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

Filing 372

DECLARATION re #371 Opposition to Motion, OF DR. JONATHAN LOEB IN SUPPORT OF AMGEN INC.'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL CONTINUED DEPOSITION OF DR. THOMAS STRICKLAND AND PRODUCTION OF RELATED DOCUMENTS by Amgen Inc.. (Attachments: #1 Exhibit 1#2 Exhibit 2#3 Exhibit 3#4 Exhibit 4#5 Exhibit 5#6 Exhibit 6#7 Exhibit 7#8 Exhibit 8#9 Exhibit 9#10 Exhibit 10#11 Exhibit 11#12 Exhibit 12)(Gottfried, Michael)

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 372 Att. 9 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 1 of 17 Dockets.Justia.com Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 2 of 17 Strickland, Thomas (Confidential) 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN, INC., Plaintiff, 5 v. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen Civil Action No. 05-CV-12237-WGY F. HOFFMANN-LA ROCHE, LTD., a Swiss Company, ROCHE DIAGNOSTICS GmbH, a German Company, and HOFFMANN LA ROCHE, INC., a New Jersey Corporation, Defendants. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CONFIDENTIAL VIDEOTAPED DEPOSITION OF THOMAS WAYNE STRICKLAND VOLUME I LOS ANGELES, CALIFORNIA MARCH 9, 2007 (This transcript is designated CONFIDENTIAL as per Section 5(c) of the Amended Protective Order. Please treat the entire transcript in accordance with the protective order.) Reported by: Harry Alan Palter, C.S.R. NO. 7708 Page 1 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 3 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appearances: For Plaintiffs: Day Casebeer Madrid & Batchelder By: Jonathan Loeb, Ph.D., Esq. 20300 Stevens Creek Boulevard Suite 400 Cupertino, California 95014 408.342.4578 Fax 408.873.0220 E-mail: jloeb@daycasebeer.com Amgen By: Wendy A. Whiteford, Esq. One Amgen Center Drive Thousand Oaks, California 91320-1799 805.447.1008 Fax 805.447.1090 E-mail: wendy@amgen.com For Defendants: Kaye Scholer LLP By: Christopher T. Jagoe, Esq. Graham Pechenik, Esq. 425 Park Avenue New York, New York 10022-3598 212.836.7203 Fax 212.836.8689 E-mail: cjagoe@kayescholer.com gpechenik@kayescholer.com Amgen Page 2 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 4 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen Appearances: For Defendants: Bromberg Sunstein LLP By: Timothy M. Murphy, Esq. 125 Summer Street Boston, Massachusetts 02110-1618 617.443.9292 Fax 617.443.0004 E-mail: tmurphy@bromsun.com Also Present: Adriane Castro, Videographer VIDEOTAPED DEPOSITION OF THOMAS WAYNE STRICKLAND, Volume I, taken at 1999 Avenue of the Stars, 16th Floor, Los Angeles, California, on Friday, March 9, 2007, from 9:10 a.m. to 7:00 P.M., before Harry Alan Palter, Certified Shorthand Reporter No. 7708, in and for the State of California. Page 3 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 5 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen THOMAS WAYNE STRICKLAND, having been duly administered an oath in accordance with California Code of Civil Procedure Section 2094, was examined and testified as follows: THE VIDEOGRAPHER: EXAMINATION BY MR. JAGOE: Q A Q Please begin. Can you please state your full name Thomas Wayne Strickland. And you are -DR. LOEB: Before you get started, for the record. just a couple housekeeping points I'd like to make, if you don't mind. First of all, as you know, we have offered Dr. Strickland both in his personal capacity and as to some limited 30(b)(6) topics. hours. You've suggested that you'll make Page 11 Because of the 30(b)(6), we've offered to continue the deposition for more than seven Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 6 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen your best effort to finish this evening. If absolutely necessary, we can continue for a couple hours tomorrow. But We're willing to go past 5:00 o'clock, certainly. having offered these accommodations, we've made perfectly clear that we will not provide Dr. Strickland again later in the month. I understand that you wish to begin with Dr. Strickland's personal deposition. That's fine, with the understanding that Dr. Strickland is not speaking for Amgen, until you've indicated that you're moving to a 30(b)(6) deposition. Lastly, your request, we have brought 25 Amgen lab notebooks with us today. free to look at those as you wish. You're You may examine them, but you may not remove them from this room, nor may you tamper with the redactions that are present on some of the lab notebooks. You can ask for a specific lab notebook, and we'd be glad to give it to you at any time, but we'll take it