Case 3:19-md-02913-WHO Document 1016 Filed 10/05/20 Page 1 of 8
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`Facsimile:
`+1 312 862 2200
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`Renee D. Smith
`To Call Writer Directly:
`+1 312 862 2310
`renee.smith@kirkland.com
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`300 North LaSalle
`Chicago, IL 60654
`United States
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`+1 312 862 2000
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`www.kirkland.com
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`October 5, 2020
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`The Honorable Jacqueline Scott Corley
`United States District Court for the
`Northern District of California
`450 Golden Gate Avenue
`San Francisco, CA 94102
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`Re:
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`In re Juul Labs, Inc., Mktg., Sales Prac. & Prods. Liab. Litig., 19-md-02913
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`Dear Judge Corley,
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`Pursuant to Case Management Order No. 6 (ECF No. 357), counsel for Defendants Juul
`Labs, Inc. (“JLI”), Altria,1 and Director Defendants2 (collectively “Defendants”), and Plaintiffs’
`Co-Lead Counsel (“Plaintiffs”) (collectively referred to herein as the “Parties”) respectfully submit
`this Joint Letter Brief regarding proposed Government Entity and School District Plaintiff Fact
`Sheets (“PFSs”).
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`Judge Orrick’s Scheduling Order requires that a “PFS must be completed for all potential
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`[Government Entity] bellwether trial candidates” by November 16, 2020. (ECF No. 938 at 3.)
`The Parties have engaged in multiple good faith meet-and-confers regarding the content and
`procedures for Government Entity PFSs, and appreciate the Court’s guidance at the September 1,
`2020 Informal Discovery Conference. However, significant unresolved issues remain and are ripe
`for Court resolution. The Parties respectfully submit their positions on disputed issues for the
`Court’s consideration below.
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`Defendants’ Position
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`At the first MDL status conference, Judge Orrick set forth his expectation that the case
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`“move forward in a speedy and collaborative way,” and directed the Parties to be prepared to
`exchange “information without serving a single document request.” (11/8/19 Hr’g Tr. at 12, 102.)
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`1
`“Altria” refers to Altria Group, Inc., and the Altria-affiliated entities named in Plaintiffs’ Consolidated Class
`Action Complaint and Consolidated Master Complaint (collectively, “Complaints”), see ECF Nos. 387, 388.
`“Director Defendants” refers to Messrs. James Monsees, Adam Bowen, Nicholas Pritzker, Hoyoung Huh, and
`Riaz Valani.
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`2
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`Beijing Boston Dallas Hong Kong Houston London Los Angeles Munich New York Palo Alto Paris San Francisco Shanghai Washington, D.C.
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`Case 3:19-md-02913-WHO Document 1016 Filed 10/05/20 Page 2 of 8
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`Hon. Jacqueline Scott Corley
`October 5, 2020
`Page 2
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`Defendants have heeded those instructions.3 In contrast, the Government Entity Plaintiffs have
`not produced a single document or provided Rule 26(a) Initial Disclosures, ostensibly because the
`Parties have been engaged in robust discussions on these issues. Nonetheless (and consistent with
`Judge Orrick’s counsel), Defendants expect the Government Entities have been collecting and
`preparing to produce materials that are manifestly relevant to their claims. It is precisely those
`documents and information that Defendants have carefully crafted their proposed PFSs to capture.
`Defendants respectfully request the Court adopt their proposed School District and Government
`Entity PFSs (Exhibits A & B), as well as the proposed Government Entity Fact Sheet
`Implementation Order (Exhibit C), including the proposed dismissal-with-prejudice provision.
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`1.
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`Bellwether Selection Is An Important, But Not Exclusive, Purpose Of Fact Sheets.
