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1 Kimberly Branscome (SBN 255480)
Jay Bhimani (SBN 267689)
2 DECHERT LLP
3 633 W. 5th Street, Suite 4900
Los Angeles, CA 90071
4 Telephone: (213) 808-5700
Facsimile: (213) 808-5760
5 Email: kimberly.branscome@dechert.com
Email: jay.bhimani@dechert.com
6
7 Jonathan Tam (SBN 304143)
DECHERT LLP
8 One Bush Street, Suite 1600
San Francisco, CA 94104-4446
9 Telephone: (415) 262-4500
Facsimile: (415) 262-4555
10
Email: jonathan.tam@dechert.com
11
Attorneys for Specially-Appearing Defendant GlaxoSmithKline LLC
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
FOR THE COUNTY OF ALAMEDA
14
COORDINATION PROCEEDING JCCP NO. 5150
15 SPECIAL TITLE (RULE 3.550) Case No. RG20061705
16 ASSIGNED FOR ALL PURPOSES
In re Ranitidine Cases JUDGE EVELIO GRILLO
17 DEPT. 21
NOTICE OF SUBMISSION TO
18 THIS DOCUMENT RELATES TO: DISCOVERY REFEREE OF SPECIALLY-
APPEARING DEFENDANT
19 Goetz v. GlaxoSmithKline, et al.,
GLAXOSMITHKLINE LLC’S REPLY IN
Case No. RG20061705
SUPPORT OF MOTION FOR
20 CLARIFICATION AND OBJECTION
21 ALL ACTIONS REGARDING REPORT AND
RECOMMENDED RULING RE:
22 PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY CONCERNING THE
23 DESTRUCTION OF PILLS AT GSK’S
ZEBULON FACILITY
24
Discovery Referee: Hon. Elizabeth D. Laporte
25 (Ret.), JAMS
Hearing date: August 16, 2022
26
Time: 1:00 PM PT
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NOTICE OF SUBMISSION TO DISCOVERY REFEREE OF SPECIALLY-APPEARING DEF. GSK LLC’S
REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: REPORT AND RECOMMENDED RULING RE:
PLS.’ MOT. TO COMPEL DISC. RE DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY
1 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE that on September 11, 2022, pursuant to Pretrial Order No. 7,
3 Specially-Appearing Defendant GlaxoSmithKline LLC submitted the following to the Honorable
4 Elizabeth D. Laporte (Ret.) (the “Discovery Referee”):
5 Specially-Appearing Defendant GlaxoSmithKline LLC’s Reply in Support of
6 Motion for Clarification and Objection Regarding Report and Recommended
7 Ruling Re: Plaintiffs’ Motion to Compel Discovery Concerning the Destruction
8 of Pills at GSK’s Zebulon Facility (the “Motion”); and
9 Declaration of Jonathan Tam in Support of Specially-Appearing Defendant
10 GlaxoSmithKline LLC’s Reply in Support of Motion for Clarification and
11 Objection Regarding Report and Recommended Ruling Re: Plaintiffs’ Motion to
12 Compel Discovery Concerning the Destruction of Pills at GSK’s Zebulon Facility
13 (the “Tam Declaration”)
14 The Motion and the Tam Declaration are attached hereto as Exhibits A and B, respectively.
15
Dated: September 11, 2022
16
17 By: /s/ Jonathan Tam
Jonathan Tam (SBN 304143)
18 DECHERT LLP
One Bush Street, Suite 1600
19 San Francisco, CA 94104-4446
Telephone: (415) 262-4500
20
Facsimile: (415) 262-4555
21
Kimberly Branscome (SBN 255480)
22 Jay Bhimani (SBN 267689)
DECHERT LLP
23 633 W. 5th Street, Suite 4900
Los Angeles, CA 90071
24
Telephone: (213) 808-5700
25 Facsimile: (213) 808-5760
26 Attorneys for Specially Appearing Defendant
GlaxoSmithKline LLC
27
28 1
NOTICE OF SUBMISSION TO DISCOVERY REFEREE OF SPECIALLY-APPEARING DEF. GSK LLC’S
REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: REPORT AND RECOMMENDED RULING RE:
PLS.’ MOT. TO COMPEL DISC. RE DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY
EXHIBIT A
1 Kimberly Branscome (SBN 255480)
Jay Bhimani (SBN 267689)
2 DECHERT LLP
3 633 W. 5th Street, Suite 4900
Los Angeles, CA 90071
4 Telephone: (213) 808-5700
Facsimile: (213) 808-5760
5 Email: kimberly.branscome@dechert.com
Email: jay.bhimani@dechert.com
6
7 Jonathan Tam (SBN 304143)
DECHERT LLP
8 One Bush Street, Suite 1600
San Francisco, CA 94104-4446
9 Telephone: (415) 262-4500
Facsimile: (415) 262-4555
10
Email: jonathan.tam@dechert.com
11
Attorneys for Specially-Appearing Defendant GlaxoSmithKline LLC
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 FOR THE COUNTY OF ALAMEDA
14 COORDINATION PROCEEDING JCCP NO. 5150
15 SPECIAL TITLE (RULE 3.550) Case No. RG20061705
16 In re Ranitidine Cases
ASSIGNED FOR ALL PURPOSES
17 JUDGE EVELIO GRILLO
DEPT. 21
18 THIS DOCUMENT RELATES TO: SPECIALLY-APPEARING DEFENDANT
GLAXOSMITHKLINE LLC’S REPLY IN
19 Goetz v. GlaxoSmithKline, et al., SUPPORT OF MOTION FOR
Case No. RG20061705 CLARIFICATION AND OBJECTION
20 REGARDING REPORT AND
21 RECOMMENDED RULING RE:
ALL ACTIONS
PLAINTIFFS’ MOTION TO COMPEL
22 DISCOVERY CONCERNING THE
DESTRUCTION OF PILLS AT GSK’S
23 ZEBULON FACILITY
24 Discovery Referee: Hon. Elizabeth D. Laporte
(Ret.), JAMS
25 Hearing date: August 16, 2022
Time: 1:00 PM PT
26
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DEF.’S REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC.
RE: DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY
1 Plaintiffs’ Response helps narrow the issue on which GSK seeks clarification from Judge
2 Laporte to the following question: Consistent with Judge Laporte’s discussion with the parties
3 during the August 16, 2022 hearing, may GSK limit its production of non-privileged information
4 and documents relating to the preservation and disposal of ranitidine at the Zebulon facility to the
5 time period between September 1, 2019, and June 1, 2020 (a month after the May 2020 sample
6 disposal)?
7 Following Judge Laporte’s guidance and statements made by Plaintiffs’ counsel at that
8 hearing, GSK understood the answer to this question to be “yes.” Plaintiffs argue that their
9 counsel’s agreement during the hearing that they were not seeking communications logged after
10 the May 2020 disposal was “not an across-the-board agreement” but was “specifically restricted to
11 … [RFP] 157.” Resp. at 1. The hearing transcript does not support that position; rather, the parties
12 and Court discussed temporal narrowing not only with respect to the logging of privileged
13 communications, but also with respect to the litigation holds and non-privileged communications
14 requested in RFPs 151, 153, and 157. See Ex. 3, Aug. 16, 2022 Tr. 42-48. For example, Plaintiffs’
15 counsel stated: “if there [were] conversations about spoliation after the fact, that’s not really
16 something we want to be logged. Frankly, we want to know what communications happened before
17 the destruction … because that would go to the issue.” Id. 45:15-22. GSK understood from that
18 discussion and Judge Laporte’s statements that the remainder of the supplemental responses subject
19 to this Motion would be similarly limited to the time frame from September 1, 2019, to June 1,
20 2020.
21 Plaintiffs’ Response confirms that Plaintiffs do not seek, and GSK need not provide,
22 information about privileged communications after the May 2020 disposal of the Zebulon sample.
23 They agree that RFP 157 may be narrowed to make this clearer by adding that “GSK should not be
24 required to log privileged communications after June 1, 2020.” Resp. at 2. The only area of
25 disagreement then is whether the same temporal limitation also applies to the non-privileged
26 information Plaintiffs are requesting.
27 For the reasons set forth in GSK’s Motion for Clarification and consistent with Plaintiffs’
28 counsel’s statements during the August 16 hearing, GSK requests an expansion of the clarification
1
DEF.’S REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC.
RE: DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY
1 of RFP 157 to which Plaintiffs agree. Specifically, GSK respectfully requests that Judge Laporte
2 confirm that in responding to RFPs 151, 153, and 157, and Rog 3, GSK should not be required to
3 produce documents or communications, or to log privileged communications, that are dated or
4 took place after June 1, 2020.
