Case 1:20-cv-00393-LO-TCB Document 721 Filed 06/16/21 Page 1 of 20 PageID# 17696
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs,
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`v.
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`
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants.
`
`Civil Action No. 1:20-cv-393
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`PHILIP MORRIS PRODUCTS S.A.’S OPPOSITION TO REYNOLDS’
`MOTION FOR RELIEF FROM STIPULATED DEPOSITION DATES
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`Case 1:20-cv-00393-LO-TCB Document 721 Filed 06/16/21 Page 2 of 20 PageID# 17697
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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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`FACTUAL BACKGROUND ..............................................................................................4
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`A.
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`B.
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`C.
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`PMP’s Motion To Compel Dr. Figlar’s Deposition.................................................4
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`Reynolds’ Attempts To Delay Dr. Figlar’s Court-Ordered Deposition Date
`By Moving To Stay Injunctive Relief Discovery ....................................................5
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`Reynolds’ Further Attempts To Postpone Dr. Figlar’s Court-Ordered
`Deposition Date By Serving Untimely Discovery Requests ...................................6
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`III.
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`REYNOLDS’ ATTEMPT TO ONCE AGAIN DELAY DR. FIGLAR’S
`DEPOSITION SHOULD BE DENIED ...............................................................................7
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`A.
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`B.
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`C.
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`There Are No New Facts Warranting Relief From The Joint Stipulation
`Relied Upon by PMP And The Court ......................................................................7
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`Reynolds’ Requests For Additional Fact Discovery On VEEV Are
`Unauthorized And Unnecessary ..............................................................................9
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`Reynolds Will Not Suffer Any Prejudice If Dr. Figlar’s Deposition
`Proceeds On June 24 ..............................................................................................13
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`D.
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`Further Delay of Dr. Figlar’s Deposition Will Prejudice PMP .............................14
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`IV.
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`CONCLUSION ..................................................................................................................15
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`i
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`Case 1:20-cv-00393-LO-TCB Document 721 Filed 06/16/21 Page 3 of 20 PageID# 17698
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`TABLE OF AUTHORITIES
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`RULES
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`Page(s)
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`FED. R. CIV. P. 37(c) ................................................................................................................. 9, 14
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`ii
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`Case 1:20-cv-00393-LO-TCB Document 721 Filed 06/16/21 Page 4 of 20 PageID# 17699
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`I.
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`INTRODUCTION
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`This is the third in a series of motions over the past month in which Reynolds seeks to
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`delay injunction-related discovery, including Dr. Figlar’s deposition, without basis. First,
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`Reynolds refused for months to provide a date certain for Dr. Figlar’s deposition, forcing PMP to
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`file a motion to compel.1 Only on the eve of oral argument on PMP’s motion to compel did
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`Reynolds agree to provide a date certain for that deposition—June 24. To prevent any further
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`delay and to ensure that PMP and the Court could take Reynolds at its word, PMP insisted that
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`Reynolds enter into an unconditional stipulation setting Dr. Figlar’s June 24 deposition date so
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`that the parties could complete injunctive relief discovery in June in an orderly fashion and as the
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`Court had directed.2 PMP and the Court relied on that May 27 stipulation and Reynolds’ word to
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`moot PMP’s motion to compel Dr. Figlar’s deposition.
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`Unfortunately, Reynolds has nevertheless persisted in its attempts to delay Dr. Figlar’s
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`deposition. First, Reynolds moved to stay the limited remaining fact discovery on injunctive relief
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`(including Dr. Figlar’s deposition) in view of the ALJ’s initial determination in the ITC
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`investigation between the parties. The Court denied Reynolds’ motion to stay as to the remaining
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`fact discovery, only staying expert discovery (which PMP contended was neither necessary nor
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`allowed by the Court’s Scheduling Order, Dkt. 666 at 1). Dkt. 702. Consequently, the Court
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`1 The details of Reynolds’ several months of delay-upon-delay are described in PMP’s motion to
`compel (Dkt. 620).
