Free Redacted Document - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRlCT COURT FOR THE DISTRlCT OF DELAWAR

GLAXO GROUP LIMITED )

v. )

Plaintiff, )

)
)

Civil Action No. 04-171-KA
)

TEV A PHACEUTICALS USA, INe. and )

TEV A PHACEUTICAL INUSTRIS )

LIMITru )

CONFIDENTIAL FILED UNDER SEAL

Derendants. )

)

APPENDIX SUPPORTING TEV A'S BRIEF IN OPPOSITION TO GLAXO'S MOTION FOR SUMMAY JUDGMENT OF PATENT INFRINGEMENT
YOUNG CONAWAY STARGATT & TAYLOR, LLP Josy Ingersoll (# 1088) Adam W. Poff (#3990) Karen E. Keller (#4489) The Brandywine Building 1 000 West Street, 17th Floor P.O. Box 391
Wilmgton, DE 19899-0391

(302) 571-6600 kkeller(êycst.com

Mark D. Schuman (Pro Hac Vice)
Ronald A. Daignault (pro Hac Vice) J effer Ali (pro Hac Vice) Jeffreye. Brown (pro Hac Vice)

MERCHA & GOULD P.C.
3200 IDS Center 80 South 8th Street Minneapolis, MN 55402
Attorneys for Defendants Teva Pharmaceuticals USA, Inc.

and Teva Pharmaceutical Industries, Ltd.

DBOI:2157869.!

058956.101 !

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TABLE OF CONTENTS
Description

Exhibit Number
15

Appendix

Number
A072A099
A 100Expert Report of

Professor Arhur H. Kibbe dated March 14,2006
Professor Arhur H. Kibbe dated April 24,

16
17 18

Rebuttal Expert Report of

A1l7
Al18A142

2006
Excerpts from the deposition of

Bradley Anderson taken June 8, 2006 Bradley Anderson dated March 16,

A143A157
A158

Excerpts from the Expert Report of

2006
Table of

19

Excipient Function, Teva document TOO167

20
21

A159A167
A168-

Excerpts from the Rebuttal Expert Report of

Bradley Anderson dated

April 24, 2006

U.S. Patent 4,585,790 to Padfield

AI70
22
23

A171

Berns letter to Puppa dated Februar 11,2005
Teva Press Release dated April 5, 2000, announcing completion of Novophar Acquisition
Excerpts from the deposition of

Al72A173

24
25

AI74AI83
A184A205 A206A221

Tamas Szederkenyi dated May 19,

2005

Deposition Exhibit 7, Novophar documents produced by Teva
Excerpts from the deposition of

26
27 28 29 30
31

Margaret Wrigley taken March 22,

2006

A222A226 A227A231

Excerpts from the deposition of John Fernandes taken March 3, 2006

Liafail, Inc. v. Learning 2000, Inc., 2002 U.S. Dist. LEXIS 24803 (D.
Del 2002) Excerpts from the deposition of Sub

A232A233 A234A235
A236A243

rata Mazumder taken Januar 12,

2006

Excerpts from the transcript ofthe hearng dated June 30, 2005
Excerpts from the transcript of the hearng dated October 7, 2005

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32
33

A244A249 A250A252

Petrocell v. DaimlerChiysler Corp., 2006 U.S. Dist. LEXIS 11972
(D. DeL. 2006)

Microsoft Corp. v. IQ Tech., Inc., 1993 U.S. App. LEXIS 16128 (Fed. Cir. 1993)

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United States Patent (19)
Padfeld et al.
(54) PHARMCEUTCAL COMPOSITIONS
(75) Inventors: John M. Padfield, Meldreth; Ian K. Winterbom, Stevenage, both of England
(73) Assignee: Glaxo Group Limited, London,

(11) Patent Number:

4,585,790
Apr. 29,

(45) Date of Patent:
(56)

1986

References Cited

PUBLICA TrONS

Chern. Abst. Chern. Sub Index,
(1982)-CS2694 98-C-F (1983)-CS 2853. Primary Examiner-Stanley J. Friedman Attorney, Agent. or Firm-Bacon & Thomas
(57)

97-Ch-Io

England
(21) Appl. No.: 609,215

ABSTCl

(22) Filed: May 11, 1984
(30) Foreign Application Priority Data

Aqueous formulations of raniditine have been found to have enhanced shelf life provided that they are formulated with a pH in the range 6.5-7.5. Suitable aqueous

May 13. 1983 (GB) United Kigdom ............... 83 13217

formulations include injections for intravenous and intrauscular administration, continuous infusions and
oral preparations such as syrups.

