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

Filing 379

DECLARATION re #377 MOTION to Preclude Further Interference with Third-Party Discovery and Compel Production of Documents And Deposition Testimony, or in the Alternative, Motion to Strike Defendants? Defense Under 35 U.S.C. Section 271(e)(1), #378 Memorandum in Support of Motion, OF MARIO MOORE by Amgen Inc.. (Attachments: #1 Confidential Exhibit Coversheet#2 Exhibit 1#3 Exhibit 2#4 Exhibit 3# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9, Part 1 of 2# 10 Exhibit 9, Part 2 of 2# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 15# 15 Exhibit 16# 16 Exhibit 17# 17 Exhibit 18#18 Exhibit 19#19 Exhibit 20#20 Exhibit 21#21 Exhibit 22#22 Exhibit 25#23 Exhibit 26#24 Exhibit 27# 25 Exhibit 28# 26 Exhibit 29#27 Exhibit 30)(Gottfried, Michael) Additional attachment(s) added on 4/16/2007 (Paine, Matthew). Additional attachment(s) added on 4/16/2007 (Paine, Matthew).

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

Doc. 379 Att. 22

Case 1:05-cv-12237-WGY

Document 379-23

Filed 04/13/2007

Page 1 of 6

EXHIBIT 25

Dockets.Justia.com

Case 1:05-cv-12237-WGY

Document 379-23

Filed 04/13/2007

Page 2 of 6

From: Sent: To: Cc:

[e-mail] Wednesday, March 28, 2007 2:51 PM Fishman, Deborah Carter, Krista; Moore, Mario; Gottfried, Michael; Platt, Rachelle L.

Subject: RE: DaVita

I did respond, and you understand the scope, Thank You, Tom Fleming [e-mail] 212-836-7515

"Fishman, Deborah" <[e-mail]> 03/28/2007 05:48 PM

To

<[e-mail]>

cc "Carter, Krista" <[e-mail]>; "Moore, Mario" <[e-mail]>; "Gottfried, Michael" <[e-mail]>; "Platt, Rachelle L." <[e-mail]> Subject RE: DaVita

Dear Tom, You didn't answer my question regarding the two studies (ML20336 and ML20338) that you have instructed DaVita to withhold from its production. In order to avoid unnecessary motion practice, can you please do so? Thanks, Deborah
Deborah Fishman Day Casebeer Madrid Batchelder, LLP [e-mail]

From: [e-mail] [mailto:[e-mail]] Sent: Wednesday, March 28, 2007 2:42 PM To: Fishman, Deborah Cc: Carter, Krista; Moore, Mario; Gottfried, Michael; Platt, Rachelle L. Subject: RE: DaVita

Case 1:05-cv-12237-WGY

Document 379-23

Filed 04/13/2007

Page 3 of 6

Deborah: Amgen's post-hoc attempts at justifying its conduct are unpersuasive. Once you knew of the Court's restrictions, any efforts to circumvent the proscriptions of that ruling should have ceased. We did not expect Amgen to violate the Court's ruling, but once we learned of this activity we acted immeidately. I am not about to debate with you the clear scope of the Judge's order or the scope of protected activities under the law. I think our position is clear. Thank You, Tom Fleming [e-mail] 212-836-7515
"Fishman, Deborah" <[e-mail]> 03/28/2007 05:37 PM

To

<[e-mail]> "Gottfried, Michael" <[e-mail]>; "Carter, Krista" <[e-mail]>

cc "Moore, Mario" <[e-mail]>; "Platt, Rachelle L." <[e-mail]>; Subject RE: DaVita

Dear Tom, First of all, Amgen served its subpoena for documents on DaVita on January 12 and you have had a copy of it for more than two months. If you had objection to the scope of the discovery sought therein, you could have raised it with me before now or could have moved for protective order. You did neither. Instead, you chose to instruct a third party to withhold responsive information that it had already agreed to produce. This was totally inappropriate. More importantly, our agreement with DaVita was to provide a summary of any agreements between DaVita and Roche regarding studies on peg-EPO. Such information would include the protocol number and title of any on-going or planned study. Your instruction to withhold this information from production makes it impossible for Amgen to ascertain whether such studies are fairly characterized as clinical studies in support of registration (which Roche represented it would produce upon completion and submission to FDA) or a non-exempt current act of infringement. Clearly the latter was not the subject of Judge Young's Order or even within the scope of your "compromise position" which was premised on the burden of interfering with the conduct of studies in support of registration. It is hard to imagine how a third party providing a summary of extant agreements with Roche is a burden on Roche or interferes with the conduct of any of its ongoing studies. Do you represent that studies ML20336 and ML20338 have been or will be submitted to FDA in support of Roche's current BLA on Mircera? -Deborah
Deborah Fishman

Case 1:05-cv-12237-WGY
Day Casebeer Madrid Batchelder, LLP [e-mail]

Document 379-23

Filed 04/13/2007

Page 4 of 6

From: [e-mail] [mailto:[e-mail]] Sent: Wednesday, March 28, 2007 2:13 PM To: Fishman, Deborah Cc: Moore, Mario; Platt, Rachelle L.; [e-mail]; Alfred Heckel; [e-mail]; [e-mail] Subject: Re: DaVita Deborah: You have not accurately portrayed our conversation regarding the discovery from Davita regarding Mircera. We have just learned that Amgen has been speaking to Davita and other third parties about potential ongoing clinical trials without informing those third parties of the Court's prohibition on Amgen obtaining discovery about such trials. It is clear that Amgen is trying to circumvent the Court's clear Order by withholding this key information from witnesses in a deliberate and contumnacious fashion. Be advised, we have informed the third parties of the Court's restriction, and the basis for this restriction on Amgen's discovery, and have requested that they honor the Court's direction. If Amgen proceeds to disregard the Court's ruling and continues to mislead third parties and subvert the Court's ruling, we will take necessary action and seek relief from the Court including requesting appropriate sanctions against those involved. Thank You, Tom Fleming [e-mail] 212-836-7515
"Fishman, Deborah" <[e-mail]> 03/28/2007 04:37 PM To <[e-mail]> <[e-mail]> Subject DaVita

cc "Moore, Mario" <[e-mail]>; "Platt, Rachelle L."

Dear Tom, This is to confirm our discussion that you instructed DaVita to withhold from production information about its on-going studies with Roche re peg-EPO. As we discussed, it is our view that your instruction is entirely inappropriate, particularly where the third party does not itself object to the production and where neither you nor the third party have sought a protective order for this information. Please let me know immediately if you will withdraw your instruction to DaVita. Thank you, Deborah

Case 1:05-cv-12237-WGY
Deborah Fishman Day Casebeer Madrid Batchelder, LLP [e-mail]

Document 379-23

Filed 04/13/2007

Page 5 of 6

******************************************************************** Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by email and delete all copies of the message. ******************************************************************** * * * *

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. ******************************************************************** Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by email and delete all copies of the message. ******************************************************************** * * * *

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

Case 1:05-cv-12237-WGY

Document 379-23

Filed 04/13/2007

Page 6 of 6

another party any transaction or matter addressed herein. ******************************************************************** Confidentiality Notice This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by email and delete all copies of the message. ********************************************************************
* IRS CIRCULAR 230 DISCLOSURE: * * *

To ensure compliance with Treasury Department regulati