`2 Within hours of the email agreement on which the dismissal of PMP’s motion to compel was
`premised, Reynolds sought to back out of its commitment, claiming that the unconditional
`stipulated deposition date was now conditional and dependent on Reynolds’ unilateral view of
`whether PMP’s document production was complete. When PMP so informed the Court, Reynolds
`misrepresented the black and white agreement it previously made, and only relented the following
`day when PMP provided the Court with the communications reflecting Reynolds’ written
`commitment. Ex. 1 (5/27/21 D. Maiorana email).
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`1
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`directed the remaining three depositions—including Dr. Figlar’s—to proceed on their stipulated
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`dates in June. Id.
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`Now, unsatisfied with the Court’s unequivocal ruling that the parties should promptly
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`complete fact discovery – and unable to derail Dr. Figlar’s scheduled June 24 deposition through
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`its motion to stay – Reynolds tries yet again to delay indefinitely Dr. Figlar’s deposition and the
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`completion of fact discovery on PMP’s offensive claims by filing the instant motion for relief from
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`the parties’ stipulated deposition schedule. Reynolds seeks to defy the Court’s ruling to complete
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`fact discovery by asserting that it must purportedly seek “complete discovery on PMP’s shifting
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`contentions concerning its claim for injunctive relief, including the newly-disclosed VEEV
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`product, before Reynolds’s Rule 30(b)(6) designee on injunction-related topics,” Dr. Figlar, can
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`be deposed. Dkt. 709 at 5.
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`Reynolds’ continuing effort to evade a Court-approved stipulation that Reynolds entered
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`into to avoid being compelled to produce Dr. Figlar on a date certain, and to end-run this Court’s
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`denial of its attempt to stay remaining fact discovery on injunctive relief (including Dr. Figlar’s
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`deposition), rises to the level of potential vexatious litigation tactics. Contrary to Reynolds’
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`misstatements, this third attempt to delay Dr. Figlar’s deposition and the completion of fact
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`discovery is not based on any “newly disclosed” facts that were unknown to Reynolds when the
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`parties entered the joint stipulation. Instead, PMP fully disclosed its reliance on its full range of
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`present and future smoke-free products (which, as Reynolds knows, includes VEEV) to support
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`its injunction demand no later than April 9, in its detailed 36-page interrogatory response. PMP
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`thereafter expressly confirmed its April 9 interrogatory response by identifying VEEV (one of its
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`smoke-free products) by name in its May 26 opposition to Reynolds’ Motion to Stay (Dkt. 666).
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`2
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`It is undisputable that Reynolds entered into the May 27 stipulation, setting Dr. Figlar’s
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`deposition for June 24, with full knowledge of PMP’s April 9 discovery response and after PMP’s
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`express identification of VEEV in its May 26 stay opposition. Reynolds’ representation in its
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`opening brief that it first learned of PMP’s VEEV contention in PMP’s June 8 supplemental
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`interrogatory is untrue.
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`The Court granted PMP’s motion to add a prayer for injunctive relief on March 12, and
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`granted Reynolds’ request that PMP only have 14-days to respond to injunction related discovery.
