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REDACTED VERSION - PUBLICLY FILED
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
RELIANT PHARMACEUTICALS, INC., Plaintiff,
V. PAR PHARMACEUTICAL, INC., Defendant.
C.A. No. 06-774-JJF
DECLARATION OF JOHN G. TAYLOR IN SUPPORT OF DEFENDANT 'S MOTION TO COMPEL DISCOVERY I, John G. Taylor, declare:
I. I am a partner in the law firm of Frommer Lawrence & Haug LLP ("FLH"),
counsel for defendant Par Pharmaceutical , Inc. ("Par"). I submit this declaration in support of Par's motion to compel discovery from plaintiff Reliant Pharmaceuticals , Inc. ("Reliant"). I have personal knowledge of the facts set forth in this declaration , or I believe them to be true based upon my investigation and information provided to me by other knowledgeable persons. 2. Reliant is the holder of approved NDA No. 21-416 for Rythmolo SR brand
propafenone HCl extended release capsules . Reliant is also the current assignee of the '588 patent, which is listed in the Orange Book for Rythmol"^ SR. Par 's ANDA No. 78-540 for a generic version of Rythrnolo SR includes a paragraph IV certification for the ' 588 patent. As required, Par sent Reliant a Paragraph IV notice letter on November 7, 2006 after FDA accepted for filing Par's ANDA submission regarding 325 mg propafenone HCl extended release capsules. Par sent Reliant another notice letter on January 10, 2007 after FDA accepted for filing
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Par's ANDA submission regarding 225 mg and 425 mg propafenone HCl extended release capsules. Par's notice letters contained detailed explanations of the factual and legal bases for Par's belief that the '588 patent is invalid , unenforceable, and not infringed by Par's proposed product. 3. Par's notice letters also included an Offer for Confidential Access {"OCA") to
Par's ANDA. Reliant signed and returned the OCA to Par on November 22, 2006. While Par was preparing to send its ANDA to Reliant, and with approximately one week remaining in the 45-day statutory period, Reliant sued Par on December 19, 2006. On April 25, 2007, Par sent Reliant a copy of its ANDA and samples of its proposed product in response to a letter request from Reliant' s counsel. 4. On May 30, 2007, 1 was advised by Karen Pascale, an attorney at Par's local
counsel, Young Conaway Stargatt & Taylor LLP, that she had received a call from Judge Farn. an's chambers informing her that Reliant's motion for disqualification would be decided on the papers without oral argument. 5. In a letter dated July 16, 2007, Reliant's counsel stated that "Reliant will not
produce documents or things to FLH until final resolution of Reliant's Motion To Disqualify FLH." This was the first time Reliant's counsel informed Par of Reliant's position . Reliant did not advise Par or the Court of its position on document production when it agreed to the August 24, 2007 deadline for completion of document production, even though there was a possibility that its disqualification motion might not be decided until near the end of the discovery period. 6. Counsel for Reliant and Par held a telephone conference on August 1, 2007 to
discuss discovery issues and the Court's July 25, 2007 Order denying Reliant' s motion to disqualify FLH. During that call , Reliant's counsel, Gerald J. Flattmann, Jr., stated that Reliant
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was extending the deadline for completion of document production and contention interrogatories by 30 days, as allowed by the Court's July 25 Order. Mr. Flattmann also stated that Reliant was "ready to start streaming documents" to Par. When asked directly by Par's counsel, James K. Stronski, when Reliant would produce documents and amend its interrogatory answers, Mr. Flattmann said that they would get back to Par "promptly." Mr. Stronski specifically advised Reliant's counsel that Par needed to receive Reliant's documents and amended interrogatory answers by the middle of August to allow Par to move to compel, if necessary, in time to be heard on the Court's last motion hearing date before the September 24, 2007 discovery deadline. 7. Attached hereto as Exhibit 1 is a true and complete copy of Defendant's
Objections and Responses to Plaintiff's First Set of Interrogatories, served June 18, 2007. 8. Attached hereto as Exhibit 2 is a true and complete copy of a letter from John G.
Taylor to Gerald Flattmann, Jr., dated July 11, 2007 (without enclosure). 9. Attached hereto as Exhibit 3 is a true and complete copy of a Ietter from John G.
Taylor to Christine Willgoos, dated April 25, 2007 (without enclosures). 10. Attached hereto as Exhibit 4 is a true and complete copy of a letter from James K.
Stronski to Christine Willgoos, dated July 23, 2007 (without enclosures). 11. Attached hereto as Exhibit 5 is a true and complete copy of a letter from Jaynes K.
Stronski to Christine Willgoos, dated August 3, 2007 (without enclosures). 12. Attached hereto as Exhibit 6 is a true and complete copy of a letter from Christine
Willgoos to John G. Taylor, dated July 16, 2007. 13. Attached hereto as Exhibit 7 is a true and complete copy of a letter from James K.
Stronski to Gerald Flattmann, Jr., dated July 23, 2007.
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14.
Attached hereto as Exhibit 8 is a true and complete copy of a letter from Christine
Willgoos to James K. Stronsk i, dated July 26, 2007. 15. Attached hereto as Exhibit 9 is a true and complete copy of a letter from Jobe G.
Taylor to Gerald Flattmann, Jr., dated August 8, 2007 (without enclosures). 16. Attached hereto as Exhibit 10 is a true and complete copy of a letter from
Christine Willgoos to John G. Taylor, dated August 10, 2007. 17. Attached hereto as Exhibit 11 is a true and complete copy of a letter from John G.
