Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00901-JJF Document 229 Filed O3/O9/2006 Page1 of2
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
222 Delaware Avenue, 10th Floor
Wilmington, Delaware 19801-1621
(302) 888-6800
Facsimile (302) 571-1751
www.morrisjames.com
Richard K. Herrmann Mailing Addrggg
(302) 888-6816 P.O. Box 2306
fhCFTmHHH@mOfTlS_jk1m€S.COm Wilnqjngtgna DE ]9899-23()6
March 9, 2006
VIA ELECTRONIC FILING
The Honorable Joseph J. Farnan, Jr.
USDC for the Distnct of Delaware
844 King Street
Wilmington, DE 19801
Re: Ajfynzctrixt, Inc. v. Illumina, Inc., D. Del., C.A. N0. 04-901-JJF
Your Honor:
1 write in reply to Affymetrix’ letter of yesterday to clarify certain points raised
with regard to the discovery of Dr. Richard Sachleben.
First, Affymetrix incorrectly states that Illumina is seeking to have this Court
"enforce" its subpoena to Dr. Sachleben. That is incorrect. Illumina is merely seeking to have
this Court clarify that this discovery can be taken outside the discovery period, given the delay
that has now been created by Affymetrix’ objections. With such clarification in hand, to the
extent Illumina must enforce a subpoena of Dr. Sachleben, Illumina will do so in Massachusetts.
Second, Affymetrix’ attempt to analogize the Sachleben subpoena to the
discovery of Dr. Radomir Crkvenjakov is severely misplaced. Dr. Crkvenjakov produced
hundreds of pages of documents, and was deposed for 7 hours, pursuant to a subpoena. Illumina
has received no discovery from Dr. Sachleben. While Dr. Crkvenjakov did object to producing
original documents in response to a second subpoena, that is a far cry from Affymetrix’ "you’11
have nothing and like it" position on Dr. Sachleben. And with respect to Affymetrix’ request to
review originals, Kirkland & Ellis has separately obtained Dr. Crkvenjakov’s consent to make
his original documents available to Affymetrix to remove any possible question as to their
authenticity. So these situations are not at all the same -- Affymetrix is getting all of the
discovery it wants with respect to Dr. Crkvenjakov, and Affymetrix is blocking Illumina from
getting any discovery of Dr. Sachleben.
Third, Affymetrix grossly mischaracterizes 1llumina’s position when it states that
"Illumina requests that [Dr. Sachleben be deposed and produce documents] on its schedule and
in response to an invalid subpoena." To the contrary, Illumina has all along agreed to be flexible
in accommodating Dr. Sachleben’s schedule for the service of a subpoena, the production of
documents, and the taking of a deposition, and Illumina and Dr. Sachleben had several telephone
Dover (302) 678-8815 Broom Street (302) 655-2599 Newark (302) 368-4200

Case 1:O4—cv-00901-JJF Document 229 Filed O3/O9/2006 Page 2 of 2
MORRIS, ]AMEs, HITCHENS & WILLIAMS LLP
The Hon. Joseph J. Farnan, Jr.
March 9, 2006
Page 2 _
conversations confirming this approach prior to Affymetrix’ involvement. This situation only
became adversarial when Affymetrix injected itself as Dr. Sachleben’s "counsel."
Fourth, Affymetrix is wrong when it suggests that the discovery sought from Dr.
Sachleben is duplicative of discovery already obtained in this case. Dr. Sachleben specifically
prepared documents, and engaged in conversations, that are unique to him and the issues in this
case. Illumina made the choice to pursue targeted discovery from Dr. Sachleben because he can
provide information that no other witness can. A targeted set of documents, and a 2-3 hour
deposition, is all that Illumina seeks from Dr. Sachleben.
Fifth, Affymetrix has no response to the fact that it, as Dr. Sachleben’s counsel,
had received the subpoena as of February l4, but stayed silent as to its representation and Dr.
Sachleben’s objections until after the discovery deadline had passed. It should not now be heard
to complain that the discovery sought is untimely.
Once Affymetrix lodged its objections on Dr. Sachleben’s behalf a new subpoena
was issued to remove any question as to its validity, and this discovery should proceed
appropriately. lllumina respectfully requests the Court to grant lllumina leave to take the limited
discovery of Dr. Sachleben past the discovery deadline, just as other limited discovery between
the parties continues to date.
Respectfully,
Richard K. Herrmann,iI.D. No. 405
rherrmanngalmorrisjames.com
cc: Dr. Peter T. Dalleo, Clerk ofthe Court (via electronic filing) q
MaryEllen Noreika, Esq. (via electronic filing)
Michael J. Malecek, Esq. (via email)