Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00833-KAJ Document 67-3 Filed 07/22/2005 Page 1 of 3
EXHIBIT B

Case 1:04-cv-00833-KAJ Document 67-3 Filed 07/22/2005 Page 2 of 3
mb McDonnell Buehnen Huiiiert & Berghutt up Bm gifts
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July 18, 2005
Sent Via Facsimile (212) 768-6800
Brian T. Moriarty
i, Sonnenschein Nath & Rosenthal LLP
1221 Avenue ot the Americas
New York, New York 10020
Re: Pharmacia & Upiohn Company LLC v. Sicor etal.
- Ll.S. District Court tor the District ol Delaware (C.A. No. 04883)
Dear Brian:
We write regarding the depositions of Daniel Boeiinen, Emily Miao, and Jeremy
Noe. We believe that it would be appropriate to delay the depositions until the
Court resolves Pharmacies Motion to Strike, and then proceed only if the Court
finds Sicor has adequately stated an inequitable conduct defense based on actions
by Messrs. Boehnen and Noe and Dr. Nliao. ln iight of the rapidly approaching
dates for the depositions, we ask that you respond to this letter before the close ot
business on Wednesday, July 20, 2005.
First, delaying the depositions rnakes sense tor both parties in light of the state of
the ongoing proceedings. As you know, Pharmacia has filed a Motion to Strike
. Sicor’s purported lnequitable conduct defense on both procedural and substantive
grounds. Should the Court find that Sicor has failed to state the affirmative defense
properly, the depositions will be completely unnecessary. Thus, economy ot effort
for the parties would suggest delaying the depositions until atter the resolution oi
Pharmacies rnotion.
_ Second, delaying the depositions is consistent with courts’ rulings regarding
Q attorneys’ depositions. Courts have generally suggested that depositions of
if attorneys (especially trial counsel) be delayed until after other avenues of discovery
are exhausted. Here, Sicor has not sought inequitable conduct discovery by any

Case 1:04-cv-00833-KAJ Document 67-3 Filed 07/22/2005 Page 3 of 3
_ other means beiore seeking the deposition oi Pharrnacia's iead trial counsei. Thus,
precedent would suggest delaying the depositions until atter other avenues oi
discovery are pursued.
Finally, it Sicor is unconvinced by the practical and legal considerations, we ask that
_ Sicor postpone the depositions as a matter of protessionai courtesy. Messrs.
’ Boehnen and Noe and Dr. Noe are quite busy, and depositions wouid be great
irnpositions upon them. Accordingly, we ask that you agree to postponing their
j__ depositions by the close ot business on Wednesday, Juiy 20, 2005.
Please contact us if you have any questions.
Very truiy yours,
W *e~e.1____\
Joshua R. Rich
312 913 2133
[email protected]
an Mr:0¤nneEl Boehner: Hulbert & Berghuff uy Brian T. Moriarty 2 July 1B, 2005