Taylor to Gerald Flattmann, Jr., dated August 20, 2007. 18. Attached hereto as Exhibit 12 is a true and complete copy of a letter from
Christine Willgoos to John G. Taylor, dated August 21, 2007. 19. Attached hereto as Exhibit 13 is a true and complete copy of an e-mail from
Christine Willgoos to John G. Taylor, dated August 23, 2007. 20. Attached hereto as Exhibit 14 is a true and complete copy of a letter from John G.
Taylor to Christine Willgoos, dated August 13, 2007. 21. Attached hereto as Exhibit 15 is a true and complete copy of an e-mail from John
G. Taylor to Gerald Flattmarna, Jr. and Christine Willgoos, dated Augast 22, 2007.
I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct.
Executed this 04 day of August, 2007, at New York, New 'Y'ork.
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CERTIFICATE OF SERVICE
I, Josy W. Ingersoll, Esquire, hereby certify that on August 30, 2007, I caused to be electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CMIECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record:
Jack B. Blumenfeld [email protected]] MORRIS, NICHOLs, ARSHT & TUNNELL LLP 1201 North Market Street
P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 I further certify that on August 30, 2007,1 caused a copy of the foregoing document to be served on the above-listed counsel and on the following non-registered participants in the manner indicated: B E-Marl and Hard Deliver
Jack B. Blumenfeld Oblumenfeld@ mnat.com] Maryellen Noreika [mnoreika@ mnat.com] MORRIS, NICHOLs, ARSHT & TUNNELL. LLP 1201 North Market Street
P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200
By E:Mail and FedEx
John Desmarais Odesmarais @kirkland.com]
Gerald J. Flattmann, Jr. [gflattmann @kirkland.com] Christine Willgoos [cwillgoos @kirkland.eom] KIRKLAND & ELLIs LLP
Citigroup Center 153 E. 53`d Street New York, NY 10022 (212) 446-4800
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Steven C. Cherry [[email protected] LATHAM & WATKiNs LLP
885 Third Avenue, Suite 1000 New York, NY 10022-4834 (212) 906-1200
YOUNG CONAWAY STARGATT & TAYLOR LLP
/s/ Karen L. Pascale Josy W. Ingersoll (No. 1088) [email protected]] Karen L. Pascale (No. 2903 ) [kpascale @ycst.com] The Brandywine Building 1000 West Street , 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Attorneys for Defendant- Counterclaimant, Par Pharmaceutical, Inc.
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EXHI BIT 1
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FROMM.ER LAWRENCE & HAUG LLP
New York 745 Falb Avenue New York, NY 10151 Telephone: (212) 588-0800 Fax; (212) 588-0500
John G. Taylor [email protected]
www.flhlaw.com Washington, DC ·Takya
July 11, 2007
VIA E-MAIL
Gerald J. Flattmann, Jr., Esq. Kirkland & Ellis LLP Citigroup Center
153 East 53rd Street
New York, NY 10022-4611 Re: Reliant Pharmaceuticals, Inc. v. Par Pharmaceutical, Inc. Civil Action No. 06-774-JJF_(D_ Del)
Dear Gerald: Enclosed is a proposed stipulated protective order to govern the conduct of discovery and the handling of protected information in this action. Please review the proposed order and let us know if it is acceptable to Reliant as soon as possible. In order to move document production along, we propose that the parties produce documents while a protective order is negotiated and treat all confidential documents produced as outside-counsel-only material until a protective order is entered. Please let us know if Reliant will agree to proceed in, this manner. Par expects to be in a position to begin producing documents responsive to Reliant's requests-in addition to the samples and ANDA already produced in April next week. Please advise us when Reliant will be in a position to begin its document production. Finally, we note that Reliant's responses to T'ar's first set of interrogatories state that your firm will be representing the inventors of U.S. Patent No. 5,681,588 C the `588 patent"). See Response to Interrogatory No. 1. We intend to tape the depositions of the inventors this Fall. Please confirm that Reliant is collecting and will produce responsive documents in the possession, custody and control of the inventors of the `588 patent and will make them available for depositions in New York this Fall. We, also intend to take the depositions of the prosecuting attorneys and individuals at Knoll, BASF and Abbott who the documents reveal to have knowledge relevant to issues in this action. Please advise us immediately whether your firm represents any of these parties and, if so, confirm that Reliant is collecting and will produce
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r Gerald J. Flattm mn,, Jr., Esq. Kirkland & Ellis LLP July 11, 2007 Page 2 responsive documents in the possession, custody and control of these parties and will make them available for depositions in New York at mutually convenient times. Sincerely,
Encl. Cc: Jack B. Blumenfeld, Esq. Christine Willgoos, Esq. Josy E. Ingersoll, Esq. Karen L. Pascale, Esq.
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EXHIBIT 3
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FROMMER LAWRENCE & HAUG t_LP
HBwyoti 145 Filth Avenue New YA NY 10151 Telephone: (212} 588-a8U{) Fat (212) 59M John G. Taylor [email protected]
Wffw.flhlatix= Washington, 1C Tokyo
April 25, 2007
VIA E-MAIL (Wo ends.} AND FEDERAL EXPRESS Christine Willgoos, Esq. Kirkland & Ellis LLP Citigroup Center
153 East 53rd Street
New York, NY 10022-4611 Re: Reliant Pharmaceuticals, Inc. v. Par Pharmaceutical, Inc.
