Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Filing 1097

Opposition re #1088 MOTION for Leave to File Under Seal Confidential Exhibit Submitted in Connection with Amgens Motion to Remove the Confidential Designation from the June 21, 2007 Deposition Transcript of Roches Expert Dr. Thomas Kadesch filed by Amgen Inc.. (Rich, Patricia)

Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Doc. 1097

Case 1:05-cv-12237-WGY

Document 1097

Filed 09/21/2007

Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN, INC., ) ) Plaintiff, ) ) v. ) ) F. HOFFMANN-LAROCHE LTD., ) a Swiss Company, ROCHE DIAGNOSTICS ) GMBH, a German Company, and ) HOFFMANN LAROCHE INC., a New ) Jersey Corporation, ) Defendants. ) )

Civil Action No. 05 CV 12237 WGY

AMGEN'S OPPOSITION TO ROCHE'S MOTION TO FILE UNDER SEAL EXHIBIT 2 SUBMITTED WITH AMGEN'S MOTION TO REMOVE THE "CONFIDENTIAL" DESIGNATION FROM THE JUNE 21, 2007 DEPOSITION TRANSCRIPT OF ROCHE'S EXPERT DR. THOMAS KADESCH Amgen respectfully requests that the Court deny Roche's motion to file the Kadesch deposition transcript excerpt under seal.1 Roche did not, and cannot, carry its burden under the Amended Protective Order, which states that "[n]o document shall be filed in Court under seal absent allowance of a particularized motion to seal that would be allowed only if the filing includes a trade secret."2 Because, as Roche tacitly admits, the excerpt of Dr. Kadesch's June 21, 2007 deposition transcript does not contain any trade secret of Roche, nor does it satisfy any other requirement for designation as "confidential" under the Amended Protective Order,3 Roche's motion to file the excerpt under seal should be denied. Roche's Motion To File Under Seal Confidential Exhibit Submitted In Connection With Amgen's Motion To Remove The "Confidential" Designation From The June 21, 2007 Deposition Transcript Of Roche's Expert Dr. Thomas Kadesch (Docket No. 1088). Amended Protective Order (Docket No. 274), ¶ 14 (emphasis added); see also Docket No. 159 at 2.
3 2 1

See Amended Protective Order at ¶¶ 2-4 (defining certain categories of discovery materials as "Confidential," "Highly Confidential," and "Restricted Access Confidential.").

Dockets.Justia.com

Case 1:05-cv-12237-WGY

Document 1097

Filed 09/21/2007

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Roche's surprise announcement4 in its motion to seal that Dr. Kadesch will not testify at trial neither renders Amgen's motion5 moot nor has any bearing on the Court's disposition of Roche's motion to file under seal. Even if this gambit could render the Kadesch testimony inadmissible, which it cannot, Roche's argument confuses the admissibility of the transcript excerpt with its confidentiality. Amgen has not moved the Court to admit the transcript excerpt into evidence; it has only asked the Court to remove the illegitimate confidentiality designation applied by Roche. The admissibility of the testimony has no bearing on the question before the Court, which is whether the transcript excerpt contains any "confidential" information under the Amended Protective Order. Because it does not, Amgen's motion should be granted and Roche's motion denied. Finally, Roche's unsubstantiated accusation of Amgen's improper motive is likewise irrelevant to the issue before the Court. The transcript excerpt does not contain any confidential information of any party. Consequently, it should not be maintained as confidential under the Amended Protective Order, under which a subscriber agrees, inter alia, "[t]o use such Confidential Discovery Materials solely for purposes of this litigation . . . ." 6 Where confidentiality designations are misused, as Roche has done with the Kadesch transcript, seeking relief from this Court is entirely proper and, indeed, is explicitly provided for

Roche's statement in its motion that it "has informed Amgen that it will not be calling Dr. Kadesch during any phase of this trial" (Docket No. 1087 at 1) is false. To the contrary, Roche has repeatedly notified Amgen that Dr. Kadesch would testify at trial; most recently, Roche gave notice that Dr. Kadesch was expected to testify on September 12. Roche never subsequently withdrew Dr. Kadesch as a witness and has consistently and unilaterally asserted its right to modify its witness list at any time.
5

4

See Amgen's Motion To Remove The "Confidential" Designation From The June 21, 2007 Deposition Transcript of Roche's Expert Dr. Thomas Kadesch (Docket No. 1063).
6

See Amended Protective Order (Docket No. 274), Attachment A at 2 (emphasis added). 2

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Case 1:05-cv-12237-WGY

Document 1097

Filed 09/21/2007

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in the Amended Protective Order, ¶ 8. In accordance with the Amended Protective Order, Amgen respectfully requests that the Court deny Roche's motion to seal (Docket No. 1088), and grant Amgen's motion to remove Roche's inappropriate "confidential" designation from the June 21, 2007 deposition transcript of Dr. Thomas Kadesch (Docket No. 1063). Dated: September 21, 2007 Respectfully Submitted, AMGEN INC., By its attorneys, Of Counsel: Stuart L. Watt Wendy A. Whiteford Monique L. Cordray Darrell G. Dotson Kimberlin L. Morley Erica S. Olson AMGEN INC. One Amgen Center Drive Thousand Oaks, CA 91320-1789 [phone] /s/ Patricia R. Rich D. Dennis Allegretti (BBO#545511) Michael R. Gottfried (BBO# 542156) Patricia R. Rich (BBO# 640578) DUANE MORRIS LLP 470 Atlantic Avenue, Suite 500 Boston, MA 02210 Telephone: [phone] Facsimile: [phone] Lloyd R. Day, Jr. (pro hac vice) DAY CASEBEER, MADRID & BATCHELDER LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Telephone: [phone] Facsimile: [phone] William G. Gaede, III (pro hac vice) McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] Kevin M. Flowers (pro hac vice) MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago, IL 60606 Telephone: [phone] Facsimile: [phone] 3
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CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of electronic filing and paper copies will be sent to those indicated as non-registered participants on September 21, 2007. /s/ Patricia R. Rich Patricia R. Rich

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