(51) Int. Cl.' .......................................... A61K 31/34 (52) U.S. Cl. .................................................... 514/471
(58) Field of

Seach ......................... 424/285; 514/471

13 Clms, No Drawings

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4,585,790
1

2
injection is conveniently within the range 10-100

PHAACEUTCAL COMPOSmONS
The present invention relates to a pharaceutical
composition contaning as active ingredient the hista-

mg/ml, for example 25 mg/ml, expresed as free base. If desired, the solution may be diluted prior to use with, for example, an isotonic saline solution or a dextrose
solution. Solutions suitable for continuous infusion may

mine Hi antagonist raitidine.
Ranitidine (N-f2-(£ 5-( dimethylamino )methyl-2-

furanyl)methyl)thio)ethyl)- N' -methyl-2-nitro-l, 1-

ethenediamine) and its physiologically acceptable salts
are described in British Patent Specifcation No. lO

1565966. In that specification there is reference to liquid formulations for oral and parenteral admilÚstrations and there is a description of an aqueous based formulation

have a concentrion of ranitidine of 0.1-2.0 mg/ml, preferably 0.5-1.0 mg/ml, expressed as free base. The solutions for continuous infusion may be presented in this form, for example in packs of 50-100 ml, or may be presented in a more concentrated form, i.e. 10-100 mg/ml, e.g. 25 mg/ml, for subsequent dilution before use, with, for example, an isotonic saline solution or a
dextrose solution.

for intravenous administration and another of an oral

syrup. Both of these formulations conta suffcient 15
hydroclùoric acid to achieve a pH of 5.0. In addition injection formulations are described by Padfield et al (Te Chemica Use of Ranitidine, Medicine Publishing Foundation Symposium Seres 5, Oxford:Medicine Publishig Formulation 1982 pp 18-22) in the form of a 20
simple aqueous solution of raltidine hydrochloride at

The aqueous formulations for parenteral adminisstration are convelÚently prepared by dissolving ranitidine and/or one or more of its physiologically acceptable salts and the excipients in water suitable for injection.

The solution, which convelÚently is sparged with an
inert gas such as nitrogen, is sterilised preferably by

its natural pH, i.e. about 5.5. Whilst such formulations contalÚng raitidine and/or its physiologically acceptable sats are therapeuticaly effective they sutTer from

fitration and then asepticaly packed into suitable containers, e.g. ampoules, vials or contaers for inusion, under an atmosphere of nitrogen. Alterntively the
formulation may be terminly steried, for example
by heatig.

the disadvantage of having a relatively short shelf life 25
due to the breadown of the rantidine.
We have now surprisigly found that the shelf

life of

formulation may comprie ranitidine and/or one or /or one or more of its physiologically acceptable salts may be signcatly enhance if the pH of the formula- 30 more of its physiologically acceptable sats dissolved in water, together with buffer salts, a preservative and a tion is adjusted within the range of 6.5-7.5.
Thus the present invention provides a pharceutica

aqueous based formulations containg ratidine and-

A furter preferred embodient of the invention is an aqueous formulation for ora administration. Such a

composition which is an aqueous formulation of raitidine and/or one or more physiologicaly acceptable salt
thereof, having a pH within the range of 6.5-7.5. The 35

viscosity enhancing agent. Optionally the composition may also conta other conventional excipients such as

a sweetener, a flavour and/or flavourg aids.
Suitable buffer salts for the oral formulation include

aqueous formulation is prepared using ingredients of a

purty such that it is suitable for adminiration to patients.

potaium dihydrogen orthophosphate and disodium
hydrogen orthophosphate or citric acid and disodium
hydrogen ortophosphate.

The aqueous based raltidine formulations according Examples of suitable visosity enhancing agents into the invention are parcularly stable when compared 40 clude Xanthan gum, sorbitol, glycerol, sucrose or a with formulations at a lower pH. Thus for example, in cellulose derivative such as carboxymethyl cellulose or the case of a 25 mg/ml ranitidine hydrochloride injecan ether thereof such as an alkyl and/or a hydroxyalkyl tion solution buffered to the approprite pH with phosether of cellulose as for example hydroxypropyl methphate sats and subjected to storage at 20. C., the rate of
breakdown of

the raltidine is about ten times faster for 45

ylcellulose.

a solution buffered to pH 5.5 than for a solution buffered to pH 7.0. Conveniently the pH of the formulation according to

