Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01258-SLR Document 49 Filed O4/28/2005 Page 1 ot 4
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April 28, 2005
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B Hand Deliver And Electronic Filin
The Honorable Sue L. Robinson
United States District Court for the District of Delaware
J. Caleb Boggs Federal Building
844 N. King Street, Room 6124
Wilmington, DE 19801
RE: McKesson information Solutions LLC v. T he T riZez‘to
Group, Inc., C.A. No. 04-1258-SLR (D. Del.)
Dear Chief Judge Robinson:
This letter is submitted on behalf of plaintiff] McKesson Information
Solutions LLC ("l\/[cKesson"), in connection with Your I-Ionor's telephone
conference in the referenced case, scheduled for April 28, 2005 at 2:30 P.M.
As stated in our email to Your Honor last Friday, the enforcement of
McKesson's customer subpoenas is proceeding well (we have resolved or will soon
resolve all issues regarding at least half of the subpoenas), despite TriZetto's
suggestions otherwise, and there is no need or basis for Your Honor to alter the
"scope" of the subpoenas as requested by Mr. Blumenfeld in his letter to you today.
If Your Honor is inclined to exercise jurisdiction over the third-party subpoenas — all
of which were issued by other courts —— we ask that TriZetto's counsel be instructed to
avoid interfering with our third—party discovery and to encourage the customers they
have spoken with to contact us directly to allow us to resolve any issues those
customers might have.
As brief background, we issued forty-one customer subpoenas prior to Your
Hon0r's April 12, 2005 discovery conference. Based on our agreement at the hearing
to narrow the requests and notify the customers already subpoenaed, we drafted
letters to each of the customers informing them of the narrowed requests and our
willingness to work with them to eliminate undue burden in connection with their

Case 1:04-cv-01258-SLR Document 49 Filed O4/28/2005 Page 2 of 4
Hon. Sue L. Robinson
April 28, 2005
Page 2
responses. Attachment A to this letter is a copy of the letter that we sent to Capital
BlueCross. Similar letters were sent to all of the other customers served with our
initial requsts.] We have since issued five subpoenas with the narrowed requests.
The documents requested from the customers are important to both our
infringement (including indirect infringement) and damages cases. For example, our
request for TriZetto marketing materials in a customers possession (Request No. 1)
and communications relating to clinical editing/auditing components of Facets
(Request No. 2) are necessary to establish what information that customer used in
deciding to purchase Facets and the overall significance of the infringing clinical
editing/auditing functionality to the custorner's decision. This information is relevant
to McKesson's inducement of infringement claims, and it bears directly on the
factors involved in establishing damages (ag., demand for the patented features of
Facets and the absence of acceptable non—infringing substitutes), including convoyed
sales damages (e. g., the importance ofthe patented features to the overall Facets and
other TriZetto products). Our requests for the customer's product comparisons
(Request No. 5), their analysis of McKesson's patented products (Request No. 6),
and their decision-making process (Request No. 7), also are directly relevant to these
central issues in the case and are not available from TriZetto.
Numerous customers have already produced documents without objection.
Attachment B is the letter we received this week from one of those customers,
M•Plan, in connection with its response to our initial document requests. We have
also reached agreement with (or are close to reaching agreement with) a number of
other customers concerning the production of responsive documents. In all, we have
already resolved, or will soon resolve, issues relating to over half of the customers
subpoenaed.
The reason for this is our willingness to work with the customers, consistent
with our Rule 45 obligations, to allow a reasonable time for compliance, to
adequately protect confidential information,2 and to relieve any undue burden caused
by the subpoenas. Among other things, we have agreed to a staged production that
allows customers to produce readily—identifiable responsive documents (for example,
l Contrary to the statement in Mr. Blumenfeld's letter (D.l. 46), TriZetto's counsel
knows exactly which customers received letters. We provided them with the
names of every customer subpoenaed and, as illustrated by our April 22, 2005
email to Your Honor, they know that letters were sent to each of these customers.
We are not required to provide them with copies of letters.
2 On April 27, 2005, the parties reached agreement on a proposed protective order
that has been submitted to the Court.

Case 1:04-cv-01258-SLR Document 49 Filed O4/28/2005 Page 3 of 4
Hon. Sue L. Robinson
April 28, 2005
Page 3
the central TriZetto files maintained by the customer, the files of the few employees
directly involved with TriZetto, or other easily identified and collected documents),
combined, to the extent necessary, with a limited follow—up production. Although
certain customers continue to express concerns about the subpoenas, they have also
expressed a willingness to work with us in connection with their responses. We feel
confident that we will be able to resolve the issues raised by most, if not all, of these
customers without the need for court intervention. Our efforts in this regard would
be aided by our request that TriZetto's counsel be directed to ask the customers it has
spoken with to contact us about their responses.
The HealthNow motion to quash referenced in Mr. Blumenfeld's letter is a
good example of our efforts to work with the customers to resolve issues relating to
the subpoenas. HealthNow's motion expressly acknowledges that "HealthNow
intends to continue to meet and confer with McKesson in an effort to resolve
HealthNow's objections to the subpoenas."
The April 26 letter that we received from HealthNow's counsel —~ who also
represents two other customers — after the motion was filed confirms a prior proposal
involving a staged production of documents and her clients' desire to reach
agreement regarding the subpoenas:
"We offered last week to provide McKesson with copies of the TriZetto
documents that our clients recently produced in litigation pending in the U.S.
District Court for the Southern District of Florida. (We reiterate, however,
that we will produce these documents to McKesson only after we have
provided TriZetto with any required notice under our clients' respective
contracts with TriZetto and only after a proper protective order is in place.)
"While we have filed motions to quash the subpoenas issued to HealthNow
New York, Inc., Capital BlueCross and Blue Cross of Idaho, we remain
willing to continue to meet and confer with l\/lcKesson in the hopes of
reaching an agreement regarding more narrowly focused and reasonable
document requests."
In our April 27 response letter to HealthNow's counsel, included herewith as
Attachment C, we confirmed our willingness to agree to the staged production, and
we attached a copy of the protective order agreed to in this case. We also noted that,
since TriZetto had authorized production of the documents in the Florida case, "there
should be no issue with producing them in our case." On this latter point, we request
that Your Honor ask TriZetto to agree to our prompt review of these documents.

Case 1:04-cv-01258-SLR Document 49 Filed O4/28/2005 Page 4 of 4
Hon. Sue L. Robinson
April 28, 2005
Page 4
Our ability to resolve all ofthe issues raised in connection with nearly half of
the subpoenas through the normal course of discussions with the customers and their
counsel evidences the inappropriateness of Mr. Blumenfeld's abstract request that
Your Honor "resolve the scope" of the subpoenas. There is absolutely no need or
basis for Your Honor to take the extraordinary step of exercising jurisdiction to
consider such an abstract and unnecessary request, particularly without a motion by
or the presence of counsel for any of the third—parties. Whether our subpoenas
actually impose an undue burden is best determined on a customer-by—customer
basis, and the propriety of judicial intervention in any particular instance should only
be determined based on a complete record, including our willingness and ability to
accommodate the legitimate concerns of each customer.
Respectfully submitted,
}
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· ¤ { as J. Alling
Counsel for Plain " .
McKesson Infonnation olutions LLC
cc: Dr. Peter T. Dalleo, Clerk (by electronic filing)
Counsel for Defendant,
The TriZetto Group, Inc.:
Jack Blumenfeld, Esq. (by hand and electronic tiling)
Morris, Nichols, Arsht & Tunnell
Jeffrey T. Thomas, Esq. (by fax)
Gibson, Dunn & Crutcher LLP