5
6 Dated: September 11, 2022
7 By: /s/ Jonathan Tam
8 Jonathan Tam (SBN 304143)
DECHERT LLP
9 One Bush Street, Suite 1600
San Francisco, CA 94104-4446
10 Telephone: (415) 262-4500
Facsimile: (415) 262-4555
11
Email: jonathan.tam@dechert.com
12
Kimberly Branscome (SBN 255480)
13 Jay Bhimani (SBN 267689)
DECHERT LLP
14 633 W. 5th Street, Suite 4900
Los Angeles, CA 90071
15
Telephone: (213) 808-5700
16 Facsimile: (213) 808-5760
Email: kimberly.branscome@dechert.com
17 Email: jay.bhimani@dechert.com
18 Attorneys for Specially-Appearing Defendant
GlaxoSmithKline LLC
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2
DEF.’S REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC.
RE: DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY
1 PROOF OF SERVICE
2 I, the undersigned, declare: I am a citizen of the United States, over 18 years of age and
not a party to the within action. I am employed in the County of San Francisco, State of
3
California; my business address is One Bush Street, Suite 1600, San Francisco, CA 94104.
4
On the date specified below, I served a copy of the foregoing document described as:
5
SPECIALLY-APPEARING DEFENDANT GLAXOSMITHKLINE LLC’S REPLY IN
6
SUPPORT OF MOTION FOR CLARIFICATION AND OBJECTION REGARDING
7 REPORT AND RECOMMENDED RULING RE: PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY CONCERNING THE DESTRUCTION OF PILLS AT GSK’S ZEBULON
8 FACILITY
9 on the interested parties in this action as follows:
10 SEE ATTACHED SERVICE LIST
11 [X] BY ELECTRONIC SERVICE (EMAIL): By causing a true and correct copy thereof to
be transmitted electronically to the attorney(s) of record and designated recipients at the email
12 address(es) on the attached service list.
13 [X] I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
14
15 Executed on September 11, 2022 at San Francisco, California.
16
17 /s/ Mary H. Kim
Mary H. Kim
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PROOF OF SERVICE
1 SERVICE LIST
2 MOORE LAW GROUP, PLLC By Electronic Service (Email)
Jennifer A. Moore
3 Jennifer@moorelawgroup.com
4 Andie Camden
andie@moorelawgroup.com
5 Ashton Smith
ashton@moorelawgroup.com
6 1473 South 4th Street Louisville, KY
40208
7
Attorneys for Plaintiffs
8 BAUM, HEDLUND, ARISTEI & By Electronic Service (Email)
9 GOLDMAN, P.C.
R. Brent Wisner
10 Rbwisner@baumhedlundlaw.com
Adam M. Foster
11 afoster@baumhedlundlaw.com
Helen E. Tokar
12 htokar@baumhedlundlaw.com
10940 Wilshire Blvd, 17th floor
13 Los Angeles, CA 90024
Attorneys for Plaintiffs
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SERVICE LIST
1 ARNOLD & PORTER KAYE By Electronic Service (Email)
SCHOLER LLP
2
Sharon D. Mayo
3 sharon.mayo@arnoldporter.com
Tommy Huynh
4 tommy.huynh@arnoldporter.com
10th Floor, Three Embarcadero Center
5 San Francisco, CA 94111
6 Alex Beroukhim
alex.beroukhim@arnoldporter.com
7 44th Floor 777 South Figueroa Street
Los Angeles, CA 90017
8
Anand Agneshwar
9 anand.agneshwar@arnoldporter.com
250 West 55th Street
10 New York, NY 10019-9710
Attorneys for Sanofi US Services Inc. and
11 Sanofi-Aventis U.S. LLC
12 KING & SPALDING LLP By Electronic Service (Email)
Andrew T. Bayman
13 abayman@kslaw.com
1180 Peachtree St. NE, Ste. 1600
14 Atlanta, GA 30309
15 Matthew J. Blaschke
mblaschke@kslaw.com
16 Rachel Rubens
rrubens@kslaw.com
17 50 California St., Ste. 3300
San Francisco, CA 94111
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Attorneys for Boehringer Ingelheim
19 Pharmaceuticals, Inc. and Boehringer
Ingelheim USA Corporation
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SERVICE LIST
1 WFBM LLP By Electronic Service (Email)
Lisa M. Rice
2 lrice@wfbm.com
Ingrid K. Campagne
3 icampagne@wfbm.com
Katie A. Stricklin
4 kstricklin@wfbm.com
19900 MacArthur Blvd., Suite 1150
5 Irvine, California 92612
6 WILLIAMA & CONNOLLY LLP
Jessica B. Rydstrom
7 jrydstrom@wc.com
Annie E. Showalter
8 ashowalter@wc.com
680 Maine Avenue SW
9 Washington, DC 20024
Attorneys for specially appearing
10 Defendants PFIZER INC.
11 By Electronic Service (Email)
BARNES & THORNBURG LLP
12 Sarah E. Johnston
Sarah.johnston@btlaw.com
13 Noushan Noureddini
Noushan.noureddini@btlaw.com
14 2029 Century Park East, Suite 300
Los Angeles, CA 90067
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Attorneys for Defendant The Vons
16 Companies. Inc.
17 DOWNEY BRAND LLP By Electronic Service (Email)
John C. McCarron
18 jmccarron@downeybrand.com
621 Capitol Mall, 18th Floor
19 Sacramento, California 95814
20 Sophia B. Castillo
scastillo@downeybrand.com
21 455 Market St., Suite 1500
San Francisco, California 94105
22 Attorneys for Grocery Outlet, Inc.
23 Attorneys for Grocery Outlet, Inc.
24 SHEPPARD, MULLIN, RICHTER & By Electronic Service (Email)
HAMPTON LLP
25 Robert J. Guite
rguite@sheppardmullin.com
26 333 South Hope Street, 43rd Floor
Los Angeles, California 90071
27 Attorney for Defendant Kaiser
Permanente International
28
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SERVICE LIST
EXHIBIT B
1 Kimberly Branscome (SBN 255480)
Jay Bhimani (SBN 267689)
2 DECHERT LLP
3 633 W. 5th Street, Suite 4900
Los Angeles, CA 90071
4 Telephone: (213) 808-5700
Facsimile: (213) 808-5760
5 Email: kimberly.branscome@dechert.com
Email: jay.bhimani@dechert.com
6
7 Jonathan Tam (SBN 304143)
DECHERT LLP
8 One Bush Street, Suite 1600
San Francisco, CA 94104-4446
9 Telephone: (415) 262-4500
Facsimile: (415) 262-4555
10
Email: jonathan.tam@dechert.com
11
Attorneys for Specially-Appearing Defendant GlaxoSmithKline LLC
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
FOR THE COUNTY OF ALAMEDA
14
COORDINATION PROCEEDING JCCP NO. 5150
15 SPECIAL TITLE (RULE 3.550) Case No. RG20061705
16 ASSIGNED FOR ALL PURPOSES
In re Ranitidine Cases JUDGE EVELIO GRILLO
17 DEPT. 21
DECLARATION OF JONATHAN TAM IN
18 THIS DOCUMENT RELATES TO: SUPPORT OF SPECIALLY-APPEARING
DEFENDANT GLAXOSMITHKLINE
19 Goetz v. GlaxoSmithKline, et al.,
LLC’S REPLY IN SUPPORT OF MOTION
Case No. RG20061705
FOR CLARIFICATION AND OBJECTION
20 REGARDING REPORT AND
21 ALL ACTIONS RECOMMENDED RULING RE:
PLAINTIFFS’ MOTION TO COMPEL
22 DISCOVERY CONCERNING THE
DESTRUCTION OF PILLS AT GSK’S
23 ZEBULON FACILITY
24 Discovery Referee: Hon. Elizabeth D. Laporte
(Ret.), JAMS
25 Hearing date: August 16, 2022
Time: 1:00 PM PT
26
27
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DECL. OF JONATHAN TAM IN SUPPORT OF DEF.’S REPLY IN SUPPORT OF MOT. FOR
CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC. RE: DESTRUCTION OF PILLS
AT GSK’S ZEBULON FACILITY
1 DECLARATION OF JONATHAN TAM
2 I, Jonathan Tam, declare as follows:
3 1. I am an attorney with the law firm of Dechert LLP, attorneys for Specially-Appearing
4 Defendant GlaxoSmithKline LLC in the above-captioned action. I make this declaration in support
5 of Specially-Appearing Defendant GlaxoSmithKline LLC’s Reply in Support of Motion for
6 Clarification and Objection Regarding Report and Recommended Ruling Regarding Plaintiffs’
7 Motion to Compel Discovery Concerning the Destruction of Pills at GSK’s Zebulon Facility.
8 2. Attached hereto as Exhibit 3 is a true and correct copy of excerpts from the August 16, 2022
9 Stenographic Reporter’s Transcript of Proceedings.
10 I declare under penalty of perjury under the laws of the State of California that the foregoing
11 is true and correct. Executed this 11th day of September 2022, in San Francisco, California.