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`Dkt. 483. Reynolds served that discovery on March 26 and PMP responded on April 9, including
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`a detailed interrogatory response. Consequently, Reynolds was promptly made aware of PMP’s
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`injunction-related contentions and has been on notice of those contentions for months. There is
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`no new fact that has come to light since Reynolds agreed, and the Court entered, the May 27
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`stipulation. Thus, there is no basis for any additional delay.3
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`Reynolds also misrepresents the discovery record to date on VEEV, and exaggerates its
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`purported need for discovery before Dr. Figlar’s deposition. Contrary to Reynolds’ representation
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`to the Court that VEEV “has never been the subject of discovery in this case” (Dkt. 709 at 2), the
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`parties have already engaged in significant discovery regarding VEEV. PMP served document
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`requests months ago, on March 26, expressly directed to VEEV, and Reynolds represented such
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`3 The supplementation about which Reynolds cries is a short supplement to PMP’s injunction
`contention interrogatory dated June 8. That supplementation confirmed PMP’s previously
`disclosed reliance on other smokeless products, including VEEV. Reynolds bases its entire motion
`on this alleged “surprise” supplementation, but fails to tell the Court that the same information
`regarding PMP’s reliance on VEEV was expressly disclosed in PMP’s May 26 opposition to
`Reynolds Motion to Stay, and the information regarding PMP’s reliance on its smokeless products
`in addition to IQOS (which include VEEV) was expressly disclosed in PMP’s April 9 interrogatory
`response. This information was indisputably known to Reynolds before it entered the May 27
`stipulation setting the Figlar June 24 deposition.
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`3
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`production was complete. The parties have each already produced hundreds of documents
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`regarding VEEV. And Reynolds has deposed several PMP fact witnesses regarding VEEV.
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`In March, over Reynolds’ objection, the Court allowed only “limited” additional discovery
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`directed to injunctive relief. Dkt. 483; Dkt. 532 at 10-11 (“I’d encourage you to limit this as much
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`as you can, because I just don’t think it’s necessary to have that much discovery on it.”). The
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`parties agreed to complete their respective document productions by June 7, and stipulated that the
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`three remaining fact depositions on injunctive relief would conclude by June 25. Dkt. 668, 672.
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`In resolving Reynolds’ own motion to stay remaining injunctive relief discovery, the Court
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`directed the parties to complete the remaining fact discovery (i.e., the stipulated depositions) to
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`“proceed through its conclusion.” Dkt. 702. Reynolds’ claim that significant additional discovery
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`on VEEV is warranted (i) is exaggerated, (ii) ignores the Court’s March 12 order permitting only
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`“limited” discovery, (iii) is based on misrepresentations of the discovery to date, and (iv) is, in
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`reality, simply another vehicle to delay Dr. Figlar’s deposition and avoid completing the record on
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`PMP’s counterclaims. Regardless, any such additional discovery is not required for Dr. Figlar’s
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`deposition to proceed as noticed.
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`The Court should deny Reynolds’ latest attempt to delay Dr. Figlar’s deposition, and order
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`the deposition to proceed on the stipulated date.
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`II.
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`FACTUAL BACKGROUND
`A.
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`PMP’s Motion To Compel Dr. Figlar’s Deposition
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`PMP/Altria have been seeking Dr. Figlar’s deposition for months. Reynolds initially
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`agreed to produce Dr. Figlar for deposition on April 9. But Reynolds unilaterally postponed Dr.
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`Figlar’s deposition several times. Initially Reynolds delayed by “withdrawing” its designation of
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`Dr. Figlar on certain Rule 30(b)(6) topics, and refusing to make Dr. Figlar (or any other witness)
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`available on those topics. See Dkt. 620 (PMP’s Mot. to Compel Deposition Dates) at 3. This
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`4
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`repeated course of conduct prompted PMP to move to compel a date certain for Dr. Figlar’s
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`deposition. Dkts. 615, 620. However, the night before the argument on PMP’s motion, Reynolds
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`agreed to a stipulation, to be filed with the Court, to set a date certain before June 25 for the
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`deposition. The parties notified the Court that they would provide a joint stipulation regarding the
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`depositions of Dr. Figlar as well as PMP’s two witnesses (Dr. Gilchrist and Mr. King). Ex. 1
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`(5/24/21 L. Gotts email).
