Case 3:19-md-02913-WHO Document 1100 Filed 10/28/20 Page 1 of 7
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`Facsimile:
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`300 North LaSalle
`Chicago, IL 60654
`United States
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`www.kirkland.com
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`October 28, 2020
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`Renee D. Smith
`To Call Writer Directly:
`+1 312 862 2310
`renee.smith@kirkland.com
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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
`Re:
`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 class representative discovery issues. The Parties have engaged
`in multiple good faith meet-and-confers, and now submit their positions on certain ripened
`disputed issues for the Court’s consideration and resolution below. 3
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`For context, the Parties note that Judge Orrick’s Scheduling Order requires in relevant
`parts: (i) Plaintiffs to serve class certification expert reports and their motion for class certification
`(“as to California subclass, federal nationwide class, [and] any other state(s) agreed or ordered to
`be included in first class bellwether trial(s)”) on March 17, 2021; and (ii) Defendants to serve class
`certification response expert reports, Daubert motions, and briefs in opposition to Plaintiffs’ class
`certification motions on June 16, 2021. (ECF No. 938 at 3-4.) The Order also sets June 18, 2021
`as the deadline for substantial completion of fact discovery, and schedules the class certification
`hearing for August 13, 2021. (Id. at 4.)
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`1
`“Altria” refers to Altria Group, Inc., and the Altria-affiliated entities named in Plaintiffs’ Am. Consolidated Class
`Action Complaint and Am. Consolidated Master Complaint (collectively, “Complaints”), ECF Nos. 679, 677.
`2 The “Director Defendants” are James Monsees, Adam Bowen, Nicholas Pritzker, Hoyoung Huh, and Riaz Valani.
`3 This Letter is limited to certain pending discovery and deposition requests. The Parties reserve all rights as to
`additional discovery of named plaintiffs, as well as discovery of absent class members and third-party discovery.
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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 1100 Filed 10/28/20 Page 2 of 7
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`Hon. Jacqueline Scott Corley
`October 28, 2020
`Page 2
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`Defendants’ Position
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`Defendants seek PFSs and depositions from MDL class representatives, including the 107
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`representatives named in the Amended Consolidated Class Action Complaint (“CCAC”) and the
`25 representatives who are not on the CCAC but are named as class representatives in other
`pending MDL class cases (collectively “Named Plaintiffs”). This discovery is plainly appropriate.
`Each Named Plaintiff is a party; the discovery is relevant, and Plaintiffs have shown no undue
`burden or justified delay. Each Named Plaintiff should complete the personal-injury PFS (as
`modified by agreement in a forthcoming proposed Order) and timely appear for a deposition.
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`1.
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`Each Of The Named Plaintiffs Is A Party; None Is An “Absent Class Member.”
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`All the Named Plaintiffs are parties. Contrary to Plaintiffs’ claims, the 25 Named
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`Plaintiffs who are not on the CCAC are not “Absent Class Members” who can avoid discovery.4
`Neither these 25 Plaintiffs (nor any Plaintiffs on the CCAC) have dismissed their claims or
`withdrawn as representatives. Unless and until their claims are dismissed, each of the 132 Named
`Plaintiffs “remain a named plaintiff,” and there is “no case authority upon which the court may
`rely to treat [them] as an absent class member under these circumstances.” 5 Fraley v. Facebook
`Inc., 2012 WL 555071, at *2 (N.D. Cal. Feb. 21, 2012). Thus, all 132 Named Plaintiffs are “named
`parties,” from whom relevant and proportional discovery is permitted.6 See Fed. R. Civ. P.
`26(b)(1); Rivera v. NIBCO, Inc., 384 F.3d 822, 824 (9th Cir. 2004).7
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`4 See Exs. A & B, Pls. & Absent Class Members Objs to JLI’s RFPs & Interrogs at 1 n.2.
`5 None of the Named Plaintiffs has requested to withdraw or filed notices of dismissal—even though they could
`have done so in cases where Defendants have not answered. See Fed. R. Civ. P. 41(a)(1)(A).
`6 Plaintiffs’ citations are not to the contrary. First, In re Nat'l Hockey League Players' Concussion Injury Litig.,
`2015 WL 1191272, at *3 (D. Minn. Mar. 16, 2015) and In re Qwest Commc'ns Int'l, Inc. Sec. Litig., 283 F.R.D.