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`The Government Entity cases are a significant category in this MDL. The PFS process is a
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`critical means to efficiently assess, litigate, and/or otherwise resolve these claims and the overall
`MDL. Plaintiffs’ exclusive focus on “bellwether selection” is misplaced. While PFSs are certainly
`central to the bellwether selection process, “they also can provide an efficient mechanism to assist
`the parties and the court in assessing whether certain claims may be candidates for expedited
`resolution through voluntary withdrawal, dispositive motions, or through a settlement process.”
`Guidelines & Best Practices For Large & Mass-Tort MDLs, Bolch Jud. Instit., Duke Law Law
`School, 2nd Ed. (Sept. 2018) at 10; see also Plaintiff Fact Sheets in Multidistrict Litigation – a
`Guide for Transferee Judges, Fed. Jud. Ctr and J.P.M.L. (2019) at 2 (purposes of fact sheets
`include “to facilitate settlement negotiations” and “to screen cases in which plaintiffs lack
`information to support a claim against a defendant”). Defendants’ proposal will both advance the
`bellwether selection process and facilitate the overall resolution of the MDL.
`2.
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`Defendants’ Proposal Will Elicit Probative Information With Minimal Burden.
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`The Government Entity Plaintiffs have chosen to file lawsuits seeking sweeping damages
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`and remedies, including abatement, injunctions, compensatory damages, treble damages, punitive
`damages, and attorneys’ fees. (See, e.g., Compl., Three Village Central Sch. Dist. v. Juul Labs,
`Inc. (ECF No. 543) (“Three Village Sch. Compl.”) ¶¶ 645, 754-764; Compl. County of Santa Cruz,
`Indiv. & On Behalf of People of State of Calif. v. Juul Labs, Inc. (ECF No. 539) (“Santa Cruz
`Compl.”) ¶¶ 671, 745-755.) Defendants’ proposal is proportional in both scope and sequencing
`and incorporates Initial Disclosure requirements that are required under Rule 26(a).
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`First, Defendants tailored the PFSs to focus on Plaintiffs’ allegations, which presumably
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`were included in the complaints only “after a reasonable inquiry under the circumstances.” Fed. R
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`3 For example, JLI produced hundreds of thousands of pages of documents before any MDL discovery was served.
`And JLI has now produced one million documents (over four million pages) into the MDL Document Depository.
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`Case 3:19-md-02913-WHO Document 1016 Filed 10/05/20 Page 3 of 8
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`Hon. Jacqueline Scott Corley
`October 5, 2020
`Page 3
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`Civ. P. 11(b). The PFSs focus on what Plaintiffs’ counsel has described as the “gravamen” of their
`claims, which is that the “youth vaping epidemic” “imposes costs on communities and the key
`institutions within those communities.” (9/1/2020 IDC Tr. at 36.)
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`For example, Plaintiffs allege “increased absenteeism, classroom disruptions, suspensions,
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`loss of class time for students, increased nurse visits by students, diversions of and losses of critical
`funding to school districts, and many other harms and expenses directly due to Defendants’
`actions” (Santa Cruz Compl. ¶ 642; see also Three Dist. Sch. Compl. ¶¶ 593-608), and claim that
`“county governments and Public Health Divisions . . . are required to spend increased time and
`resources combating the misinformation spread by Defendants, educating their communities about
`the addictive nature and address the rise in youth e-cigarette use created by Defendants, and
`supporting and assisting schools overwhelmed by youth e-cigarette use.” (Santa Cruz Compl.
`¶ 643.) Defendants’ proposed PFSs request information about these allegations. (E.g., Ex. A ##
`4-14 (absenteeism, expulsions, detentions, suspensions); 25-36 (vaping prevalence, policies); Ex.
`B ## 37-38 (vaping expenditures); 49-50 (vaping education programs).)