Suitable preservatives include the alyl hydroxylbenzoates, such as methyl, ethyl, propyl and/or butyl hy~ droxybenzoates.
Suitable sweeteners include sacchari sodium, so-

the invention is adjusted on manufacture withn the
range 6.5-7.5 by mea of the use of suitable buffer salts, 50

for exaple, potasium diydrogen orthophosphate and

disodium hydrogen ortophosphate or citric acid and
disodium hydrogen orthophosphate. Preferred formulations accordig to the invention are those wherein the pH is with the range 6.7 to 7.3, for 55 exaple 6.8 to 7.1. A preferred embodiment of the invention is an aqueous formulation for parenteral administration. Such a formulation may comprise water suitable for injections in which is dissolved raltidine and/or one or more of 60 its physiologically accptable salts and suitable bufer
saIts. Preferably the solution is adjusted to tOlÚcity by
the addition of the appropriate conventional excipients

dium cyclamate, sorbitol and sucrose. The concentrtion of ranitidine in the oral formula-

tion, expressed as free base in convelÚently with the
range of 20- mg per 10 ml, for example 20-200 mg
per 10 ml, more parcularly 150 mg per 10 mi dose.
The aqueous formulations for oral admiistrtion are

conveniently prepared by adding an aqueous solution of

rantidie and/or one or more of its sats together with
the other excipients to an aqueous solution or dispersion of the viscosity enhancing agent. The aqueous formulations according to the invention are preferably prepared using ranitidine in the form of its hydrochloride salt. lIustrative examples of formulations according to the invention are as follows. In these examples the relative proportons of ranitidine hydrochloride and buffer salts are such that each formulation has a pH of approximately 7.

e.g. sodium chloride. Optionally the composition may
also conta an antiicrobial preservative, for example 65

phenoL.

The concentration of rantidine in formulations suitable for injection, e.g. intravenous or intramuscular

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4,585,790

3
Raniditìne Injection for Intravenous administration

4
RanÎlidine formulations for intravenous inrusion.

Example 4 Example 5
For a 50 ml For a 100 ml

(25 mg/ml)
Example I

mg/ml
28

Infusion Infusion

mg/ml mg/ml

Ranitidine hydrochloride

Raniiidine hydrochloride

Potassium dihydrogen orthophosphate Disodium hydrogen orihophosphate. anhydrous
Phenol BP Water Suiiable for

0.96
2.4 10

Citrie acid BP
Disodium hydrogen ortho-

phosphate, anhydrous Sodium chloride BP
Water Suitable for Injections 81'

0.3 0.3 1.8 1.8
4.5
4.5

1.12 0.56

to 50.0 ml

to 100.0 ml

5

i ml

Injections BP to

15 the buffer salts and the sodium chloride is prepared
using Water for Injections. The solution is sparged with nitrogen, filled into containers suitable for administering the solution by intravenous inusion, and sterilised by autoclaving.
We claim:
1. A phaaceutical composition which is an aqueous
formulation contaning an effective amount of raitidine

An aqueous solution of the ranitidine hydrochloride,

Ranitidine hydrochloride, the buffer sats and the phenol were dissolved in Water for Injection. The solu-

tion was sparged with nitrogen, steriised by fitration 20
and then asepticaly packed into vials under an atmo-

sphere of nitrogen and sealed with a suitable closure.

Example 2

mg/ml
28

and/or one or more physiologicaly acceptable salts thereof for treatment of conditions mediated through 25 histamine H2-recptors, sad formulation having a pH
within the range of 6.5-7.5.
2. A pharceutical composition according to clai

Ranitidine hydrochloride
Potasium dihydrogen

0.96

1 having a pH in the range 6.7 to 7.3.

orthophosphate
Disoium hydrogen

2.
1.6

30 1 having a pH in the range 6.8 to 7.1.

3. A pharaceutical composition according to clai

orthophosphaie, anhydrous Sodium chloride BP
Water Suitable for

4. A pharmaceutical composition according to clai

1 in which said pH is adjusted by mea of suitable
buffer salts. 5. A pharmaceutical composition according to claim 35 4 in whlch said buffer salts are potaum dihydrogen
ortophosphate and disodium hydrogen ortophos-

i ml

Injecions BP to

An aqueous solution of the ranitidine hydrochloride, the buffer salts and sodium chloride was prepared using
nitrogen, sterilised by fùtration and then aseptically

phate or citric acid and disodium hydrogen ortophosphate.
6. A pharaceutical composition according to claim

Water for Injection. The solution was sparged with 40 1 in a form suitable for parenteral administration.
packed into ampoules under an atmosphere of nitrogen.

7. A pharmaceutical composition according to claim

6 in a form suitable for injection and contaning 10 to 100 mg/in ranitidine, expressed as free base.
8. A pharmaceutical composition according to claim 45 6 in a form suitable for continuous infusion and contan-

Ranitidine oral liquid formulation (150 mg/lO ml)
Example 3

ing 0.1-2.0 mg/ml randitine, expressed as free base.
9. A pharmaceutical composition according to claim

%w/v
1.68

1 in a form suitable for oral administration.
50 9 containg 20- mg per 10 ml dose.
10. A pharmaceutical composition according to clai
11. A pharaceutical composition according to claim

Raitidme hydrochioride HydroxyPropyl methylceIulose Parabens (preservative)

q.s.
g.s.

Potaium dihydrogen orthophosphate Disodum hydrogen ortophosphate,
anhydrous
Sweetening agent(s)

0.095

1 containing ranitidine in the form of its hydrochlonde salt.
55 clai 1 suitable for parenteral administration, which

0.350
g.s. g.s.