Civil Action No 06-774-3.1F
Dear Christine:
in response to your November 22, 2006 letter to Par's Steven Engel, and as part of Par's initial disclosures pursuant to Fed. R. Civ. P 26(a)(1) and D. Del. LR 16.2, we enclose a copy of Par's ANDA No. 78-540 for Propafenone Hydrochloride SR Capsules, 225 mg, 325 mg, and 425 mg (Bates Nos. PAROOOOOI - PAR002016), and the following samples:
1.
60 Propafenone HCl SR capsules for each dosage strength of Par's proposed capsules: 225 mg (Lot#: 18235306; Bates No. PAR002017), 325 mg (Lot#: 18287201; Bates No. PAR002018), and 425 mg (Lot#: 18209706; Bates No. PAR002019); 10 g from each of three lots of the Active Pharmaceutical Ingredient (API) to be used in Par's proposed capsules (Lots# 502949, 505340, and 504159; Bates Nos. PAR002020, PAR002021, and PAR002022, respectively); and 80 g Propafenone HCl SR granules (Batch # RB062 S 087; Bates No PAR002023).
2.
3.
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Christine Willgoos, Esq. April 25, 2007 Page 2 The enclosed ANDA and samples are being produced subject to the terms of Par's Offer of Confidential Access and Confidentiality Agreement ("OCA") until a protective order governing the handling ofdiscovery materials is entered in this case. The OCA, among other things, restricts access to the enclosed materials to: (i) outside counsel engaged by Reliant; (ii) no more than two in-house counsel or members of the Intellectual Property Departmentwho have no patent prosecution responsibilities and who are identified to Par; and (iii) independent consultants and experts assisting in the evaluation of the ANDA and samples on behalf of Reliant. If you intend to provide Reliant in-house counsel with access to the enclosed materials, please notify us of their names and respective positions within Reliant before doing so. Very truly yours,
^f.
Encls. cc: Gerald J. Flattmann, Jr., Esq. (via e-mail w/ o encls.) Jack B. Blumenfeld, Esq. (via e-mail, w/o encls.) Josy W. Ingersoll , Esq. (via e-mail w/o encls.) Karen L. Pascale, Esq . (via e-mail w/o encls.)
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FROMMER
L AWRENCE
&
HAUG LLP
Now York 745 Fdh Rveme New Yolk, Hy 10151 Tobphom (212) 588-0800
wwwflhlawcom washbmn, 0C Tokyo
fax: (212) 588-0500
July 23, 2007
James K. Stronski ,1StranskE0tih (aw.com
VIA E-MAIL (w/o encls.) AND HAND DELIVERY w/ encls.) Christine Willgoos, Esq. Kirkland & Ellis LLP Ci ti group Center 153 East 53rd Street New York, NY 10032-4611 Re: Reliant Pharmaceuticals , Inc. v . Par Pharmaceutical, Inc. Civil Action No. 06-774-JJF
Dear Christine: Enclosed are Par production documents bearing Bates Nos. PAR002024-006361. As discussed in our July 11, 2007 letter to Gerald Flattmann, Par produces these documents on an outside-counsel-only basis until a protective order is entered in this action . Please let us know iml eO ely if this is unacceptable to Reliant. " Very t y yours'
cc:
Gerald J. Flattmann , Jr., Esq. (via e-mail w/o encls) William T. Vuk, Esq. (via e-mail w/o encls.) Jack B. Blumenfeld, Esq . (via e-mail w/o encls.) Josy W. Ingersoll, Esq. (via e-mail w/o encls.) Karen L. Pascale, Esq . (via e-mail w/o encls.)
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FROMMER LAWRENCE & HAUG
LLP
Now York 745 Fib Avenue New Yodl W 10151 Telephone: (212) 588.4800 Fan: (212) 588.0500
James K. Stronskl JStronsk19tlhtaw.com
www.flhlaw.com Ylashin&n, DC Tokyo
August 3, 2007
VIA E-MAIL (w/o encls.) AND LAND DELYVERY (wl enels^ Christine Willgoos, Esq. Kirkland & Ellis LLP Cidgroup Center
153 East 53rd Street
New York, NY 10022-4611
Re: Reliant Pharmaceuticals , Inc. v. Par Pharmaceutical, Inc. Civil Action No. 06-774-M
. Dear Christine: Enclosed are Par production materials bearing Bates Nos. PAR006362-008481. As discussed in our July 11, 2007 letter to Gerald Flamnann and agreed during our August 1, 2007 telephone conference, Par produces these materials on an outside-counsel-only basis until a protecive order is entered in this action
Gerald J. Flattmann, Jr., Esq. (via e-mail w/o encls.) William T. Vuk, Esq. (via e-mail w/o encls.)
Jack B. Blumenfeld, Esq. (via e-mail w/o encls.) Josy W. Ingersoll, Esq. (via e-mail w/o encls.) Karen L. Pascale, Esq. (via e-mail w/o encls.)