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`Reynolds then reneged on that agreement almost immediately. Reynolds refused to
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`stipulate to the deposition dates unless “all document-related disputes” were resolved—even after
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`Reynolds already represented to the Court that it had agreed unconditionally to provide a
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`deposition date. Ex. 1 (5/26/21 D. Maiorana email). Reynolds’ purported ongoing disputes on the
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`scope of PMP’s document productions were plainly unrelated to the deposition of Dr. Figlar, who
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`is Reynolds’ witness. Ex. 1 (5/26/21 L. Gotts 5:18 p.m. and 7:51 p.m. emails). PMP explained to
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`the Court that Reynolds’ improper “tit-for-tat” approach to discovery necessitated PMP’s motion
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`to compel Dr. Figlar’s deposition in the first instance. Ex. 1 (5/26/21 L. Gotts 7:51 p.m. email).
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`Reynolds relented, only after PMP provided a copy of the parties’ email agreement to the
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`Court, and belatedly agreed to sign the stipulation it agreed to the day before. Ex. 1 (5/27/21 D.
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`Maiorana email). The parties filed the signed stipulation of deposition dates. Dkt. 668. Based on
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`the stipulation, the Court denied PMP’s motion to compel as moot. Dkt. 672. The May 27
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`stipulation was not conditioned on any further discovery, VEEV-related or otherwise. Dkt. 668.
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`B.
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`Reynolds’ Attempts To Delay Dr. Figlar’s Court-Ordered Deposition Date
`By Moving To Stay Injunctive Relief Discovery
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`On May 21, 2021, Reynolds again tried to delay Dr. Figlar’s deposition. Reynolds filed a
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`motion to stay injunctive relief discovery, seeking to stay the remaining three fact depositions (Dr.
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`5
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`Figlar, Dr. Gilchrist, and Mr. King) and expert discovery,4 in view of the ALJ’s initial
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`determination in the pending ITC investigation. Dkt. 647. PMP’s May 26 opposition cited and
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`discussed PMP’s April 9 interrogatory responses, and explained that an injunction is warranted
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`regardless of any ITC-imposed remedies because PMP
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`. Dkt. 666 at 2, 10-13 (discussing
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`PMP’s April 9 Response to Interrogatory No. 23 (Dkt 647, Ex. B)).
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`On June 7, the Court denied all aspects of Reynolds’ motion pertaining to fact discovery
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`(i.e., the three depositions that were the subject of Reynolds’ motion to stay and stipulated to take
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`place in June) and directed remaining fact discovery “to proceed through its conclusion.” Dkt.
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`702.
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`C.
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`Reynolds’ Further Attempts To Postpone Dr. Figlar’s Court-Ordered
`Deposition Date By Serving Untimely Discovery Requests
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`Almost immediately after the Court ordered the remaining three fact depositions to proceed
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`in June as scheduled—Reynolds, ignoring that order, told PMP that (i) it planned to serve
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`additional written discovery requests and Rule 30(b)(6) topics directed to PMP’s VEEV e-
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`cigarette, and (ii) the depositions the Court ordered completed must be delayed until August to
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`accommodate its new discovery requests. In response, PMP explained that (i) Reynolds has been
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`aware of the factual bases for PMP’s contentions on injunctive relief since April, (ii) the parties
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`have already produced hundreds of documents on VEEV, and (iii) Reynolds had already examined
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`several PMP witnesses about VEEV during fact depositions. Ex. 2 (6/11/21 J. Koh letter). PMP
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`4 PMP has maintained throughout that there is no expert discovery on injunction issues, and
`certainly none that would be conducted prior to obtaining a jury verdict. Dkt. 666 at 1. The Court
`has agreed twice, once orally at a non-transcribed hearing and again in denying Reynolds’ motion
`to stay. Dkt. 702 (directing that that there be no “injunction related expert discovery that has not
`yet been authorized”).
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`6
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`then explained that additional discovery requests were untimely and contrary to the Court’s order
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`staying further unauthorized discovery on injunctive relief. Dkt. 702. Reynolds decision to
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`propound – hours after filing the instant motion – voluminous, new, but largely duplicative
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`discovery requests, including new corporate deposition topics (10 more), requests for admission
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`(49 more), and requests for production (30 more) was a tactical one, intended to delay completion
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`of the now Court-ordered three remaining fact depositions, including Dr. Figlar’s. Ex. 2 (6/11/21
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`J. Koh letter).