12. A process for the production of a composition of

compnse dissolving ranitidine and/or one or more
physiologically acceptable salts thereof and said re60

Flavour Purified Watct BP to

100 ml

A solution of the ranitidine hydrochloride together with the other excipients, except hydroxypropyl methylcellulose, in purfied water was added with miing to
a dispersion of the hydroxypropyl methylcellulose in 65

maing constituents in water suitable for injection, followed by sterilisation. 13. A process for the production of a composition of
claim 1 suitable for orai admiistration which comprises

adding an aqueous solution of ranitidine and/or one or more physiologically acceptable salts thereof to an aqueous solution or dispersion of a viscosity enhancing
agent.

purified water.

..*.*..

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3200 IDS Center

80 South Elghih Stret

Merchant &. Gould
An Iniellectual Propeny Law Firm

Minneapolis, Minnesu
55402-225 USA

TE 612.332.530
fAX 612.332.9081

wwmerchani.gould.com
A Probsio",1 Corpraiion

612.3715314
DiC! Conuci

jbems~erchanl'gouid .com

Februar 11,2005

Thoma J. Puppa, Esq.

VIA FEDERA EXPRESS
Morgan Lewis & Bockius LLP 101 Par Avenue

New York, NY 10178-0060
Re: Glaxo Group Limited v. Teva Pharaceuticals USA, Inc. and

Teva Pharaceutical Industres Limited, Civil Action No. 04- 1 7 1 Ou File: M&G 14577.6-US-ZA

Dea Mr. Puppa:
Enclosed for production please find documents T06573-T7609, produced to Glaxo puruant to the protective order in the above captioned case.

ly your, fh

tVl q~

JM :rlr

Minneapolist Paul

Denver

Sctùe

A171

Aùanta

WlIhiglOn. DC

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g

êi

000

o

About Us Investor tiP Worldwide

~ ~~- ._-- - - - -_._,--~~"-~----.-~_.~,~ "-~~-J-'~_._--'-'___"_0_'~_0_'___---'iI-- ~- ~~ ------~"'----" .,.' -..-- 0--- ,
Press Release
Teva Announces Completion of Novopharm Acquisition
Jerusalem, Israel, April 5,2000 - Teva Pharmaceutical

" ~

Relations ~. .

Industries Ltd, (Nasdaq: TEVA) announced today that it has completed the previously announced acquisition of Novopharm Ltd. Novopharm is the second largest generic drug company in Canada and has substantial operations in the United States and Hungary.

Under the terms of the transactions, and as previously disclosed, Dan Family Holdings, the sole shareholder of Novopharm received equity securities representing approximately 6.2% of Teva's outstanding shares. Initially, approximately 6.2 million of such securities will be in the form of exchangeable shares in a Canadian subsidiary of Teva, which are exchangeable into an equal number of Teva Ordinary Shares, with the balance of approximately 2.1 million securities being issued in the form of Teva Ordinay Shares. Under the rules of the Tel-Aviv Stock Exchange, all the securities will initially be held by a trustee in Israel, to be released in

installments over the next 18 months.
Teva also announced today that it had signed an agreement with the Hungarian Privatization Authority for the acquisition of a 25% interest in Human Serum & Pharmaceutical Manufacturing Co. Ltd. for $8 million, in cash. Novopharm already owns 55% of Human. The balance of Human's shares are traded on the Budapest

Stock Exchange.
Teva Pharmaceutical

Industries Ltd., is Israel's largest pharmaceutical company. with more than 80% of its sales outside Israel, mainly in the United States and Europe. The Company develops, manufactures and markets generic and branded human pharmaceuticals and active pharmaceutical ingredients.

A172
Safe Harbor Statement under the U. S. Private Securities Litigation Reform Act of 1995: This release contains forward-looking statements, which express the current beliefs and expectations of management. Such statements are based on current expectations and involve a number of known and unknown risks and uncertainties that could cause Teva?s future results, performance or achievements to differ significantly from the results. performance or achievements expressed or implied by such forward-looking statements. Important factors that could cause or contribute to such differences include Teva?s ability to successfully develop and commercialize additional pharmaceutical products, the introduction of competitive generic products, the impact of competition from brand-name companies that sell their own generic products or successfully extend the exclusivity period of their branded products, Teva?s ability to rapidly integrate the operations of acquired businesses, the availability of product liability coverage in the current insurance market, the impact of pharmaceutical industry regulation and pending legislation that could affect the pharmaceutical industry, the difficulty of predicting U.S. Food and Drug Administration (?FDA?) and other

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regulatory authority approvals, the regulatory environment and changes in the health policies and structure of various countries, acceptance and demand for new pharmaceutical products and new therapies, uncertainties regarding market acceptance of innovative products newly launched, currently being sold or in development, the impact of restructuring of clients, reliance on strategic alliances, exposure to product liability claims, dependence on patent and other protections for innovative products, fluctuations in currency, exchange and interest rates, operating results and other factors that are discussed in Teva's Annual Report on Form 20-F and its other filings with the U.S. Securities and Exchange Commission (?SEC?). Forwardlooking statements speak only as of the date on which they are made, and the Company undertakes no obligation to update publicly or revise any forward-looking statement, whether as a result of new information. future developments or otherwise.