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EXHIBIT 6
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KIRKLAND & ELLIS LLP
ANY AFWATE D PARTNEILSHIPS
Christine Wiilgoos To Call Writer Directly:
Citigroup Center 158 East 53rd street New York, New York 10022-4611 (212) 446-4800
Facsimile:
(212) 446-4900
212 446-4964 [email protected]
www,kirkland.com
July 16,2007
VIA EMAIL
John Taylor, Esq. Frommer, Lawrence & Haug 745 Fifth Avenue
Now York, New York 10151
Re:
Dear John:
Reliant Pharmaceuticals, Inc. v. Par Pharmaceuticals
I write in response to your July 11, 2007 letter to Gerald Flattmann and attached Proposed Protective Order. As you are well aware, Reliant objects to Frommer Lawrence & Haug's ("FLH") representation of Par in this matter that is substantially related to FLH's previous representation of Reliant regarding the acquisition of Rythmd' SR and the-patent-in-suit. Accordingly, as set forth in ReIiant's Objections and Responses to Par's First Set of Requests For the Production of Documents and Things, Reliant will not produce responsive documents or things to FLH until final resolution of ReIianfs Motion To Disqualify FLH.
However, to avoid further delay once the motion is decided, Reliant is willing to negotiate the terms of the Protective Order to be entered in this action. Par's proposed Protective Order contains several provisions of concern to Reliant. I will send you a redline version of the proposed Protective Order with Relianes: modifications shortly. Your reference to "prosecuting attorneys and individuals at Knoll, BASF, and Abbott who the documents reveal to have knowledge relevant to issues in this action" is uninformative. Please identify the individuals to whom you refer so that I may respond to your inquiry as to whether or not they are represented by Kirkland & Ellis.
CW/lesr Attachment
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EXHIBIT 7
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FROMMER
LAWRENCE
&
H AUL LLP
Now York 745 Fitch Avenue New YM, NY 10151 Telephone: (212) 588-0800 fax: (212) 588-0540
Jaynes K. Stronski [email protected]
www.fililaw.com Washington, 00 Tokyo
July 23, 2007
BY FACSIMILE AND EMAIL
Confidential Gerald J. Flattman, Jr. Kirkland & Ellis LLP Citigroup Center
153 East 53rd Street New York, New York 10022
Re: Reliant Pharmaceuticals, Inc, v. Par Pharmaceutical, Inc. Civil Action No. 06-774-JJF D.Del.
Dear Gerald:
This letter addresses Reliant ' s unilateral refusal to produce documents or substantively answer interrogatories.
Reliant's Failure to Answer Discovery Is Improper Your colleague's July 16 letter states "Reliant will not produce responsive documents or things until the motion to disqualify is resolved." t No authority is cited for Reliant's refusal to produce documents. No stay of discovery has been sought or obtained, and none would be appropriate here. And as you are well aware, Reliant agreed to the current schedule, which was incorporated in the Court's March 28, 2007 Rule 16 Scheduling Order. Not only is Reliant's continuing refusal to provide written discovery improper, but it represents a course of conduct that is contemptuous of that order, which requires that "e]xchange and completion of contention interrogatories, identification of fact witnesses and document production shall be commenced so as to be completed by August 24, 2007."2 Reliant also has not substantively answered Par's interrogatories, including those seeking information and contentions directed to infringement (Interrogatory 3), claim construction (Interrogatory 4), the identification of specific dates and documents concerning the `588 patent} and product claimed by it (Interrogatory 5), the identification of the technical areas and level of ordinary skill in the art for the '588 patent (Interrogatory 6), and the identification of objective indicia of non-obviousness concerning the `588 patent (Interrogatory 7). As an example, Reliant's failure to provide any substantive information regarding or explanation of its infringement contentions is particularly improper because Reliant has had Par's notice letters for
f July 16, 2007 letter from Christine Willgoos to John Taylor, mporzding to July 11, 2007 letter from John Taylor. 2 March 28, 2007 Rule 16 Scheduling Order, 13(a). 3 U.S. Patent No. 5,681,588.
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Gerald J, Flattman, Jr. July 23, 2007 Page 2 of 3
Confidential
over six months and Par's ANDA and samples of its product for over three months, Par is entitled to substantive answers to all its interrogatories now and well in advance of the August 24 cutoff. Reliant also has failed to provide basic information about the identification and representation of witnesses central to this case, and their documents. Your colleague's July 16 letter failed to respond to our July 1 I letter asking that you confirm that your firm is collecting and will produce responsive documents in the possession, custody and control of the inventors of the `588 patent and that you will make them available for depositions in New York. We assume from your silence that you are collecting those documents, that you will produce them as provided by this Court's Rule 16 Scheduling Order, and then make these witnesses available in New York for their depositions. Our July 11 letter also asked whether your firm represents the attorneys who prosecuted the `588 patent and individuals at Knoll, BASF, and Abbott with relevant information, and whether you would be producing their documents and making them available for depositions in New York, Reliant's July 16 response was that you can not respond to our inquiry because our "reference to `prosecuting attorneys and individuals at Knoll, BASF, and Abbott who the documents reveal to have knowledge relevant to issues in this action' is uninformative." The identity of the `prosecuting attorneys" is a matter of public record and are known to you: Norman F. Oblon, Esq, and C. Irvin McClelland of Oblon, Spivak, McClelland, Maier & Neustad, P.C. Please advise whether you represent them, and whether you are collecting and producing their documents as provided by this Court's Rule 16 Scheduling Order and matting them available for depositions. Regarding the "individuals at Knoll, BASF, and Abbott" referenced in our July 11 letter, Reliant has improperly withheld all documents responsive to our document requests, making it impossible for us to determine who at those companies might have relevant information.