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`Defendants’ proposed PFSs are also consistent with the Court’s observation that these
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`cases and claims may not be considered in a JLI-only vacuum. “[I]t’s obvious the comparison has
`to be made” between use of alcohol, drugs, etc. (9/1/2020 IDC Tr. at 41-42; see also e.g., Ex. A
`## 37-44 (tobacco and other nicotine); 45-53 (alcohol); 54-61 (drugs); Ex. B ## 55-70 (tobacco
`and other nicotine); 71-81 (alcohol); 82-93 (drugs).) Nor is it fair to focus solely on JUUL products
`(or to lump them in an undifferentiated manner with all other vaping (or other nicotine) products).
`(E.g., Ex. A # 28 (prevalence of e-cigarette use by various brands); Ex. B # 41(same).)
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`Second, Defendants are mindful of the Court’s concerns about burden. Defendants
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`removed over 40 questions from each of their proposed PFS following the Court’s guidance and
`added protections to require Plaintiffs to only share data they already maintain. Thus, “for each of
`the questions” on the PFS, Plaintiffs are requested only to “provide information that is available
`to it,” and may indicate the information is unavailable if that is the case. In addition, Plaintiffs
`may respond to questions “by referring to documents” attached to the PFS and identified Bates
`numbers. (Ex. A at 1; Ex. B. at 1.) This is also consistent with the Court’s guidance: if Plaintiffs
`“have the data, why not share?” “If it doesn’t exist, it doesn’t exist.” (9/1/2020 IDC Tr. at 46.)
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`Third, Defendants’ proposed PFSs include questions that Plaintiffs would otherwise be
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`required to provide in Rule 26(a) Initial Disclosures, regarding, among other things, persons with
`knowledge and damages claims. (E.g. Ex. A at ## 16-24.)
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`In short, Defendants’ proposed PFSs are tailored to seek only highly probative information,
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`and require production only of materials available to the Plaintiff in the format in which it exists.
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`Case 3:19-md-02913-WHO Document 1016 Filed 10/05/20 Page 4 of 8
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`Hon. Jacqueline Scott Corley
`October 5, 2020
`Page 4
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`Plaintiffs’ proposed PFSs, on the other hand, are insufficient in several respects. First, as
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`a general matter, their barebones nature is not close to proportional to the needs of case. Fed. R.
`Civ. P. 26(b)(1). Second, their proposal does not cover the “relevant factors” the Federal Judicial
`Center (upon which which they rely) has identified for bellwether selection. For example,
`Plaintiffs contend that two questions asking Plaintiffs to “state generally” “how [they] have been
`damaged” and to “identify the approximate date” they allege they were “first injured” sufficiently
`cover the “circumstances of exposure” factor. But the Federal Judicial Center notes that the
`“circumstances of exposure” covers more than that—“e.g., length of exposure, dose, particular
`product at issue, particular indication for use.” Bellwether Trials in MDL Proceedings, Federal
`Judicial Center and Judicial Panel on Multidistrict Litigation (2019) at 22. That type of detail
`(translated to the context of this case) is precisely what is missing from Plaintiffs’ proposal. And
`rather than include any questions about different brands or products, Plaintiffs instead claim they
`have covered the “defendant’s market share” factor by asking questions about each plaintiff’s
`size. Third, the proposed language departs from the default rules of discovery, for example,
`limiting documents to “reports” maintained “in the ordinary course of business.” But regardless of
`whether the materials are “reports,” under Rule 26, reasonably accessible relevant materials that
`are proportional to the needs of the case should be produced. Fourth, materials that would be
`called for in initial disclosures are pared down, asking Plaintiffs to only “state generally” how they
`have been damaged.4
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`3.
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`The Implementation Order Should Reflect The Aggressive Case Schedule.
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`The Parties are mostly aligned on the proposed Implementation Order, with two
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`exceptions. First, the Court should maintain the procedure for eventual dismissals with prejudice,
`This provision is in the personal injury Fact Sheet Order (CMO #8), and provides a reasonable and
`fair process to terminate claims of those Plaintiffs who do not or cannot comply with basic PFS
`discovery. Second, the Court’s scheduling order limits eligibility for bellwether selection to those
`cases whose PFSs have been submitted by November 16, 2020. (ECF No. 938 at 3.) There should
`be guardrails to prevent artificially limiting bellwether candidates by failing to submit PFSs for
`what may be perceived as weaker cases by that time, while still maintaining the claims through
`the generous notification procedure before any dismissal with prejudice.
