Impax Laboratories, Inc., v. Shire, LLC et al

Filing 11

STIPULATION AND ORDER compelling McKesson Corporation's compliance with Shire LLC's subpoena. Signed by Magistrate Judge Nandor J. Vadas on 9/27/2011. (njvlc2, COURT STAFF) (Filed on 9/27/2011)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 EUREKA DIVISION 4 5 Impax Laboratories, Inc., Plaintiff, v. 6 7 Shire LLC, 8 Defendant, 9 and ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civ. No. 3:11-mc-80206-JSW (NJV) STIPULATION AND ORDER COMPELLING MCKESSON CORPORATION’S COMPLIANCE WITH SHIRE LLC’S SUBPOENA Hearing Date: October 11, 2011 Time: 11:00 AM Courtroom: Eureka Judge: Magistrate Judge Vadas 10 Teva Pharmaceuticals USA, Inc., 11 Intervenor-Defendant. 12 THIS MATTER comes before the Court on Shire LLC’s (“Shire”) Fed. R. Civ. P. 37 13 Motion to Compel McKesson Corporation’s Compliance with Subpoena to produce documents 14 and designate a corporate witness(es) for deposition in a civil action pending in United States 15 District Court for the Southern District of New York, Impax Laboratories, Inc. v. Shire LLC, 16 Civ. No. 1:10-cv-08386 (MGC) (AJP) (S.D.N.Y.) (the “New York litigation”). 17 The parties, having come to an agreement, request that the Court enter the following 18 Stipulation and Order: 19 1. McKesson Corporation (“McKesson”) shall make best efforts to produce the 20 following documents and things from its San Francisco, CA employees by October 7, 2011 and 21 from all other McKesson employees by October 14, 2011. McKesson shall produce documents 22 from January 1, 2009 to the present: 23 a. McKesson’s communications with Shire, Impax and Teva regarding 24 generic Adderall XR® and McKesson’s internal documents (e.g., memoranda, e-mails) 25 concerning those communications, including: 26 i. Offers from and negotiations with Shire, Impax and Teva, 27 including pricing details (both offered and actual), discounts, rebates, incentives, etc. offered 28 and/or paid by Shire, Impax and Teva; Document Prepared on Recycled Paper Stipulation and Order Compelling McKesson Corporation’s Compliance with Shire LLC’s Subpoena 1 ii. Forecasts exchanged with Shire, Impax and Teva; and 2 iii. McKesson’s internal documents concerning how or why it chose 3 one supplier over another. b. 4 Documents concerning Impax’s and Teva’s inability to supply or 5 interruptions/delays in its supply of generic Adderall XR, including cancellation of orders. c. Data reflecting McKesson's purchases of branded and generic Adderall d. Data reflecting McKesson's inventory levels of branded and generic e. 6 Documents concerning general shortages in the availability of branded 7 XR. 8 9 Adderall XR. 10 ® 11 and generic Adderall XR . f. 12 Documents concerning any penalties or repercussions for Impax’s ® 13 inability to supply generic Adderall XR , including loss of goodwill. g. 14 Documents concerning any restrictions placed on how much branded and 15 generic Adderall XR McKesson could purchase and warehouse (i.e., would it purchase as much 16 as it could, limited only by shelf space, tied to patient demand, etc.). 17 2. In connection with McKesson's search for documents responsive to the categories 18 identified in paragraph 1, it is understood that McKesson will gather documents from the key 19 company representatives that are associated with managing the purchase of branded and generic 20 Adderall XR. 21 3. McKesson shall make its best efforts to make a corporate witness(es) available 22 for deposition at a mutually acceptable time and place for deposition on or before October 31, 23 2011 to testify as to the following topics: a. 24 The authenticity of documents produced in response to Shire's subpoena 25 and this order ("Subject Documents"). 26 b. McKesson's retention policies with respect to the Subject Documents. 27 c. McKesson's efforts to locate and produce the Subject Documents. 28 Document Prepared on Recycled Paper Stipulation and Order Compelling McKesson Corporation’s Compliance with Shire LLC’s Subpoena d. 1 Whether the Subject Documents constitute records of regularly conducted 2 activity according to Rule 803(6) of the Federal Rules of Evidence. e. 3 Each witness’s education and work experience, including information 4 about the witness’s duties and responsibilities when working for or on behalf of McKesson. f. 5 McKesson's purchases of Adderall XR and generic Adderall XR, 6 including McKesson's negotiations with Shire, Impax, and Teva and McKesson's decision to 7 award "one-stop" status to Teva. 8 g. McKesson's inventory levels of Adderall XR and generic Adderall XR. 9 h. Shortages in the availability of branded and generic Adderall XR®. 10 i. Any penalties or repercussions, including loss of goodwill, suffered by ® 11 Impax due to its inability to supply Adderall XR . j. 12 Any restriction on how much branded or generic Adderall XR McKesson 13 could purchase and warehouse. k. 14 Orders received from and sales by McKesson to its customers for branded 15 and generic Adderall XR, including generic erosion and rates of generic purchasing. 16 IT IS SO STIPULATED AND ORDERED. 17 Dated: September 27, 2011 18 19 __/s/ Peter W. Craigie_________________ 20 Peter W. Craigie, State Bar No. 99509 Craigie, McCarthy & Clow 21 540 Pacific Avenue San Francisco, California 94133 22 Telephone: 415-732-7788 Facsimile: 415-732-7783 23 E-mail: 24 Edgar H. Haug Steven M. Amundson 25 Michael F. Brockmeyer David A. Zwally 26 David Herman John G. Taylor 27 Frommer Lawrence & Haug LLP 745 Fifth Avenue 28 New York, New York 10151 Telephone: 212-588-0800 Facsimile: 212-588-0500 Document Prepared on Recycled Paper ____/s/ Steven Winick_________________ Steven Winick, State Bar No. 160815 Brian R. Blackman, State Bar No. 196996 Sheppard, Mullin, Richter & Hampton LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111 Telephone: 415-434-9100 Facsimile: 415-434-3947 E-mail: E-mail: Attorneys for Nonparty McKesson Corporation Stipulation and Order Compelling McKesson Corporation’s Compliance with Shire LLC’s Subpoena 1 E-mail: E-mail: 2 E-mail: E-mail: 3 E-mail: E-mail: 4 Attorneys for Defendant 5 Shire LLC 6 PURSUANT TO STIPULATION IT IS SO ORDERED RT H 11 FO Vadas andor J. ____________________________ Judge N NANDOR J. VADAS ER C N F D IS T R Magistrate Judge United StatesICT O NO By: LI Dated: September 27, 2011 10 R NIA UNIT ED 9 S DISTRICT TE C TA RT U O S 8 A 7 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Document Prepared on Recycled Paper Stipulation and Order Compelling McKesson Corporation’s Compliance with Shire LLC’s Subpoena

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