Company Contacts:
Dan Suesskind Chief Financial Officer
Teva Pharmaceutical

Industries Ltd

(011) 972-2-589-2840

Investor Relations Contacts:
Donna N. Stein/Sonya Park/Jill Meleski Morgen Walke Associates, Inc.
(212) 850-5600
Press Contact: Greg Tiberend Morgen Walke Associates, Inc.

(212) 850-5600

Legal Note I Site Map

Copyright (r, 1999 - 2006 T eva Ail riglìlS reservi2rJ

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Page I

LEXSEE 2002 US DIST LEXIS 24803
LIAFAIL, INC., Plaintiff

and Counterclaim Defendant v. LEARNING 2000, INC.,

JAMES RICHARD STORY, II, individually, ANTONIO SANTINI, individually, ILC, INC., SFD, INC., and S & S ENTERPRISES, Defendants and Counterclaim Plaintiffs and Third-Party Plaintiffs, v. FRANK STUCKI, Third-Party Defendant.
CONSOLIDATED C.A. No. 01-599 GMS and C.A. No. 01-678 GMS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELA WARE
2002 U.S. Dist. LEXIS 24803
December 23, 2002, Decided

SUBSEQUENT HISTORY: Motion granted by, in part, Moiion denied by, in part Liafail, Inc. v. Learning 2000,
Inc., 2003 Us. Dist. LEXIS 3545 (D. DeL., Mar. 3,2003)

For Liafail lnc, COUNTER-DEFENDANT: Michael P

Kelly, A Richard Winchester, McCarter & English,
Wilmington, 1*21 DE USA.
JUDGES: Gregory M. Sleet, UNITED STATES DISTRICT JUDGE.

PRIOR HISTORY: Liafail, Inc. v. Learning 2000, Inc.,
2002 US Dist. LEXIS 22620 (D. DeL., Nov. 25,2002)

DISPOSITION: 1*11 UK's Motion for Relief from
Spoliation of Evidence GRANTED. UK's requests for
COS1S as a result of Liafails alleged misconduct DENIED.

OPINIONBY: Gregory M. Sleet

OPINION:

COUNSEL: For Liafail Inc, PLAINTIFF: Michael P

MEMORANDUM AND ORDER

Kelly, A Richard Winchester, McCarter & English,
Wilmington, DE USA.

i. INTRODUCTION
On June 5, 2001, the plaintiff and counter-claim defendant, Liafail, Inc. ("Liafail") fied a complaint in the
United Siates District Court for the Wes1ern District of

For Learning 2000 Inc, PLAINTIFF: Martina Bernstein, Sean K Hornbeck, Hornbeck & Associates, Hockessin,
DE USA.

Kentucky, setting forth various contractual theories of
liability. The United States District Court for the Western District of Kentucky transferred this case to the United States Districi Court for the District of Delaware on August 29, 2001. This case became Civil Action Number 01 -599-GMS.

For Learning 2000 Inc, James Richard Story, Il, Antonio Santini, ILC lnc, SFD lnc, S & S Enterprises, DE-

FENDANTS: Martina Bernstein, Sean K Hornbeck,
Hornbeck & Associates, Hockessin, DE USA.

For Liafail Inc, Frank Stucki, Robert E Stucki, DEFEN-

On October 9, 2001, Learning 2000, lnc ("UK")
commenced Civil AC1ion Number 01-678-GMS in the United States District Court for the District of Delaware. In that complaint, UK alleges that Liafail violated, inter

DANTS: Michael P Kelly, A Richard Winchester,
McCarter & English, Wilmington, DE USA.

For Learning 2000 Inc, James Richard Story, Il, Anto-

alia, Section 43 of the Lanham Act, ¡ 5 US e. §
¡ ¡ 25(a); Section 2532 of the Delaware Uniform Deceptive Trade Practices Act, and the Anti-Cybersquatting

nio Santini, ILC Inc, SFD lnc, S & S Enterprises, THIRD-PARTY PLAINTIFFS: Sean K Hornbeck,
Hornbeck & Associates, Hockessin, DE USA.

Consumer Protection Act, /5 USe. § ¡ ¡ 25(d).

