses on injunctive relief
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`because it intends to file a “forthcoming motion to stay all further proceedings” relating to PMP’s
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`claim for injunctive relief. Dkt. 627 at 2 n.1. Putting aside the unsupported basis for Reynolds’
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`2 In contrast, Reynolds did not serve its substantive interrogatory response on injunctive relief
`within 14 days, as ordered by the Court. Dkt. 483.
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`4
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`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 8 of 10 PageID# 14356
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`allegedly forthcoming motion, any future motion to stay is not a reason to withhold discovery.
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`And irrespective of any such forthcoming motion, Reynolds recognizes that at a minimum, it must
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`make
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` available for deposition in his personal capacity and on Topic 22 “in late May or
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`early June.” Id. Yet, Reynolds still refuses to provide a date certain for that deposition. Reynolds’
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`engagement in self-help refusal to make its witness available based on some future unfiled motion
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`should be rejected.
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`Last, Reynolds contends that it need not provide a date for
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` deposition because
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`“the parties had seemed to agree to a schedule for completing fact discovery on injunction-related
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`issues.” Dkt. 627 at 6. While the parties generally agreed that any remaining documents should
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`be produced at least five days before the remaining depositions, PMP never agreed that Reynolds
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`could hold hostage
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` deposition date until after PMP completed its discovery, or that
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`the deposition could be pushed off for up to a month or more. The Court told the parties to
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`complete discovery promptly. Reynolds’ refusal to provide any date certain for when it will
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`complete its own document production, or when
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` will be made available for deposition
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`flouts this Court’s directions to the parties.
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`Reynolds should be compelled to provide a date for
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` personal deposition and
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`for Topics 22 and 79-96, and to produce all relevant documents at least five days prior.
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`III. CONCLUSION
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`PMP respectfully requests that the Court grant this Motion and compel Reynolds to provide
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`(i) a date for
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` personal deposition, and (ii) date for PMP/Altria’s 30(b)(6) Topics 22
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`and 79-96, before the end of May 2021.
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`5
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`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 9 of 10 PageID# 14357
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`Dated: May 20, 2021
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`Respectfully submitted,
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`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`Jamie Underwood
`jamie.underwood@lw.com (pro hac vice)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
`
`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
`
`Gregory K. Sobolski (pro hac vice)
`Greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
`
`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
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`Counsel for Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
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`Case 1:20-cv-00393-LO-TCB Document 644 Filed 05/21/21 Page 10 of 10 PageID# 14358
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 20th 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/ Maximilian A. Grant
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`Maximilian A. Grant (VSB No. 91792)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: max.grant@lw.com
`
`
`Counsel for Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
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