Safeway Inc. et al v. Abbott Laboratories

Filing 104

ORDER re (196 in 4:07-cv-05985-CW) (91 in 4:07-cv-06120-CW) (101 in 4:07-cv-05470-CW) granting STIPULATION Regarding Plaintiffs' 30(b)(6) Depositions And The Use Of Related Evidence At Trial. Signed by Judge Claudia Wilken on 3/17/09. (scc, COURT STAFF) (Filed on 3/17/2009)

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James F. Hurst (Admitted Pro Hac Vice) David J. Doyle (Admitted Pro Hac Vice) Samuel S. Park (Admitted Pro Hac Vice) Stephanie S. McCallum (Admitted Pro Hac Vice) WINSTON & STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601-9703 Telephone: [phone] Facsimile: [phone] Email: [e-mail]; [e-mail]; [e-mail]; [e-mail] Nicole M. Norris (SBN 222785) WINSTON & STRAWN LLP 101 California Street, Suite 3900 San Francisco, CA 94111-5894 Telephone: [phone] [phone] Facsimile: Email: [e-mail] Charles B. Klein (Admitted Pro Hac Vice) Matthew A. Campbell (Admitted Pro Hac Vice) WINSTON & STRAWN LLP 1700 K Street, N. W. Washington, D.C. 20007 Telephone: [phone] [phone] Facsimile: Email: [e-mail]

Jeffrey I. Weinberger (SBN 56214) David M. Rosenzweig (SBN 176272) Grant A. Davis-Denny (SBN 229335) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: [phone] Facsimile: [phone] Email: j effrey.weinbergermto.com; david.rosenzweigmto.com; grant.davis-dennymto.com Michelle Friedland (SBN 234124) MUNGER, TOLLES & OLSON LLP th 560 Mission Street, 27 Floor San Francisco, CA 94105-2907 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Defendant ABBOTT LABORATORIES

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

SAFE WAY INC; WALGREEN CO.; THE KROGER CO.; NEW ALBERTSON'S, INC.; AMERICAN SALES COMPANY, INC.; AND HEB GROCERY COMPANY, LP, Plaintiffs, vs. ABBOTT LABORATORIES, Defendant. (Caption continued on next page)

CASE NO. C 07-5470 (CW) Related per November 19, 2007 Order to Case No. C 04-151 1(CW) STIPULATION REGARDING PLAINTIFFS' 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE AT TRIAL Judge: Honorable Claudia Wilken

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STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6 120

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MEIJER, INC. & MEIJER DISTRIBUTION, INC.; ROCHESTER DRUG CO-OPERATIVE, INC.; AND LOUISIANA WHOLESALE DRUG COMPANY, INC., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, vs. ABBOTT LABORATORIES, Defendant. RITE AID CORPORATION; RITE AID HDQTRS CORP.; JCG (PJC) USA, LLC; MAXI DRUG, INC D/B/A BROOKS PHARMACY; ECKERD CORPORATION; CVS PHARMACY, INC.; AND CAREMARK LLC, Plaintiffs, vs. ABBOTT LABORATORIES, Defendant.

CASE NO. C 07-5985 (CW) (Consolidated Cases) Related per November 30, 2007 Order to Case No.C04-1511 (CW)

CASE NO. C 07-6 120 (CW) Related per December 5, 2007 Order to Case No. C 04-1511 (CW)

Whereas, Abbott and Plaintiffs in the above-captioned dispute whether Abbott is entitled to further Rule 30(b)(6) depositions or testimony from Plaintiffs, and Abbott has indicated it intends to file a motion to compel regarding the issue; Whereas, all parties seek to avoid burdening the Court with a motion to compel such depositions and/or testimony; IT IS HEREBY STIPULATED AND AGREED: 1. Subject to Paragraph 5, Plaintiffs will not introduce at trial, through their

employees or former employees, evidence on any of the topics listed below. Topic (3): Purchases of all other ARVdrugs [other than Norvir and Kaletra] from January 1, 2003 to the present, including dates, prices, and quantities of all such purchases. [Except for Louisiana Wholesale Drug, Rochester Drug Cooperative,
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STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6120

