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

Filing 1099

MOTION to Quash Subpoena Ad Testificandum Served on Third Party Bruce Spinowitz, M.D. by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc..(Toms, Keith)

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 1099 Case 1:05-cv-12237-WGY Document 1099 Filed 09/22/2007 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN, INC., Plaintiff, v. Civil Action No. 05-CV-12237 WGY F. HOFFMANN-LA ROCHE, LTD., ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE, INC. Defendants. ROCHE'S MOTION TO QUASH SUBPOENA AD TESTIFICANDUM SERVED ON THIRD PARTY BRUCE SPINOWITZ, M.D. Dr. Bruce Spinowitz and F. Hoffmann-La Roche, Ltd, Roche Diagnostics GmbH, and Hoffmann-La Roche, Inc. (collectively "Roche") respectfully move pursuant to Fed. R. Civ. P. 26 and 45, and F.R.E. 611 for an order from this Court quashing the Subpoena Ad Testificandum, which was served on Dr. Spinowitz. In the middle of his testimony, before he could even leave the Courtroom for the day, Amgen had a process server confront Roche expert, Dr. Bruce Spinowitz and thrust a subpoena at him that would require his attendance at Court on September 26, 2007.1 Amgen can have no legitimate purpose for serving this process, as Amgen never listed Dr. Spinowitz as a witness in their trial witness list, never mentioned wanting him as a witness to Roche, and never even asked Roche if he would appear voluntarily. In fact, despite repeated requests, Amgen has totally refused to explain why they served a subpoena on this physician and why they want this expert- Amgen has since indicated that they would require Dr. Spinowitz for October 2, 2007, but that letter still did not state any reason why this witness was subpoenaed in the Court. 744356_1 1 Case 1:05-cv-12237-WGY Document 1099 Filed 09/22/2007 Page 2 of 3 only witness at trial in their case.2 Thus, Dr. Spinowitz and Roche respectfully request that the Court grant this motion to quash the subpoena. In support of its motion, Dr. Spinowitz and Roche submit the accompanying memorandum of law. CERTIFICATE PURSUANT TO LOCAL RULE 7.1 I certify that counsel for the parties have conferred in an attempt to resolve or narrow the issues presented by this motion and that no agreement could be reached. After repeated attempts to elicit a response from Amgen, when confronted with a Rule 7.1 request for this motion, Amgen tersely and cryptically indicated that they wanted Dr. Spinowitz as a fact witness for injunction and infringement issues. This is frivolous as Amgen knows the Court has determined that the jury will not hear issues related to any injunctive relief should it be necessary to address that issue. 2 2 Case 1:05-cv-12237-WGY Document 1099 Filed 09/22/2007 Page 3 of 3 DATED: Boston, Massachusetts September 22, 2007 Respectfully submitted, BRUCE SPINOWITZ, M.D., and F. HOFFMANN-LA ROCHE LTD, ROCHE DIAGNOSTICS GMBH, and HOFFMANN-LA ROCHE INC. By their Attorneys, /s/ Keith E. Toms Lee Carl Bromberg (BBO# 058480) Julia Huston (BBO# 562160) Keith E. Toms (BBO# 663369) Nicole A. Rizzo (BBO # 663853) Kimberly J. Seluga (BBO# 667655) BROMBERG & SUNSTEIN LLP 125 Summer Street Boston, MA 02110 Tel: (617) 443-9292 Leora Ben-Ami (pro hac vice) Mark S. Popofsky (pro hac vice) Patricia A. Carson (pro hac vice) Thomas F. Fleming (pro hac vice) Howard S. Suh (pro hac vice) Peter Fratangelo (BBO# 639775) KAYE SCHOLER LLP 425 Park Avenue New York, NY 10022 Tel: (212) 836-8000 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 (NEF). Pursuant to agreement of counsel dated September 9, 2007, paper copies will not be sent to those indicated as non registered participants. /s/ Keith E. Toms Keith E. Toms 3099/501 744356.1 3

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