Accordingly, we ask that you advise us immediately whether you represent anyone at these companies and whether you are collecting and producing their documents in response to our requests. In this regard, please also immediately produce all agreements relating to Reliant's acquisition of Rythmol® and the `588 patent from Abbott, including specifically any agreement
2
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Gerald J . Flattrnan, Jr. July 23, 2007
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that concerns any right of Reliant to seek the assistance of Abbott, BASF or Knoll (or any related person or entity) on patent, regulatory or litigation matters concerning Rythmol@ or the `588 patent, and/or the obligation of Abbott, BASF or Knoll (or any related person or entity) to cooperate or provide assistance to Reliant on such matters.
cc:
Christine Willgoos, Esq, (via e-mail) Jack B. Blumenfeld, Esq. (via e-mail) Josy W. Ingersoll , Esq. (via e-mail) Karen L. Pascale, Esq. (via e-mail)
3
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EXHIBIT 8
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KIRKLAND & ELLIS LLP
AND AFMIKF£D PAUNF.RStnPS
Citigraup Conter 153 East 53rd street Christine Wilfgoas To Call Writer DIrectiy: 212 446-4964 [email protected]
New York, New York 10022-4011 (212) 446 -4900
Facsimile:
( 212) 446-4900
www.kiNand.com
July 26, 2007
VIA EMAIL
Jim Stronski, Esq. 1~rommer, Lawrence & Haug 745 Fifth Avenue
New York, New York 10151
Re: Reliant Pharmaceuticals, Inc. v. Par'Pharaaaceutical, Inc. Civil Action No. 06-774-JJF (D. Del.)
Dear Jim: I write in response to your July 23, 2007 letter to Gerald Flattmann.
Your letter mischaracterizes Reliant's position with regard to discovery in this action and misquotes my July 16, 2007 letter to John Taylor. Reliant objects to FLH's continued violation of its ethical duties to its former client Reliant. Accordingly, as stated in my July 16th letter, "Reliant will not produce responsive documents or things to L'LS until final resolution of Reliant's Motion To Disqualify FLH." See July 16, 2007 letter from Christine Willgoos to John Taylor (emphasis added). If Par and FLH are truly interested in timely resolution of this matter, FLH should honor its ethical obligations to its former client Reliant and withdraw from representing Par in this substantially related matter. Indeed, Reliant has recently discovered additional contemporaneous documentary evidence that demonstrates the inaccuracy of FLH's declarations to the Court regarding its former representation of Reliant. I attach a non-privileged document' that sets forth the agenda for a June 30-July 1, 2003 meeting between Reliant and Abbott regarding Reliant's potential acquisition of the patent and drug at issue in this litigation. Arthur Hoag is listed as an attendee and described as Reliant's "IP Counsel" This document supports Reliant's assertions that FLH
The non-privileged meeting agenda attaebes a Confidential Descriptive Memorandum provided to Reliant by Abbott pursuant to a confidentiality agreement. This memorandum was previously provided in redacted force to Par as an exhibit to Reliant's briefing of the disqualification motion.
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KIRKLAND & ELLIS LLP
Jim Stronski, Esq. July 26, 2007 Page 2
began its representation of Reliant with respect to the RythmolQD acquisition at least as early as June 2003 and that current FLH partners were involved in and have confidential information regarding that acquisition. Moreover, your request for agreements relating to Reliant's acquisition of Rythmol® and the `588 patent from Abbott further demonstrates the ethical conflict inherent in FLH's representation of Par in this matter. As admitted in Ed Haug's May 9, 2007 declaration,, FLH is already in possession of a draft of at least one such agreement, the Assignment of Patents between Reliant and Abbott. See May 9, 2007 Declaration of Edgar H. Haug In Opposition To Reliant Pharmaceuticals Inc.'s Motion to Disqualify Frommer Lawrence & Haug LLP, 21. Thus, Reliant once again requests that FLH resolve its ethical conflict by immediately withdrawing from its representation of Par. If FLH continues in its refusal to do so, Reliant may bring its newly discovered document evidencing this conflict to the Court's attention.
Regarding Reliant's responses to Par's interrogatories, Reliant maintains that its responses are appropriate for this early stage of fact discovery. As asserted in Reliant's responses, Reliant will supplement its answers to T'ar's discovery requests as discovery progresses.
Further to your inquiries regarding Kirkland & Ellis' representation of third parties to this action, as set forth in Reliant's Initial Disclosures, Kirkland & Ellis will represent Karl Kolter, Helmut Frike, Volker Bueller, Herbert Mueller-Peltzer, Thomas Moest and Claus Pich. Reliant has not represented that it has control over any of these third parties or the ability to compel their attendance at depositions in the U.S. or abroad.
Mr. Oblon has indicated that his fm will not appear voluntarily in this action. If Par chooses to subpoena any attorneys from Oblon Spivak, Kirkland & Ellis will represent them jointly with Mr. Michael McCabe of Oblon Spivak.