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`III. REYNOLDS’ ATTEMPT TO ONCE AGAIN DELAY DR. FIGLAR’S
`DEPOSITION SHOULD BE DENIED
`A.
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`There Are No New Facts Warranting Relief From The Joint Stipulation
`Relied Upon by PMP And The Court
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`Reynolds alleges that PMP’s reliance on VEEV in its June 8 supplemental interrogatory
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`response is “new” and “late-disclosed,” warranting relief from its stipulation and additional
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`discovery on VEEV before Reynolds’ corporate witness Dr. Figlar is “forced to sit for deposition.”
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`Dkt. 709 at 5-6. But PMP’s reliance on VEEV is neither “new” nor “late-disclosed.”
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`PMP disclosed its reliance on PMP’s smoke-free products (
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`,
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`) months ago in its interrogatory response – promptly in response to the first
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`set of discovery requests Reynolds served after the Court granted PMP’s motion to add a prayer
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`for injunctive relief. Reynolds falsely asserts that PMP’s claim for injunctive relief was “based
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`entirely on the alleged loss of future sales of IQOS in the U.S. Market.” Id. at 3. But PMP’s initial
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`response to Reynolds’ Interrogatory No. 23—served over two months ago on April 9—stated that
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` Dkt. 709, Ex. 1 (4/9/21 PMP’s Response to Interrogatory No. 23) at 7
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`(emphasis added). PMP explained in its April 9 interrogatory response that PMP
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` Id. at 6-7. Reynolds’ infringing activities
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`“undermine and dilute the branding, goodwill, and reputation of Philip Morris,
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` and its past, present, and future non-combustible product offerings in the
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`United States.” Id. at 6. Thus, “[
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`This not only hinders U.S. IQOS adoption, it also negatively affects its
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` Id. at 16.
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`.” Id. at 16.
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`As Reynolds’ documents make clear (infra at page 9-10 and footnote 3), Reynolds was keenly
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`aware that such future PMP non-combustible product offerings included VEEV
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`.
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`PMP also expressly addressed VEEV in its Opposition to Reynolds’ Motion to Stay
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`Injunctive Relief Discovery—before the parties entered into the May 27 stipulation setting Dr.
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`Figlar’s deposition. PMP explained in detail in its May 26 Opposition that PMP’s request for
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`injunctive relief is not solely reliant on IQOS,
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`. Dkt. 666 at 10-12. PMP,
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`too, has already produced over a hundred documents in this matter that mention and discuss VEEV
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`between June 20, 2020 and September 11, 2020. Reynolds was expressly made aware of PMP’s
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`reliance on VEEV, but said nothing about further VEEV discovery before entering the stipulation
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`setting Dr. Figlar’s deposition for June 24. Dkt. 668.
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`PMP and the Court relied on Reynolds’ stipulation of Dr. Figlar’s deposition date in
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`withdrawing PMP’s Motion to Compel Dr. Figlar’s deposition. PMP only agreed to withdraw its
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`Motion to Compel based on Reynolds’ agreement to enter into the stipulation. See Ex. 1 (5/27/21
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`L. Gotts email). And the Court denied PMP’s Motion to Compel as moot based on that stipulation.
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`Dkt. 702. At no time before entering into the stipulation did Reynolds request additional discovery
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`8
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`on VEEV—or even suggest any was warranted—despite being fully aware of PMP’s reliance on
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`VEEV before entering into the stipulation.
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`In sum, Reynolds had ample notice of PMP’s reliance on its other smoke-free options, such
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`as VEEV, before entering into the stipulation for Dr. Figlar’s deposition date. Reynolds’ assertion
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`that this was a new fact justifying relief from its stipulation and up-ending the Court’s discovery
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`schedule is simply baseless.
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`B.