back before we give you another one. Note also that Roche has requested, and we have provided, more than a week ago, at Page 12 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 7 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen significant expense and effort, excellent color copies of many pages of Dr. Strickland's lab notebooks. And so you have had a chance to review very good copies for quite a while now and, therefore, we think that you've had an adequate opportunity to review Dr. Strickland's materials before this deposition. MR. JAGOE: quick response. Well, I'll just make a Not that one is necessary, but it should be known that Dr. Strickland was noticed for deposition several weeks ago, and it was only on March 6th when you identified him as a 30(b)(6) witness, and it was only last night when you supplemented your Rule 26 disclosures, identifying Dr. Strickland as a person having certain knowledge in certain areas. And we agreed yesterday we would try to finish today. If we don't finish today, we will continue at another time. It's not Amgen's decision whether or not Dr. Strickland will appear. reached. So we'll proceed with the deposition. Page 13 That will be decided by the Court, if an agreement can't be Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 8 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen than one notebook -- they weren't actual physical -- physically different entities. And the -- with the subject matter of the -- the pegylation of EPO. DR. LOEB: Chris, I don't mean to Seems to me interrupt, but you're getting into talking about the 30(b)(6) preparation. just for organizational purposes, why don't you leave that until you do a 30(b)(6) deposition. Otherwise we're going to be going back and forth between -MR. JAGOE: Well, I think this way, it will work out all right. If you see a big problem in the record that I'm making, then let me know. I think this record will be clear. BY MR. JAGOE: Q So you reviewed certain photocopies -- excerpts of some of your lab notebooks; correct? A Q A Q The meeting with Mr. Gaede? Right. Yes. All these questions now are directed But to your preparation, as the 30(b)(6) witness, Page 23 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 9 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen A Q A The -- the meeting with Mr. Gaede? Mr. Gaede and Mr. Loeb. Well, there was -- there were -- there were other parts of the day other than that meeting, that were in preparation for the -Q Okay. Let's talk about just the part of the meeting that was in preparation for the 30(b)(6) deposition. DR. LOEB: Chris, before you continue, I want to point out that when you started asking Dr. Strickland about the subject matter of pegylation, it's now become unclear and ambiguous whether you're in 30(b)(6) mode or his personal mode. want to have answered. MR. JAGOE: DR. LOEB: Do you want that answer I'm comfortable with that But I would being on behalf of Amgen? answer being on behalf of Amgen. And that's what I don't prefer it if you made a clear separation between the 30(b)(6) and the personal deposition. If you would prefer to do the Page 28 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 10 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen 30(b)(6) first, I don't have a problem with that, either. Just do one or the other. I'm not going to break up MR. JAGOE: the deposition total 30(b)(6), total personal. I think the questions now are clearly directed to 30(b)(6) topics in preparation for 30(b)(6) topics, and I -- it's my intention that all the questions right now go to that topic. So if you think that I'm asking something that's not included in the 30(b)(6) topic you've designated him for, then you can make your statement, or save it for some other time to tell the judge. want. BY MR. JAGOE: Q So I'm talking now about the meeting that you had, in preparation for your 30(b)(6) topics, with Mr. Gaede and Mr. Loeb that occurred yesterday. And you're telling me what documents you've reviewed. And other than what you've already identified, can you recall reviewing any other documents? Page 29 But I think my record is clear, and I can make my record the way I Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 11 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen If you think my question is unclear, then you can ask me to clarify, if I'm using a term that you don't think is -- you understand or is fitting, then please ask me to fix it before you answer the question. A Q A Q A Q Yes. Is there any reason that you can't No. Are you under any medication? Are