12
13 ____________________________
Jonathan Tam
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DECL. OF JONATHAN TAM IN SUPPORT OF DEF.’S REPLY IN SUPPORT OF MOT. FOR
CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC. RE: DESTRUCTION OF PILLS
AT GSK’S ZEBULON FACILITY
EXHIBIT 3
1 BEFORE THE HONORABLE ELIZABETH D. LAPORTE (RET.)
2 JAMS
3 ---oOo---
4 COORDINATION PROCEEDING )
SPECIAL TITLE (RULE 3.550) )
5 )
RANITIDINE PRODUCT CASES ) JCCP No. 5150
6 )
) Pages 1 - 51
7 ______________________________)
8
9
10 Stenographic Reporter's Transcript of Proceedings
11 Tuesday, August 16, 2022
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16 Stenographically Reported by:
Katherine Powell Sullivan
17 CSR No. 5812, RMR, CRR
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1
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(510) 828-9404
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1 APPEARANCES OF COUNSEL: (All via Zoom)
2
3 For Plaintiffs:
4 BAUM HEDLUND ARISTEI & GOLDMAN PC
10940 Wilshire Boulevard, Suite 1600
5 Los Angeles, California 90024
(310) 207-3233
6 BY: R. BRENT WISNER, ATTORNEY AT LAW
rbwisner@baumhedlundlaw.com
7 HELEN E. TOKAR, ATTORNEY AT LAW
hetokar@baumhedlundlaw.com
8
9 For Defendant GlaxoSmithKline:
10 DECHERT LLP
633 West 5th Street, Suite 4900
11 Los Angeles, California 90071
(213) 808-5762
12 BY: JAY BHIMANI, ATTORNEY AT LAW
jay.bhimani@dechert.com
13
14 DECHERT LLP
One Bush Street, Suite 1600
15 San Francisco, California 94104
(415 262 4518)
16 BY: JONATHAN TAM, ATTORNEY AT LAW
jonathan.tam@dechert.com
17
18 (Additional counsel observing proceedings via Zoom and
telephone.)
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1 ATTORNEY TAM: Understood.
2 JUDGE LAPORTE: Okay. Well, the next one is
3 151, all litigation holds. And then 156, privileged
4 communications, which would be the subject of a
5 privilege log.
6 Now, 151, all litigation holds seems overbroad
7 because I think what we really should be focusing on
8 here is the ones that at the Zebulon facility in the
9 time period we're talking about.
10 So I'm not sure that plaintiffs really are
11 insisting on all. I think we're just talking about
12 those.
13 ATTORNEY WISNER: That's correct, Your Honor.
14 We really just want a log on.
15 I don't know how that distinction would be
16 made, but if there is unique litigation holds for the
17 Zebulon, sounds great. Get the dates of those and, you
18 know, when they were --
19 JUDGE LAPORTE: If there's any that pertain to
20 the Zebulon.
21 ATTORNEY WISNER: Precisely. Precisely.
22 JUDGE LAPORTE: If they pertain to others then
23 it still gets.
24 So I think it -- so with this burdensome
25 objection, I mean, that seems weird. Are there a ton of
42
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1 litigation holds that would apply to Zebulon?
2 ATTORNEY TAM: Your Honor, the burdensome point
3 goes to the fact that it sounds like what plaintiffs
4 would like us to do is go and collect files from
5 attorneys at GSK, review those documents, and also, you
6 know, evaluate, relog or log for the first time
7 privileged communications, which there could be many.
8 You know, once a lawsuit is filed, it's not
9 surprising that there would be a lot of communications
10 with lawyers. So that's the burden that we are pointing
11 to.
12 JUDGE LAPORTE: Yeah, but, I mean, first of
13 all, I think that you have to have made a showing of the
14 burden or you waive it. And just asserting it, it's
15 not -- and particularly when it's not obvious.
16 I mean, I would be surprised if there were a
17 hundred litigation holds as opposed to one or two, if
18 any, which we're having a problem with right here. But
19 you said there was one. It just seemed to have
20 allowed -- unlike most litigation holds, it didn't
21 suspend routine destruction, which is what normal
22 litigation holds does.
23 So I don't -- I think probably any burden is
24 waived, but I don't really understand the burden. And I
25 would think there would be a few in-house attorneys that
43
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1 were -- and maybe outside attorneys that were supposed
2 to be supervising that.
3 ATTORNEY TAM: I'm sorry, Your Honor, I may
4 have conflated the issue in my response.
5 So the burden point goes to logging the
6 communications, but the hold itself -- I mean, we've
7 cited to case law that provides that, you know, those
8 documents are privileged.
9 JUDGE LAPORTE: Well, I've heard of them
10 being -- of a work product being asserted. And then at
11 least -- and, you know, sometimes I have to still be
12 educated on state law. In federal law that's a
13 balancing. It's not an absolute. And I think there
14 would be sufficient reason for it that it would be
15 overcome.
16 And the communications you didn't -- didn't --
17 other than just asserting burden, nobody said how much.
18 But, you know, it may be that once -- I can see
19 excluding communications that were after this motion
20 were filed or the runup to this motion after plaintiff,
21 you know, discovered that it seems to have not -- that
22 destruction seems to have occurred when it shouldn't
23 have or something.
24 But the contemporaneous destroy/don't destroy,
25 you know, suspend/don't suspend, this policy with
44
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1 respect to Zebulon, those I would be -- first of all, I
2 think you've waived any burden argument; but, secondly,
3 I would be very sceptical that that would be burdensome.
4 ATTORNEY TAM: We hear you, Your Honor.
5 JUDGE LAPORTE: Yeah. So I think, you know,
6 the parameters that I just suggested I would say you
7 should be able to work out.
8 I mean, Mr. Wisner you agree with that; right?
9 ATTORNEY WISNER: That's correct, Your Honor.
10 In fact, to even restrict myself more, I think we
11 limited it to just the month after they were destroyed.
12 So June of --
13 JUDGE LAPORTE: Yeah, September 1 June 1, '20.
14 2020, sorry.
15 ATTORNEY WISNER: That's right. So, I mean, if
16 there was conversations about spoliation after the fact,
17 that's not really something we want to be logged.
18 Frankly, we want to know what communications
19 happened before the destruction --
20 JUDGE LAPORTE: Right.
21 ATTORNEY WISNER: -- because that would go to
22 the issue.
23 JUDGE LAPORTE: Yes. I think that's right.
24 It's not, you know, oh, my god, we're in trouble now, or
25 we're not, but just do we allow this to happen or not.
45
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1 Or maybe there is nothing about it, and it went under
2 the radar.
3 ATTORNEY WISNER: Precisely.
4 JUDGE LAPORTE: All right. So then we get to,
5 now, 153 is all nonprivileged communications, and that's
6 nonprivileged, on the destruction or preservation of the
7 ranitidine at Zebulon or the API received at Zebulon.
8 So it's not privileged. But then 157 is
9 documents concerning destruction, which could include
10 privileged. And that goes through the present.
11 Now, that, I think, is the intention of what
12 you were just saying.
13 ATTORNEY WISNER: Yeah, so 157, Your Honor, I
14 would be fine if it's limited to nonprivileged. I think
15 there's a waiver argument, but at some point we have to
16 put on our common sense hats.
17 JUDGE LAPORTE: Right. And I actually would
18 overrule that waiver argument. I think that was a
19 technical at most. I think they did assert it
20 adjacently enough to put you on notice.
21 ATTORNEY WISNER: Okay.
22 JUDGE LAPORTE: So I don't think --
23 ATTORNEY WISNER: All right.
24 JUDGE LAPORTE: -- there was a waiver.
25 But if you limit it to nonprivileged 157, so
46
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1 where does that leave the defense position?
2 ATTORNEY TAM: I'm just checking my notes on
3 this one, Your Honor.
4 JUDGE LAPORTE: Yeah. So then 153 and 157 are
5 almost the same. Not quite. I mean, there could be
6 things that are not communications, I guess, like logs
7 or records or -- so 157, let's put it this way
8 encompasses, 153 --
9 ATTORNEY WISNER: That's correct.
10 JUDGE LAPORTE: -- with regard to nonprivilege.
11 ATTORNEY TAM: Your Honor, so I won't reassert
12 the relevance argument. I know you've already rejected
13 that argument.
14 And, you know, in our brief we also pointed to
15 Ms. Cocklin's deposition. I heard Your Honor on that
16 point already.
17 JUDGE LAPORTE: Thank you.
18 ATTORNEY TAM: But, you know, based on our
19 reasonable investigation, we believe we had produced
20 documents responsive to this request.
