In re HIV Antitrust Litigation

Filing 1887

ORDER re May 23, 2023, Conference. Signed by Judge Edward M. Chen on 5/23/2023. (emclc2, COURT STAFF) (Filed on 5/23/2023)

Case 3:19-cv-02573-EMC Document 1887 Filed 05/23/23 Page 1 of 3

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

IN RE HIV ANTITRUST LITIGATION.

Case No. 19-cv-02573-EMC

8
ORDER RE MAY 23, 2023,
CONFERENCE

9
10

United States District Court
Northern District of California

11
12
13
This order memorializes rulings made during the conference held on May 23, 2023. It also

14
15

provides additional rulings, as necessary.

16

A.

17

Opening Statements – Objections to Demonstratives and Exhibits
As an initial matter, the Court notes that the parties have not started matters off on the right

18

foot by lodging at the eleventh hour numerous objections (most without merit) to demonstratives

19

and/or exhibits to be used during opening statements. If this portends what is to come in this trial,

20

the Court forewarns the parties that it will charge trial time against the losing party(ies) in

21

resolving objections to evidence. Although the Court’s main concern, as previously articulated,

22

was meritless objections based on authenticity and foundation, see Docket No. 1842, it

23

emphasizes that any objections may be subject to the charging of trial time. This includes, e.g.,

24

objections based on relevance, Rule 403, and hearsay.
Plaintiffs’ Objections to Defendants’ Slides

25

1.

26

All objections are overruled, except as to Gilead 61. Gilead 61, as it currently stands, is

27

misleading, including, e.g., drugs from well outside the relevant time period and which have no

28

obvious relevance to this case. Gilead indicated that it will modify the slide and present it to

Case 3:19-cv-02573-EMC Document 1887 Filed 05/23/23 Page 2 of 3

1
2

The Court also notes that, although it has largely overruled objections based on Rule 403,

3

it expects that Defendants shall not dwell on matters such as industry background or general

4

incentives to innovate. See, e.g., Gilead 18-19 (slides addressing HIV treatments “Saving Lives”

5

and “Improving Lives”). If they do, the Court will entertain objections

6

Finally, the Court notes that it is giving the parties some leeway regarding “legal” matters

7

(e.g., regarding patent law) given the complexity of this case – so long as the law is accurately

8

reflected and not prone to mislead the jury.

9
10

United States District Court
Northern District of California

Plaintiffs.

Plaintiffs’ Objections to Defendants’ Use of Exhibits

2.

Plaintiffs’ objections to Defendants’ use of exhibits are also overruled. The Court notes

11

that it has not yet adjudicated the admissibility of the exhibits. However, it is more than likely that

12

the exhibits shall be admitted. For example, given that many of the exhibits are internal Gilead or

13

internal Teva emails, the business record exception to hearsay shall likely apply. Also, the Court

14

has already ruled that Teva’s subjective beliefs during the relevant time are admissible, even if the

15

ultimate test is an objective one – and this is true even if it is Gilead relying on the evidence.

16

Finally, the Court is skeptical that Rule 403 will be a bar to admissibility.
Defendants’ Objections to Plaintiffs’ Slides

17

3.

18

All objections are overruled except as to the following:

19

•

EPP 25. The Rule 403 objection is sustained in part. Plaintiffs shall be allowed to

20

use the slide so long as they remove from the background the picture of the

21

pleading (the draft joint pretrial conference statement). Plaintiffs shall also modify

22

the slide so that it does not “draw” upon the draft joint pretrial conference

23

statement. Plaintiffs may modify the slide to reflect that Teva’s forfeiture is a

24

stipulated fact (as reflected in the jury instructions).

25

•

EPP 30, 69, 71, 85, and 86. The verdict form has been changed, and therefore

26

these demonstratives may not be used. However, the Court shall allow Plaintiffs to

27

substitute new slides so long as they track the verdict form.

28

•

EPP 52. The Rule 403 and Rule 106 objections are sustained. Plaintiffs shall
2

Case 3:19-cv-02573-EMC Document 1887 Filed 05/23/23 Page 3 of 3

submit a new slide that provides an accurate quote/context – i.e., a Q&A.

1
2
3
4

B.

Stipulation re Trial Logistics (Docket No. 1876)
The Court clarified for the parties the following:
•

parties intend to refer to exhibits during the statements.

5
6

•

Demonstratives for closing arguments shall be filed and submitted to the Court by

7

4:00 p.m. the day before closing. If closing is on a Monday, then demonstratives

8

shall be filed and submitted by 4:00 p.m. Friday.

9

•

11

•

Notice to the Court is counted by court day, even if the undersigned is not available
on a given court day. Saturdays, Sundays, and holidays are not court days.

12
13

The parties shall modify ¶ 5 of the stipulation so that it aligns with ¶ 5(f) – i.e., the
Court shall get 24 hours’ advance notice of an issue that needs to be resolved.

10

United States District Court
Northern District of California

Sequestration of witnesses extends to opening statements, particularly as both

•

Once a witness takes the stand, the witness may not consult or communicate off the

14

record with the attorney who represents (1) the witness, (2) the entity(ies) for

15

whom the witness is testifying, and/or (3) the entity(ies) with whom the witness is

16

aligned or affiliated.

17
18

IT IS SO ORDERED.

19
20

Dated: May 23, 2023

21
22
23

______________________________________
EDWARD M. CHEN
United States District Judge

24
25
26
27
28
3