In re HIV Antitrust Litigation

Filing 1940

ORDER re #1936 Trial Witness Disclosures. Signed by Judge Edward M. Chen on 6/5/2023. (emclc2, COURT STAFF) (Filed on 6/5/2023)

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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 RE TRIAL WITNESS
DISCLOSURES

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Docket No. 1936

United States District Court
Northern District of California

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The Court has reviewed the parties’ joint statement located at Docket No. 1936. It rules as
follows.
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Exhibits 328, 334, 796, 2002, 2019, 2026, 2028, 5150, 7921. Defendants have

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raised personal knowledge objections. The Court defers ruling on these exhibits.

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If Mr. Pletcher lacks personal knowledge, he can so testify. However, that does not

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automatically preclude Plaintiffs from asking questions about the documents – e.g.,

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if a document is already admitted through another sponsoring witness, Mr. Pletcher

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might be asked whether he knows about events referenced in the document.

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Exhibit 3258. The Court shall permit oral argument on this exhibit.

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Exhibits 5113, 6388. The Court shall permit oral argument on these exhibits.

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Exhibits 5635, 5636, 5639, 5673, 5675, 5677, 5700, 5744, 5751, 5758, 7011, 7340,

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7341, 7343, 7834, 7841, 7965, 9438. These exhibits are all patents. The Court

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defers ruling on the exhibits as context may matter.

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Exhibit 5738. This is a public SEC filing for Teva. Per an email from Plaintiffs,

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they do not intend to seek to admit this exhibit – i.e., they intend to use the exhibit

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for purposes of refreshing recollection or impeachment only. The objections are

moot.

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case involving Teva (the Nexium antitrust trial). Per an email from Plaintiffs, they

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do not intend to intend to seek to admit these exhibits – i.e., they intend to use the

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exhibits for purposes of refreshing recollection or impeachment only. The

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objections are moot.

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Exhibit 6270. Because it is not clear how Plaintiffs intend to use this exhibit, the
Court shall have oral argument on the exhibit.

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United States District Court
Northern District of California

Exhibits 5745, 5747, 5748. These are transcripts of hearings held in a different

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Exhibits 6271, 6272. The Court shall have oral argument on these exhibits.

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Exhibits 6275, 6277, 6278, 6279, 6280, 6281, 6282, 6284, 6285, 6477, 8085, 8087.

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These exhibits are mostly pleadings (complaints and answers) that were filed in the

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FTC patent infringement suit. Two of the exhibits are claim construction briefs

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(Exhibits 8085 and 8087). The Court defers ruling on the exhibits. With respect to

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Exhibits 8085 and 8087, the Court takes note of Plaintiffs’ representation that they

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intend to use the briefs for nonhearsay purposes.

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Exhibit 6418. Plaintiffs assert that the SEC filing from Gilead is relevant because it

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contains information about Mr. Pletcher’s compensation. However, Plaintiffs can

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ask Mr. Pletcher about his compensation (which has some probative value, i.e., his

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bias) without relying on the document. To this extent, the Court sustains the Rule

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403 objection. Plaintiffs are not precluded from using the document to refresh his

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recollection or to impeach.

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Exhibits 6426, 6427, 6428, 6430, 6431, 6433, 9437. These are public SEC filings

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(Gilead). Because the Court shall allow Plaintiffs to use Exhibits 9439 and 9440

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(with one exception), Plaintiffs will not need to rely on these exhibits (as Plaintiffs

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have conceded). The objections to these exhibits are moot.

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Exhibit 9439. This is Rule 1006 exhibit – Gilead’s product sales revenue for

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Truvada and Atripla. The Court shall permit the exhibit (so long as Defendants do

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not dispute the numbers) but limits the exhibit to U.S. sales only. In other words,
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worldwide sales are not relevant; they should also be excluded under a Rule 403

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analysis. The objections are therefore sustained in part.

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stock repurchases and how much was paid in shareholder dividends. The

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objections are overruled. The evidence is relevant given Gilead’s position that it

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uses its profits to develop new drugs.

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Exhibit 9441. This is Defendants’ motion for summary judgment on the reverse

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payment claims (including supporting exhibits). Per an email from Plaintiffs, they

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do not intend to seek to admit this exhibit – i.e., they intend to use the exhibit for
purposes of refreshing recollection or impeachment only.

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United States District Court
Northern District of California

Exhibit 9440. This is another Rule 1006 exhibit – i.e., how much Gilead spent on

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PDX2, PDX3. It appears that the parties may be able to resolve the disputes on

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these demonstratives if they meet and confer. The Court orders the parties to meet

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and confer to resolve the disputes.

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PDX4. The Court sustains the objections in part. Plaintiffs are permitted to offer

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their interpretation of a provision in an agreement but they must make more clearly

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where they are quoting from the agreement and where they are offering their own

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interpretation. Plaintiffs should submit a revised demonstrative.

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PDX7, PDX8, PDX9, PDX10. The parties should meet and confer on these

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demonstratives because they seem to raise issues similar to those raised with PDX2

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and PDX3 – i.e., what is the patent expiration date(s) agreed to by the parties.

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PDX11. This demonstrative summarizes the pleadings that were filed in the FTC

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patent infringement suit. The Court defers ruling consistent with its ruling above

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on the exhibits related to the patent infringement pleadings.

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IT IS SO ORDERED.
Dated: June 5, 2023

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______________________________________
EDWARD M. CHEN
United States District Judge
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