Free Stipulation - District Court of Delaware - Delaware

Case 1:07-cv-00331-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TAKEDA PHARMACEUTICAL COMPANY LIMITED, TAP PHARMACEUTICAL PRODUCTS INC., and ETHYPHARM, S.A., Plaintiffs, v. TEVA PHARMACEUTICALS USA, INC., and TEVA PHARMACEUTICAL INDUSTRIES LTD., Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-331-SLR

STIPULATED ORDER REGARDING CASE SCHEDULE AND EXPERT DISCOVERY WHEREAS, the parties in the above action have concluded that, unless the Court prefers otherwise, there is no need to conduct a Markman hearing in this non-jury case; WHEREAS, the parties wish to modify the case schedule to allow an additional 30 days for fact discovery, and, in order to preserve the case schedule's current structure, to correspondingly extend the dates for service of expert reports, completion of expert discovery, and the filing of Daubert and Markman briefs ­ all of which can be accomplished without affecting the trial date or otherwise impacting the remainder of the existing case schedule; and WHEREAS, the parties have reached certain agreements regarding expert discovery, which they wish to present for consideration by the Court; now therefore, IT IS HEREBY STIPULATED AND AGREED, subject to the approval and order of the Court, as follows: 1. 2. The January 9, 2009 Markman hearing is canceled. The deadlines for completion of fact discovery, service of expert reports,

completion of expert discovery, filing of Markman briefs, and filing of Daubert motions are
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extended to the dates indicated below, but the August 20, 2007 Scheduling Order (D.I. 24) shall otherwise remain unchanged and in full force and effect: Completion of fact discovery Opening expert reports Rebuttal expert reports Completion of expert discovery Opening Markman briefs Answering Markman briefs 3. September 12, 2008 October 3, 2008 October 30, 2008 December 10, 2008 December 22, 2008 January 19, 2009

The parties agree to defer any Daubert challenges until post-trial briefiing.

However, the parties agree that before any witness for whom a party anticipates pursing a Daubert challenge begins testimony, the party anticipating the later challenge will give notice that the challenge may be made in post-trial briefing and state the reasons for the potential challenge. 4, Notwithstanding any provisions to the contrary in the Federal Rules of Civil

Procedure and any pertinent case law, discovery of experts shall be limited as follows: A. Document discovery of experts shall be limited to the production of each

testifying expert's final report(s), curricula vitae, engagement agreement(s), and invoice(s), as well as those documents and things which any testifying expert reviews or relies upon in the course of preparing and rendering his or her opinion(s). The parties expressly agree, however, that notwithstanding the provisions of this paragraph, they are not required to produce, nor will any party seek to discover, drafts of expert reports or any expert's notes. Further, the parties expressly agree they will not seek discovery into the substance of any drafts of expert reports or edits to expert reports.

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B.

If any document relied upon by a testifying expert is not already in the

possession of the opposing party, the party tendering the expert report shall produce a clean copy of that document to the opposing party at or before the time any expert report relying upon that document is served. Any tangible item relied upon by a testifying expert shall be made available for inspection to the opposing party at a mutually agreeable time and place. C. The deposition of testifying experts shall be scheduled at a mutually

agreeable time and will be located at the New York offices of Takeda's, TAP's, or Ethypharm's counsel for experts of Takeda, TAP, and Ethypharm, respectively, and the Atlanta office of Teva's counsel for experts of Teva. At the testifying expert's deposition, the parties shall be entitled to raise all issues addressed by any testifying expert's report(s), as well as the process undertaken by a testifying expert in preparing his or her report(s), the identity of the individual(s) who prepared each section of a testifying expert's report(s), how much time was spent drafting a testifying expert's report(s), whom a testifying expert spoke with during the preparation of the report(s), and the content of any communication between a testifying expert and any witness as part of the preparation of the report(s). The parties expressly agree, notwithstanding the provisions of this paragraph, they will not seek discovery of the content of any communications between a testifying expert and counsel concerning the opinions formed by the expert or the preparation of the expert's report(s). D. The parties expressly agree that each party will bear the costs of making

its testifying expert(s) available for deposition by the opposing party. E. Nothing herein is intended to bar discovery of documents that are

otherwise discoverable from a party or third party outside the context of expert discovery, or to alter the otherwise applicable rules regarding a party's ability or inability to obtain prior testimony or statements by a testifying expert witness.
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ASHBY & GEDDES