21 JUDGE LAPORTE: Well, if you have -- if you
22 produced everything that you have, then you need to make
23 a supplemental response that explicitly states that and,
24 you know, that you made a reasonable search and you
25 don't have anything else. But -- which would imply that
47
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1 you only have privileged ones. But, anyway, you'd have
2 to at least supplement to that point.
3 ATTORNEY TAM: Understood, Your Honor.
4 JUDGE LAPORTE: So have we covered everything,
5 or is there more here? That's my --
6 ATTORNEY WISNER: That's everything. That's
7 everything in our motion, Your Honor, that I had to
8 speak about. I don't know if the defendants have
9 anything to bring up.
10 ATTORNEY TAM: I can't think of anything else.
11 JUDGE LAPORTE: Okay.
12 ATTORNEY TAM: We've gone through them.
13 JUDGE LAPORTE: Okay. So this one may be one
14 that we should write up and issue an order on. What do
15 you think?
16 ATTORNEY WISNER: Yes, Your Honor, we'd like
17 that.
18 JUDGE LAPORTE: Okay. And we'll have a
19 transcript. I don't want to pressure our wonderful
20 court reporter. So when would be a good time to expect
21 a transcript? And this can be off the record.
22 (Discussion held off the record.)
23 JUDGE LAPORTE: Okay. So what else? I think
24 that's it. I know we have something else coming up in a
25 few days.
48
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1
2
3 CERTIFICATE OF REPORTER
4
5 I, Katherine Powell Sullivan, Certified Shorthand
6 Reporter, do hereby certify:
7 That I was present via Zoom at the time of the
8 above proceedings;
9 That I took down in machine shorthand notes all
10 proceedings had;
11 That I thereafter transcribed said shorthand notes
12 with the aid of a computer;
13 That the above and foregoing is a full, true, and
14 correct transcription of said shorthand notes;
15 That I am not a party to the action or related to a
16 party or counsel;
17 That I have no financial or other interest in the
18 outcome of the action.
19 Dated: August 18, 2022
20
21
22
23 ________________________________________________
24 Katherine Powell Sullivan CSR No. 5812, RMR, CRR
25
51
Bryce Reporting Services
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1 PROOF OF SERVICE
2 I, the undersigned, declare: I am a citizen of the United States, over 18 years of age and
not a party to the within action. I am employed in the County of San Francisco, State of
3
California; my business address is One Bush Street, Suite 1600, San Francisco, CA 94104.
4
On the date specified below, I served a copy of the foregoing document described as:
5
DECLARATION OF JONATHAN TAM IN SUPPORT OF SPECIALLY-APPEARING
6 DEFENDANT GLAXOSMITHKLINE LLC’S REPLY IN SUPPORT OF MOTION FOR
CLARIFICATION AND OBJECTION REGARDING REPORT AND RECOMMENDED
7
RULING RE: PLAINTIFFS’ MOTION TO COMPEL DISCOVERY CONCERNING
8 THE DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY
9 on the interested parties in this action as follows:
SEE ATTACHED SERVICE LIST
10
11 [X] BY ELECTRONIC SERVICE (EMAIL): By causing a true and correct copy thereof to
be transmitted electronically to the attorney(s) of record and designated recipients at the email
12 address(es) on the attached service list.
13 [X] I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
14
Executed on September 11, 2022 at San Francisco, California.
15
16
/s/ Mary H. Kim
17 Mary H. Kim
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PROOF OF SERVICE
1 SERVICE LIST
2 MOORE LAW GROUP, PLLC By Electronic Service (Email)
Jennifer A. Moore
3 Jennifer@moorelawgroup.com
4 Andie Camden
andie@moorelawgroup.com
5 Ashton Smith
ashton@moorelawgroup.com
6 1473 South 4th Street Louisville, KY
40208
7
Attorneys for Plaintiffs
8 BAUM, HEDLUND, ARISTEI & By Electronic Service (Email)
9 GOLDMAN, P.C.
R. Brent Wisner
10 Rbwisner@baumhedlundlaw.com
Adam M. Foster
11 afoster@baumhedlundlaw.com
Helen E. Tokar
12 htokar@baumhedlundlaw.com
10940 Wilshire Blvd, 17th floor
13 Los Angeles, CA 90024
Attorneys for Plaintiffs
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SERVICE LIST
1 ARNOLD & PORTER KAYE By Electronic Service (Email)
SCHOLER LLP
2
Sharon D. Mayo
3 sharon.mayo@arnoldporter.com
Tommy Huynh
4 tommy.huynh@arnoldporter.com
10th Floor, Three Embarcadero Center
5 San Francisco, CA 94111
6 Alex Beroukhim
alex.beroukhim@arnoldporter.com
7 44th Floor 777 South Figueroa Street
Los Angeles, CA 90017
8
Anand Agneshwar
9 anand.agneshwar@arnoldporter.com
250 West 55th Street
10 New York, NY 10019-9710
Attorneys for Sanofi US Services Inc. and
11 Sanofi-Aventis U.S. LLC
12 KING & SPALDING LLP By Electronic Service (Email)
Andrew T. Bayman
13 abayman@kslaw.com
1180 Peachtree St. NE, Ste. 1600
14 Atlanta, GA 30309
15 Matthew J. Blaschke
mblaschke@kslaw.com
16 Rachel Rubens
rrubens@kslaw.com
17 50 California St., Ste. 3300
San Francisco, CA 94111
18
Attorneys for Boehringer Ingelheim
19 Pharmaceuticals, Inc. and Boehringer
Ingelheim USA Corporation
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SERVICE LIST
1 WFBM LLP By Electronic Service (Email)
Lisa M. Rice
2 lrice@wfbm.com
Ingrid K. Campagne
3 icampagne@wfbm.com
Katie A. Stricklin
4 kstricklin@wfbm.com
19900 MacArthur Blvd., Suite 1150
5 Irvine, California 92612
6 WILLIAMA & CONNOLLY LLP
Jessica B. Rydstrom
7 jrydstrom@wc.com
Annie E. Showalter
8 ashowalter@wc.com
680 Maine Avenue SW
9 Washington, DC 20024
Attorneys for specially appearing
10 Defendants PFIZER INC.
11 By Electronic Service (Email)
BARNES & THORNBURG LLP
12 Sarah E. Johnston
Sarah.johnston@btlaw.com
13 Noushan Noureddini
Noushan.noureddini@btlaw.com
14 2029 Century Park East, Suite 300
Los Angeles, CA 90067
15
Attorneys for Defendant The Vons
16 Companies. Inc.
17 DOWNEY BRAND LLP By Electronic Service (Email)
John C. McCarron
18 jmccarron@downeybrand.com
621 Capitol Mall, 18th Floor
19 Sacramento, California 95814
20 Sophia B. Castillo
scastillo@downeybrand.com
21 455 Market St., Suite 1500
San Francisco, California 94105
22 Attorneys for Grocery Outlet, Inc.
23 Attorneys for Grocery Outlet, Inc.
24 SHEPPARD, MULLIN, RICHTER & By Electronic Service (Email)
HAMPTON LLP
25 Robert J. Guite
rguite@sheppardmullin.com
26 333 South Hope Street, 43rd Floor
Los Angeles, California 90071
27 Attorney for Defendant Kaiser
Permanente International
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4
SERVICE LIST
1 PROOF OF SERVICE
2 I, the undersigned, declare: I am a citizen of the United States, over 18 years of age and
not a party to the within action. I am employed in the County of Los Angeles, State of
3
California; my business address is 633 West 5th Street, Suite 4900, Los Angeles, CA 90071.
4
On the date specified below, I served a copy of the foregoing document described as:
5
NOTICE OF SUMISSION TO DESCOVERY REFEREE OF SPECIALLY-APPEARING
6 DEFENDANT GLAXOSMITHKLINE LLC’S REPLY IN SUPPORT OF MOTION FOR
CLARIFICATION AND OBJECTION REGARDING REPORT AND RECOMMENDED
7
RULING RE: PLAINTIFFS’ MOTION TO COMPEL DISCOVERY CONCERNING
8 THE DESTRUCTION OF PILLS AT GSK’S ZEBULONG FACILITY
9 on the interested parties in this action as follows:
10 [X] BY ELECTRONIC TRANSMISSION: By electronically transmitting a true and correct
copy of the document(s) listed above to Case Anywhere, an electronic filing service provider, at
11 www.caseanywhere.com pursuant to the Court’s September 23, 2021 Pretrial Order No. 8
authorizing electronic service upon the interested parties in the Ranitidine Products Cases, JCCP
12 005150.
13
[X] I declare under penalty of perjury under the laws of the State of California that the above
14 is true and correct.
