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

Filing 138

JOINT STATEMENT of counsel to Propose Amendments to LR 16.1(D) Scheduling Order. (Toms, Keith)

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

Doc. 138

Case 1:05-cv-12237-WGY

Document 138

Filed 11/06/2006

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

Civil Action No.: 05-12237 WGY

PROPOSED AMENDED LR 16.1(D) JOINT STATEMENT At the Rule 16.1 Conference with the Court on October 23, 2006, the Court invited the parties to confer and propose any changes to the Court's Rule 16.1 Order within two weeks. At that conference, the Court also scheduled this case to be placed on the running trial calendar for September 2007. The parties have conferred and reached agreement on a number of issues regarding the case management schedule, subject to the Court's approval, with the exception of depositions as discussed below. The parties respectfully request the following amendments to the currently adopted schedule (the proposed amended dates are in italics and underlined), but all other provisions of the Court's October 27 Order remain in full force and effect:

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EVENT

CURRENT DATE

PARTIES' AGREED PROPOSAL

INITIAL DISCLOSURES AND PLEADINGS Initial disclosures and information required by Fed. R. Civ. P. 26(a)(1) shall be exchanged by: All motions to join other parties (other than entities related to the current parties) shall be filed on or before: Roche shall file its Answer and Counterclaims on or before: All motions to amend the pleadings under Fed. R. Civ. P. 15(a) shall be filed on or before: November 6, 2006 No change

November 6, 2006

No change

November 6, 2006

No change

November 17, 2006

December 8, 2006

DISCOVERY Discovery may commence on: Interrogatories: October 24, 2006 A maximum of 40 unique interrogatories shall be permitted for each side. For example, Amgen (collectively with Ortho Biotech Products, L.P., if it is permitted to intervene) may serve the same 40 interrogatories on each of the Defendants, but may not serve 120 unique interrogatories by propounding different interrogatories to the different Defendants. No one interrogatory may require that a party explain its response to No change No change

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EVENT

CURRENT DATE more than one request for admission. Contention interrogatories may be served at any time during the discovery period, provided that they are served in sufficient time to permit responses to be timely served in accordance with the Federal Rules before the fact discovery cutoff.

PARTIES' AGREED PROPOSAL

Requests for Admission:

40 unique Requests for Admission Each party shall: (1) propound their initial requests for production of documents no later than October 30, 2006; (2) propound any additional requests for production of documents no later than December 15, 2006; (3) respond and produce documents according to applicable Federal Rules; and (4) complete production of all responsive documents by January 12, 2007.

No change

Document Production:

Each party shall: (1) propound their initial requests for production of documents no later than October 30, 2006; (2) propound up to two additional sets of requests for production of documents to be served at any time but no later than January 8, 2007; (3) respond and produce documents according to applicable Federal Rules; and (4) complete production of all responsive documents (including electronic documents) by February 16, 2007.

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EVENT

CURRENT DATE

PARTIES' AGREED PROPOSAL No change

All motions to compel must be Before the close of the filed: applicable discovery period. Fact discovery shall be completed by: March 9, 2007 (137 days after the commencement of discovery). April 2, 2007 (24 days after completion of fact discovery).

April 2, 2007

Initial reports of experts on issues for which a party bears the burden of proof are due on: Rebuttal reports of responding experts are due on:

April 6, 2007

April 20, 2007 (18 days after serving opening expert reports). April 30, 2007 (10 days after serving rebuttal expert reports).

April 27, 2007

Any party desiring to depose an expert witness shall notice and complete said deposition no later than:

May 11, 2007

CLAIMS CONSTRUCTION Both parties' opening briefs setting forth their respective claims construction positions shall be filed and served no later than: Both parties' responsive briefs shall be filed and served no later than: March 5, 2007 (before service of expert reports). No change

March 19, 2007 (14 days after opening Markman briefs).

No change

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EVENT Subject to the Court's schedule, a Markman hearing on construction of disputed claim terms shall be held:

CURRENT DATE Before April 2, 2007 (14 days after last Markman briefs.

PARTIES' AGREED PROPOSAL No change

DISPOSITIVE MOTIONS Any case dispositive motion pursuant to the Federal Rules of Civil Procedure shall be filed and served with an opening brief on or before: Any opposition to a case dispositive motion shall be filed and served within: Any reply in support of a case dispositive motion shall be filed and served within: Hearing on case-dispositive motions shall be held before: April 9, 2007 (21 days after last Markman briefs). May 18, 2007

14 days after service of the motion

No change

7 days after service of any opposition to such motion.

No change

At such time before the Trial Date that is convenient to the Court. PRE-TRIAL AND TRIAL

No change

Trial should commence in Courtroom No. 18, United States Courthouse, One Courthouse Way, Boston, Massachusetts, at 9:00 a.m. EDT on:

September 2007 Running Calendar

No change

The subject of depositions was not addressed in the parties' original Rule 16.1 Statement. While both parties agree that more than ten depositions per side (the default under L.R. is warranted given the issues for discovery in this case, the parties were unable to reach agreement

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on the appropriate number or method for calculating deposition discovery. Each party's respective position on deposition discovery is set forth below: EVENT AMGEN'S PROPOSAL DISCOVERY Depositions 105 hours of total deposition testimony per side (including third parties), excluding experts. 15 party depositions, excluding third-parties and experts, and 15 third -party depositions per side, subject to further application to the Court to modify this provision for good causes; Rule 30(b)(6) depositions: all deponents designated pursuant to a single notice shall constitute one witness for purposes of the number of allowed deposition witnesses, but no single deponent will be deposed for more than seven hours without consent of the producing party. ROCHE'S PROPOSAL

Respectfully submitted, F. HOFFMANN-LAROCHE, LTD., ROCHE DIAGNOSTICS GmbH, and HOFFMANN LAROCHE, INC., Defendants By their attorneys, _/s/ Keith E. Toms_________________________ LEE CARL BROMBERG (BBO#058480) JULIA HUSTON (BBO#562160) KEITH E. TOMS (BBO#663369) BROMBERG & SUNSTEIN LLP 125 Summer Street Boston, MA 02210 Telephone: [phone] __/s/ Deborah E. Fishman___________________ D. DENNIS ALLEGRETTI (BBO#545511) MICHAEL R.GOTTFRIED (BBO#542156) DUANE MORRIS LLP 470 Atlantic Avenue, Suite 500 Boston, MA 02210 Telephone: [phone] Facsimile: [phone] AMGEN INC., Plaintiff By its attorneys,

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LEORA BEN-AMI PATRICIA A. CARSON THOMAS F. FLEMING HOWARD SUH PETER FRATANGELO (BBO#639775) KAYE SCHOLER LLP 425 Park Avenue New York, NY 10022 Telephone: [phone]

LLOYD R. DAY, JR. DAVID M. MADRID LINDA A. SASAKI-BAXLEY DEBORAH E. FISHMAN DAY CASEBEER MADRID & BATCHELDER LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Telephone: [phone] Facsimile: [phone] WILLIAM GAEDE III McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] MICHAEL F. BORUN KEVIN M. FLOWERS MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago IL 60606 Telephone: [phone] Facsimile: [phone] Of Counsel: STUART L. WATT WENDY A. WHITEFORD MONIQUE L. CORDRAY DARRELL G. DOTSON MARYSUSAN HOWARD KIMBERLIN L. MORLEY AMGEN INC. One Amgen Center Drive Thousand Oaks, CA 91320-1789 Telephone: [phone]

November 6, 2006

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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 November 6, 2006.

__/s/ Keith E. Toms________________________

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