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

Filing 387

MOTION for Leave to File A Reply To Defendants' Opposition To Amgen Inc's Motion To Deem Its Opposition To Defendants' Motion To Compel Production Of Documents Improperly Withheld On The Grounds Of Privilege And Exhibit 1 To The Opposition Confidential by Amgen Inc.. (Attachments: #1 Exhibit A)(Rich, Patricia)

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

Doc. 387 Att. 1

Case 1:05-cv-12237-WGY

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Filed 04/13/2007

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EXHIBIT A

Dockets.Justia.com

Case 1:05-cv-12237-WGY

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

Civil Action No.: 1:05-cv-12237 WGY

AMGEN INC.'S REPLY TO DEFENDANTS' OPPOSITION TO AMGEN'S MOTION TO DEEM ITS OPPOSITION TO DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS IMPROPERLY WITHHELD ON GROUNDS OF PRIVILEGE AND EXHIBIT 1 TO THE OPPOSITION CONFIDENTIAL. Roche's latest opposition again misses the point of Amgen's motion completely. As with Amgen's earlier filing on this matter, Amgen's filing (Docket No. 366) addresses the same situation that its earlier motion addressed (Docket No. 345) and is therefore a situation neither contemplated nor addressed by Court's November 30, 2006 Order (Docket No. 159) or the Amended Protective Order (Docket No. 274). That is the situation of making public another party's attorney-client privileged and/or work-product protected information prior to the Court resolving the dispute. Both these orders addressed "trade secrets" but did not address one of the oldest privileges for confidential information ­ attorney-client privilege. Roche has asserted that Amgen waived its attorney-client privilege and work-product privilege in this case. Roche has submitted documents containing what it has alleged contains Amgen's privileged information. While Amgen does not agree with Roche's assertions that the documents are privileged, if the

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Court finds Roche is correct, the information should enter the public domain only after the Court has resolved Roche's motion.1 As with Roche's earlier claim for sanctions, sanctions are not warranted here because Amgen's motion falls outside of the Court's November 30, 2006 Order and the Amended Protective Order. Notwithstanding Roche's assertions to the contrary, Amgen has not abused the protective order nor ignored the Court's orders. The matter before the Court concerns material that Roche has alleged is privileged and until the Court rules on Roche's underlying motion the material should not be made public. Amgen's actions have been taken in good faith and clearly do not give rise to sanctions, especially the extreme sanctions that Roche has requested. Accordingly, Roche's request for sanctions should be denied. Amgen respectfully requests the court to order its Opposition and Exhibit 1 to the Opposition confidential and filed under seal until the Court resolves this motion. The Court should deny Roche's request for sanctions. April 13, 2007 Of Counsel: Stuart L. Watt Wendy A. Whiteford Monique L. Cordray Darrell G. Dotson Kimberlin L. Morley Erica S. Olson AMGEN INC. One Amgen Center Drive Thousand Oaks, CA 91320-1789 [phone] Respectfully Submitted, AMGEN INC., /s/ Patricia R. Rich D. Dennis Allegretti (BBO# 545511) Michael R. Gottfried (BBO# 542156) Patricia R. Rich (BBO# 640578) DUANE MORRIS LLP 470 Atlantic Avenue, Suite 500 Boston, MA 02210 Telephone: [phone] Facsimile: [phone]

Roche implies that Amgen has not briefed the Court on why the Court should grant Amgen's motion to deem certain documents Roche filed confidential. That is not true. Amgen's papers filed contained detailed reasons why the Court should grant its motion. The Court has been briefed of why the documents should be deemed confidential. Roche has been put on notice of the motions and Amgen's bases for the motion. 2

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Lloyd R. Day, Jr. (pro hac vice) DAY CASEBEER MADRID & BATCHELDER LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Telephone: [phone] Facsimile: [phone] William G. Gaede III (pro hac vice) McDERMOTT WILL & EMERY 3150 Porter Drive Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] Kevin M. Flowers (pro hac vice) MARSHALL, GERSTEIN & BORUN LLP 233 South Wacker Drive 6300 Sears Tower Chicago, IL 60606 Telephone: [phone] Facsimile: [phone]

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CERTIFICATE OF SERVICE I hereby certify that this document filed through the Electronic Case Filing (ECF) system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on April 13, 2007. /s/ Patricia R. Rich Patricia R. Rich

DM1\1091670.1