15 Executed on September 11, 2022 at Los Angeles, California.
16
17
Michael Tecuanhuehue
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1
PROOF OF SERVICE
Preview
1 Kimberly Branscome (SBN 255480) Jay Bhimani (SBN 267689) 2 DECHERT LLP 3 633 W. 5th Street, Suite 4900 Los Angeles, CA 90071 4 Telephone: (213) 808-5700 Facsimile: (213) 808-5760 5 Email: kimberly.branscome@dechert.com Email: jay.bhimani@dechert.com 6 7 Jonathan Tam (SBN 304143) DECHERT LLP 8 One Bush Street, Suite 1600 San Francisco, CA 94104-4446 9 Telephone: (415) 262-4500 Facsimile: (415) 262-4555 10 Email: jonathan.tam@dechert.com 11 Attorneys for Specially-Appearing Defendant GlaxoSmithKline LLC 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF ALAMEDA 14 COORDINATION PROCEEDING JCCP NO. 5150 15 SPECIAL TITLE (RULE 3.550) Case No. RG20061705 16 ASSIGNED FOR ALL PURPOSES In re Ranitidine Cases JUDGE EVELIO GRILLO 17 DEPT. 21 NOTICE OF SUBMISSION TO 18 THIS DOCUMENT RELATES TO: DISCOVERY REFEREE OF SPECIALLY- APPEARING DEFENDANT 19 Goetz v. GlaxoSmithKline, et al., GLAXOSMITHKLINE LLC’S REPLY IN Case No. RG20061705 SUPPORT OF MOTION FOR 20 CLARIFICATION AND OBJECTION 21 ALL ACTIONS REGARDING REPORT AND RECOMMENDED RULING RE: 22 PLAINTIFFS’ MOTION TO COMPEL DISCOVERY CONCERNING THE 23 DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY 24 Discovery Referee: Hon. Elizabeth D. Laporte 25 (Ret.), JAMS Hearing date: August 16, 2022 26 Time: 1:00 PM PT 27 28 NOTICE OF SUBMISSION TO DISCOVERY REFEREE OF SPECIALLY-APPEARING DEF. GSK LLC’S REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: REPORT AND RECOMMENDED RULING RE: PLS.’ MOT. TO COMPEL DISC. RE DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY 1 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on September 11, 2022, pursuant to Pretrial Order No. 7, 3 Specially-Appearing Defendant GlaxoSmithKline LLC submitted the following to the Honorable 4 Elizabeth D. Laporte (Ret.) (the “Discovery Referee”): 5 Specially-Appearing Defendant GlaxoSmithKline LLC’s Reply in Support of 6 Motion for Clarification and Objection Regarding Report and Recommended 7 Ruling Re: Plaintiffs’ Motion to Compel Discovery Concerning the Destruction 8 of Pills at GSK’s Zebulon Facility (the “Motion”); and 9 Declaration of Jonathan Tam in Support of Specially-Appearing Defendant 10 GlaxoSmithKline LLC’s Reply in Support of Motion for Clarification and 11 Objection Regarding Report and Recommended Ruling Re: Plaintiffs’ Motion to 12 Compel Discovery Concerning the Destruction of Pills at GSK’s Zebulon Facility 13 (the “Tam Declaration”) 14 The Motion and the Tam Declaration are attached hereto as Exhibits A and B, respectively. 15 Dated: September 11, 2022 16 17 By: /s/ Jonathan Tam Jonathan Tam (SBN 304143) 18 DECHERT LLP One Bush Street, Suite 1600 19 San Francisco, CA 94104-4446 Telephone: (415) 262-4500 20 Facsimile: (415) 262-4555 21 Kimberly Branscome (SBN 255480) 22 Jay Bhimani (SBN 267689) DECHERT LLP 23 633 W. 5th Street, Suite 4900 Los Angeles, CA 90071 24 Telephone: (213) 808-5700 25 Facsimile: (213) 808-5760 26 Attorneys for Specially Appearing Defendant GlaxoSmithKline LLC 27 28 1 NOTICE OF SUBMISSION TO DISCOVERY REFEREE OF SPECIALLY-APPEARING DEF. GSK LLC’S REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: REPORT AND RECOMMENDED RULING RE: PLS.’ MOT. TO COMPEL DISC. RE DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY EXHIBIT A 1 Kimberly Branscome (SBN 255480) Jay Bhimani (SBN 267689) 2 DECHERT LLP 3 633 W. 5th Street, Suite 4900 Los Angeles, CA 90071 4 Telephone: (213) 808-5700 Facsimile: (213) 808-5760 5 Email: kimberly.branscome@dechert.com Email: jay.bhimani@dechert.com 6 7 Jonathan Tam (SBN 304143) DECHERT LLP 8 One Bush Street, Suite 1600 San Francisco, CA 94104-4446 9 Telephone: (415) 262-4500 Facsimile: (415) 262-4555 10 Email: jonathan.tam@dechert.com 11 Attorneys for Specially-Appearing Defendant GlaxoSmithKline LLC 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF ALAMEDA 14 COORDINATION PROCEEDING JCCP NO. 5150 15 SPECIAL TITLE (RULE 3.550) Case No. RG20061705 16 In re Ranitidine Cases ASSIGNED FOR ALL PURPOSES 17 JUDGE EVELIO GRILLO DEPT. 21 18 THIS DOCUMENT RELATES TO: SPECIALLY-APPEARING DEFENDANT GLAXOSMITHKLINE LLC’S REPLY IN 19 Goetz v. GlaxoSmithKline, et al., SUPPORT OF MOTION FOR Case No. RG20061705 CLARIFICATION AND OBJECTION 20 REGARDING REPORT AND 21 RECOMMENDED RULING RE: ALL ACTIONS PLAINTIFFS’ MOTION TO COMPEL 22 DISCOVERY CONCERNING THE DESTRUCTION OF PILLS AT GSK’S 23 ZEBULON FACILITY 24 Discovery Referee: Hon. Elizabeth D. Laporte (Ret.), JAMS 25 Hearing date: August 16, 2022 Time: 1:00 PM PT 26 27 28 DEF.’S REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC. RE: DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY 1 Plaintiffs’ Response helps narrow the issue on which GSK seeks clarification from Judge 2 Laporte to the following question: Consistent with Judge Laporte’s discussion with the parties 3 during the August 16, 2022 hearing, may GSK limit its production of non-privileged information 4 and documents relating to the preservation and disposal of ranitidine at the Zebulon facility to the 5 time period between September 1, 2019, and June 1, 2020 (a month after the May 2020 sample 6 disposal)? 7 Following Judge Laporte’s guidance and statements made by Plaintiffs’ counsel at that 8 hearing, GSK understood the answer to this question to be “yes.” Plaintiffs argue that their 9 counsel’s agreement during the hearing that they were not seeking communications logged after 10 the May 2020 disposal was “not an across-the-board agreement” but was “specifically restricted to 11 … [RFP] 157.” Resp. at 1. The hearing transcript does not support that position; rather, the parties 12 and Court discussed temporal narrowing not only with respect to the logging of privileged 13 communications, but also with respect to the litigation holds and non-privileged communications 14 requested in RFPs 151, 153, and 157. See Ex. 3, Aug. 16, 2022 Tr. 42-48. For example, Plaintiffs’ 15 counsel stated: “if there [were] conversations about spoliation after the fact, that’s not really 16 something we want to be logged. Frankly, we want to know what communications happened before 17 the destruction … because that would go to the issue.” Id. 45:15-22. GSK understood from that 18 discussion and Judge Laporte’s statements that the remainder of the supplemental responses subject 19 to this Motion would be similarly limited to the time frame from September 1, 2019, to June 1, 20 2020. 21 Plaintiffs’ Response confirms that Plaintiffs do not seek, and GSK need not provide, 22 information about privileged communications after the May 2020 disposal of the Zebulon sample. 23 They agree that RFP 157 may be narrowed to make this clearer by adding that “GSK should not be 24 required to log privileged communications after June 1, 2020.” Resp. at 2. The only area of 25 disagreement then is whether the same temporal limitation also applies to the non-privileged 26 information Plaintiffs are requesting. 27 For the reasons set forth in GSK’s Motion for Clarification and consistent with Plaintiffs’ 28 counsel’s statements during the August 16 hearing, GSK requests an expansion of the clarification 1 DEF.’S REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC. RE: DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY 1 of RFP 157 to which Plaintiffs agree. Specifically, GSK respectfully requests that Judge Laporte 2 confirm that in responding to RFPs 151, 153, and 157, and Rog 3, GSK should not be required to 3 produce documents or communications, or to log privileged communications, that are dated or 4 took place after June 1, 2020. 