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MeUer mc, and Meyer Distribution, Inc., as to the Lexiva and Reyataz data they produced.] Topic (8): The composition of the relevant market (s) for purposes of Plaintiff's antitrust claims in this case. Topic (9): The safety, efficacy, and relative benefits and side effects of any AR V drugs. Topic (10): The interchangeability or substitutability of Protease Inhibitors in HIV treatment regimens. Topic (11): The type and amount of all damages sought by Plaintff in this case [except to the extent test fied to by Plaintiffs 30(b)(6) witness]. Topic (12): The terms and conditions on which Plaintiff or its assignor purchased Norvir and Kaletra from Abbott, including whether any such purchases were subject to resale under "cost plus" contracts [except to the extent the terms of Plaintff'spurchasesfrom Abbott were testtfled to by Plaintiff's 30(b)(6) witness]. Topic (14): Price changes of all AR V drugs other than Norvir and Kaletra, from January 1, 2003 to the present. Topic (16): The dates, prices, quantities, and terms and conditions applicable to allARVdrug purchases by Plaintfs' assignors from Abbott for which Plaintffs are claiming [damages] in this case. 2. Subject to Paragraph 5, Plaintiffs will not introduce at trial, through their employees or former employees, evidence on any of the bulleted subtopics listed below. To the extent any topic is broader than the bulleted subtopics, Plaintiffs are not precluded from introducing at trial, through their employees or former employees, any evidence other than evidence of the bulleted subtopics. Topic (4): All communications regarding the December 2003 Norvir price increase, including communications with Abbott, complaints or comments from customers or other third parties, and communications with the press or government agencies or officials.
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STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6 120

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Whether any patient or customer ever complained to or otherwise communicated with [Plaintiff] or any of its employees or agents about the price of Norvir after the 2003 price increase.

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Whether any doctor ever complained to or otherwise communicated with [Plaintiff] or any of its employees or agents about the price of Norvir after the 2003 price increase.

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Whether any pharmacist ever complained to or otherwise communicated with [Plaintiff] or any of its employees or agents about the price of Norvir after the 2003 price increase.

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Whether [Plaintiff] complained to or otherwise communicated with the press about the price of Norvir after the 2003 price increase.

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Whether [Plaintiff] complained to or otherwise communicated with any government agency or official about the price of Norvir after the 2003 price increase.

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Whether third parties other than patients, customers, doctors, or pharmacists ever complained to [Plaintiff] or any of its employees or agents about the price of Norvir after the 2003 price increase.

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Whether [Plaintiff] complained to Abbott about the price of Norvir after the 2003 price increase.

Topic (5): All communications regarding the pricing of boosted PIs from January 1, 2003 to the present.
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Whether any manufacturer of boosted Protease Inhibitors (other than Abbott) ever complained to or otherwise communicated with [Plaintiff] or any of its employees or agents about the price of Norvir after the 2003 price increase.

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Whether any manufacturer of boosted Protease Inhibitors ever complained to or otherwise communicated with [Plaintiff] or any of its employees or
STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6120

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agents that it was losing business to Kaletra as a result of the 2003 Norvir price increase.
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Whether any manufacturer of boosted Protease Inhibitors ever complained to or otherwise communicated with [Plaintiff] or any of its employees or agents that patients were switching to Kaletra from other boosted Protease Inhibitors as a result of the 2003 Norvir price increase.

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Whether [Plaintiff] communicated to patients, customers, doctors, the press, or government officials about the pricing of boosted PIs from January 1, 2003 to the present.

Topic (6): Any knowledge ofpatients who were switched to Kaletra from a different boosted P1 regimen, or physicians who changed prescribing practices, as a result, in whole or in part, of the December 2003 Norvir price increase.
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Whether patients switched to Kaletra from other boosted P1 regimens as a result of the 2003 Norvir price increase.

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Whether patients stopped taking Norvir as a result of the 2003 Norvir price increase.

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Whether doctors changed their prescribing practices as a result of the 2003 Norvir price increase.

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Whether any formularies restricted access to Norvir as a result of the 2003 Norvir price increase.

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Whether any private insurers adjusted their copayment requirements for Norvir as a result of the 2003 Norvir price increase.

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Whether [Plaintiff] experienced any increase in its sales of Kaletra as a result of the 2003 Norvir price increase.

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Whether [Plaintiff] experienced any decrease in its sales of boosted PIs other than Kaletra as a result of the 2003 Norvir price increase.

Topic (7): Any effects of the December 2003 Norvir price increase, including but not limited to effects on sales and/or prescriptions for Norvir, for Kaletra, for
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STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6120

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other boosted PIs, andfor other AR V drugs.
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Whether the 2003 Norvir price increase affected [Plaintiff's] sales of Lexiva.

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Whether the 2003 Norvir price increase affected [Plaintiff's) sales of Reyataz.

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Whether the 2003 Norvir price increase affected [Plaintiff's] sales of Kaletra.