For Learning 2000 Inc, James Richard Story, Il, Anto-

By stipulation of the parties, the court consolidated Civil Actions 01-599-GMS and 01-678-GMS on November 2, 200 I .

nio Santini, ILC Inc, SFD Inc, S & S Enterprises,
COUNTER-CLAIMANTS: Sean K Hornbeck, Hornbeck & Associates, Hockessin, DE USA.

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Page 2

2002 U.S. Dist. LEXIS 24803, *

Presently before (*3) the court is UK's motion for relief from spoliation of evidence, For the following reasons, the court will grant this motion in part,
II. BACKGROUND

purged all the fies from the computer. L2K further alleges that Liafail made no effort to preserve the (*51

Sborov fies by copying them onto another hard drive,
disk or other medium before their destruction.

On October 30, 200 I, pursuant to Federal Rule of Civil Procedure 26(a)(I), Liafail identified its nalÌonal sales manager, Steve Sborov ("Sborov") as "likely to
have discoverable information concerning the writings a1 issue in Liafails complaint and! or Liafails claims, con-

L2K was able 10 reconstruct some, but not all, of the Sborov files, L2K maintains thai, as far as can be ascertained, virtually all of the Sborov Files were relevant to the issues in this litigation, Indeed, L2K argues that, not
only were they relevant, the documents were highly in-

criminating. For example, according 10 UK, the documents included an e-mail received by Sborov, and for-

tentions or defenses relating thereto; including, but nol limited to, discoverable information concerning the dayto-day operations of Learning 2000; and Learning 2000's

complaint against Liafail and its principals and! or
Learning 2000's claims relating thereto,"

On November 2, 200 i, L2K and Liafail stipulated that "they wil preserve all documents, data compilations
and tangible things that are in their possession, custody

warded to Stucki, which established that, in July 2001, Laifail sales representatives were promoting the Lifetime Library by using L2K marketing materials. L2K also points to an e-mail which it claims establishes that, two months later, Liafail sales representatives were still promoting the Lifetime Library by using a demonstration

or control, which are relevan1 or could lead to 1he discovery of relevant information concerning each party's claims in the above-captioned lawsuit." On November 20, 200 i, UK served requests for production of documents directed to Liafail. The requests sought, among
other things;

CD that had "Learning 2000 () splashed all over" it. The e-mail also implicated Stucki's knowledge of these actions. L2K maintains that, to date, Liafail has denied that
the conduct evidenced by these e-mails occurred. Alter-

natively, Liafail denies that it had any notice that its sales representatives engaged in the conduct described in these e-mails.

(i) all documents concerning Liafails marketing, 1*4) sale, or distribution of the
Lifetime Library;
(2) all documents concerning any

One week before the close (*6) of discovery, L2K
alleges that it discovered additional spoliation during

marketing and sales materials provided by Liafail or representatives involved in the
sale or marketing of the Lifetime Library

Frank Stucki's ("Stucki") deposition. At his deposition, Stucki testified that he "lrashed two laptops in the last seven mon1hs." Specifically, he tes1ified that he dropped 1he first laptop when he was staying at somebody's house in Arizona. The second laptop "slipped out of (his)
hands" at home. During his deposition, he maintained that ihe information on both laptops was destroyed.
With respect to the first laptop ("the 1700 laptop"),

or Learning 2000 Lifetime Library;
(3) all documents concerning all

work product produced by Liafails representatives engaged in the marketing, sale, and distribution of the Lifetime Library;
and

Stucki initially testified that "there was nothing on there that-regarding this litigation ...." Later, he contradicted his claim of irrelevance by testifying that whatever was
on that laptop was made available to litigation counsel

(4) all demonstration, sales, and marke1ing materials for 1he Lifetime Library

before he disposed of it. UK now maintains that
Liafails counsel has not confirmed that the files from the 1700 laptop were in fact searched and produced. Nor has it clarified whether (1) it made an independent judgment as to whether the documents on the 1700 laptop were
responsive, or (2) whether it simply relied on Slucki's
layperson's view of

used and! or created by Liafail, its agents, employees or representaiives.
The requests further asked Liafail to identify and de-

scribe "any document requested herein (that) was formerly in your possession, custody or control and has
been lost or destroyed or otherwise disposed of ...."

what he believed to be discoverable.

With respect to the second laptop ("the 1720 laptop"), Stucki (*7) was unable to confirm that everything
on that laptop was made available to his counsel before it

In response to these requests, Sborov gave Liafail

the L2K-issued laplop that he had been using while gaining knowledge of the day-to-day operations of L2K, both
as its sales representative and as its national sales man-

was destroyed. Liafails counsel itself refused to confirm whether it had, in faci, searched the files on the laptop
and whether responsive documen1s were produced or
identified on a privilege log.

ager. Upon receiving the laptop, L2K alleges tha1
Liafails Vice-President, Keith Hanson ("Hanson")

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In response, Liafail now contends that L2K "already
has in its possession the documents at issue in the instan1

motion." Specifically, Liafail has submitted affdavits to
the effect that all of the relevant information was re-

For the following reasons, should Liafail chose not to heed the court's order and produce 1he documents of which ii claims to have possession, the court will order sanctions against it in the form of an adverse inference
jury instruction.

moved from the laptop computers, saved, and then made
available to L2K.