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`Reynolds’ Requests For Additional Fact Discovery On VEEV Are
`Unauthorized And Unnecessary
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`Reynolds seeks to be relieved from its stipulation based on new discovery requests on
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`VEEV served late evening on June 11, after filing this motion. Those requests are unauthorized
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`and unnecessary. Exs. 3-5 (6/11/21 discovery requests). Both parties have already undertaken
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`significant discovery on VEEV, which falls within the scope of discovery requests already issued.
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`First, PMP propounded document requests for “all documents relating to the IQOS VEEV”
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`on Reynolds months ago. Ex. 6 (3/26/21 PMP/Altria’s RFP No. 242) at 9. Reynolds responded
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`that it “has produced or will produce non-privileged Documents relating to the IQOS VEEV.” Ex.
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`7 (4/9/21 Reynolds’ Response to RFP No. 242) at 24. And Reynolds allegedly completed its
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`document production on June 7. See Dkt. 709 at 3. To the extent Reynolds has failed to honor
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`that commitment and has additional documents to produce, that is not a basis to delay Dr. Figlar’s
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`deposition. Reynolds suggestion in its opening memorandum that it will now need to review and
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`collect VEEV documents is thus meritless. (Dkt. 709 at 2.) And, to the extent it has failed to
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`produce such documents in response to PMP’s April requests for production – in the face of
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`Reynolds’ representation that it has “completed” its production and contrary to its repeated
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`commitments – that is both a discovery violation (see FED. R. CIV. P. 37(c)) and an issue of
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`Reynolds’ own making.
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`9
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`Second, both sides have ah‘eady conducted significant discovery on VEEV. Both sides
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`have, in fact, produced munerous documents on VEEV.—
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`—5 VEEV is no surprise to Reynolds. Likewise, PMP has also
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`produced over a hundred documents relating to VEEV. And Reynolds has already obtained
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`deposition testimony from several PMP fact witnesses about VEEV. See, e.g., Ex. 8 (4/9/21
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`Brifcani Tr.) at 179; EX. 9 (4/7/21 Hoogland Tr.) at 23; Ex. 10 (4/16/21 Kieman Tr.) at 40.
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`Reynolds’ representation that it has “conducted no discovely on the [VEEV] product” and “taken
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`no depositions on the [VEEV] product” (Dkt. 709 at 4) is simply false.
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`Third,
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`there is nothing “new” or “late—disclosed” in PMP’s Jlme 8 supplemental
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`intelrogatory response that warrants additional discovery to delay Dr. Figlar’s J1me 24 Comt-
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`ordered deposition date. PMP’s supplemental interrogatory response provides further detail on the
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`“smoke-free options” referenced in PMP’s April 9 response that PMP has invested in, i.e. VEEV,
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`of which Reynolds has long been aware. Dkt. 709, Ex. 4 at 39. PMP’s supplemental response
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`5 See, e. - ., Dkt. 666, Ex. 2, RJREDVA 001499469 at RJREDVA 001499478
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`; Dkt. 666, Ex. 3, RJREDVA 001665619 at RJREDVA 001665623
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`RJREDVA 001665618
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`Dkt. 666, EX. 4, RJREDVA 001665618 at
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`D . 666, Ex. 7, RJREDVA 001665625 at RJREDVA 001665651
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`Dkt. 666, Ex. 5, RJREDVA 000912142 at RJREDVA 000912149
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`; Dkt. 666, Ex. 6,
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`RJREDVA 001664989 at RJREDVA 001665006
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`—)-
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`10
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`cites to documents previously produced by the parties between June 20, 2020 and September 11,
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`2020, and publicly-available documents produced between September 30, 2020 and April 12,
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`2021.6 PMP timely provided its initial response to Reynolds’ interrogatory describing its
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`injunctive relief claim in early April, and timely provided a supplemental response during the fact
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`discovery period—weeks before the remaining Rule 30(b)(6) depositions are scheduled to occur.