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`In sum, Defendants appreciate the resource constraints of Covid, but Plaintiffs “decided to
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`pursue the[se] suit[s] and are still deciding to pursue the[se] suit[s]” (9/1/2020 IDC Tr. at 42) and
`pressed for an aggressive schedule for Government Entity cases. Consequences for failure to
`provide basic discovery on a reasonable timeframe is fair and appropriate here.
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`4
`If the Court elects to adopt Plaintiffs’ proposed questions as worded, Defendants request the Court also direct
`the Plaintiffs to provide Rule 26 Initial Disclosures by November 16, 2020.
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`Case 3:19-md-02913-WHO Document 1016 Filed 10/05/20 Page 5 of 8
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`Hon. Jacqueline Scott Corley
`October 5, 2020
`Page 5
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`Plaintiffs’ Position
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`During the September 1, 2020 Informal Discovery Conference, the Court remarked that
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`the Defendants’ proposed Government Entity (“GE”) Plaintiff Fact Sheets (“PFS’s”) were “[w]ay
`too detailed” and that they “would take days and days and hours and hours, which school personnel
`don’t have, counties either.”5 The Court did, however, suggest that in addition to including
`information related to youth usage of e-cigarette products, Plaintiffs’ proposed GE PFS’s should
`be modified to also include information related to youth usage of certain other substances such as
`alcohol, drugs or other illicit substances. For example, the Court suggested that if the GE Plaintiffs
`maintained reports in the ordinary course of business that are reasonably available and include
`information relevant to youth usage of such products, such reports could be provided to the
`Defendants and that would be a satisfactory means of providing information on these topics.6
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`Following the Court’s guidance, the GE Plaintiffs revised and expanded their proposed GE
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`PFS’sto call for additional detail concerning subjects such as reports of youth usage of various
`products (tobacco and nicotine products, e-cigarettes and vaping products, alcohol, drugs and other
`illicit substances), efforts undertaken to curb youth usage of each of these products, and additional
`detail on persons with relevant information, among other topics. These additions were substantial
`and resulted in the Plaintiffs’ proposed GE PFS’s including almost twice as many questions as
`were included in the previous drafts that the Court reviewed prior to the September 1 conference
`– the School District PFS was expanded from 24 questions to 43 questions and the Government
`Entity PFS was expanded from 25 questions to 43 questions, not including subparts. Plaintiffs’
`proposed GE PFS’s reflect, and in some respects go beyond, the guidance the Court provided on
`September 1. Plaintiffs respectfully request the Court adopt their proposed GE PFS’s (Exhibits D
`& E).
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`1.
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`Bellwether Selection is the Primary Purpose of the GE PFS’s at this stage of the case.
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`Among the primary purposes of fact sheets are to create a census of the claims including
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`types of injuries, grouping cases for purposes of motion practice or into litigation tracks, and to
`identify cases for targeted discovery and/or to select bellwether cases.7 Because a census of claims
`was previously created, cases have already been grouped for purposes of motion practice and
`motions have been fully briefed and argued and now are decisional, and the Court determined not
`to formally create litigation tracks, the overarching purpose for the GE PFS’s at this stage of the
`proceedings relates to selecting bellwether cases. The Federal Judicial Center has identified the
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`5 9/1/20 IDC Tr. at 42:13-16.
`6 Id. at 45:15-22.
`7 Plaintiff Fact Sheets in Multidistrict Litigation – a Guide for Transferee Judges, Federal Judicial Center and
`Judicial Panel on Multidistrict Litigation, 1st Ed. 2019 at 2.