Where the nature of the alleged breach of a discovery obligation is the non-production of evidence, ihe
court has broad discretion in fashioning an appropriate

II. DISCUSSION
A. The Disputed Files

UK contends that, in the past, Liafail has maintained that the information L2K now seeks was inadvertently destroyed and is no longer available for produc-

tion. In response to the present motion, however, Liafail has brought forth affidavits, albeit of questionable validi1Y given its previous assurances that the information no
longer ex

sanction. See Residential Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). In exercising its discretion, the court may impose an adverse inference instruction where: (i) the party having control over the evidence had an obligation to timely produce it; (2)
the party had a "culpable state of mind;" and (3) the missing evidence is "relevant" such that a reasonable

isis, that the information does indeed exist and is available for production. See Liafails Answer Brief at

trier of fact could find that it would support the other
party's claim or defense. See id. Liafail has not argued

that the discovery at issue was, or is, out of its control,
nor thai it did not have an obligation to timely produce it. Thus, the court concludes that the first prong of the test
has been met. It will now address the remaining two

4-5. Liafail even goes so far as to indicate, without any

citations to record evidence to support its claims, 1*81

that the files "where relevant and appropriate" have been produced to UK. See id. at 2-4 (stating that all relevant
information from the Sborov laptop had been produced

prongs.

and that backup fies of this information exist). Liafails
current position on the whereabouts of the discovery

With regard to the 1*10) culpability prong, the court finds Ihat, should Liafail disregard this order, it will have

sought indicates that Liafail may have engaged in questionable discovery tactics. Nevertheless, because on the record before the court, it is unclear what has been produced, and what must still be produced, the court will not immediately sanction Liafail. Rather, it will first afford Liafail the opportnity to correct or clarify the discovery record by producing the requested documents which it
has claimed are available, or by producing the Bates

acted in bad faith. Specifically, if Liafail does not produce the requested files, it will then be in the posi1ion of having intentionally misrepresented the availability of the evidence before the court on this motion.
Further informing the court's decision on this point are the clear discrepancies in Liafail's two versions of the

Numbers of documents which it claims it has already
produced. n I

events, which tend to demonstrate bad faith on its part. For example, in his present affdavit, Stucki iestified that
attempts were made to save the contents of the 1700 lap-

n I This order includes the production of all relevant documents within the meaning of Federal Rule or Evidence 401, including those which
Liafail has conceded it did not produce due 10

top, and that, indeed, the contents were saved. See Stucki Affidavit at P 4. During his earlier deposilion, however, Siucki testified that the contents of the 1700 laptop were
"destroyed," and that no attempts were made to retrieve

the documents from that laptop. See Stucki Deposition at
1366.

"marginal relevance." See Liafail's Answer Brief
at 7, n.6. The order further includes inforn1ation

which Liafail believes L2K already has in its pos-

Additionally, Stucki's affdavit claims that the entire contents of the i 720 laptop were transferred to the old 1700 laptop and that "the transfer was successful and ...
no documents or filed were omitted from the 1ransfer and

session due to its own computer file restoration
efforts. See e.g. Land Ocean Logistics, Inc. v.
Aqua Gulf Corp., 181 F.R.D. 229, 240 (WD.N. Y.

1998) (holding that the defendants "must produce requested documents ... regardless of whether Plaintiff is also in possession of the documents. ").
1*9)

none were deleted." Stucki Aftdavit at P 6. Stucki further states in (*11 i his affdavit that, "I have reviewed the contents of the i 700 laptop I now use and have confirmed that all potentially relevant information which

was contained on it ... has been made available to my
counseL." ¡d. at P 8. The court finds it diffcult to recon-

cile this statement with Liafails counsel's earlier repre-

B. Sanctions

sentation that both laptops were discarded because they could not be repaired. See June 20,2002 Letter from W. Bruce Baird to Sean K. Hornbeck (stating that the Stucki

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computers "were not repairable (and) they were disposed
of long ago. ").

to correct its apparent wrongs before imposing sanctions.
(*13) n2

Finally, the court is satisfied that the requested discovery documents are relevant, such that a "reasonable
trier of fact could infer that 'the destroyed (or unavail-

able) evidence would have been of the nature alleged by
the party affected by its destruction.''' Residential Funding Corp., 306 F.3d at 109. Liafail has put Stucki's sci-

n2 In light of counsel's joint request for additional time to respond to the motions in limine.

and the need to move the trial to a later date as a
result of this request, the court finds this solution

enter at issue in this litigation by denying that he had
knowledge of certain events. Accordingly, the identity of the documents he had stored on his laptops may be probabtive of what he knew or should have known.

to be imminently fair to both parties.
For the aforementioned reasons, IT IS HEREBY ORDERED that:

With regard to the relevance of the Sborov fies, L2K has represented (*12) that, based on the infonnation it was able to salvage, the files were relevant to the issues in this litigation. By way of example, L2K has
provided an e-mail received by Sborov, and forwarded

I. UK's Motion for Relief from Spoliation of Evidence (D.1. 260) is GRANTED as follows:

by Stucki, which allegedly establishes that, in July 200 I, Liafail sales representatives were promoting the Lifetime Library by using L2K marketing materials. See Liafail's
Opening Brief, Ex. K.

