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

Filing 310

DECLARATION re #308 Cross MOTION to Compel Third Party Fresenius Medical Care North America to Comply with Subpoena and Agreement to Produce, #309 Memorandum in Opposition to Motion, of Julian Brew by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Attachments: #1 Exhibit A and Exhibit B#2 Exhibit C through Exhibit M)(Toms, Keith)

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 310 Att. 2 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 1 of 26 �� Dockets.Justia.com Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 2 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 3 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 4 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 5 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 6 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 7 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 8 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 9 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 10 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 11 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 12 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 13 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 14 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 15 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 16 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 17 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 18 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 19 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 20 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 21 of 26 �� Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 22 of 26 Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 23 of 26 �� To "Mark Hebert" <Hebert@fr.com> 03/02/2007 12:46 PM cc "Mark Hebert" <Hebert@fr.com>; mmayell@kayescholer.com bcc Subject Re: Amgen/Roche Litigation Mark -I am not sure which of the conditions you find unacceptable. The only one you mentioned on our call was the date for Fresenius to produce its documents in response to Roche's subpoena. We have briefly reviewed your motion, and note that you still do not provide a date for that production to be completed. Perhaps you could tell me when Fresenius intends to complete its production -- or even begin its production -- pursuant to our agreement. Otherwise, in our response to your motion, we will also have no choice but to ask the Court to also order Fresenius to comply with its agreements and produce its own documents by the end of next week. Mark, while I do not live in Boston, I practice law with courtesy and respect. But courtesy is a two way street. And I do not think that courtesy is reflected in your repeated failures to respond to meet and confer efforts on our subpoena, nor is it reflected in your current refusal to even state when Fresenius intends to produce documents it has agreed to produce in response to a subpoena that was served on Fresenius nearly two months ago. As always, I can be reached at the number below and look forward to hearing from you. Julian Brew Kaye Scholer LLP Phone: (310) 788-1147 Fax: (310) 229-1947 "Mark Hebert" <Hebert@fr.com> To <jbrew@kayescholer.com> 03/02/2007 12:28 PM cc <mmayell@kayescholer.com>; "Mark Hebert" <Hebert@fr.com> Subject Re: Amgen/Roche Litigation Julian - Unfortunately, we have no choice but to file a motion for protective order to protect fresenius' rights. I told you yesterday that we would likely have to that . The conditions you have raised are simply impossible. As you know, I needed to be in federal court in NJ today, and I asked you for the courtesy of giving us a one day extension of time until Monday to file our motion, but this you refused to do. Thus, we have no choice but to file our motion today. Frankly, I do not know why you refused this simple courtesy, but Please be advised that this is simply not the way we practice law in Boston. Mark -------------------------Sent from my BlackBerry Wireless Device Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 24 of 26 ----- Original Message ----From: jbrew@kayescholer.com <jbrew@kayescholer.com> To: Mark Hebert Cc: mmayell@kayescholer.com <mmayell@kayescholer.com> Sent: Thu Mar 01 18:30:12 2007 Subject: Amgen/Roche Litigation Mark: Per your request, I am including in the text of this e-mail the text of a letter I am faxing you this afternoon. I am available to discuss at your earliest convenience. Mark J. Hebert, Esq. FISH & RICHARDSON P.C. 225 Franklin Street Boston, Massachusetts 02110-2804 Re: Amgen, Inc. v. Hoffmann-La Roche Ltd., et al. Civil Action No. 05 CV 12237 WGY (D. Mass.) Dear Mark: This letter is in response to your request that Amgen have additional time to produce certain Fresenius documents Amgen has sent you that Amgen has been ordered to produce by this Friday, March 2, 2007, in connection with the above action. We understand that, notwithstanding the Court's Order for production, Amgen sent these documents to Fresenius to review for unspecified confidential Fresenius material. You agree that Fresenius does not and will not object to Amgen producing of any of the categories of documents Fresenius has agreed to produce in response to Roche's subpoena to Fresenius, as confirmed in my last letter to you, but Fresenius does not know what else is included and may assert a right to object to production of some other material. You also told us that, despite your repeated requests to Amgen to send you these documents earlier, Amgen did not send them until yesterday, and that you still do not know what is included in them. At the outset, let me make clear that it is our position that Amgen is under a Court order to produce documents related to the Fresenius contract, among others. Any further delay in production is highly prejudicial to Roche given the current discovery schedule, and it is simply unfair that Roche be prejudiced by Amgen's delay., Furthermore, we do not agree that there is a basis for Fresenius to object to Amgen's compliance with the Court's Order, nor should anything herein suggest or concede that Amgen can refuse to produce any documents. That said, you have requested a professional courtesy, and we are prepared to do the following: 1. We will extend to next Wednesday, March 7, the time for Amgen to produce only those documents that were sent to Fresenius yesterday. It is our position that Amgen must have completed production of those documents by the close of business that day. We do not agree to any extension to Amgen's obligation to produce by tomorrow responsive documents related to Fresenius that were not sent to Fresenius for review. 2. Amgen will begin producing documents on a rolling basis starting Monday, with a good faith effort to produce at least a third of them each day. Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 25 of 26 3. Amgen will produce at a minimum the complete Fresenius contract (including all addenda, etc.) on Monday, March 5. I note that you have already agreed to production of that document also by Fresenius, so that should not be an issue at all. 4. Because this process will delay Roche receiving relevant Fresenius documents from even Amgen, Fresenius will also complete production of its own documents in response to the Roche subpoena by the close of business next Friday, March 9, 2007, as narrowed by our agreement reflected in our recent correspondence. Please let me know tomorrow whether Fresenius agrees to these conditions. Please also understand that, if Fresenius does not intend to complete its production of documents within this time frame, we will have no choice but to bring an emergency motion to compel immediate compliance with the Roche subpoena served more than a month ago. I look forward to hearing from you. Sincerely, Julian Brew JB:dgc cc: Deborah Fishman, Esq. Krista Carter, Esq. (counsel for Amgen. Inc.) Julian Brew Kaye Scholer LLP Phone: (310) 788-1147 Fax: (310) 229-1947 * * * * IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with Treasury Department regulations, we inform you that any U.S. federal tax advice contained in this correspondence (including any attachments) is not intended or written to be used, and cannot be used for the purpose of (i) avoiding penalties that may be imposed under the U.S. Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. ****************************************************************************** ********************************************** This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized use or disclosure is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. IRS CIRCULAR 230 DISCLOSURE: Any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be Case 1:05-cv-12237-WGY Document 310-3 Filed 03/05/2007 Page 26 of 26 used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. ****************************************************************************** **********************************************

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