Free Letter - District Court of Delaware - Delaware

Case 1:04-cv—OO833-KAJ Document 179 Filed 12/O9/2005 Page 1 of 2
MORRIS, NICHOLS, ARSHT & TUNNELL
1201 NORTH MARKET STREET
P.O. Box 1347
WILMINGTON, DELAWARE 19899-1347
302 658 9200
302 658 3989 FAX
MARYELLEN NOREIKA
302 351 9278 December 9, 2005
302 425 3011 FAX
1'l'11'1OI`€iI§»3@I1'lIl2it.CO1'I1
BY ELECTRONIC FILING
The Honorable Kent A. Jordan
United States District Court
844 King Street
Wilmington, DE 19801
Re: Pharmacia & Upjohn Company LLC v. Sicor, Inc. etal.
C.A. No. O4-833 QKAJQ
Dear Judge J ordan:
We write to clarify several points raised in Sicor’s reply in support of its motion
to bifurcate (D.I. 171). In particular, in its reply papers, Sicor raised several arguments
concerning Pharmacia’s purported failure to address certain Sicor docmnents and/or arguments.
For example, Sicor referred to documents produced on November 11, arguing:
On November 11, 2005, Sicor produced a substantial number of
additional docrunents that had previously been withheld on
privilege grounds, but not the documents that were attached as
Exhibits A through C of Sicor's written in camera submission to
the Court. Pharmacia 's brief also ignores this signyicant
additional production.
Pharmacia's answering brief, however, did g "ignore" Sicor's production of additional
documents. Pharmacia's brief was due and filed on November 7, 2006. By Sicor's own
admission, Sicor was withholding the additional docrunents as of the date Pharmacia's brief was
due and filed. It is not fair for Sicor to argue that Pharmacia "ignored" documents that Sicor
refused to produce until almost a week after Pharmacia's brief was submitted.
Indeed, when the Court set the November 7th deadline for Pharmacia's response
on bifurcation, the Court did so with expectation that Sicor would produce its waived documents
by the October 24 deadline for Sicor's decision on its waiver. As set forth on p. 39 of the
October 11 hearing transcript:

Case 1:04-cv—OO833-KAJ Document 179 Filed 12/O9/2005 Page 2 of 2
The Honorable Kent A. Jordan
December 9, 2005
Page 2
MR. BOEHNEN: Can we have a new date when our briefs in
opposition to bifurcation will be due'? I would suggest two weeks
after they produce papers to us if they choose to rely upon [the
advice of counsel.]
THE COURT: Mr. Ashinoff, you're fine with that, I assume.
MR. ASHINOFF: Yes ....
Sicor did not, however, produce many of those documents until November llth, notwithstanding
Pharmacia’s repeated requests for their earlier production.
Moreover, Sicor has never identified or explained to Pharmacia what the
documents attached as Exhibits A through C to Sicor’s motion are. (Nor, for that matter has it
identified or explained any of the other exhibits that Sicor submitted to the Court in camera.)
Pharmacia does not know what these are, nor what can be said about them. During the October
llth hearing, the Court made clear that Sicor was supposed to give Pharmacia the arguments that
Sicor had submitted in camera regarding the withheld documents. As set forth by the Court’s
comments to Sicor recorded at p. 4 of the October ll hearing transcript:
In short, you give me the documents but you give your arguments
to the attorney side, too, so they can respond unless it is something
genuinely extraordinary that you think will get past me; all right?
This information would allow Pharmacia to know the full scope of arguments that
had been presented by Sicor to the Court in relation to the withheld documents and to respond to
them appropriately. Sicor has still not disclosed that in camera submission to Pharmacia, and
thus Pharmacia has not had an opportunity to respond.
Respectfully,
/s/ Maryellen Noreika (#3208)
Maryellen Noreika
MEN/bls
cc: Peter T. Dalleo, Clerk (By Hand)
Steven J. Balick, Esquire (By Hand)
Reid L. Ashinoff, Esquire (By Fax)
Jordan Sigale, Esquire (By Fax)
Daniel A. Boehnen, Esquire (By Fax)

Case 1:04-cv-00833-KAJ

Document 179

Filed 12/09/2005

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Case 1:04-cv-00833-KAJ

Document 179

Filed 12/09/2005

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