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

Filing 497

MEMORANDUM in Support re #496 MOTION to Compel Continued Deposition Of Michael Borun filed by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Attachments: #1 Exhibit A#2 Exhibit B#3 Exhibit C#4 Exhibit D#5 Exhibit E#6 Exhibit F#7 Exhibit G#8 Exhibit H#9 Exhibit I)(Rizzo, Nicole)

Case 1:05-cv-12237-WGY

Document 497-2

Filed 06/13/2007

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EXHIBIT A

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Civil Action No. 05-12237-WGY ***************** * AMGEN, INC., * * Plaintiff, * * v. * * F. HOFFMANN-LA ROCHE LTD, * ROCHE DIAGNOSTICS GmbH and * HOFFMANN-LA ROCHE, INC., * * Defendants. * * ***************** BEFORE: APPEARANCES: DUANE MORRIS LLP (By Michael R. Gottfried, Esq.), 470 Atlantic Avenue, Suite 500, Boston, Massachusetts 02210 - and DAY CASEBEER MADRID & BATCHELDER, LLP (By Lloyd R. Day, Jr., Esq., Linda A. Sasaki-Baxley, Esq. and Jonathan Loeb, Ph.D.) 20300 Stevens Creek Boulevard, Suite 400, Cupertino, California 95014 - and McDERMOTT WILL & EMERY (By William G. Gaede, III, Esq.), 3150 Porter Drive, Palo Alto, California 94304 - and WENDY A. WHITEFORD, ESQ., Of Counsel, Amgen, Inc., One Amgen Center Drive, Thousand Oaks, California 91320-1789, on behalf of the Plaintiff 1 Courthouse Way Boston, Massachusetts April 17, 2007

MARKMAN HEARING

The Honorable William G. Young, District Judge

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Case 1:05-cv-12237-WGY

Document 497-2
Page 106

Filed 06/13/2007

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THE COURT: I heard someone say, "Yes, we are" and that's about all I need hear. MR. FLEMING: Well, your Honor, just for your endorsement, we have agreed that Dr. Strickland would be submitted for an additional deposition. It would be for two hours, and of course we're trusting in Dr. Strickland's good faith in responding to questions as opposed to not responding, and it will be done at a mutual time and place. THE COURT: Thank you. I much appreciate that. Now, here's what I'm prepared to rule on which I, which I hope will be helpful because there's an outstanding motion about the assertion by Amgen of the attorney-client privilege against Roche's claim that, especially the testimony, or almost entirely the testimony of Mr. Boron, an attorney, has waived the attorney-client privilege either generally or to a very great extent. I make the following rulings on that motion. In large measure the motion is denied. The disclosures made by Mr. Boron in previous and other litigation do not and cannot be taken as generally waiving the attorney-client privilege. My touchstone, though it's not directly applicable in this case, and is a First Circuit decision in any event, is In re XYZ Corporation, a First Circuit decision written by Judge Selya out of an appeal from this Court which I found very instructive. The fact that some things may be revealed does

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all other respects it's denied. I think that brings to an end the things that -excuse me. I do apologize. -- the things that I'm prepared to do and are ripe for doing this afternoon. Are there other matters? Ms. Ben-Ami first. MS. BEN-AMI: I think there's a housekeeping-like matter, your Honor. You gave Amgen an extension on an expert report to April 30th. THE COURT: I did. Yes. MS. BEN-AMI: But you didn't give us any time to reply. THE COURT: We'll give you some time to reply, two weeks after that. MS. BEN-AMI: I think under the normal reports we had three weeks. THE COURT: You may have. Now you have two. We're getting closer. Look at all these people. MR. DAY: Your Honor? THE COURT: Two weeks is fine. MS. BEN-AMI: Your Honor, this -THE COURT: If you want quick rulings you'll get them. That's my ruling. Anything else? MR. DAY: Yes, your Honor. Two things, if I may, two very brief things.

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not reveal all. I also call to your attention, and I downloaded this just over the luncheon recess, that the Advisory Committee on Civil Rules, wrestling with the issue of selective waiver, has drafted language dealing with selective waiver as a proposed Rule 502, or an amendment thereto, but at the suggestion of the congress that has proved, the congress has proved interested substantively in issues of privilege, has referred that language to the congress without an expression of an opinion aye or nay. That's just because it's in the area and the Advisory Committee notes are in the area. All right. I said it was generally denied. But, when I look at items 49 and 50, I do think, given the matters at issue in this case, that Boron's testimony in the respects set forth, and I will say I think Amgen's rebuttal has accurately characterized that testimony, and I'm relying upon that having checked those out with some care, I think that does open up the following. I think Roche is entitled to know where Mr. Boron got that information and when. And if he got that information as to items 49 and 50 from another Amgen attorney, which may well be the case, Roche is entitled to know where that attorney got his information and when. Not the substance of the communications, just from whom and when. To that extent the motion is allowed and in

First of all, your Honor granted Roche a 30 day extension in which to respond to supplement their answers to interrogatories on Amgen's invalidity and you timed that from the date of the Markman ruling. And it would seem to me that we've had that ruling today, but the Court may disagree, and I would like to get a determination as to when Roche is required to respond to that. THE COURT: Thirty days from today. MR. DAY: Okay. THE COURT: Even though I took one thing under advisement, I was thinking of the hearing. I'm sensitive -this is on the running trial list for September? MR. DAY: Yes, sir. THE COURT: October? September. September it is. MR. DAY: The second item, and the second item is very similar to the point that Ms. Ben-Ami just raised. Amgen filed a motion last week after we had received 16 expert reports from Roche detailing their invalidity defenses. THE COURT: Yes. I'm not, I'm not going to accept argument on discovery motions. And I only ruled on her request because I had it very much in mind what I had done. These, I've got these here. And with respect to other pending motions, I have to sort through them. MR. DAY: I appreciate that. The only thing I want

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