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`Case 3:19-md-02913-WHO Document 1016 Filed 10/05/20 Page 6 of 8
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`Hon. Jacqueline Scott Corley
`October 5, 2020
`Page 6
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`following “relevant factors to consider when creating a representative case pool,”8 all of which, as
`they apply to a Plaintiff, are addressed in the GE’s proposed PFS’s: (1)Plaintiff characteristics9;
`(2) Injuries10; (3) Type(s) of claims brought11; (4) Date when claims arose or case was filed12; (5)
`Applicable law13; (6) Circumstances of exposure14; (7) Type of Defendant15; (8) Defendant’s
`market share16; (9) Availability of affirmative defenses17.
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`Additionally, the PFS’s proposed by the GE Plaintiffs are very similar to the PFS approved
`and utilized for GE Plaintiffs in In Re: National Prescription Opiate Litigation, and intentionally
`so.18 That case is the largest MDL in history, yet the PFS utilized for GE’s in that case was less
`than six (6) pages long with 22 questions, and called for substantially similar information – both
`in kind and in scope -- to what the GE Plaintiffs have proposed here and, in fact, Plaintiffs’ proposal
`here goes even farther in a number of respects.
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`2.
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`Defendants’ Proposal is Unnecessarily Burdensome at this Juncture.
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`Defendants continue to seek information that goes far beyond the Court’s guidance as to
`what is necessary at this stage of the case. Defendants’ proposed PFS for School Districts includes
`67 questions (not including sub-parts) and 14 categories of document requests on subjects
`including: identification of every wrongful action by each defendant, the corresponding date, and
`any related documents (questions 63-64); a description of every advertisement related to Plaintiffs’
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`8 See Bellwether Trials in MDL Proceedings, Federal Judicial Center and Judicial Panel on Multidistrict Litigation,
`2019 at 22.
`9 Addressed in sections I and II of Exhibits D and E (Ex. D, questions 1-12; Ex. E, questions 1-8).
`10 Addressed in section IV of Exhibits D and E (Ex. D, questions 16-21; Ex. E, questions 20-25).
`11 Addressed in section IV of Exhibits D and E (Ex. D, questions 16-21; Ex. E, questions 20-25).
`12 Addressed in section IV of Exhibits D and E (Ex. D, question 21; Ex. E., question 25).
`13 Addressed in section I of Exhibits D and E (questions 1, 2, 4, 6,).
`14 Addressed in section IV of Exhibits D and E (Ex. D, questions 16, 21; Ex. E, 20, 25)
`15 Although this factor expressly references “type of Defendant,” the Plaintiffs’ proposed GE PFS’s will identify the
`type of plaintiff based on the form of PFS filed by a Plaintiff, whether Exhibit D or E; also addressed in Section
`I of Exhibits D and E (questions 1 and 2).
`16 Although this factor expressly references “Defendant’s market share,” evidence about the Defendant’s share of the
`market will come from other sources (likely including Defendant’s own market research) and is not a subject
`upon which the GE Plaintiffs have independent evidence; nonetheless, the Plaintiff’s proposed GE PFS’s
`provide important size-related information relevant to each plaintiff, in section II of Exhibit D (questions 8-12)
`and Exhibit E (questions 9-11).
`17 Addressed by applicable law; see supra n. 9.
`18 The Government Plaintiff Fact Sheet utilized in the In Re: National Prescription Opiate Litigation is attached as
`Exhibit “F.”
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`Case 3:19-md-02913-WHO Document 1016 Filed 10/05/20 Page 7 of 8
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`Hon. Jacqueline Scott Corley
`October 5, 2020
`Page 7
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`claims, the type of product, the form of media in which it ran, and the dates when the advertisement
`was seen (question 65); 10 years’ worth of data of every documented instance of e-cigarette use,
`tobacco use, alcohol use, or drug use at each of Plaintiffs’ schools or, for the other government
`entities, anywhere in the county, city, or entire state (questions 39, 47, 56, 61, 75, 86); and 10
`years’ worth of data related to expenditures, including every person involved in the decision to
`make the expenditure and receipts documenting every expenditure (question 37-38, 45, 54).
