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  • Shelly Albaum

Ruling on Discovery Dispute in New York


Kinda just kidding -- the Court didn't discuss the substance of the dispute. Instead, the motion was denied and a telephone conference scheduled for a week from today, August 20, at 9:30am. You can read the court's order here:


Order Setting Conference Call


We don't have any clue as to Judge Liman's reaction to all this, but my guess is by simply denying the motion and bringing the parties together, there are going to be stern words about how discovery is supposed to go, and final warnings, and things like that. I do not assume that the denial reflects a ruling on the merits; rather, I assume that the Court simply does not want to handle this via motion practice.


Judge Liman has already said no more delays, and if this looks to him like foot-dragging by Elysium, he could be mad.


On the other hand, if he thinks that ChromaDex didn't do enough to resolve the issues before raising them with the Court, he might be upset about that.


Or maybe something else. My intuition is that it's the former, but we can't know, and we might not ever know, unless some order issues as a result of the conference a week from today.


However, one small matter the Court DID resolve, is that although Exhibit N remains redacted, ChromaDex's letter motion describing Exhibit N does not.


So here is what the original motion looked like, and then without the redactions:

So now we know generally what ChromaDex says are the examples of highly relevant and responsive documents that go to the heart of the case that were missing from Elysium's productions but that ChromaDex received from third parties, which are included in Exhibit N: (1) instructions to [Elysium's] manufacturer to reduce the purity of its product (to substantially below the purity of ChromaDex's competing product); (2) communications about strategies to mask the fact that Elysium had not conducted clinical studies; and (3) communications about Elysium's chief scientist's touting the disease-preventing benefits of a compound even though there was no "human data."


We'll see what happens next week, if anything.


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