In re HIV Antitrust Litigation

Filing 1896

ORDER by Judge Edward M. Chen denying #1882 Plaintiffs' Motion for Disclosure. (emclc2, COURT STAFF) (Filed on 5/24/2023)

Case 3:19-cv-02573-EMC Document 1896 Filed 05/24/23 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE HIV ANTITRUST LITIGATION.

Case No. 19-cv-02573-EMC

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ORDER DENYING PLAINTIFFS’
MOTION FOR DISCLOSURE
Docket No. 1882

United States District Court
Northern District of California

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On May 22, 2023, Plaintiffs asked Defendants to disclose “‘any arrangement or agreement

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between Gilead and Teva related to this case or the upcoming trial, including, but not limited to,

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any agreement related to judgment-sharing, indemnification, contribution limits of the parties,

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appearance of witnesses, etc.’” Mot. at 1. Defendants refused. Plaintiffs therefore filed the

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currently pending motion for disclosure. The motion is DENIED.

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As an initial matter, the motion is untimely. Plaintiffs filed their motion the day before

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trial. The Court also has concern about the circumstances leading to Plaintiffs’ motion for

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disclosure. According to Defendants, Plaintiffs obtained information during mediation sessions.

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But putting these points aside, the Court rejects Plaintiffs’ motion on the merits. Plaintiffs’

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motion is formally styled as one for disclosure but clearly is directed to admissibility as well.

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Plaintiffs argue that judgment-sharing or indemnification agreements are relevant because they are

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probative of witness bias. See, e.g., Ann. Manual Complex Lit. § 13.24 (4th ed.) (noting that a

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judgment-sharing agreement “may be admitted to attack a witness’s credibility or demonstrate that

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formally opposing parties are not in fact adverse, accompanied by a limiting instruction that the

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agreement is not to be considered proof or disproof of liability or damages”); Brocklesby v. United

United States District Court
Northern District of California

Case 3:19-cv-02573-EMC Document 1896 Filed 05/24/23 Page 2 of 3

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States, 767 F.2d 1288, 1292-93 (9th Cir. 1985) (concluding that lower court did not abuse its

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discretion in admitting indemnity agreement between defendants; lower court had admitted

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agreement so that plaintiffs could show “the relationship of the parties” – i.e., that they “were not

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adverse – and so that the plaintiffs could “attack the credibility of the [defense] witnesses”). But

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even if such an agreement has some probative value, in the specific circumstances of this case, the

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probative value of the agreement between Gilead and Teva is minimal. It is clear that Gilead and

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Teva’s interests are aligned: Plaintiffs have charged Defendants with willfully entering into an

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anticompetitive reverse payment settlement agreement. This is not a situation where a jury might

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think that Gilead and Teva are adverse to one another, and thus any judgment-sharing or

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indemnification agreement would have little or no probative value as to credibility. Cf. Discover

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Fin. Servs. v. Visa U.S.A., Inc., No. 04-CV-7844 (BSJ) (DFE), 2008 U.S. Dist. LEXIS 124344

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(S.D.N.Y. Oct. 3, 2008) (in an antitrust case, denying Discover’s request to discover judgment-

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sharing agreement between Visa and MasterCard; noting that Visa and MasterCard’s “interests are

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readily apparent: should damages be awarded, the corporations are liable for the judgment,” and

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“there is little relevance to learning what proportion of an unknown damages amount the

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corporations may pay”).

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In contrast, the unfair prejudice should the agreement be admitted is significant. As

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Defendants argue, a jury would likely infer from the agreement that Defendants are liable because

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“why would companies agree upfront to allocate damages if they were confident in their defenses?

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Opp’n at 5. A jury would likely make an improper propensity inference as well – i.e., if

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Defendants “colluded” now on judgment sharing, they must have “colluded” then at the time of

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the patent settlement agreement. Defendants also fairly raise the prospect that admission of the

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judgment-sharing agreement would lead to a waste of time. See Opp’n at 6 (maintaining that, if

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the agreement were admitted, “Defendants would need to introduce evidence explaining whipsaw

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settlement tactics employed by antitrust plaintiffs and how antitrust defendants seek to protect

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themselves against such tactics by entering into judgment-sharing agreements”). Thus, the unfair

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prejudice of the agreement, as well as other Rule 403 considerations, substantially outweigh the

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limited, if existent, probative value of the evidence.
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Case 3:19-cv-02573-EMC Document 1896 Filed 05/24/23 Page 3 of 3

Accordingly, the Court denies Plaintiffs’ motion for disclosure and/or admissibility based

United States District Court
Northern District of California

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on a lack of timeliness as well as Rules 402 and 403. The Court does not make any express ruling

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on Defendants’ contention that the agreement is privileged but does note that there is authority to

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support Defendants’ position. See In re Brand Name Prescription Drugs Antitrust Litig., 94 C

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897, MDL 997, 1995 U.S. Dist. LEXIS 4738, at *11 (N.D. Ill. Apr. 10, 1995) (stating that

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“[j]udgment sharing agreements are, in effect, a form of settlement, and drafts of settlements and

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settlement negotiations among counsel are generally not discoverable”); Generac Power Sys. v.

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Kohler Co., No. 11-CV-1120-JPS, 2012 U.S. Dist. LEXIS 160400, at *2-4 (E.D. Wis. Nov. 8,

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2012) (emphasizing that there is a difference between a joint defense agreement and an

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indemnification agreement; the former is an agreement created in anticipation of or after the

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institution of litigation and “embodies the defendants’ legal strategies and coordination with one

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another in the defense of [the] case, as opposed to some pre-litigation agreement by one party to

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pay for the legal fees of the other in case of trouble”).
To the extent Plaintiffs have asked for in camera review of the agreement, the request is

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denied.
This order disposes of Docket No. 1882.

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IT IS SO ORDERED.

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Dated: May 24, 2023

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______________________________________
EDWARD M. CHEN
United States District Judge

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