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`PMP did not “delay” disclosure of the VEEV product as a “new” basis for its injunctive relief
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`claim, as Reynolds asserts. Dkt. 709 at 7. Instead, PMP supplemented its previously 36-page
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`interrogatory response to cite previously produced documents, to ensure Reynolds had no basis to
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`complain as it prepared for the two remaining PMP fact depositions.
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`Fourth, Reynolds’ new discovery on VEEV is unnecessary, because it falls within the scope
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`of Reynolds’ already-served injunctive relief discovery. Reynolds has served numerous requests
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`for production that encompass VEEV as it relates to PMP’s claim for injunctive relief. For
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`example, Reynolds has served requests for all documents “identified in PMP’s answer to Plaintiffs’
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`Interrogatory No. 23” (i.e., PMP’s contentions as to the eBay factors for injunctive relief), and all
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`documents “reflecting or relating to the potential impact on or benefits to Philip Morris
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`International Inc. if PMP’s request for a permanent injunction is granted.” See, e.g., Ex. 11
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`(3/26/21 Reynolds’ 10th Set of RFPs to PMP) at 7, 9 (RFP Nos. 375, 386). PMP has already
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`produced all such responsive documents, including those pertaining to VEEV.
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`Reynolds has also served numerous Rule 30(b)(6) topics on PMP which encompass PMP’s
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`contentions regarding VEEV as it relates to injunctive relief. PMP’s designated witnesses Dr.
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`Gilchrist and Mr. King will address these topics at their upcoming depositions on June 18 and June
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`25, respectively. Dr. Gilchrist and Mr. King will be prepared to testify on their designated topics,
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`6 One additional publicly available document mentioning VEEV was produced on June 7, 2021.
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`including the “factual bases for PMP’s responses to Interrogatory Nos. 23-24” (Topic 68) and “the
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`factual bases for the irreparable injury to PMP if a permanent injunction is not entered in this case”
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`(Topic 70). Ex. 12 (4/7/21 Reynolds’ Second Notice of Rule 30(b)(6) Deposition to PMP) at 8.
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`Reynolds’ additional Rule 30(b)(6) topics are duplicative and unwarranted, and are no basis for
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`delaying Dr. Figlar’s deposition.
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`Regardless, even if such discovery was proper (it is not), there is no reason to delay Dr.
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`Figlar’s deposition to accommodate Reynolds’ belated and improper discovery requests to PMP.
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`Dr. Figlar does not have access to PMP’s confidential information under the protective order. Dkt.
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`103. Dr. Figlar is being deposed only on information available to him and Reynolds—not on
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`PMP’s documents and information. And, as noted above, Reynolds has deep independent
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`knowledge regarding VEEV. New discovery from PMP is neither required for nor the subject of
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`Dr. Figlar’s upcoming deposition. Reynolds’ contention, that new discovery from PMP is needed
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`before Reynolds’ corporate designee is deposed, is a transparent pretext to evade the Court’s
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`direction to complete fact discovery on PMP’s counterclaims.
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`In sum, Reynolds’ insistence on significant additional discovery on VEEV is exaggerated,
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`and is simply another vehicle to delay Dr. Figlar’s deposition. The Court allowed only “limited”
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`additional discovery directed to injunctive relief, back in March. Dkt. 483; Dkt. 532 at 10-11 (“I’d
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`encourage you to limit this as much as you can, because I just don’t think it’s necessary to have
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`that much discovery on it.”). The parties agreed to complete their respective document productions
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`by June 7, and stipulated that the three remaining fact depositions on injunctive relief would
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`conclude by June 25. Dkt. 668, 672. On Reynolds’ own motion to stay remaining injunctive relief
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`discovery, the Court allowed the remaining fact discovery (i.e., the stipulated depositions) to
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`“proceed through its conclusion,” but ordered “[a]ll other proceedings” that were “not yet been
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`authorized” to be held in abeyance. Dkt. 702. Reynolds never informed the Court of its intent to
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`serve additional discovery requests on VEEV, and such discovery is not contemplated by the
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`Court’s stay order.7
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`C.