`623, 625 (D. Colo. 2005) confirm that all named plaintiffs in a master complaint should be subject to discovery. In
`In re Lucent Techs. Inc. Sec. Litig., (upon which Qwest relies) the court found plaintiffs were “akin” to absent
`class members because they (unlike Named Plaintiffs here) were “not proposed as class representatives.” 2002
`WL 32818345, at *1 (D.N.J. May 9, 2002). Second, if these out-of-Circuit cases are inconsistent with cases in
`this District on similar issues, the Court should follow the cases here. Third, the Toyota order is not convincing
`either; it appears to have been agreed to (subject to a reservation of rights), and allowed discovery of 22 named
`plaintiffs—far more than of the three class representatives proposed here. In re Toyota Motor Corp. Unintended
`Accel. Mk’g, Sales Pracs., & Prods. Liab. Litig., No. 8:10-ml-2151, ECF No. 1955 (Exhibit C, below).
`7 Courts order even withdrawn representatives to respond to discovery and sit for deposition where “the discovery
`is necessary to its defense against a complaint based in part on [the plaintiffs’] allegations, and there is no
`indication” of “an undue burden.” In re Nest Labs Litig., 2016 WL 8231155, at *2 (N.D. Cal. Mar. 9, 2016); see
`also A.B. v. Pacific Fertility Ctr, 2019 WL 6605883, at *1 (N.D. Cal. Dec. 3, 2019) (Corley, J.) (denying request
`to depose absent class members who were prior named plaintiffs, but compelling responses to interrogatories).
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`Case 3:19-md-02913-WHO Document 1100 Filed 10/28/20 Page 3 of 7
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`Hon. Jacqueline Scott Corley
`October 28, 2020
`Page 3
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`Indeed, as class representatives, the Named Plaintiffs are fiduciaries to the class who allege
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`(as they must) that they will “vigorously” prosecute these actions and will “fairly and adequately
`protect and represent the interests of the classes.”8 This includes complying with discovery
`obligations. See Fed. R. Civ. P. 23(a)(4); MAN. FOR COMPLEX LITIG. § 21.26 (4th ed. 2004). As
`this Court recognized, “of course, you do get discovery of the named class reps always.” (9/1/2020
`Hr’g Tr. at 29). The Named Plaintiffs should respond to basic discovery, including both
`(i) completing the PFSs in the near-term to assist the Parties in determining which non-California-
`subclasses (if any) should be added as bellwethers; and (ii) appearing for a deposition.
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`2.
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`All The Named Plaintiffs Should Be Deposed In A Reasonable Timeframe.
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`“It is beyond dispute that Defendants are entitled to take the deposition of a party.”
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`Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 2011 WL 5865059, at *1–2 (D.
`Colo. Nov. 22, 2011). “As a party, [a named plaintiff] can be required to sit for a deposition on
`notice.” Roz v. Nestle Waters North America Inc., 2017 WL 6940512, at *1 (C.D. Cal. June 21,
`2017).9 The depositions are clearly relevant to Plaintiffs’ burden on both class certification and
`on the merits. See, e.g., Pappas v. Naked Juice Co. of Glendora, Inc., 2012 WL 12248744, at *2
`(C.D. Cal. Dec. 7, 2012) (deposition of consumer “may have relevance to class certification issues,
`or may lead to the discovery of admissible evidence, even if [he] ultimately is no longer a party”).
`And “there is no indication that participating in” a “deposition would be unduly burdensome” for
`any Named Plaintiff.10 See id. at 3. As the Court recognized, “it’s hard to claim burden when you
`put yourself up as a named plaintiff.” (9/1/2020 Hr’g Tr. at 29.)11 Plaintiffs’ request to delay
`indefinitely the depositions of all but three-to-five bellwether Named Plaintiffs is misguided.
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`8 E.g., Doker, Harrison, No. 19-cv-06466 ¶ 161 (“committed to vigorously prosecuting this case”); M.E.D., No.
`19-cv-06928 ¶ 207 (“determined to diligently discharge [fiduciary] duties by vigorously seeking . . . recovery”);
`ECF No. 679 at ¶ 624; Cooper, No. 20-cv-01238 at ¶ 247; McKnight, No. 18-cv-02499 at ¶ 95.