Sincerely,
Christine Willgoos CWllesr
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tt Laboratories Rythmo Due Diligence
Date June 3O-July 1
Attendees Reliant Joseph Kdvulka Steffan Aignar Kip Martin George Bobotas Keith Rotenberg Tony DePadova Michael Lerner Jim Misner Arthur Hoag Abbott Jeff Drajesk John Fitz Gerald Fran Jagla Quntin Noble Larry Pope Deniz Razon Marcel Reid Maritou Reed Allen Rosenston Sue Semla, PhD Jaynes Steck Bob Stewart Jerald Wenker Subject Time Monday June 30
President EVP Business Development Director Business Development VP, Scientlllc Affairs SVP, R&D VP, Clinical Development General Counsel Executive Director, Marketing IP Counsel (V4 Party) Global Operations Director, Out Patient Cardiovascular Senior Manager, Licensing & New Business Development, Americas Senior Counsel, Trademark Manager, Financial Planning and Analysis Senior Counsel, IP Senior Product Manager, Cardiovascular Operations Project Manager Associate Director Regulatory Affairs Manager, Contract Manufacturing Services Senior Project Manager, Pharmaceutical Analytical Research & Development Senior Manager, Sc'sentic and Technical Assessment Director of Operations
Divlslonal Vice President, Licensing & Now Business Development, Americas
Presenter -.. AP61) - Corporate Licensing Conf Room
12.30
12.40 01.30 02.00 02.15
Open /introductions
CMClFormulallonlManufacturln Clinical Develo ment Break R uato
All
Sue SemialBob Stewart Jeff 13ra ask Marilou Reed
0240
03AG 04,00
Commercial and Marketing
Trademark intellectual Pro a
Deniz Razon
Fran Ja la Po
04.15
Tuesday July
Close Open 1 Data room
Follow-u ! Close AP34-2 Global Licensing Canf Room
08.30
05.00
CONFIDENTIAL
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FROMMER L AWRENCE & HAU G
t_LP
New York 745 Fifth Avenue New York, NY 10151 Tolephone: (212) 588-0800 Fax: (232) 588-0500 John G. Taylor [email protected]
wwwflhlawcom Wastie&, OC Tokyo
August 8, 2007
BY E-MAIL AND HAND DELIVERY
Gerald J. l4lattmann, Jr., Esq. Kirkland & Ellis LLP Citigroup Center
153 Fast 53rd Street New York, NY 100224611
Re: Reliant Pharmaceuticals, Inc. v. Par Pharmaceutical, Inc. Civil Action No. 06-774-JJF (D. Del)
Dear Gerald: Further to our August 1, 2007 telephone conference, enclosed are document subpoenas for the following individuals and companies:
1. Karl Kolter;
2. Helmut Fricke; 3. Volker Bueller;
4. Herbert Mueller-Peltzer; 5. Thomas Moest;
6. Claus Pich;
7. Abbott Laboratories, Inc.; 8. Knoll Aktiengesellschaft; and 9. BASF Aktiengesellschaft.
With respect to each of these parties, please advise us immediately whether Kirkland & Ellis represents them, whether Kirkland & Ellis accepts service of the subpoenas on their behalf, and whether they will voluntarily produce documents sought in the subpoenas and appear for depositions at mutually convenient times and places. In this regard, we repeat the request in our July 23, 2007 letter that Reliant immediately produce all agreements and related documents concerning Reliant's acquisition of Rythmol® and the `588 patent from Abbott, including specifically any agreement that concerns any right of Reliant to seek the assistance of the inventors, Abbott, BASF or Knoll (or any related person or entity) on patent, regulatory or litigation matters concerning Rythmol® or the `588 patent, and/or the obligation of the inventors,
Oa46996UOG
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Gerald J. Flattmann, Jr., Esq. Kirkland & His LLP August 8, 2007
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Abbott, BASF or Knoll (or any related person or entity) to cooperate or provide assistance to Reliant on such matters.
Finally, please advise us immediately when. Reliant is going to begin producing documents and when it is going to provide amended responses to Par's first set of interrogatories. At the beginning of our August i telephone conference, you said that Reliant was "ready to start streaming documents" to us. When we asked you later during the telephone conference when Reliant would produce documents and amend its interrogatory responses, you stated that you would get back to us promptly. Although Reliant took the unfounded position that it would not produce documents until the motion to disqualify was decided, it nevertheless should have collected and prepared documents in response to Par's requests so that they could be produced consistent with the Court's scheduling orders, With respect to interrogatory responses, Reliant has not provided substantive responses to any of Par's contention interrogatories. The statement in Christine Willgoos' July 26, 2007 letter that Reliant's "responses are appropriate for this early stage of discovery" is unsatisfactory. Although Reliant may supplement its responses as discovery progresses, Par is entitled to substantive responses now. As we pointed out in our July 23 letter, Reliant has had Par's notice letters for over six months and has had Par's ANDA and samples for more than 3 months. There is no excuse for Reliant not providing substantive information in response to Par's interrogatories seeking infringement contentions.
Encls. Cc: Jack B. Blumenfeld, Esq. (via e-mail only) Christine Willgoos, Esq. (via e-mail only) Josy E. Ingersoll, Esq. (via e-mail only) Karen L, Pascale, Esq. (via e-mail only)
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KIRKLAND & ELLIS LLP
AND AFRUATED PARTNERSHIPS
Citigroup Center 153 Fast 53rd Street
Christine Willgoos To Call Writer Directly:
212 446.4964 [email protected]
New York, Now York 10022-4611 Facsimile:
(212) 448-4900 (212) 445-4800
www.kirkland.com
August 10, 2007
VIA EMAIL
John Taylor, Esq. F:rommer, Lawrence & Haug 745 Fifth Avenue New York, New York 10151 Re. Dear John:
I write in response to your August 8, 2007 letter to Gerald 1~ lattmann. Thank you for providing courtesy copies of the subpoenas you intend to serve. Kirkland & Ellis represents Drs. Kolter, Frike, Bueller, Mueller-Peitzer, Moest and Pich. We are not, however, authorized to accept subpoenas on their behalf. None of Drs. Kolter, Frike, BuelIer, Mueller-PeItzer, Moest and Pich are currently, or ever have been, employees of Reliant. Reliant has no control over them. However, in an effort to facilitate discovery, Kirkland & Ellis will ask them, if they would be willing to voluntarily produce documents or appear for deposition in this action in the United States.
