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

Filing 402

Opposition re #398 MOTION for Order to Amgen To Show Cause Why It Is Not In Contempt Of The Protective Order filed by Amgen Inc.. (Rich, Patricia)

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

Doc. 402

Case 1:05-cv-12237-WGY

Document 402

Filed 04/18/2007

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) ) ) 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. ) __________________________________________) AMGEN INC.,

Civil Action No.: 05-12237 WGY

AMGEN'S OPPOSITION TO DEFENDANTS' MOTION FOR AMGEN TO SHOW CAUSE WHY IT IS NOT IN CONTEMPT OF THE PROTECTIVE ORDER Amgen, Inc. ("Amgen") hereby opposes Defendants' Motion for Amgen to Show Cause why it is not in Contempt of the Protective Order. Contrary to Defendants' assertion, Amgen did not deliberately attempt to evade the Protective Order or to harass or annoy Roche. Amgen's counsel intended to comply with the parties' Protective Order, as demonstrated by the fact that it filed Roche's "Highly Confidential" documents in a sealed envelope. However, Amgen's counsel made a clerical error with respect to the Roche documents designated as "Confidential" by filing them in the public record. As soon as Roche brought the error to counsel's attention, counsel for Amgen immediately moved to contact the Court to correct the error and have the documents removed from the public record. With the assistance of the Court, all of the documents that were inadvertently filed publicly were removed from the Court's ECF system by 10:36 a.m. on the next business day after the filing.

DM1\1097366.1

Dockets.Justia.com

Case 1:05-cv-12237-WGY

Document 402

Filed 04/18/2007

Page 2 of 3

Counsel regrets the error, and apologizes to the Court and to Roche for its mistake. However, as Roche is aware from having filed its own confidential information in the public record, mistakes occur. This is not pointed out to excuse what Amgen's counsel did, but rather, to place in context that unfortunately, notwithstanding the good faith effort of counsel, clerical errors can and do happen. Roche failed to include a Rule 7.1 Certificate with its motion. Had Roche consulted with Amgen's counsel, Amgen's counsel would have informed them that it had no objection to paying Roche's costs in notifying Amgen's counsel of the error even though Roche has yet to make a particularized showing that the mistakenly filed documents are indeed confidential Accordingly, Amgen Inc. respectfully requests that Defendants' Motion for Amgen to Show Cause why it is not in Contempt of the Protective Order be denied.

April 18, 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] 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] 2

DM1\1097366.1

Case 1:05-cv-12237-WGY

Document 402

Filed 04/18/2007

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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]

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 the above date. /s/ Patricia R. Rich Patricia R. Rich

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