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)

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Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc. 780 Att. 3 Case 1:05-cv-12237-WGY Document 780-4 Filed 07/30/2007 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMGEN, INC., Plaintiff, v. F. HOFFMAN-LA ROCHE LTD., ROCHE DIAGNOSTICS GmbH, and HOFFMAN-LA ROCHE INC., Defendants. ______________________________________________________________________________ DECLARATION OF MARK J. HEBERT ______________________________________________________________________________ I, Mark J. Hebert, hereby declare as follows: 1. I am an attorney admitted to the bar of this court, and to the Supreme Judicial CIVIL ACTION No.: 05-CV-12237-WGY 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 I sent to Julian Brew, of Kaye Scholer, counsel for Roche, on March 6, 2007. I sent a similar letter to counsel for Amgen. These letters were sent in connection with document subpoenas that had been served on Fresenius by both Roche and Amgen. In the letter, as a condition of producing the requested documents, I was seeking assurances regarding the confidentiality of Fresenius' documents. In particular, I was seeking Roche's agreement to treat documents which included Fresenius' pricing information as "Highly Confidential," and to treat them with a higher level of confidentiality than that required by the Protective Order that has been entered in this action. I Dockets.Justia.com Case 1:05-cv-12237-WGY Document 780-4 Filed 07/30/2007 Page 2 of 7 also sought Roche's assurance to provide advance notice prior to filing any Fresenius confidential information with the Court. 4. Attached hereto as Exhibit B is a true and correct copy of a letter I received from Roche's counsel Mr. Brew on March 6, 2007. In that letter, Roche agreed to the terms set forth in Exhibit A. I also received a similar letter from Amgen agreeing to the same terms. 5. On Tuesday, July 24, 2007, I had a conversation with Amgen's attorney Dan Curto of McDermott, Will & Emery. During that conversation, Mr. Curto advised me that on July 16, 2007 Roche filed two documents that appeared to include Fresenius' trade secret information. Although the documents contain Fresenius' trade secrets and confidential information, Roche had not given Fresenius prior notice of the filing of this material. The particular documents at issue are Exhibits 257 and 259 to the Supplemental Declaration of David L. Cousineau in Further Support of Roche's Opposition to Amgen's Motion for Summary Judgment on Roche's Antitrust and State Law Counterclaims (docket no. 745). That declaration does not identify the exhibits except by the production numbers that were placed on the documents by Amgen. 6. On July 25, 2007 I received partially-redacted copies of Roche Exhibits 257 and 259. I was advised that the only information that was redacted consisted of annotations that had been added by Amgen. This was the first time that either I or Fresenius were able to review Roche Exhibits 257 and 259 for the purpose of determining their trade secret status. 7. Based on that review, I understand that Roche Exhibits 257 and 259 are related to Fresenius' negotiations with Amgen for an agreement for the supply of Epogen. During negotiations with Amgen, Fresenius sent these documents to Amgen, attached to cover letters which clearly reflected that the documents were sent by Fresenius. I am advised that Amgen added its own annotations, and subsequently produced these documents, including the cover letters from Fresenius, to Roche in the course of this lawsuit, bearing Amgen production numbers. I understand that the versions of the documents which bear Amgen's annotations are Roche Exhibits 257 and 259. 2 Case 1:05-cv-12237-WGY Document 780-4 Filed 07/30/2007 Page 3 of 7 Case 1:05-cv-12237-WGY Document 780-4 Filed 07/30/2007 Page 4 of 7 EXHIBIT A Case 1:05-cv-12237-WGY Document 780-4 Filed 07/30/2007 Page 5 of 7 Case 1:05-cv-12237-WGY Document 780-4 Filed 07/30/2007 Page 6 of 7 EXHIBIT B Case 1:05-cv-12237-WGY Document 780-4 Filed 07/30/2007 Page 7 of 7

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