Reliant Pharmaceuticals, Inc. v. Par Pharmaceuticals
Kirkland & Ellis does not represent Abbott Laboratories, Inc., Knoll AG, or BASF AG in this
action. Pursuant to the Court's July 25, 2007 Order, either party may extend, without leave of Court, the time to comply with paragraph 3 of the March 28, 2007 Scheduling Order by 30 days. Reliant advised you during our August 1, 2007 teleconference that it was extending that date, and thus has until September 24, 2007 to comply with paragraph 3 of the Scheduling Order. Reliant will begin its document production shortly and supplement its interrogatory responses in order to timely meet its discovery obligations. Reliant's document production will include the agreements you request, subject to the objections made in its June 11, 2007 Objections and Responses.
Chicago
Hong Kong
London
Los Angeles
Munich
San Francisco
Washington, D.C.
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KIRKLAND & ELLIS LLP
John Taylor, Esq. August 10, 2007 Page 2
Moreover, although Par produced its ANDA and samples, it did so pursuant to the Offer of Confidential Access, which does not permit disclosure to experts for purposes of litigation preparation. Reliant will be in a better position to provide more complete substantive answers to Par's interrogatories once it is able to consult with its experts. Now that the Protective Order has been filed, we should be able to do that shortly. Sincerely,
CAN/tesr
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FRO MMER LAWRENCE & HAUG ALP
Now York 745 Fifth Avenue New YGrk, NY 10151 Telephone: (212) 589-oa00 Fax: (212) 589-0500 John G. Taylor [email protected]
www.tllllaw.com Washington, DC TGkyo
August 20, 2007
BY E-MAIL AND FIRST CLASS MAIL
Gerald J. Flattmann, Jr., Esq. Kirkland & Ellis LLP Citigroup Center
153 East 53rd Street New York, NY 10022-4611 Re: Reliant Pharmaceuticals , Inc, v. Par Pharmaceutical, Inc. Civil Action No. 06-774-JJF (D. Deli
Dear Gerald; We write concerning Reliant's failure to produce any documents or to provide substantive answers to any interrogatories despite Par's repeated requests and Reliant's repeated assurances---both written and oral-that documents and interrogatory answers were forthcoming. See Frommer Lawrence & Haug letters dated July 11, July 23, August S, and August 13, 2007 and Kirkland & Ellis letters dated July 16, July 26, and August 10, 2007. During our August 1 telephone conference, we specifically advised you that we needed to receive Reliant's responsive documents and substantive interrogatory answers by the middle of August so that Par could, if necessary, make a motion to compel in time to be heard before the September 23 deadline for completion of document production and contention interrogatories. Judge Farnan's last motion hearing date before the September 23 deadline is September 21. Under Judge Farnan's individual rules, the last day a motion can be filed to be heard on the September 21 hearing date is Thursday, August 23. Accordingly, if we do not receive substantial and meaningful production of documents responsive to Par's first set of document requests and substantive answers to Par's first set of interrogatories by Wednesday, August 22, we will have no choice but to file a motion to compel on August 23.
cc:
Jack B. Blumenfeld, Esq. (via e-mail only) Josy E. Ingersoll, Esq. (via e-mail only) Christine Willgoos, Esq. (via e-mail only) Karen L. Pascale, Esq. (via e-mail only)
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KIRKLAND & ELLIS LLP
AND A."WATED PARTNERSHIPS
Cltlgroup Center 153 East 53rd Street Chrlstine Wilgoos To Call Writer Directly:
New York, New York 10022-4511 (212) 448 -4800 www.kirkand.com
212 446 4864 cdillgaos @kirkland.com
Facsimlle: (212) 448-4800
August 21, 2007
VIA. EMAIL
John Taylor, Esq. Frommer, Lawrence & Haug 745 Fifth Avenue New York, New York 10151
Re: Reliant Pharmaceuticals, Inc. v. Par Pharmaceuticals
Dear John:
I write in response to your August 13, 2007 letter to me and your August 20, 2007 Ietter to Gerald Flattatann. Pursuant to the Court's July 25, 2007 Order, Reliant has an additional 30 days - until September 24, 2007 -- to comply with its discovery obligations set forth in paragraph 3 of the Rule 16 Scheduling Order. Reliant has repeatedly informed you that it intends to meet its discovery obligations prior to that date. See, e.g., August 10, 2007 letter from Christine W111goos to John Taylor.
Accordingly, any motion to compel filed by Par prior to the September 24, 2007 deadline is premature. In particular, should Par file any motions to compel on August 23, 2007, as indicated in your letter to Gerald Flattmann, such motions would be frivolous, and Reliant will move for its costs incurred in defending them.
Regarding the inquiries made in your August 13, 2007 letter, Drs. Kolter, Frike, Bueller, Mueller-Peltzer, Moest and Pich have indicated that they will not appear voluntarily in this action.
Sincerely,
Mlesr
Chicago
Hong Kong
London
Los Angeles
Munich
San Francisco
Washington, MO.