YOUNG CONAWAY STARGATT & TAYLOR, LLP

/s/ John G. Day
Steven J. Balick (#2114) John G. Day (#2403) Lauren E. Maguire (#4261) 500 Delaware Avenue, 8th Floor P.O. Box. 1150 Wilmington, DE 19899 (302) 654-1888 [email protected] Attorneys for Plaintiffs Of Counsel: Eric J. Lobenfeld Tedd W. Van Buskirk Arlene L. Chow Dillon Kim HOGAN & HARTSON LLP 875 Third Avenue New York, NY 10022 (212) 918-3000 Philippe Y. Riesen HOGAN & HARTSON LLP Shinjuku Center Building, 46th Floor 25-1 Nishi-Shinjuku 1 chome Shinjuku, Tokyo 163-0646 Japan (81) 3-5908-0470 Attorneys for Plaintiff Takeda Pharmaceutical Company Limited William F. Cavanaugh, Jr. Stuart E. Pollack Chad J. Peterman Patrick S. Almonrode PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 (212) 366-2000 Attorneys for Plaintiff TAP Pharmaceutical Products, Inc.

/s/ Karen L. Pascale
John W. Shaw (#3362) Karen L. Pascale (#2903) Karen E. Keller (#4489) The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 (302) 571-6600 [email protected] Attorneys for Defendants Of Counsel: John L. North Jeffrey J. Toney Ann G. Fort SUTHERLAND, ASBILL & BRENNAN LLP 999 Peachtree Street Atlanta, GA 30309-3996 (404) 853-8000

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Paul A. Ragusa Lisa Kole Sandra Lee BAKER BOTTS LLP 30 Rockefeller Plaza New York, NY 10112 (212) 408-2588 Attorneys for Plaintiff Ethypharm, S.A.

SO ORDERED this ________ day of ____________, 2008. ____________________________________ UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE I, Karen L. Pascale, Esquire, hereby certify that on July 7, 2008, I caused to be electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record: Steven J. Balick [[email protected]] John G. Day [[email protected]] Lauren Maguire [[email protected]] ASHBY & GEDDES 500 Delaware Avenue, 8th Floor P.O. Box 1150 Wilmington, DE 19899 (302) 654-1888 I further certify that on July 7, 2008, I caused a copy of the foregoing document to be served by e-mail on the above-listed counsel of record and on the following non-registered participants in the manner indicated: By E-Mail Eric J. Lobenfeld [[email protected]] Tedd W. Van Buskirk [[email protected]] Arlene L. Chow [[email protected]] Dillon Kim [[email protected]] HOGAN & HARTSON LLP 875 Third Avenue New York, NY 10022 (212) 918-3000 Philippe Y. Riesen [[email protected]] HOGAN & HARTSON LLP Shinjuku Center Building, 46th Floor 25-1 Nishi-Shinjuku 1-chome Shinjuku, Tokyo 163-0646 Japan (81) 3-5908-0470

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Richard de Bodo [[email protected]] HOGAN & HARTSON LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 785-4600 Attorneys for Plaintiffs Takeda Pharmaceutical Company Ltd. and Ethypharm S.A. William F. Cavanaugh, Jr. [[email protected]] Stuart E. Pollack [[email protected]] Chad J. Peterman [[email protected]] PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 (212) 336-2000 Attorneys for Plaintiff TAP Pharmaceutical Products Inc. Paul A. Ragusa [[email protected]] BAKER BOTTS LLP 30 Rockefeller Plaza New York, N.Y. 10112-4498 (212) 408-2588 Attorneys for Plaintiff Ethypharm, S.A.

YOUNG CONAWAY STARGATT & TAYLOR, LLP

/s/ Karen L. Pascale
Karen L. Pascale (No. 2903) [[email protected]] The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19801 (302) 571-6600 Attorneys for Defendants, Teva Pharmaceuticals USA, Inc. and Teva Pharmaceutical Industries, Ltd.

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