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Whether the 2003 Norvir price increase affected [Plaintiffs] sales of any boosted P1.

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Whether the 2003 Norvir price increase affected [Plaintiff's] sales of Norvir.

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Whether the 2003 Norvir price increase affected [Plaintiff's] sales of any ARV drug.

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Whether the 2003 Norvir price increase caused the research and development of any specific boosted P1(s) to be halted or slowed.

Topic (13): The pricing of Kaletra relative to the pricing of other boosted PIs, from January 1, 2003 to the present.
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Whether the 2003 Norvir price increase affected price competition among boosted PIs.

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Whether the 2003 Norvir price increase affected price competition among ARV drugs

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Whether Kaletra is overpriced compared to other boosted PIs.

These stipulations do not preclude Plaintiffs from offering evidence on the above topics

through expert witnesses (except that those experts may not rely in forming their opinions upon information from current or former employees of Plaintiffs that, if testified to by such individuals, would be prohibited testimony pursuant to this stipulation, or on any of Plaintiffs' documents unless such documents are disclosed with Plaintiffs' opening expert reports), Abbott employees, GSK employees, or any third party witnesses who are permitted to testify at trial.
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STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6120

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4.

Abbott will serve, and Plaintiffs agree to answer, additional interrogatories

regarding the assignment agreements under which Plaintiffs bring their claims in these cases. Plaintiffs agree to answer the interrogatories within fourteen days. Within five days of receiving Plaintiffs' sworn answers, Abbott will communicate any follow-up questions to Plaintiffs. The parties agree to work in good faith to resolve issues related to any follow up-questions, but, if the parties are unable to reach agreement on any such issues, the parties may seek relief from the Court. 5. These stipulations do not preclude Abbott from introducing at trial portions of any

depositions given by a Plaintiff in response to an Abbott Rule 30(b)(6) deposition notice to it. If Abbott introduces evidence from a Plaintiff's Rule 30(b)(6) deposition at trial, these stipulations will not preclude that Plaintiff from offering testimony of its current and/or former employees in rebuttal to the Rule 30(b)(6) deposition testimony that Abbott has introduced. Both sides reserve all their rights to object to or otherwise challenge any such testimony. IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: Is! John D. Radice Linda P. Nussbaum John D. Radice KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue New York, NY 10011 Attorneys for MeUer, Inc., MeUer Distribution Inc. and the Direct Purchaser Class Is! Lauren C. Ravkind Scott E. Perwin Lauren C. Ravkind KENNY NACH WALTER 1100 Miami Center 201 South Biscayne Blvd. Miami, FL 33131 Attorneys for Safeway, Inc. Plaintiffs /s! Monica L. Rebuck Monica L. Rebuck HANGLEY ARONCHICK SEGAL & PUDLIN 30 N. Third Street, Suite 700 Harrisburg, PA 17101 Attorneys for Rite Aid Plaintiffs

Is! Andrew E. Aubertine Andrew E. Aubertine AUBERTINE DRAPER ROSE LLP 1211 SW Sixth Avenue Portland, Oregon 97204 Attorney for Louisiana Wholesale Drug Company, Inc. and Direct Purchaser Class

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STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6 120

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7357508.1 STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6120

Is! Joseph Opper Joseph Opper GAR WIN GERSTEIN & FISHER LLP 1501 Broadway, Suite 1416 New York, NY 10036 Attorneys for Louisiana Wholesale Drug Company, Inc.

Is! Daniel Simons Daniel Berger Eric L. Cramer Daniel C. Simons BERGER & MONTAGUE 1622 Locust Street Philadelphia, PA 19103-6305 Attorneys for Rochester Drug Co-Operative, Inc. and Direct Purchaser Class

/s! Michelle Friedland Michelle Friedland MIINGER, TOLLES & OLSON LLP th 560 Mission Street, 27 Floor San Francisco, CA 94 105-2907 Attorney for Abbott Laboratories

March 17, 2009 DATED: March 13, 2009
Judge Wilken United States District Court Northern District of California

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GENERAL ORDER 45 ATTESTATION I Michelle Friedland, am the ECF User whose ID and password was used to file
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this Joint Stipulation Regarding Plaintiffs' 30(b)(6) Depositions and the Use of Related Evidence at Trial. In compliance with General Order 45, X.B., I hereby attest that the counsel listed above concurred in this filing. DATED: March 13, 2009 Is! Michelle Friedland Michelle Friedland

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STIPULATION RE 30(b)(6) DEPOSITIONS AND THE USE OF RELATED EVIDENCE CASE NOS. 07-5470, 07-5985, 07-6120