Idenix Pharmaceuticals Inc. et al v. Gilead Sciences Inc. et al

Filing 452

MEMORANDUM ORDER re Schinazi deposition. Signed by Judge Leonard P. Stark on 12/4/16. Associated Cases: 1:13-cv-01987-LPS, 1:14-cv-00109-LPS, 1:14-cv-00846-LPS (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

IDENIX PHARMACEUTICALS LLC,
UNIVERSITA DEGLI STUDI di CAGLIARI,
CENTRE NATIONAL de la RECHERCHE
SCIENTIFIQUE, and
L’UNIVERSITÉ de MONTPELLIER,
Plaintiffs,
v.

Civil Action No. 13-1987-LPS

GILEAD SCIENCES, INC. and GILEAD
PHARMASSET LLC,
Defendants.
______________________________________________
IDENIX PHARMACEUTICALS LLC,
UNIVERSITA DEGLI STUDI di CAGLIARI,
CENTRE NATIONAL de la RECHERCHE
SCIENTIFIQUE, and
L’UNIVERSITÉ de MONTPELLIER,
Plaintiffs,
v.

Civil Action No. 14-109-LPS

GILEAD PHARMASSET LLC,
Defendant.
______________________________________________
IDENIX PHARMACEUTICALS LLC and
UNIVERSITA DEGLI STUDI di CAGLIARI,
Plaintiffs,
v.

Civil Action No. 14-846-LPS

GILEAD SCIENCES, INC.,
Defendant.

MEMORANDUM ORDER
At Wilmington this 4th day of December, 2016:
IT IS HEREBY ORDERED that:
1.

On December 3, 2016, the parties – which the Court will refer to generally as

“Idenix” or “Plaintiffs” and “Gilead” or “Defendants” – filed a lengthy letter advising the Court
of “unresolved disputes regarding” deposition testimony of Dr. Raymond Schinazi and related
documents. (C.A. No. 14-846 D.I. 489 at 1) Because the disputed testimony and exhibits may
be used by Idenix during opening statements at trial tomorrow, the parties’ letter presenting these
disputes is timely.
2.

Nonetheless, the format in which the parties have presented their disputes is not

consistent with the pretrial order, which states:
Any unresolved objections will be submitted to the Court in a joint
submission . . . . The joint letter shall (i) include a copy of the
entire proposed testimony of the witness at issue, clearly
highlighting the designations; and (ii) a cover letter identifying the
pending objections, as well as a brief indication (no more than one
sentence per objection) of the basis for the objection and the
offering party’s response to the objection. Failure to comply with
these procedures, absent agreement by the parties and approval by
the Court, will result in waiver of the use of the testimony or
waiver of objection to the use of the testimony.
(Pretrial Order at pp. 11-12) (emphasis added)
3.

Gilead’s objections to “Issue 1” and “Issue 2” are OVERRULED as they have

been waived due to Gilead’s noncompliance with the PTO. Instead of “one sentence per
objection,” Gilead provides 1 ½ pages of single-spaced text elaborating on its objection with
respect to Issue 1, and a similarly lengthy explanation of its views on Issue 2. Idenix has not

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agreed to this approach and the Court has not approved it.1
In essence, Gilead, by stating objections (based on a single issue) to nearly the entirety of
the Schinazi testimony, has filed another motion in limine, which is also not permitted at this
time under the PTO (and exceeds the Court’s limit of three such motions per side). If Gilead felt
that the “one sentence per objection” limit did not provide sufficient opportunity for Gilead to be
heard on its objections, Gilead should still have complied with the PTO, limited its explanation
in the letter to one sentence per objection, and requested an opportunity to discuss the issue at
greater length at trial tomorrow, before the Court brings in the jury. The PTO makes this
procedure available to the parties – and, appropriately, requires them to use a portion of their
allotted trial time for issues they deem worthy of it.
4.

Gilead’s objection to Issue 1 is OVERRULED for the additional reason that, on

the merits, the Court agrees with Idenix as to the relevance of Schinazi’s testimony to issues that
are properly part of Idenix’s case-in-chief, including willfulness and damages. Each side will be
permitted to present evidence to support its view that it is the innovator and the other side is not,
and may do so as part of its case-in-chief and during other portions of the trial. The Court has
never indicated that such evidence is not relevant to willful infringement. Nor is the Court
persuaded that the law absolutely precludes pre-patent conduct from being probative of
willfulness; the broad proposition Gilead presses is not supported by the authorities it cites. See
generally Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1933 (2016) (“[C]ulpability is
generally measured against the knowledge of the actor at the time of the challenged conduct.”)
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It is clear that the parties understand what the PTO requires for “briefing” objections to
deposition testimony, as pages 7 through 9 of yesterday’s letter appropriately address seven
additional objections in a total of barely more than two pages of text.
2

(emphasis added). Schinazi’s alleged conduct arguably reflects his (and by extension Gilead’s)
recognition of the value of Idenix’s purported invention, as well as his knowledge (at the time of
the challenged conduct) of Idenix’s pre-patent work.
5.

Gilead’s objection to Issue 2 is OVERRULED for the additional reason that, on

the merits, the emails and related testimony constitute a party admission and are admissible under
Federal Rule of Evidence 801(d)(2). See also Marra v. Philadelphia Hous. Auth., 497 F.3d 286,
299 n.9 (3d Cir. 2007) (“[The] personal knowledge requirement does not apply to party
admissions.”). Gilead’s contentions regarding speculation, and its disputes as to whether the
evidence on the whole supports the inferences Idenix will ask the jury to draw, go to the weight
and not admissibility of the challenged evidence. Idenix has pointed to adequate foundation.
The probative value of the evidence substantially outweighs the risk of unfair prejudice to
Gilead.
6.

Gilead’s objection to Issue 3 is OVERRULED. The testimony is relevant to

showing bias; its probative value is not substantially outweighed by the risk of unfair prejudice.
Moreover, a party relying affirmatively on a witness’ testimony is permitted also to attempt to
question that witness’ credibility. See Fed. R. Evid. 607.
7.

Gilead’s objection to Issue 4 is OVERRULED. The prior testimony is admissible

under Federal Rule of Evidence 804(b)(1) and is proper impeachment.
8.

Gilead’s objection to Issue 5 is OVERRULED. The prior testimony is admissible

under Federal Rule of Evidence 804(b)(1) and is proper impeachment.
9.

Gilead’s objection to Issue 6 is OVERRULED. The testimony is relevant; its

probative value is not substantially outweighed by the risk of unfair prejudice.
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10.

Gilead’s objection to Issue 7 is OVERRULED. The testimony is relevant at least

to showing bias; its probative value is not substantially outweighed by the risk of unfair
prejudice.
11.

Gilead’s objection to Issue 8 is OVERRULED. The testimony is relevant; its

probative value is not substantially outweighed by the risk of unfair prejudice.
12.

Idenix’s objection to Gilead’s counter designations (Issue 9) is OVERRULED.

Idenix’s vague reference to “protective order issues” does not constitute a meritorious objection
to the designated testimony.2

/s/
________________________________
HONORABLE LEONARD P. STARK
UNITED STATES DISTRICT JUDGE

2

Moreover, it appears that the protective order in the other litigation contemplates the
possibility that evidence protected in that action might be needed in another action. See
generally C.A. No. 13-mc-23485-MGC Document 10 (S.D. Fl. 10/24/13) at ¶ 10 (setting out
notice requirements for when “another court . . . orders production of any materials subject to the
terms of this Protective Order”).
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