`9 The specter that some Named Plaintiffs may later dismiss their claims does not alter the result. They are all
`currently parties, and courts have compelled depositions even of class representatives who are in the process of
`withdrawing or dismissing their claims. See Nilon v. Natural-Immunogenics Corp., 2014 WL 3779006, at *4
`(S.D. Cal. July 31, 2014) (compelling withdrawing plaintiff deposition); Dysthe v. Basic Research,
`L.L.C., 273 F.R.D. 625, 627–28 (C.D. Cal. Apr. 8, 2011) (compelling deposition of withdrawing plaintiff
`because, among other things, “his testimony is expected to be relevant to issues pertaining to class certification”).
`10 The Named Plaintiffs are represented by sophisticated law firms and seek extensive relief. And the Parties agreed
`to and the Court entered a Remote Deposition Protocol to address logistical issues. (CMO No. 11, ECF No. 914.)
`11 Fairness also favors deposing these parties—particularly compared to the massive discovery propounded by
`Plaintiffs to dozens of Defendants and 140+ nonparties. Genus Lifesciences Inc. v. Lannett Co., Inc., 2019 WL
`7313047, at *4 (N.D. Cal. Dec. 30, 2019) (Orrick, J.) (noting “preference” “to obtain discovery from [parties]
`before burdening non-parties”) (citation and quotation omitted). Limiting depositions to a handful of Named
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`Case 3:19-md-02913-WHO Document 1100 Filed 10/28/20 Page 4 of 7
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`Hon. Jacqueline Scott Corley
`October 28, 2020
`Page 4
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`First, Defendants do not object to reasonable sequencing, but simply request that each
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`Named Plaintiff be deposed at a mutually convenient time before the class certification motion
`deadline of March 17, 2021. Second, it is critical to the MDL process that the Parties know “sooner
`rather than later,” if there is a problem with a class representative. (9/1/2020 Hr’g Tr. at 32.) The
`ability and willingness to appear for deposition is fundamental to adequacy concerns. “Refusing
`to answer proper discovery inquiries inexpugnably suggests that the representative would be less
`than adequate,” and this is “especially true when the class representative refrains from appearing
`at her deposition.” McDaniel v. Cty of Schenectady, 2005 WL 1745566, at *3 (N.D.N.Y. July 21,
`2005).12 And widespread attrition in the face of depositions could also implicate counsel
`adequacy. Third, delaying depositions for years risks fading or blurred memories of relevant
`events, compromising the search for the truth and a fair defense. Fourth, Named Plaintiffs’
`depositions are relevant regardless of whether a class is an early bellwether. Depositions will
`marshal information not only necessary to resolve class certification, dispositive motion practice,
`or trial purposes, but also for potential resolution, and thus will move these coordinated cases “in
`a diligent fashion toward resolution by motion, settlement, or trial.” In re Phenylpropanolamine
`(PPA) Prods. Liab. Litig., 460 F.3d 1217, 1232 (9th Cir. 2006).13
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`Plaintiffs’ Position
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`The proposed class representatives for the bellwether claims that will be at issue in the
`March 2021 class certification motion and trial set for early 2022 have already agreed to fully
`respond to written discovery, produce documents, and sit for depositions. All of the other proposed
`class representatives named in the CCAC have agreed to complete Plaintiff Fact Sheets, as
`suggested by this Court. And Plaintiffs have invited Defendants to identify additional state
`subclass claims they wish to test and ultimately prepare for certification and trial.
`Defendants ignore these facts and demand additional discovery, namely to also (1) depose,
`by March 2021, all 100+ of the class representatives who are currently named in the operative
`class action complaint, but whose state law claims will not be part of the first class certification
`motion and first class bellwether trial (“Non-Bellwether CACC Plaintiffs”), and (2) to depose and
`get Plaintiff Fact Sheets from individuals who filed class actions but who are not named as class
`representatives in the operative class action complaint (“Non-CCAC Plaintiffs”).
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`Plaintiffs is disproportionate here. And Plaintiffs’ suggestion, below, that seeking basic discovery from parties
`is a “scorched earth” or “punitive” tactic is incorrect and unhelpful to the resolution of this dispute.
