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  • Writer's pictureShelly Albaum

Proposed 60-Day Delay in New York

Updated: Nov 16, 2020

UPDATE NOV 16, 2020: Judge Liman granted the requested delay in New York, but he doesn't sound happy about it. This is as close as we have gotten to a trial date in New York: He advised the parties to be ready for trial on 48 hours notice starting August 9, 2021.


TL;DR: Additional proposed 60-day delay due to discovery problems would, if approved, set us up for a trial in New York late summer or fall 2021.


You will recall that more than a year ago, in August 2019, when Judge McMahon was running the case in New York and Baker Hostetler was Elysium's counsel, the parties requested a delay in New York because the trial scheduled in California would make it too difficult to complete discovery in New York on time, because Fact Depositions and Expert Reports were both due around the time of the trial, which was late October 2019.

Then in October 2019 Judge Carney unexpectedly pulled the California trial off calendar, presumably because the mountain of summary judgment and evidentiary motions was too much to process in the time available.

The parties reported the California delay to Judge McMahon in October 2019, as they were required to do, and Judge McMahon issued a frosty response: "I pushed back dates by six months in August. I will not grant ANY further extensions."

After that, Baker Hostetler backed out of the case and was replaced by Elysium's new counsel, Kaplan Hecker, which promptly requested an additional four-month delay, on the grounds that they didn't have time to prepare. ChromaDex was willing to allow 30-days, but objected to four months. Judge Liman, having replaced Judge McMahon, who had a connection to the Kaplan Hecker firm, simply denied Elysium's request for a delay. At that time, all discovery was to be complete by June 20, 2020, in New York, and the trial in California was scheduled for May 12, 2020.

But then COVID-19 intervened, and the May 12 trial in California got pulled off calendar. In March, the parties requested a four-month COVID delay in New York, also. That's when the fact discovery deadline got moved from June 20, 2020 to October 20, 2020.

Then in June 2020, with COVID still raging, the parties requested an additional delay that would have moved the discovery deadline from October 2020 to March 17, 2021. Judge Limon did not accept the proposed five-month extension. Instead, he granted the parties only a two-month extension -- discovery would be complete by December 20, 2020 -- and said, "There will be no further extensions." That was June 26, 2020.

But then in August 2020 a discovery dispute emerged in New York -- it looked like Elysium had withheld important documents. We don't know exactly what happened there, but part of the resolution involved an additional two-month delay, presumably for Elysium to get its document production in order. That moved the date for completion of discovery from December 20, 2020 to February 22, 2021.

As far as we know, the parties have been working toward that date.

But yesterday the parties submitted a joint letter requesting yet another two-month extension. You can read the letter here:

In this letter we learn that since the Judge Liman resolved the August discovery dispute , Elysium produced 90 documents in mid-October and 5,300 documents in early November, and ChromaDex produced 65 documents in October and November.

However, Elysium was unable to produce anything from its ZenDesk database -- which contains 300,000 customer communications -- because the e-discovery vendor needed physical access to the database, which was difficult due to COVID. Elysium's e-discovery vendor has now gained access to the database, and found within it 7,400 potentially responsive documents, but it will take a few more weeks to get those documents exported -- because special code has to be written! -- and then come the holidays...

So the parties are requesting that the discovery completion deadline get moved from February 22, 2021 to April 23, 2021.

If the court approves that schedule, the pretrial order would be June 22, 2021, and maybe we could see a trial in New York in late summer or fall, assuming trials are happening and we can get a spot in the calendar. The Delaware trial is scheduled for around that time, also: September 27, 2021.

There may be a learning about ZenDesk -- either it's a great product for malfeasors, because what goes in doesn't come out, even after years of discovery, and only with special code. Or maybe it's a really bad product for malfeasors, because eventually you have to produce that stuff, and it's particularly expensive to do so.

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