v. Akebia Therapeutics, Inc.

Filing 55

ORDER by Judge James Donato denying FibroGen's 50 Motion to Stay Discovery. (jdlc2S, COURT STAFF) (Filed on 3/9/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In re Application of Akebia Therapeutics,
Inc.

Case No. 14-mc-80294-JD
ORDER DENYING FIBROGEN’S
MOTION TO STAY DISCOVERY

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Re: Dkt. No. 50

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United States District Court
Northern District of California

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The Court has reviewed FibroGen’s discovery dispute letter and Akebia’s opposition. Dkt.

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Nos. 50, 52. FibroGen requests that the Court impose a “stay of all production, review, and

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testimony in response to the Akebia subpoenas pending FibroGen’s Ninth Circuit appeal of this

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Court’s ruling that discovery under 28 U.S.C. § 1782 be permitted.” Dkt. No. 50 at 1. The stay is

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denied.

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The primary basis FibroGen invokes for its request for a stay is the “excessive burden

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imposed by the response to the document and testimony subpoenas from Akebia.” Id. But the

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Court finds FibroGen’s statements exaggerated and overblown. For example, FibroGen, for the

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sake of scoring a point in this litigation match, paints a picture of what its burden would be

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assuming it were to take a scorched-earth, picture-perfect approach. See id. at 2 (“Reviewing all

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notebooks to ensure nothing is overlooked will require 7,471 person hours.”). But this actually

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undercuts FibroGen’s position, because it only serves to illustrate that FibroGen misunderstands

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(or is misrepresenting) what the Court has ordered it to do.

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Under the Court’s prior orders, FibroGen need only produce materials sufficient to give

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Akebia the information that it seeks. The Court further ordered FibroGen to do so on a rolling

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basis, with the expectation -- and now, express instruction -- that the experienced and sophisticated

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counsel on both sides in this matter will be in constant communication to continue to refine the

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process once the production is underway.

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So while FibroGen continues to object to the discovery burdens it sees with its edge-of-

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the-universe glasses on, the scope of discovery FibroGen imagines is simply not what the Court

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ordered. Moreover, FibroGen’s low-end estimate of $740,000, too, is overblown, as it is based on

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an unsupported, and unsupportable, $400-per-hour estimate for “an appropriately skilled

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reviewer.” That is the kind of rate that is usually reserved for partners in the vast majority of law

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firms in this country.
The Court consequently concludes that FibroGen’s motion is based on exaggerated facts

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and a straw man argument, and denies it. As Akebia points out, there appears to be a pattern of

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United States District Court
Northern District of California

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delay that is emerging on FibroGen’s side, and the Court is beginning to have serious concerns

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that FibroGen may be stalling for the sake of stalling. It appears Akebia has already lost at least

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one opportunity to present the information it seeks -- and which the Court has ordered FibroGen to

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turn over to Akebia -- to the foreign tribunals, i.e., the EPO and JPO. FibroGen is therefore

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ordered to begin its production in a meaningful way by no later than Monday, March 16, 2015.

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FibroGen’s alternative requests for an interim stay as well as for cost-shifting are also

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denied for lack of good cause. Akebia states that it has proposed that FibroGen can “(1) produce

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documents it already identified as those most likely to contain responsive information and

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(2) make the 510 notebooks available for Akebia’s inspection, whereupon it will be Akebia’s

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burden to review the notebooks for relevant information.” Dkt. No. 52 at 2. This would seem like

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a good place to start. The Court further reminds both parties that the Court expects utmost

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adherence to the strong protective order that has now been entered in this matter, pursuant to the

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parties’ stipulation.

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IT IS SO ORDERED.
Dated: March 9, 2015
______________________________________
James Donato
United States District Judge

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