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

Filing 780

MEMORANDUM in Support re #779 MOTION for Leave to File Under Seal Documents Containing Fresenius' Trade Secrets, Filed By Defendant Roche, or in the Alternative, for a Stay Pending Appeal or Resolution of the Patent Trial filed by Fresenius Medical Care Holdings, Inc. (FMC). (Attachments: #1 Affidavit Declaration of Robert J. McGorty in Support of Non-Party Fresenius' Unopposed Motion for Leave to File Under Seal Documents Containing Fresenius' Trade Secrets, Filed by Roche, or in the Alternative, for a Stay Pending Appeal of Resolution of Patent Trial#2 Affidavit Declaration of Nicole E. Gage#3 Affidavit Declaration of Mark J. Hebert)(Gage, Nicole)

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

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _______________________________________ ) AMGEN, INC., ) ) Plaintiff, ) v. ) C.A. No. 05-CV-12237-WGY ) F. HOFFMAN-LA ROCHE LTD., ) ROCHE DIAGNOSTICS GmbH, ) and HOFFMAN-LA ROCHE INC., ) ) Defendants. ) _______________________________________) ______________________________________________________________________________ DECLARATION OF NICOLE E. GAGE ______________________________________________________________________________

I, Nicole E. Gage, hereby declare as follows: 1. I am an attorney admitted to the bar of this court, and to the Supreme Judicial

Court of the Commonwealth of Massachusetts. I am a member of the firm of Fish & Richardson P.C. My office address is 225 Franklin Street, Boston, MA 02110. 2. I am an attorney of record representing non-party Fresenius Medical Care

Holdings, Inc., d/b/a Fresenius Medical Care North America ("Fresenius") in connection with this action. 3. Attached hereto as Exhibit A is a true and correct copy of a letter dated February

26, 2007 from Douglas C. Kott of Fresenius Medical Care Holdings, Inc. to the United States Security and Exchange Commission. 4. Attached hereto as Exhibit B is a true and correct copy of an Order dated June 7,

2007 from the United States Securities and Exchange Commission granting exclusion from the public of information contained in the 2006 Sourcing and Supply Agreement between Fresenius and Amgen.

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5.

On Wednesday, July 25, 2007, Mark Hebert (also of Fish & Richardson P.C.) and

I had a conversation with Amgen's attorney Dan Curto of McDermott, Will & Emery. During that conversation, Mr. Curto advised us that Roche filed an additional document that appeared to include Fresenius' trade secret information. The document in question was portions of one of Roche's expert reports that had been filed on June 29, 2007 as Exhibit 85 to the Declaration of David L. Cousineau In Support of Roche's Opposition to Amgen's Motion for Summary Judgment on Roche's Antitrust and State Law Counterclaims (Docket No. 589). Although the documents contain Fresenius' trade secrets and confidential information, Roche had not given Fresenius prior notice of the filing of this material. The declaration only identifies the exhibit as "excerpts from the April 6, 2007 Expert Report of Einer Elhauge." Neither Fresenius nor its counsel has had access to this Expert Report. 6. I requested a copy of Exhibit 85 from Roche and on July 26, 2007 I received

pages 55 and 57 of such exhibit from Manvin Mayell of Kaye Scholer LLP, counsel for Roche. Mr. Mayell informed me that pages 55 and 57 were the only pages filed as part of Exhibit 85 that may contain Fresenius confidential information. This was the first time that either Fresenius or its counsel were able to review any part of Roche Exhibit 85 for the purpose of determining its trade secret status. 7. Based on that review, I understand that Roche Exhibit 85 contains volume

discount terms directly derived from the 2006 Sourcing & Supply Agreement between Fresenius and Amgen for the supply of EpogenTM. It is my further understanding that both Amgen and Fresenisus produced copies of this Agreement in relation to this action under the highest level of the Protective Order. Specifically, Fresenius produced a copy on March 8, 2007 with the ledgend "Contains FMCNA Highly Confidential Information ­ Outside Counsel's Eyes Only." The Agreement copy produced by Fresenius was also marked by Roche as Exhibit 1 in the deposition of Fresenius employee Rober McGorty on March 30, 2007.

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EXHIBIT A

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EXHIBIT B

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