`12 Conversely, sitting for deposition may support adequacy. Sidibe v. Sutter Health, 333 F.R.D. 463, 488 (N.D. Cal.
`Oct. 18, 2019) (“plaintiffs have actively participated in this case,” including “ma[king] themselves available for . .
`. depositions”); In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 311 (N.D. Cal. Aug. 15, 2018) (similar).
`13 Indeed, compliance with discovery is particularly critical in “multidistrict litigation,” which “is a special breed of
`complex litigation where the whole is bigger than the sum of its parts.” In re PPA, 460 F.3d at 1232.
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`Case 3:19-md-02913-WHO Document 1100 Filed 10/28/20 Page 5 of 7
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`Hon. Jacqueline Scott Corley
`October 28, 2020
`Page 5
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`The discovery Defendants seek is premature, unduly burdensome, inefficient, and out of
`proportion to the needs of this case at this time. Defendants demand depositions and PFSs from
`individuals who will not serve as class representatives for purposes of the certification motion due
`in March 2021 or the first class bellwether trial. Other courts have rejected similar “scorched earth”
`discovery strategies where a class bellwether proposal offers a more orderly path. In re: Toyota
`Motor Corp. Unintended Acceleration Marketing, Sales Pracs., and Prods. Liab. Litig., No. 8:10-
`ml-2151-JVS-FMO, ECF No. 1955 (Attached as Exhibit C) at 3 (limiting discovery to class
`bellwether plaintiffs). Defendants note that at the September 1, 2020 informal discovery
`conference, the Court said that “you do get discovery of the named class reps,” but immediately
`before that the Court had explained that “you’d get discovery on whatever five [bellwether class
`representatives] they put up” and noted that “[i]t’ll be narrowed.” (9/1/2020 Hr’g Tr. at 29).
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`Deposing the Non-Bellwether CACC Plaintiffs and Non-CCAC Plaintiffs —more than 120
`individuals—prior to March 2021 is inconsistent with the orderly conduct of this litigation in
`general and the class bellwether process the parties have undertaken. Defendants’ proposal to take
`scores of depositions in the next five months (averaging more than twenty depositions each month)
`would be an expensive and wasteful exercise that would divert time and resources from the matters
`at hand—namely preparations for the imminent bellwether certification and trial proceeding—
`without any countervailing benefit to the efficient resolution of claims. See Fed. R. Civ. P. 42(b)
`(court may order separate trial of one or more issues or claims “to expedite and economize”);
`Eldon E. Fallon, et al., Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323, 2337-
`38 (2008) (goals of bellwether programs include focusing discovery and trial on representative
`cases to advance resolution of the litigation).
`As noted above, the plaintiffs whose claims are presently at issue in the first bellwethers
`have agreed to provide the discovery Defendants have requested. Defendants’ argument that they
`also need to depose all the other potential class representatives to determine which individuals’
`claims should be tested as bellwethers and for class certification is misguided for several reasons.
`First, a major objective of the class certification and bellwether trial proceedings ahead
`will be to test and resolve claims under the laws of the state(s) at issue. The focus of a class
`bellwether selection process should, therefore, be based on the laws of each state, rather than the
`facts of each individual class representative’s case. See Collazo v. WEN by Chaz Dean, Inc., No.
`215CV01974ODWAGR, 2018 WL 3424957, at *2 (C.D. Cal. July 12, 2018) (“When selecting
`which cases should be tried in a bellwether trial, the process should accurately reflect the individual
`categories of cases that comprises the action in toto, illustrate the likelihood of success and measure
`of damages within each respective category.”) (internal alternations and citations omitted).
`Second, while the parties have agreed that the Non-Bellwether CACC Plaintiffs are not at
`this time required to answer interrogatories or respond to full-blown document requests, over two-
`thirds of the Non-Bellwether CACC Plaintiffs have already submitted a PFS and, pursuant to the
`parties’ agreement, the remaining proposed class representatives will do so shortly. To the extent
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`Case 3:19-md-02913-WHO Document 1100 Filed 10/28/20 Page 6 of 7
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`Hon. Jacqueline Scott Corley
`October 28, 2020
`Page 6
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`Defendants need information about the plaintiffs’ economic injuries to select bellwether states,
`they can obtain that information from the PFS responses efficiently in the first instance, and at
`significantly less cost and burden than preparing for and conducting a deposition. See 9/1/2020
`Hr’g Tr. at 31 (stating that the PFS should “give you enough information” to pick bellwether
`states). In addition, it would make more sense to depose plaintiffs after they have completed
`written discovery and their claims are designated for trial.
