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  • Writer's pictureShelly Albaum

CDXC Opposes Review of Protective Order

Updated: Jan 20, 2020

We noted a couple weeks ago that Elysium was hopping mad that Magistrate Judge McCormick apparently had made all the evidence already produced in the California action available in the New York action, and that Elysium had asked Judge Carney to reverse his Magistrate Judge on this.

ChromaDex has now filed its opposition brief in support of the Magistrate Judge's ruling:

ChromaDex's primary arguments are what you'd expect: The magistrate's order is correct, Elysium's arguments are wrong, Elysium waived its right to object, and the Court should award attorney fees to ChromaDex because of this improper noise.

As ChromaDex recounts it,

"Magistrate Judge Douglas F. McCormick issued the Second Amended Protective Order after applying Ninth Circuit precedent and finding that the same parties represented by the same attorneys should be allowed to use discovery already produced in this case in a collateral litigation that involves overlapping facts and issues.

Foltz instructs lower courts to “[a]llow[] the fruits of one litigation to facilitate preparation in other cases” in order to “advance[] the interests of judicial economy by avoiding the wasteful duplication of discovery.” Id. at 1131. That is precisely what Magistrate Judge McCormick allowed by adopting the Second Amended Protective Order. Foltz and the cases applying it in similar situations to this one are as plain as day; so plain, in fact, that Magistrate Judge McCormick found this matter “easy” to decide.."

Interesting note on the status of the New York action: "Both parties have served discovery requests, but neither has produced documents...Chief Judge McMahon has set an ambitious discovery schedule, ordering that all document discovery between the parties be completed by February 24, 2020."

The fee argument is also interesting:

"Federal Rule of Civil Procedure 26(c) requires the Court to award attorney’s fees when a party prevails on or defeats a motion relating to the entry of a protective order, with few exceptions....Even if Elysium's argument was substantially justified, which ChromaDex strongly disputes...Elysium (1) failed to comply with the Local Rules in bringing the Motion, (2) failed to present the entire record to the Court, (3) base the Motion on waived arguments, and (4) failed to address pertinent legal authority cited by ChromaDex before Magistrate Judge McCormick...

More analysis later.

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