Free Appendix - District Court of Delaware - Delaware

Case 1 :04-cv-01300-SLR Document 76-6 Filed 09/21/2006 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
ETHYPHARM S.A. France and )
ETHYPHARM S.A. Spain, )
) C.A. N0.: 04-1300 (SLR)
Plaintiffs, )
)
v. )
)
BENTLEY PHARMACEUTICALS, INC. )
)
Defendant )

DECLARATION OF JONATHAN D. FINE
JONATHAN D. FINE, pursuant to 28 U.S.C. § 1746, declares as follows:
1. I am an attorney with the firm of Baach Robinson & Lewis PLLC. I am admitted to
practice law in the District of Columbia, and pursuant to this Court’s docket order of February 16, 2006, I
am admitted pro hac vice to represent Ethypharm S.A. France and Ethypharm S.A. Spain (collectively
"Ethypharm" or "Plaintiffs”) in the above-captioned civil action. I have worked on the instant civil
action, and have been in frequent communication for counsel for Bentley relating to this action, since
2005. I have personal knowledge of the facts stated in this declaration. I submit this declaration in
support of Plaintiffs’ Motion for Sanctions and Other Appropriate Relief
2. Ethyphami served its requests for documents relating to the issues of agency and joint
tortfeasor status on December 9, 2005 (a true and correct copy of which is attached hereto as Exhibit L),
December 21, 2005 (a true and correct copy of which is attached hereto as Exhibit M), and June 23, 2006
(a true and correct copy of which is attached hereto as Exhibit N), and Ethypharm served its
interrogatories on the same subjects on December 9, 2005 (a true and correct copy of which is attached
hereto as Exhibit Q).
3. During the week of September ll through 15, 2006, I participated in at least six
communications with the iirrn of Edwards Angell Palmer & Dodge LLP in Boston with counsel named
on Defendant Bentley Pharmaceuticals, Inc.’s ("Bent1ey") motion for summary judgment, dated August
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25, 2006. The communications included at least one telephone discussion and emails. At least three of
those communications took place on September 12, 2006; at least two of those communications took
place on September 13; and at least one of those communications took place on the afternoon of Friday,
September 15. 1 understand that there also were other communications between counsel for Bentley and
attorneys at this firm on September 15, 2006. In none of those communications — or at any other time
before the delivery of materials on September 16, 2006 —— did counsel for Bentley indicate to me or any
other attorney at my law firm that any documents relating to Phase I discovery (agency and joint
tortfeasor status) had yet to be produced.
4. At approximately 9:00 pm on Friday September 15, 2006, I served, via email, a copy of
Ethypharnfs brief in opposition to Bentley’s motion for summary judgment on counsel for Bentley, and
at approximately 9:30 pm, I confirmed that the law firm of Murphy Spadaro & Landon had filed
Ethypharrn’s opposition with the Court.
5. On the morning of Monday, September 18, 2006, I arrived at the offices of Baach
Robinson & Lewis, and discovered a Federal Express package from Edwards Angell Palmer & Dodge
LLP, marked for Saturday delivery. The package contained a cover letter (a true and correct copy of
which is attached hereto as Exhibit A), enclosing approximately 95 pages of documents relating to the
issues of agency and joint tortfeasor status in electronic form. In particular, this late production includes:
a. An employment contract for Clemente Gonzales Azpetia, a former General
Manager of Bentley’s subsidigy, Laborotorios Belmac SA, sigped by James
Murphy as the Chairman of Belmac Corporation (the former name of Bentley) (a
true and correct copy of which is attached hereto as Exhibit B); and
b. A document relating to the date of separation, and terms of severance, of another
former General Manager of Laborotorios Belmac, Angel Perez de Ayala (a true
and correct copy of which is attached hereto as Exhibit C).
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6. My discovery of the package was the first indication that Ethypharm’s attomeys had of
the existence of the documents relating to Phase I discovery (agency and joint tortfeasor status) enclosed
therein.
7. I reviewed the tracking information for the Federal Express package (Number
911692955353) that I discovered on Monday morning. That information indicates that the package was
picked up on Friday September 15, at 8:02 pm in Boston, and Federal Express delivered the package to
the guard station in the building where Baach Robinson & Lewis PLLC has offices, in Washington, DC,
at 11:50 am on Saturday, September 16, 2006.
8. On previous occasions, despite repeated requests from Ethypharm, Bentley has produced
highly relevant documents in an untimely manner, including:
a. Two faxed communications between the General Manager of Bentley’s
subsidiary, Laborotorios Belmac SA, Adolfo Herrera, and the Chairman and
CEO of Bentley, James Murphy, relating to the November 14, 2001, notice of
termination sent to Ethypharm (true and correct copies of which are attached
hereto as Exhibit D). These documents were first requested on December 9,
2005, and as is clear from the cover letter enclosing them (a true and correct copy
of which is attached hereto as Exhibit E), the documents were received by
Ethypharm’s attomeys on August 2, 2006, after the depositions of both Adolfo
Herrera (General Manager of Laborotorios Belmac) and James Murphy (CEO of
Bentley and President of Laborotorios Belmac), among approximately 30,000
pages discovery material unrelated to the issues of agency and joint tortfeasor
status. These documents were identified as relevant to those issues only on
August 4, 2006, one day before the close of discovery.
b. Monthly time allocation reports indicating the amount of time spent by Bentley
executives managing the business of Laborotorios Belmac SA (true and correct
copies of which are attached hereto as Exhibit F), Despite repeated requests,
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these documents were first produced via email (a true and correct copy of which
is attached hereto as Exhibit G) after the close of discovery on the issues of
agency and joint tortfeasor status on August 10, 2006, even though Bentley
produced underlying management agreements in Spanish in April 2006.
c. Monthly invoices between Bentley and Laborotorios Belmac SA for management
fees owed to Bentley from Laborotorios Belmac relating to the time allocation
reports discussed above (true and correct copies of which are attached hereto as
Exhibit H). Despite repeated requests, these documents were first produced on
August 10, 2006, after the close of discovery on the issues of agency and joint
tortfeasor status, See Exhibit G, even though Bentley had earlier produced other
invoices between one of its wholly-owned U.S. subsidiaries, Pharma de Espana,
and Laborotorios Belmac.
9. ln response to the untimely production of documents on August 10, 2006, a partner of
this frm, Dwight Bostwick, sent an email to counsel for Bentley (a true and correct copy is attached
hereto as Exhibit I), reserving Ethypharm’s rights with respect to Bentley’s untimely production.
10. On Monday, September 18, 2006, Mr. Bostwick sent a letter (a true and correct copy of
which is attached hereto as Exhibit J) to counsel for Bentley, requesting an explanation for the untimely
production ofthe documents received on September 16, 2006, and received an emailed response from Mr.
Stewart on Tuesday, September 19 (a true and correct copy of which is attached hereto as Exhibit K).
11. Ethypharm has repeatedly sought production of the documents that have been produced
in an untimely manner, including in its served document requests, in correspondence (true and correct
copies of which are attached as as Exhibit O), and during depositions (excerpts of the transcript of
Michael Price are attached hereto as Exhibit P).
Dated: Washington, D.C. /
September 21, 2006 ` / -
athan D. ine
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