`Third, as in any other class action, Defendants are able to make typicality arguments under
`Rule 23 without taking depositions of scores of class members aside from the class representatives
`at issue in the class certification motion. This is particularly true here where Defendants will have
`access to information from at least 100 class members through the Plaintiff Fact Sheets completed
`by the Non-Bellwether CACC Plaintiffs.
`With respect to the Non-CCAC Plaintiffs, they are not currently named in the consolidated
`complaint and are thus not currently in the pool of potential class bellwether plaintiffs.14 In Pretrial
`Order No. 1, the Court ordered that “no further discovery shall be initiated” (ECF No. 2 at 6), and
`has not lifted that stay with respect to the Non-CCAC Plaintiffs. In addition, many of the Non-
`CCAC Plaintiffs have dismissed (or soon will dismiss) their complaints. Defendants cannot clear
`the high bar to take discovery of these “absent class members.” See McPhail v. First Command
`Fin. Planning, Inc., 251 F.R.D. 514, 517 (S.D. Cal. 2008) (“While some courts have permitted
`discovery of absent class members, they have done so only where the proponent of the discovery
`establishes that (1) the discovery is not designed to take undue advantage of class members or to
`reduce the size of the class, (2) the discovery is necessary, (3) responding to the discovery requests
`would not require the assistance of counsel, and (4) the discovery seeks information that is not
`already known by the proponent.”). Defendants have provided no showing of necessity or
`justification for imposing undue burdens on these absent class members at this stage of the
`proceedings. The Non-CCAC Plaintiffs who have not dismissed their claims are also “akin to
`absent class members” and so some of the same “special considerations” about discovery should
`apply to them as well. 32B Am. Jur. 2d Federal Courts § 1733. See also In re Nat'l Hockey League
`Players' Concussion Injury Litig., No. MDL 14-2551 SRN/JSM, 2015 WL 1191272, at *4 (D.
`Minn. Mar. 16, 2015) (requiring only representative plaintiffs named in operative consolidated
`complaint to respond to discovery; describing plaintiffs who brought suit but were not named in
`operative complaint as “absent plaintiffs” not required to respond to discovery); In re Qwest
`Commc'ns Int'l, Inc. Sec. Litig., 283 F.R.D. 623, 625 (D. Colo. 2005) (“named” plaintiffs who filed
`complaints but were not named “Lead Plaintiffs” are “on equal footing with absent class members”
`and “are not generally subject to discovery”) (internal citations and quotation marks omitted). The
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`14 Plaintiffs reserve their right to include Non-CCAC Plaintiffs in an amended consolidated complaint. Co-lead counsel
`has consulted with counsel for Non-CCAC Plaintiffs regarding the positions taken in discovery and in this letter brief,
`and are authorized to represent that Non-CCAC Plaintiffs are prepared to participate in discovery to the extent ordered
`by the Court.
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`Case 3:19-md-02913-WHO Document 1100 Filed 10/28/20 Page 7 of 7
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`Hon. Jacqueline Scott Corley
`October 28, 2020
`Page 7
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`inefficiency of deposing the Non-CCAC Plaintiffs or having them complete a PFS is even more
`pronounced and counterproductive to the bellwether process than discovery of the Non-Bellwether
`CACC Plaintiffs. But in neither case is the discovery warranted.
`Defendants’ efforts to depose the Non-CCAC and Non-Bellwether Plaintiffs appear to be
`a punitive tactic to burden plaintiffs and delay the proceedings. The requested discovery is
`premature and disproportionate to the current needs of the case. All parties should instead direct
`resources towards preparing the bellwether claims for class certification and trial, and revisit
`additional class representative discovery as additional bellwether claims come into focus.
`Defendants' request should be denied.
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`* * *
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`The Parties look forward to discussing these issues on October 30, 2020.
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`cc: MDL Counsel of Record
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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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