Shelly Albaum
Dec 8, 2018
UPDATE DECEMBER 21, 2018
Magistrate Judge McCormick today resolved the remaining items subject to the discovery dispute. You can read the order here:
Order Resolving Final Six Discovery Items
It's a split decision, and here is the result:
144: Ryan Dellinger -- Granted (Dellinger's recruitment is relevant)
145: Ryan Dellinger -- Denied (Dellinger's duty of confidentiality is not relevant)
146: Ryan Dellinger -- Denied (communications with Dellinger not relevant)
148: Ryan Dellinger -- Granted (documents retained by Dellinger are relevant)
150: Investor Presentation -- Granted (drafts are relevant)
152: Investor Presentation -- Granted (communications regarding are relevant)
Documents due within 21 days.
Basically, ChromaDex gets everything it wants except for Dellinger's duties and communications, presumably because Dellinger isn't a defendant.
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The parties today in California filed a joint stipulation filled with gobbledygook. It is a serious nuisance to decode this thing, but we will do so nonetheless. You can read it here:
Joint Stipulation on CDXC's 2nd Motion to Compel
This thing was filed by Cooley, and presumably drafted by Cooley. A high-tech law firm with the world's best information tools representing Silicon Valley is the last place you'd expect to hear them speaking in tongues and channeling the contorted voices of dead 18th century lawyers.
It does not have to be this way, but it is this way:
Nobody wants to read that kind of crap. They could just use an "Introduction" that explains what happened before, and what's happening next.
On the bright side, there will always be good employment for legal bloggers translating this kind of garbage, so tell all your friends to visit Right of Assembly, the janitorial arm of this litigation: Clean Up on Aisle Seven, Stipulations!
So here is what happened.
Simple Summary
On November 29, Magistrate Judge McCormick ruled on ChromaDex's motion to compel, granting in part, denying in part, and deferring in part.
Specifically, His Honor denied the motion as to requests 129 and 130, but granted the motion as to requests 93-98, 100, 101, 154, and 155, and agreed to accept supplemental briefing on the remaining points of contention.
However, Elysium has now agreed to produce documents responsive to requests 141, 143, 149, 151, 153, 159, and 160 as written, and have agreed to produce documents responsive to a more narrow interpretation of requests 100, 101, 144, 154, and 155.
ChromaDex objects to the narrowing of request 144.
So Elysium will begin producing the documents within 21 days.
ChromaDex wants production complete by January 16, but Elysium says that's not possible.
Therefore, the only remaining issues in dispute are
(1) Whether Elysium must comply with requests 144, 145, 146, 148, 150, and 152, and
(2) What is Elysium's deadline to comply with the other requests.
ChromaDex seems to have withdrawn its request for attorney fees, at least with respect to the part of the discovery dispute that is already resolved.
Into the Weeds!
SO...Let's take a look at what's resolved and what's still in dispute.
If you want to read the parties' arguments, here is the supplemental briefing.
If you want to explore ALL of the disputed production requests, here is the complete list.
What Elysium Won
Let's start with the two points that Elysium won, requests 129 and 130, for which they need not produce documents.
ChromaDex wanted samples of Mystery NR and Certificates of Analysis for Basis or the components of Basis. ChromaDex does not get that, and we don't know why.
What ChromaDex Won
Now let's look at the requests that Magistrate Judge McCormick granted, 93-98, 100, 101, 154, and 155.
Requests 93-98 all relate to Basis's compliance with CGMP standards, and communications about that, and the value of compliance.
Requests 100, 101, 154, and 155 request communications and documents related to the GRAS and NDIN status of Niagen.
What Elysium Agreed to Produce as Written
Requests 141 and 143 involve communications with and regarding Mark Morris.
Request 149, 151, and 153, involve documents already produced, which I THINK are documents that among the documents that Elysium allegedly converted.
Requests 159 and 160 involve the documents used by Elysium when preparing its own regulatory filings for Basis, and the expenses incurred. Presumably ChromaDex is looking for evidence that Elysium relied on ChromaDex's proprietary information to advance its position.
What Elysium Agreed to Produce More Narrowly Than Written
Requests 100, 101, 154, and 155 request communications and documents related to the GRAS and NDIN status of Niagen.
Request 144, of which ChromaDex objects to the narrowing, involves the recruitment of Ryan Dellinger.
What Remains In Dispute
Request 144-146, and 148 involve Elysium's recruitment of Ryan Dellinger.
Request 150 involves a document that Elysium produced, which I THINK was an investor presentation slide that was allegedly based on ChromaDex's proprietary information.
Request 152 is for all documents and communications concerning any investments or interest in investing received by anyone who viewed the investor presentation that was allegedly based on ChromaDex's proprietary information.
Conclusion
So, there it is. I hazard no guess on what happens next. But it seems that ChromaDex is getting most of what it wants. And where it can't get what it wants, it gets what it needs.