5 6 Dated: September 11, 2022 7 By: /s/ Jonathan Tam 8 Jonathan Tam (SBN 304143) DECHERT LLP 9 One Bush Street, Suite 1600 San Francisco, CA 94104-4446 10 Telephone: (415) 262-4500 Facsimile: (415) 262-4555 11 Email: jonathan.tam@dechert.com 12 Kimberly Branscome (SBN 255480) 13 Jay Bhimani (SBN 267689) DECHERT LLP 14 633 W. 5th Street, Suite 4900 Los Angeles, CA 90071 15 Telephone: (213) 808-5700 16 Facsimile: (213) 808-5760 Email: kimberly.branscome@dechert.com 17 Email: jay.bhimani@dechert.com 18 Attorneys for Specially-Appearing Defendant GlaxoSmithKline LLC 19 20 21 22 23 24 25 26 27 28 2 DEF.’S REPLY ISO MOT. FOR CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC. RE: DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY 1 PROOF OF SERVICE 2 I, the undersigned, declare: I am a citizen of the United States, over 18 years of age and not a party to the within action. I am employed in the County of San Francisco, State of 3 California; my business address is One Bush Street, Suite 1600, San Francisco, CA 94104. 4 On the date specified below, I served a copy of the foregoing document described as: 5 SPECIALLY-APPEARING DEFENDANT GLAXOSMITHKLINE LLC’S REPLY IN 6 SUPPORT OF MOTION FOR CLARIFICATION AND OBJECTION REGARDING 7 REPORT AND RECOMMENDED RULING RE: PLAINTIFFS’ MOTION TO COMPEL DISCOVERY CONCERNING THE DESTRUCTION OF PILLS AT GSK’S ZEBULON 8 FACILITY 9 on the interested parties in this action as follows: 10 SEE ATTACHED SERVICE LIST 11 [X] BY ELECTRONIC SERVICE (EMAIL): By causing a true and correct copy thereof to be transmitted electronically to the attorney(s) of record and designated recipients at the email 12 address(es) on the attached service list. 13 [X] I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 14 15 Executed on September 11, 2022 at San Francisco, California. 16 17 /s/ Mary H. Kim Mary H. Kim 18 19 20 21 22 23 24 25 26 27 28 1 PROOF OF SERVICE 1 SERVICE LIST 2 MOORE LAW GROUP, PLLC By Electronic Service (Email) Jennifer A. Moore 3 Jennifer@moorelawgroup.com 4 Andie Camden andie@moorelawgroup.com 5 Ashton Smith ashton@moorelawgroup.com 6 1473 South 4th Street Louisville, KY 40208 7 Attorneys for Plaintiffs 8 BAUM, HEDLUND, ARISTEI & By Electronic Service (Email) 9 GOLDMAN, P.C. R. Brent Wisner 10 Rbwisner@baumhedlundlaw.com Adam M. Foster 11 afoster@baumhedlundlaw.com Helen E. Tokar 12 htokar@baumhedlundlaw.com 10940 Wilshire Blvd, 17th floor 13 Los Angeles, CA 90024 Attorneys for Plaintiffs 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 SERVICE LIST 1 ARNOLD & PORTER KAYE By Electronic Service (Email) SCHOLER LLP 2 Sharon D. Mayo 3 sharon.mayo@arnoldporter.com Tommy Huynh 4 tommy.huynh@arnoldporter.com 10th Floor, Three Embarcadero Center 5 San Francisco, CA 94111 6 Alex Beroukhim alex.beroukhim@arnoldporter.com 7 44th Floor 777 South Figueroa Street Los Angeles, CA 90017 8 Anand Agneshwar 9 anand.agneshwar@arnoldporter.com 250 West 55th Street 10 New York, NY 10019-9710 Attorneys for Sanofi US Services Inc. and 11 Sanofi-Aventis U.S. LLC 12 KING & SPALDING LLP By Electronic Service (Email) Andrew T. Bayman 13 abayman@kslaw.com 1180 Peachtree St. NE, Ste. 1600 14 Atlanta, GA 30309 15 Matthew J. Blaschke mblaschke@kslaw.com 16 Rachel Rubens rrubens@kslaw.com 17 50 California St., Ste. 3300 San Francisco, CA 94111 18 Attorneys for Boehringer Ingelheim 19 Pharmaceuticals, Inc. and Boehringer Ingelheim USA Corporation 20 21 22 23 24 25 26 27 28 3 SERVICE LIST 1 WFBM LLP By Electronic Service (Email) Lisa M. Rice 2 lrice@wfbm.com Ingrid K. Campagne 3 icampagne@wfbm.com Katie A. Stricklin 4 kstricklin@wfbm.com 19900 MacArthur Blvd., Suite 1150 5 Irvine, California 92612 6 WILLIAMA & CONNOLLY LLP Jessica B. Rydstrom 7 jrydstrom@wc.com Annie E. Showalter 8 ashowalter@wc.com 680 Maine Avenue SW 9 Washington, DC 20024 Attorneys for specially appearing 10 Defendants PFIZER INC. 11 By Electronic Service (Email) BARNES & THORNBURG LLP 12 Sarah E. Johnston Sarah.johnston@btlaw.com 13 Noushan Noureddini Noushan.noureddini@btlaw.com 14 2029 Century Park East, Suite 300 Los Angeles, CA 90067 15 Attorneys for Defendant The Vons 16 Companies. Inc. 17 DOWNEY BRAND LLP By Electronic Service (Email) John C. McCarron 18 jmccarron@downeybrand.com 621 Capitol Mall, 18th Floor 19 Sacramento, California 95814 20 Sophia B. Castillo scastillo@downeybrand.com 21 455 Market St., Suite 1500 San Francisco, California 94105 22 Attorneys for Grocery Outlet, Inc. 23 Attorneys for Grocery Outlet, Inc. 24 SHEPPARD, MULLIN, RICHTER & By Electronic Service (Email) HAMPTON LLP 25 Robert J. Guite rguite@sheppardmullin.com 26 333 South Hope Street, 43rd Floor Los Angeles, California 90071 27 Attorney for Defendant Kaiser Permanente International 28 4 SERVICE LIST EXHIBIT B 1 Kimberly Branscome (SBN 255480) Jay Bhimani (SBN 267689) 2 DECHERT LLP 3 633 W. 5th Street, Suite 4900 Los Angeles, CA 90071 4 Telephone: (213) 808-5700 Facsimile: (213) 808-5760 5 Email: kimberly.branscome@dechert.com Email: jay.bhimani@dechert.com 6 7 Jonathan Tam (SBN 304143) DECHERT LLP 8 One Bush Street, Suite 1600 San Francisco, CA 94104-4446 9 Telephone: (415) 262-4500 Facsimile: (415) 262-4555 10 Email: jonathan.tam@dechert.com 11 Attorneys for Specially-Appearing Defendant GlaxoSmithKline LLC 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF ALAMEDA 14 COORDINATION PROCEEDING JCCP NO. 5150 15 SPECIAL TITLE (RULE 3.550) Case No. RG20061705 16 ASSIGNED FOR ALL PURPOSES In re Ranitidine Cases JUDGE EVELIO GRILLO 17 DEPT. 21 DECLARATION OF JONATHAN TAM IN 18 THIS DOCUMENT RELATES TO: SUPPORT OF SPECIALLY-APPEARING DEFENDANT GLAXOSMITHKLINE 19 Goetz v. GlaxoSmithKline, et al., LLC’S REPLY IN SUPPORT OF MOTION Case No. RG20061705 FOR CLARIFICATION AND OBJECTION 20 REGARDING REPORT AND 21 ALL ACTIONS RECOMMENDED RULING RE: PLAINTIFFS’ MOTION TO COMPEL 22 DISCOVERY CONCERNING THE DESTRUCTION OF PILLS AT GSK’S 23 ZEBULON FACILITY 24 Discovery Referee: Hon. Elizabeth D. Laporte (Ret.), JAMS 25 Hearing date: August 16, 2022 Time: 1:00 PM PT 26 27 28 DECL. OF JONATHAN TAM IN SUPPORT OF DEF.’S REPLY IN SUPPORT OF MOT. FOR CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC. RE: DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY 1 DECLARATION OF JONATHAN TAM 2 I, Jonathan Tam, declare as follows: 3 1. I am an attorney with the law firm of Dechert LLP, attorneys for Specially-Appearing 4 Defendant GlaxoSmithKline LLC in the above-captioned action. I make this declaration in support 5 of Specially-Appearing Defendant GlaxoSmithKline LLC’s Reply in Support of Motion for 6 Clarification and Objection Regarding Report and Recommended Ruling Regarding Plaintiffs’ 7 Motion to Compel Discovery Concerning the Destruction of Pills at GSK’s Zebulon Facility. 8 2. Attached hereto as Exhibit 3 is a true and correct copy of excerpts from the August 16, 2022 9 Stenographic Reporter’s Transcript of Proceedings. 10 I declare under penalty of perjury under the laws of the State of California that the foregoing 11 is true and correct. Executed this 11th day of September 2022, in San Francisco, California. 12 13 ____________________________ Jonathan Tam 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DECL. OF JONATHAN TAM IN SUPPORT OF DEF.’S REPLY IN SUPPORT OF MOT. FOR CLARIFICATION AND OBJ. RE: R&R RE: PLS.’ MOT. TO COMPEL DISC. RE: DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY EXHIBIT 3 1 BEFORE THE HONORABLE ELIZABETH D. LAPORTE (RET.) 2 JAMS 3 ---oOo--- 4 COORDINATION PROCEEDING ) SPECIAL TITLE (RULE 3.550) ) 5 ) RANITIDINE PRODUCT CASES ) JCCP No. 5150 6 ) ) Pages 1 - 51 7 ______________________________) 8 9 10 Stenographic Reporter's Transcript of Proceedings 11 Tuesday, August 16, 2022 12 13 14 15 16 Stenographically Reported by: Katherine Powell Sullivan 17 CSR No. 5812, RMR, CRR 18 19 20 21 22 23 24 25 1 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 APPEARANCES OF COUNSEL: (All via Zoom) 2 3 For Plaintiffs: 4 BAUM HEDLUND ARISTEI & GOLDMAN PC 10940 Wilshire Boulevard, Suite 1600 5 Los Angeles, California 90024 (310) 207-3233 6 BY: R. BRENT WISNER, ATTORNEY AT LAW rbwisner@baumhedlundlaw.com 7 HELEN E. TOKAR, ATTORNEY AT LAW hetokar@baumhedlundlaw.com 8 9 For Defendant GlaxoSmithKline: 10 DECHERT LLP 633 West 5th Street, Suite 4900 11 Los Angeles, California 90071 (213) 808-5762 12 BY: JAY BHIMANI, ATTORNEY AT LAW jay.bhimani@dechert.com 13 14 DECHERT LLP One Bush Street, Suite 1600 15 San Francisco, California 94104 (415 262 4518) 16 BY: JONATHAN TAM, ATTORNEY AT LAW jonathan.tam@dechert.com 17 18 (Additional counsel observing proceedings via Zoom and telephone.) 19 20 21 22 23 24 25 2 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 ATTORNEY TAM: Understood. 2 JUDGE LAPORTE: Okay. Well, the next one is 3 151, all litigation holds. And then 156, privileged 4 communications, which would be the subject of a 5 privilege log. 6 Now, 151, all litigation holds seems overbroad 7 because I think what we really should be focusing on 8 here is the ones that at the Zebulon facility in the 9 time period we're talking about. 10 So I'm not sure that plaintiffs really are 11 insisting on all. I think we're just talking about 12 those. 13 ATTORNEY WISNER: That's correct, Your Honor. 14 We really just want a log on. 15 I don't know how that distinction would be 16 made, but if there is unique litigation holds for the 17 Zebulon, sounds great. Get the dates of those and, you 18 know, when they were -- 19 JUDGE LAPORTE: If there's any that pertain to 20 the Zebulon. 21 ATTORNEY WISNER: Precisely. Precisely. 22 JUDGE LAPORTE: If they pertain to others then 23 it still gets. 24 So I think it -- so with this burdensome 25 objection, I mean, that seems weird. Are there a ton of 42 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 litigation holds that would apply to Zebulon? 2 ATTORNEY TAM: Your Honor, the burdensome point 3 goes to the fact that it sounds like what plaintiffs 4 would like us to do is go and collect files from 5 attorneys at GSK, review those documents, and also, you 6 know, evaluate, relog or log for the first time 7 privileged communications, which there could be many. 8 You know, once a lawsuit is filed, it's not 9 surprising that there would be a lot of communications 10 with lawyers. So that's the burden that we are pointing 11 to. 12 JUDGE LAPORTE: Yeah, but, I mean, first of 13 all, I think that you have to have made a showing of the 14 burden or you waive it. And just asserting it, it's 15 not -- and particularly when it's not obvious. 16 I mean, I would be surprised if there were a 17 hundred litigation holds as opposed to one or two, if 18 any, which we're having a problem with right here. But 19 you said there was one. It just seemed to have 20 allowed -- unlike most litigation holds, it didn't 21 suspend routine destruction, which is what normal 22 litigation holds does. 23 So I don't -- I think probably any burden is 24 waived, but I don't really understand the burden. And I 25 would think there would be a few in-house attorneys that 43 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 were -- and maybe outside attorneys that were supposed 2 to be supervising that. 3 ATTORNEY TAM: I'm sorry, Your Honor, I may 4 have conflated the issue in my response. 5 So the burden point goes to logging the 6 communications, but the hold itself -- I mean, we've 7 cited to case law that provides that, you know, those 8 documents are privileged. 9 JUDGE LAPORTE: Well, I've heard of them 10 being -- of a work product being asserted. And then at 11 least -- and, you know, sometimes I have to still be 12 educated on state law. In federal law that's a 13 balancing. It's not an absolute. And I think there 14 would be sufficient reason for it that it would be 15 overcome. 16 And the communications you didn't -- didn't -- 17 other than just asserting burden, nobody said how much. 18 But, you know, it may be that once -- I can see 19 excluding communications that were after this motion 20 were filed or the runup to this motion after plaintiff, 21 you know, discovered that it seems to have not -- that 22 destruction seems to have occurred when it shouldn't 23 have or something. 24 But the contemporaneous destroy/don't destroy, 25 you know, suspend/don't suspend, this policy with 44 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 respect to Zebulon, those I would be -- first of all, I 2 think you've waived any burden argument; but, secondly, 3 I would be very sceptical that that would be burdensome. 4 ATTORNEY TAM: We hear you, Your Honor. 5 JUDGE LAPORTE: Yeah. So I think, you know, 6 the parameters that I just suggested I would say you 7 should be able to work out. 8 I mean, Mr. Wisner you agree with that; right? 9 ATTORNEY WISNER: That's correct, Your Honor. 10 In fact, to even restrict myself more, I think we 11 limited it to just the month after they were destroyed. 12 So June of -- 13 JUDGE LAPORTE: Yeah, September 1 June 1, '20. 14 2020, sorry. 15 ATTORNEY WISNER: That's right. So, I mean, if 16 there was conversations about spoliation after the fact, 17 that's not really something we want to be logged. 18 Frankly, we want to know what communications 19 happened before the destruction -- 20 JUDGE LAPORTE: Right. 21 ATTORNEY WISNER: -- because that would go to 22 the issue. 23 JUDGE LAPORTE: Yes. I think that's right. 24 It's not, you know, oh, my god, we're in trouble now, or 25 we're not, but just do we allow this to happen or not. 45 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 Or maybe there is nothing about it, and it went under 2 the radar. 3 ATTORNEY WISNER: Precisely. 4 JUDGE LAPORTE: All right. So then we get to, 5 now, 153 is all nonprivileged communications, and that's 6 nonprivileged, on the destruction or preservation of the 7 ranitidine at Zebulon or the API received at Zebulon. 8 So it's not privileged. But then 157 is 9 documents concerning destruction, which could include 10 privileged. And that goes through the present. 11 Now, that, I think, is the intention of what 12 you were just saying. 13 ATTORNEY WISNER: Yeah, so 157, Your Honor, I 14 would be fine if it's limited to nonprivileged. I think 15 there's a waiver argument, but at some point we have to 16 put on our common sense hats. 17 JUDGE LAPORTE: Right. And I actually would 18 overrule that waiver argument. I think that was a 19 technical at most. I think they did assert it 20 adjacently enough to put you on notice. 21 ATTORNEY WISNER: Okay. 22 JUDGE LAPORTE: So I don't think -- 23 ATTORNEY WISNER: All right. 24 JUDGE LAPORTE: -- there was a waiver. 25 But if you limit it to nonprivileged 157, so 46 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 where does that leave the defense position? 2 ATTORNEY TAM: I'm just checking my notes on 3 this one, Your Honor. 4 JUDGE LAPORTE: Yeah. So then 153 and 157 are 5 almost the same. Not quite. I mean, there could be 6 things that are not communications, I guess, like logs 7 or records or -- so 157, let's put it this way 8 encompasses, 153 -- 9 ATTORNEY WISNER: That's correct. 10 JUDGE LAPORTE: -- with regard to nonprivilege. 11 ATTORNEY TAM: Your Honor, so I won't reassert 12 the relevance argument. I know you've already rejected 13 that argument. 14 And, you know, in our brief we also pointed to 15 Ms. Cocklin's deposition. I heard Your Honor on that 16 point already. 17 JUDGE LAPORTE: Thank you. 18 ATTORNEY TAM: But, you know, based on our 19 reasonable investigation, we believe we had produced 20 documents responsive to this request. 