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Jabri, Omar
From : Sent: To: Cc: Christine Willgoos [[email protected]] Thursday, August 23, 200711:47 AM Taylor, John gfiattmann @kirkland.corn; [email protected]; Ingersoll, Josy; Stronski, James; Pascale, Karen ; Jabri, Omar
Subject : Re: Reliant v. Par
John -The current addresses for Drs. Frike, Kolter, Mueller-Peltzer, Bueller, Pich and Moest are set forth in Reliant's initial disclosures. Regarding your intent to seek the Court' s assistance to proceed under the Hague convention, we would like to review your proposed request prior to determining whether or not to oppose it. We will not oppose your motion if the request is reasonable. Further, Reliant expects to begin producing documents tomorrow. Regards, Christine
'Taylor, John"
To 4gflattmann4^Krkland.com>,'Christine Willgoos'
Karen"
06!22/2007 08:Q4 PM
Dear Gerald and Christine, In light of Reliant's position that it has no control over BASF and Knoll and the Inventors' refusal to appear voluntarily for depositions and, we presume, to produce documents, Par intends to move the Court for judicial assistance. In particular, Par will ask the Court to issue a Request for International Judicial Assistance to the German authorities pursuant to the Hague Convention seeking documents and depositions of the inventors, BASF and Knoll. Please advise us whether Reliant will consent to such a motion. Please also provide us with the addresses of the inventors represented by Kirkland & Ellis, as requested in our August 13 letter. Sincerely,
John G. Taylor
8/23/2007
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Frommer Lawrence & Haug LLP 745 Fifth Avenue New York, NY 10151 Tel: 212-588-0800 Fax: 212-588-0500 E-Mail: JTaylor®FLHiaw.corn
The information contained in this communication is confidential, may be attorney-client privileged, may constitute inside information, and is intended only for the use of the addressee. It is the property of Kirkland & Ellis LLP or Kirkland & Ellis International LLP. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. if you have received this communication in error, please notify us immediately by return e-mail or by e-mail to [email protected], and destroy this communication and all copies thereof, including all attachments.
-F*******'k 3r He F *#*#* k#***#*Yr ir** #* ^c'kW* *****:F****k#*******Ye *#3c :k 'k
8/23/2007
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FROMMER LAWRENCE & HAUL
t.1.P
New York 195 Fib Avenue New York, NY 10151 Telephone; (212) 588-0800 Fax; (212) 588.0500
John G . Taylor [email protected]
www.fihfawcom Washington, CC Tokyo
August 13, 2007
VI.A. E-MAIL AND FIRST CLASS MAIL Christine Willgoos, Esq. Kirkland & Ellis LLP Citigroup Center
153 East 53rd Street New York, NY 10022-4611
Re: Reliant Pharmaceuticals , Inc. v. Par Pharmaceutical, Inc, Civil Action No. 06-774-JJF
Dear Christine: We write in response to your August 10, 2007 letter. Please advise us on or before Monday, August 20, 2007, whether Messrs. Kolter, Fricke, Bueller, Mueller-Peltzer, Moest, and Pich (collectively "the inventors") will produce voluntarily all documents responsive to the subpoenas we delivered to Kirkland & Ellis on August 8, 2007 and whether the inventors will appear voluntarily for depositions in the United States or elsewhere. If any of the inventors will produce documents responsive to some, but not all, of the requests in the August 8 subpoenas, please identify the requests to which they will not respond and the bases for their refusal to produce the requested documents. Please also provide us with the inventors' current addresses on or before August 20. Lastly, you state in your August 10 letter that "Reliant will begin its document production shortly" and that its document production will include the agreements Par has requested concerning any right of Reliant to seek the assistance of the inventors, Abbott, BASF or Knoll (or any related person or entity) on patent, regulatory or litigation matters concerning Rythmol® or the `588 patent, and/or the obligation of the inventors, Abbott, BASF or Knoll (or any related person or entity) to cooperate or provide assistance to Reliant on such matters. These documents are responsive to at least Interrogatory Nos. 10 and. 13 of Par's first set of document requests,
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which were served on March 23, 2007. We request that these documents be produced on or before August 20.
cc:
Gerald J. Flattmann , Jr., Esq. (via e-mail only) Jack B. Blumenfeld, Esq. (via e-mail only) Josy W. Ingersoll, Esq. (via e-mail only) Karen L. Pascale, Esq . (via e-mail only)
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Jabrj, Omar
From: Sent: To: Cc: Taylor, John Wednesday, August 22, 2007 9:05 PM [email protected]; Christine Willgoos [email protected]; Ingersoll, Josy; Pascale, Karen; Stronski, James; Jabri, Omar
Subject : Reliant v. Par Dear Gerald and Christine,
in light of RelianVs position that it has no control over BASF and Knoll and the inventors' refusal to appear voluntarily for depositions and, we presume, to produce documents, Par intends to move the Court for judicial assistance. In particular, Par will ask the Court to issue a Request for International Judicial Assistance to the German authorities pursuant to the Hague Convention seeking documents and depositions of the inventors, BASF and Knoll. Please advise us whether Reliant will consent to such a motion. Please also provide us with the addresses of the inventors represented by Kirkland & Ellis, as requested in our August 13 letter.
Sincerely, John G. Taylor Frommer Lawrence & Haug LLP 745 Fifth Avenue New York, IVY 10151 Tel: 212-588-0800 Fax: 212-588-0500 E-Mail: [email protected]
8/22/2007
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