you taking any medication? No. And do you have any medical or give full and truthful answers today? emotional problems that would prevent you from testifying honestly today? A Q No. Now, you received a Ph.D. in 1981? DR. LOEB: Okay. Now I need to stop you. Are we talking about his fact deposition or his 30(b)(6) deposition? MR. JAGOE: DR. LOEB: Fact. I'm going to assume you're You received a Ph.D. -taking his fact deposition, until you tell me Page 59 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 12 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen Amgen units and not international units for in vivo activity? DR. LOEB: not in evidence. THE WITNESS: MR. JAGOE: I -- I don't have any Let's mark this document 19. specific recollection of that. as Strickland exhibit -- what are we up to? THE REPORTER: MR. JAGOE: DR. LOEB: leave. What time do you want to start tomorrow morning? MR. JAGOE: we finish today. DR. LOEB: No. We're leaving. It's been 10 hours. We arrived at 9:00 A.M., sharp, as you have requested. And we have, very patiently, sat Page 376 Objection. Assumes facts Calls for speculation. 19? Chris, I'm afraid to say, (Exhibit 19 marked) it's 7:00 o'clock, and it's time for us to I told you, we're not We're staying until starting tomorrow morning. Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 13 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen through the questions. So -MR. JAGOE: But 10 hours in one day is enough for any witness. You said you would stay We late to finish and go beyond 7 hours. DR. LOEB: here for 10 hours. MR. JAGOE: been on the record? DR. LOEB: MR. JAGOE: 23 minutes. MR. JAGOE: go now. DR. LOEB: We can't. MR. JAGOE: schedule another time. haven't -- only been 7 hours on the record yet. I don't know how many hours we've been on the record, but we've been How many hours have we Would you like to start I can't agree to that. 7 hours and again on Monday morning? THE VIDEOGRAPHER: We have another hour to I'm sorry. It's been too long. Then we'll have to I'm willing to finish now. Do you have any problems staying for another hour, Dr. Strickland? DR. LOEB: Tom, it's time to go. Page 377 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 14 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen Take your microphone off. THE WITNESS: going with them. MR. JAGOE: deposition, then. THE VIDEOGRAPHER: the record, Counsel? MR. JAGOE: DR. LOEB: 25 minutes now. MR. JAGOE: Okay. We'll stay on the record, 'cause I'm going to ask some more questions. DR. LOEB: empty chair. MS. WHITEFORD: exhibits? DR. LOEB: (Mumbling) THE REPORTER: you're saying. Page 378 If they're leaving, I'm We'll have to meet again for the final topic of your 30(b)(6) Are we going off Did you say how many He did. 7 hours and about hours we were on the record? THE VIDEOGRAPHER: You can ask them to an Want to take the Yes. These are for us. I can't hear what Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 15 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen 7:03 P.M. (The deposition concluded at 7:03 P.M.) * * * Page 380 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 16 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen DECLARATION UNDER PENALTY OF PERJURY I, Thomas Wayne Strickland, do hereby certify under penalty of perjury that I have read the foregoing transcript of my deposition taken March 9, 2007; that I have made such corrections as appear noted herein, in ink, initialed by me; that my testimony as contained herein, as corrected, is true and correct. DATED this _______ day of ______________, 20____, at ___________________, California. ____________________________ Thomas Wayne Strickland Page 381 Case 1:05-cv-12237-WGY Document 372-10 Filed 04/11/2007 Page 17 of 17 Strickland, Thomas (Confidential) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amgen REPORTER'S CERTIFICATION I, Harry Alan Palter, Certified Shorthand Reporter, in and for the State of California, do hereby certify: That the witness named in the foregoing deposition was, before the commencement of the deposition, duly administered an oath in accordance with Code of Civil Procedure Section 2094; that the testimony and proceedings were reported stenographically by me and later transcribed into computer-aided transcription under my direction; that the foregoing is a true record of the testimony and proceedings taken at that time. IN WITNESS WHEREOF, I have subscribed my name this 11th day of March, 2007. _______________________________ Harry Alan Palter, CSR No. 7708 Page 382

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