21 JUDGE LAPORTE: Well, if you have -- if you 22 produced everything that you have, then you need to make 23 a supplemental response that explicitly states that and, 24 you know, that you made a reasonable search and you 25 don't have anything else. But -- which would imply that 47 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 you only have privileged ones. But, anyway, you'd have 2 to at least supplement to that point. 3 ATTORNEY TAM: Understood, Your Honor. 4 JUDGE LAPORTE: So have we covered everything, 5 or is there more here? That's my -- 6 ATTORNEY WISNER: That's everything. That's 7 everything in our motion, Your Honor, that I had to 8 speak about. I don't know if the defendants have 9 anything to bring up. 10 ATTORNEY TAM: I can't think of anything else. 11 JUDGE LAPORTE: Okay. 12 ATTORNEY TAM: We've gone through them. 13 JUDGE LAPORTE: Okay. So this one may be one 14 that we should write up and issue an order on. What do 15 you think? 16 ATTORNEY WISNER: Yes, Your Honor, we'd like 17 that. 18 JUDGE LAPORTE: Okay. And we'll have a 19 transcript. I don't want to pressure our wonderful 20 court reporter. So when would be a good time to expect 21 a transcript? And this can be off the record. 22 (Discussion held off the record.) 23 JUDGE LAPORTE: Okay. So what else? I think 24 that's it. I know we have something else coming up in a 25 few days. 48 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 2 3 CERTIFICATE OF REPORTER 4 5 I, Katherine Powell Sullivan, Certified Shorthand 6 Reporter, do hereby certify: 7 That I was present via Zoom at the time of the 8 above proceedings; 9 That I took down in machine shorthand notes all 10 proceedings had; 11 That I thereafter transcribed said shorthand notes 12 with the aid of a computer; 13 That the above and foregoing is a full, true, and 14 correct transcription of said shorthand notes; 15 That I am not a party to the action or related to a 16 party or counsel; 17 That I have no financial or other interest in the 18 outcome of the action. 19 Dated: August 18, 2022 20 21 22 23 ________________________________________________ 24 Katherine Powell Sullivan CSR No. 5812, RMR, CRR 25 51 Bryce Reporting Services (510) 828-9404 info@brycereporters.com 1 PROOF OF SERVICE 2 I, the undersigned, declare: I am a citizen of the United States, over 18 years of age and not a party to the within action. I am employed in the County of San Francisco, State of 3 California; my business address is One Bush Street, Suite 1600, San Francisco, CA 94104. 4 On the date specified below, I served a copy of the foregoing document described as: 5 DECLARATION OF JONATHAN TAM IN SUPPORT OF SPECIALLY-APPEARING 6 DEFENDANT GLAXOSMITHKLINE LLC’S REPLY IN SUPPORT OF MOTION FOR CLARIFICATION AND OBJECTION REGARDING REPORT AND RECOMMENDED 7 RULING RE: PLAINTIFFS’ MOTION TO COMPEL DISCOVERY CONCERNING 8 THE DESTRUCTION OF PILLS AT GSK’S ZEBULON FACILITY 9 on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST 10 11 [X] BY ELECTRONIC SERVICE (EMAIL): By causing a true and correct copy thereof to be transmitted electronically to the attorney(s) of record and designated recipients at the email 12 address(es) on the attached service list. 13 [X] I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 14 Executed on September 11, 2022 at San Francisco, California. 15 16 /s/ Mary H. Kim 17 Mary H. Kim 18 19 20 21 22 23 24 25 26 27 28 1 PROOF OF SERVICE 1 SERVICE LIST 2 MOORE LAW GROUP, PLLC By Electronic Service (Email) Jennifer A. Moore 3 Jennifer@moorelawgroup.com 4 Andie Camden andie@moorelawgroup.com 5 Ashton Smith ashton@moorelawgroup.com 6 1473 South 4th Street Louisville, KY 40208 7 Attorneys for Plaintiffs 8 BAUM, HEDLUND, ARISTEI & By Electronic Service (Email) 9 GOLDMAN, P.C. R. Brent Wisner 10 Rbwisner@baumhedlundlaw.com Adam M. Foster 11 afoster@baumhedlundlaw.com Helen E. Tokar 12 htokar@baumhedlundlaw.com 10940 Wilshire Blvd, 17th floor 13 Los Angeles, CA 90024 Attorneys for Plaintiffs 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 SERVICE LIST 1 ARNOLD & PORTER KAYE By Electronic Service (Email) SCHOLER LLP 2 Sharon D. Mayo 3 sharon.mayo@arnoldporter.com Tommy Huynh 4 tommy.huynh@arnoldporter.com 10th Floor, Three Embarcadero Center 5 San Francisco, CA 94111 6 Alex Beroukhim alex.beroukhim@arnoldporter.com 7 44th Floor 777 South Figueroa Street Los Angeles, CA 90017 8 Anand Agneshwar 9 anand.agneshwar@arnoldporter.com 250 West 55th Street 10 New York, NY 10019-9710 Attorneys for Sanofi US Services Inc. and 11 Sanofi-Aventis U.S. LLC 12 KING & SPALDING LLP By Electronic Service (Email) Andrew T. Bayman 13 abayman@kslaw.com 1180 Peachtree St. NE, Ste. 1600 14 Atlanta, GA 30309 15 Matthew J. Blaschke mblaschke@kslaw.com 16 Rachel Rubens rrubens@kslaw.com 17 50 California St., Ste. 3300 San Francisco, CA 94111 18 Attorneys for Boehringer Ingelheim 19 Pharmaceuticals, Inc. and Boehringer Ingelheim USA Corporation 20 21 22 23 24 25 26 27 28 3 SERVICE LIST 1 WFBM LLP By Electronic Service (Email) Lisa M. Rice 2 lrice@wfbm.com Ingrid K. Campagne 3 icampagne@wfbm.com Katie A. Stricklin 4 kstricklin@wfbm.com 19900 MacArthur Blvd., Suite 1150 5 Irvine, California 92612 6 WILLIAMA & CONNOLLY LLP Jessica B. Rydstrom 7 jrydstrom@wc.com Annie E. Showalter 8 ashowalter@wc.com 680 Maine Avenue SW 9 Washington, DC 20024 Attorneys for specially appearing 10 Defendants PFIZER INC. 11 By Electronic Service (Email) BARNES & THORNBURG LLP 12 Sarah E. Johnston Sarah.johnston@btlaw.com 13 Noushan Noureddini Noushan.noureddini@btlaw.com 14 2029 Century Park East, Suite 300 Los Angeles, CA 90067 15 Attorneys for Defendant The Vons 16 Companies. Inc. 17 DOWNEY BRAND LLP By Electronic Service (Email) John C. McCarron 18 jmccarron@downeybrand.com 621 Capitol Mall, 18th Floor 19 Sacramento, California 95814 20 Sophia B. Castillo scastillo@downeybrand.com 21 455 Market St., Suite 1500 San Francisco, California 94105 22 Attorneys for Grocery Outlet, Inc. 23 Attorneys for Grocery Outlet, Inc. 24 SHEPPARD, MULLIN, RICHTER & By Electronic Service (Email) HAMPTON LLP 25 Robert J. Guite rguite@sheppardmullin.com 26 333 South Hope Street, 43rd Floor Los Angeles, California 90071 27 Attorney for Defendant Kaiser Permanente International 28 4 SERVICE LIST 1 PROOF OF SERVICE 2 I, the undersigned, declare: I am a citizen of the United States, over 18 years of age and not a party to the within action. I am employed in the County of Los Angeles, State of 3 California; my business address is 633 West 5th Street, Suite 4900, Los Angeles, CA 90071. 4 On the date specified below, I served a copy of the foregoing document described as: 5 NOTICE OF SUMISSION TO DESCOVERY REFEREE OF SPECIALLY-APPEARING 6 DEFENDANT GLAXOSMITHKLINE LLC’S REPLY IN SUPPORT OF MOTION FOR CLARIFICATION AND OBJECTION REGARDING REPORT AND RECOMMENDED 7 RULING RE: PLAINTIFFS’ MOTION TO COMPEL DISCOVERY CONCERNING 8 THE DESTRUCTION OF PILLS AT GSK’S ZEBULONG FACILITY 9 on the interested parties in this action as follows: 10 [X] BY ELECTRONIC TRANSMISSION: By electronically transmitting a true and correct copy of the document(s) listed above to Case Anywhere, an electronic filing service provider, at 11 www.caseanywhere.com pursuant to the Court’s September 23, 2021 Pretrial Order No. 8 authorizing electronic service upon the interested parties in the Ranitidine Products Cases, JCCP 12 005150. 13 [X] I declare under penalty of perjury under the laws of the State of California that the above 14 is true and correct. 15 Executed on September 11, 2022 at Los Angeles, California. 16 17 Michael Tecuanhuehue 18 19 20 21 22 23 24 25 26 27 28 1 PROOF OF SERVICE