Free Letter - District Court of Delaware - Delaware

Case 1:O4—cv—OO901-JJF Document 188 Filed O1/19/2006 Page 1 of 3
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
222 Delaware Avenue, 10th Floor t
Wilmington, Delaware 19801-1621 _
(302) 888-6800
Facsimile (302) 571-1751
l WWW.II10I’I'lSj2l1Tl€S.COl'Il
Richard K. Herrmann Mailing Address
(302) 888-6816. P.O. Box 2306
[email protected] Wilmington, DE 19899-2306
January 19, 2006
VIA ELECTRONIC FILING
The Honorable Joseph J. Faman, Jr. `
United States District Court
District of Delaware
844 King Street
Wilmington, DE 19801
Re: Ajfvmetrix, Inc. v. Illumina, Inc., D. Del., C.A. No. 04-901-JJF
Your Honor: -
Further to our letter of January 18, 2006, this letter provides Il1umina’s response to -
Affymetrix’ January 17 letter that submits for the Cou1t’s review forty (40) examples from
Illumina’s privilege log. -
Affymetrix’ letter is an attempt to end run the procedure outlined by Your Honor at the
hearing last week. In the paragraphs below, Illumina will review the history of this issue. In the
end, however, the important point is that Illumina submitted a revised privilege log yesterday
that addresses all of the issues raised by Affymetrix, as suggested by the Court last week and just
as it promised Affymetrix it would do. lllumina’s revised log (attached as Exhibit A) resolves
any issues Affymetrix might raise}
To the extent it is important, the relevant history is this. As a result of the expansive
discovery that Affymetrix has sought in this case, Illumina has produced over 640,000 pages of
documents and privilege logs that contain hundreds of entries. Not surprising given this
voluminous discovery, and despite Illumina’s best efforts to the contrary, Affymetrix has raised
certain concems with respect to Illtunina’s production, just as Illumina has raised concems with
respect to Affymetrix’ production. On December 20, 2005, over two months after Illumina
1 Affymetrix’ rush to raise these issues with the Court is particularly remarkable given that
Affymetrix served its initial log months after Illumina did, and actually served a new log _
yesterday with a whole new series of entries. Furthermore, Illumina has numerous concerns with
Affymetrix’ privilege log, which it is attempting to resolve with Affymetrix without seeking the
Court’s intervention.
Dover (302) 678-8815 Broom Street (302) 655-2599 Newark (302) 368-4200

Case 1:O4—cv—OO901-JJF Document 188 Filed O1/19/2006 Page 2 of 3
‘ Moruus, ]AMEs, HrTcHENs & WILLIAMS LLP
The Hon. Joseph J. Farnan, Jr.
January 19, 2006 p
Page 2
produced its initial privilege log, Affymetrix identified_ specific concerns regarding it. On
January 1 1, 2006, to address those concerns, Illumina produced a supplemental privilege log.
At the hearing last week, Affymetrix stated it believed Illumina’s supplemental privilege
log to be deficient in certain respects, without providing specific identification of all of the
entries it thought to be deficient. Following some discussion of this issue, Your Honor stated:
THE COURT: Well, here's what we‘re going to do. You [Illumina counsel] look at it on
behalf of Illumina, and make sure that you're confident with the logging. And then tell them that
we’re confident of what’s here, and what documents are represented that deserve redaction.
And then you [Affymetrix counsel] can select -- you're talking about 400. You can select
ten percent of that at random, 40. And l'll look at them.
And if I catch them improperly redacting on even one document, 1'll order a broad
remedy. -
_ (Jan. 12 Hearing Tr. 44:14-45:2)
Illumina took the Court’s instructions very seriously. Although Illumina did not
understand Your Honor to have set a deadline for reviewing and confirming the logging,
- Illumina’s counsel worked through the holiday weekend to review each and every one of 113
privilege log entries about which Affymetrix had specifically complained as well as the entirety
of its supplemental privilege log. On Monday, January 16, 2006, Illumina sent Affymetrix a
letter that comprehensively addressed the issues that Affymetrix had raised regarding Illumina’s
privilege log. (Ex. B) The letter also promised that Illumina would send a revised version of its
supplemental privilege log to Affymetrix on Wednesday, January 18. Despite Illtunina’s
attempts to timely address the issues in the manner it understood the Court to direct, Affymetrix
nonetheless submitted a list of 40 complaints to the Court on January 17.
Upon reviewing Affymetrix’ list of 40 pages (fewer than 40 documents because some
pages are taken from the same document), Illumina has determined that 36 of these are l
documents about which Affymetrix has not previously complained. This is inconsistent with
- Affymetrix’ position regarding Illumina’s ability to complain about Affymetrix’ privilege log,
with Affyrnetrix contending that Illumina must meet and confer before raising such complaints
with the Court. Nonetheless, these and, indeed, all of the entries in its supplemental privilege log
have been addressed by Illumina in its comprehensive review of its privilege positions
undertaken at this Court’s direction.
As indicated in our letter of yesterday afternoon, we believe that Affymetrix jumped the
gun in submitting the 40 examples that it provided to the Court with its January 17 letter.
Illumina was following the Court’s guidance and had informed `Affymetrix that it was reviewing

Case 1:O4—cv—OO901-JJF Document 188 Filed O1/19/2006 Page 3 of 3
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
The Hon. Joseph J. Farnan, Jr. .
January 19, 2006
Page 3
its positions and preparing a revised supplemental privilege log. lllumina is willing to permit
Affymetrix to submit 40 new examples, or to proceed on the examples already submitted.
lllumina provides the following information in the event the Court elects to proceed with the
examples submitted on January 17.
lllumina has attached hereto as Ex. C a table constructed for the Court’s convenience.2
This table extracts Illumina’s position regarding the forty "examples" from the explanation and
supplemental log provided to Affymetrix. For several examples, lllumina has re-reviewed them ‘
as directed by the Court and agreed to provide an unredacted version to Affymetrix. For the
remaining examples, lllumina has, along with the other documents listed in its revised
supplemental privilege log, confirmed the privileged nature of the examples and has attempted to
address Affymetrix’ concerns with more detailed log descriptions. `
lllumina believes that its confirmation of privilege and more detailed descriptions support
its claims of privilege and resolve any concerns Affymetrix can reasonably raise. Illumina, of
course, stands ready to provide for in camera review any documents that Your Honor would like
to review before resolving Affymetrix’ challenge to Illumina’s privilege claim.
C tfully,
Richar J K. Herrm , l.D. No. 405
rherrmann morris ames.com
cc: Dr. Peter T. Dalleo, Clerk of the Court (via electronic filing) _
MaryEllen Noreika, Esq. (via electronic filing) _
Michael J. Malecek, Esq. (via facsimile) V
2 In a letter filed with the Court yesterday, Affymetrix requested a black-lined version of
Illumina’s revised log comparing it to its prior log. The image format of the logs, however,
makes it extraordinarily burdensome if not technically impossible to generate a black-lined
version.