`Defendants’ proposed PFS for Government Entities goes even further and includes some 99
`questions (not including sub-parts) and 15 categories of document requests on similar and
`additional topics, calling, for example, for drafts of all legislation, regulations, or polices relating
`to e-cigarettes, tobacco, alcohol, and drugs (questions 34, 55, 71, 82, 83) as well as any
`expenditures cities and counties made relating to drug use, treatment, or medical care for the last
`ten years, with receipts for the same (question 84, 88).19 These are only select examples that
`illustrate the considerable overbreadth and burden that would be imposed by Defendants’ proposed
`GE PFS’s.
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`Defendants’ contention that Plaintiffs can merely respond to questions by attaching
`documents is no answer. Because Defendants’ make no attempt to limit their requests to
`pre-existing reports, Defendants’ PFS would require Plaintiffs to go through all of their documents
`and determine whether any were responsive and then reorganize them to fit Defendants’ questions,
`a monumental task that would need to occur within the next approximately six weeks.
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`Moreover, the numerous documents Defendants seek go well beyond the purposes of a
`PFS. Defendants’ arguments about relevancy and the scope of Rule 26, are misplaced. To be
`clear, Plaintiffs are not contending that Defendants are never entitled to any of the information
`requested nor that it is all irrelevant. But the central purpose of the PFS is to provide the
`Defendants with the information necessary for bellwether selection, after which those Plaintiffs
`selected will undergo more extensive discovery. The Court appropriately drew that very distinction
`when ruling on issues related to a supplemental PFS for the personal injury cases, and should reach
`the same conclusion again here:
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`The remaining questions, however, are not necessary for the selection of potential
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`bellwether plaintiffs or are unduly burdensome given this preliminary stage of the MDL. There is
`no doubt that the defendants will be entitled to much of the discovery covered by the questions in
`their Proposed Supplemental PFS for plaintiffs identified in the bellwether process or at another
`juncture, but the resources required for counsel and plaintiffs to investigate and provide responses
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`19 Of all of these questions, only the questions relating to alcohol are limited to underage use.
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`Case 3:19-md-02913-WHO Document 1016 Filed 10/05/20 Page 8 of 8
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`Hon. Jacqueline Scott Corley
`October 5, 2020
`Page 8
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`to the questions under penalty of perjury are simply too significant for their marginal current
`relevance.20
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`3.
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`The Implementation Order Need Not Provide for a Dismissal With Prejudice.
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`Under the Defendants’ proposed GE PFS Implementation Order, any GE whose complaint
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`may have been dismissed without prejudice because of some PFS deficiency would be subject, a
`mere 15 days later, to having that dismissal converted to a dismissal with prejudice. There is no
`valid basis for imposing such a draconian penalty on a GE Plaintiff, particularly in the middle of
`a pandemic that has schools, cities and counties stretched thin to provide services to their students
`and citizens amid a constantly shifting public health landscape. That is particularly true given the
`substantial amount of information that the GE’s must provide over a considerable period of years,
`which represents a greater burden both in scope and in substance than was imposed by the PFS
`applicable to personal injury cases. The GE Plaintiffs therefore respectfully request that the Court
`approve the proposed GE PFS Implementation Order (Exhibit C) without Defendants’ proposed
`subsection C.
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`The Parties look forward to discussing these issues on October 7, 2020.
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`* * *
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`Respectfully submitted,
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`/s/ Renee D. Smith
`/s/ Peter A. Farrell
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`Counsel for Defendant Juul Labs, Inc.
`& Lead Defense Liaison Counsel
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`cc: MDL Counsel of Record
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`20 ECF No. 857.
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