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`Reynolds Will Not Suffer Any Prejudice If Dr. Figlar’s Deposition Proceeds
`On June 24
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`Reynolds contends that it will be prejudiced by requiring Dr. Figlar to testify on injunction
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`topics “before VEEV-related discovery is complete.” Dkt. 709 at 6. But Reynolds’ cries of
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`prejudice ring hollow. First, PMP specifically advised Reynolds and the Court of its reliance on
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`VEEV nearly a month in advance of Dr. Figlar’s stipulated deposition in its Opposition to
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`Reynolds’ Motion to Stay (Dkt. 666). It is presently 21 days since PMP filed that opposition and
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`eight days since PMP provided its short supplement to its Response to Interrogatory No. 23, which
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`merely expanded on PMP’s initial interrogatory response to specifically identify the VEEV
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`product (Dkt. 709, Ex. 4) and confirmed the substance of PMP’s stay opposition. Reynolds has
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`had ample time to prepare Dr. Figlar for deposition on this issue. This is particularly the case in
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`view of Reynolds’ deep independent knowledge of VEEV, as noted above and reflected in
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`Reynolds document production.
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`Second, Reynolds contends that it “expects it will need to review and produce its own
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`documents” relevant to PMP’s VEEV product before Dr. Figlar’s deposition. Dkt. 709 at 6. That
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`claim is concerning to PMP and should give the Court pause. As noted above, Reynolds should
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`not be producing any additional documents on VEEV at this point.
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` And Reynolds allegedly completed its document production
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`7 PMP intends to timely object to Reynolds’ unauthorized, duplicative new discovery.
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`on June 7. See Dkt. 709 at 3. Accordingly, any prejudice and delay in production is a result of
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`Reynolds’ own discovery misconduct. FED. R. CIV. P. 37(c).
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`Finally, Reynolds was not (and could not have been) genuinely surprised by PMP’s June 8
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`supplemental interrogatory response on VEEV (its purported basis for delaying Dr. Figlar’s
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`deposition). PMP previously made plain its reliance on smoke-free products in addition to IQOS
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`in its April 9 interrogatory responses, and identified VEEV on May 26, in its Opposition to
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`Reynolds’ Motion to Stay. Dkt. 666 at 11-12. Despite being aware of PMP’s contention regarding
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`VEEV, Reynolds never raised the issue of VEEV discovery before entering the stipulation on
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`deposition dates, on May 27. PMP’s short supplemental response to Interrogatory No. 23 on a
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`single issue (confirming the information in PMP’s May 26 stay opposition) was served on June
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`8—ten days prior to Dr. Gilchrist’s deposition, 16 days before Dr. Figlar’s deposition, and 17 days
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`before Mr. King’s deposition. Reynolds will have additional, ample, opportunity to address VEEV
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`at the scheduled stipulated depositions.
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`D.
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`Further Delay of Dr. Figlar’s Deposition Will Prejudice PMP
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`Reynolds alleges that PMP will not suffer any prejudice if Dr. Figlar’s deposition is delayed
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`until August. (Dkt. 709 at 7-8.) Reynolds is incorrect. First, the Court directed the parties to
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`complete fact discovery, and previously said that the trial date may be moved up to this fall if there
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`is a substantial continuance in the Court’s criminal docket. Second, Reynolds concedes that many
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`of Dr. Figlar’s Rule 30(b)(6) topics pertain to liability issues unrelated to injunctive relief. Dkts.
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`534, 535.
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`Reynolds’ continued attempts to disrupt the orderly completion of discovery on PMP’s
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`patent infringement counterclaims must stop. The Court has directed “fact discovery relating to
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`the instant claim to proceed through its conclusion” by June 25 as contemplated by the parties’
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`filed stipulation. Dkt. 702. Amended exhibit lists are due shortly thereafter on July 2, and
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`objections to exhibits and deposition designations on August 6. Dkt. 680.