2. Liafail shall produce any and all relevant documents, fies, or the like, originating from the Sborov laptop, as well as the i 700 and i 720 laptops, within thirty (30)
days of the date of this order.

Additionally, the court notes that a jury would be
pennitted to infer that Liafail's bad faith alone is suffi-

cient circumstantial evidence from which a reasonable fact finder could conclude that ihe missing evidence was
unfavorable to that party. See Residential Funding

3. Should Liafail not comply with this order, the court wil order sanctions against

it in the fonn of an adverse inference jury
instruction.

Corp., 306 F. 3d at 109. Accordingly, the court finds thai the requisite relevance factor has been satisfied.

4. L2K's requests for costs as a result of

iv. CONCLUSION
Thus, while it would be en1irely appropriate for the court to sanction Liafail immediately based on the conflcting stories Liafail has espoused in an apparent a1-

Liafail's alleged misconduct is DENIED
at this time.

Gregory M. Sleet

tempt to perfonn an end-run around both L2K's discovery requests and the current motion, the court neverthe-

UNITED STATES DISTRICT JUDGE

less concludes that the more just route is to allow Liafail

Dated: December 23,2002

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SHEET i

IN THE UNITED SmTES DISTRCT COURT

IN AN roR TIl DISTlUCT OF DELA
GLAO GROUl LlHTED.
CIVL ACTION
Plain tiff i

I MR, DiGIOVANNI: Your Honor, Frank DiGiovanni 2 from Connolly Bove, local counsel for plaintiff Glaxo. Also
3 on the line is Brian Murphy who can introduce himself.

4 MR. MURPHY: Good morning, Your Honor. This is
5 Brian Murphy from Morgan Lewis & Bockius on behalf of

v.

the

TF PllCEU'ICAS USA, lliC.

6 plaintiffGlaxo. With me also is Jason Liefand Tom Puppa.

and TF Plluncis
INUSTIIES LlHTED,

7 THE COURT: All right. Good morning.
NO. 04-171 (Kl)

Defendats.
10
11 12

8 For the defense?
9 MS. KELLER: Good morning, Your Honor. This is
10 Karen Keller from Young Conaway on behalf of

Wil.nqton i Delaware

Thursday, June 30. 200S at 11: 30 a .il.
TELEPHONE CONFRECE

Teva. I also

ii have with me on the phone Mark Schuman from Merchant & Gould

12 and John Berns is with him and Isabella Polsf;Y (phonetic)
BEFORE :

13 14

HONOlWLE KE A. JORDI\, U. S . D . C . J.

13 from Teva.

14 THE COURT: All right. Good morning.
15 MR. SCHUì'vlAN: Good morning, Your Honor.

is
16
17 16

AlPEJCES:
CONNOLLY BOVE LODGE & HUZ, LLP

16 THE COURT: I have the letters from counsel
BY: FRCIS DiGIOVAI, ESQ.

17 related to the dispute that brings us here this morning.

-andHORHA LES & BOCKIUS, LLP BY: BRIA P. MUPHì, ESQ.,

18 Acrually, it looks like broadly speaking three categories of

19 20
21

JAON LIEF, ESQ., and
THOMA J. PUPPA, ESQ. (New York i New :tork)

19 dispute. 20 And I'm puzzled by the tirst one which is a
21 retread of something that we did months ago. On the one

22

Counsel for Glaxo Group Liw tad

22 hand. i have the plaintiff saying, "hey, we had an agreement
23 and they were supposed to memorialize it" and, on the other

23 24
2S
Brian P. Gaffigan Official Couit Reporter

24 hand, i have the defendants saying, "we did memorialize it.

25 They just don't like our answer."

4

APPEk~CES (Continued):
2

Now, I've read what you guys sent to me so i
2 don't need to you repeat what YOll said. But this is the
3 question i

YOUNG CONlWAY STAAGATT & tAYLOR, LLP

BY: KA E. KELLR, ESQ.

-andMECHAT & GQ\J gy: MJ D. SCll, ESQ. i and
JOHN 1-. BEHlS, ESQ. (Minneapolis, Minnesota)

4

have for the plaintiffs. i went back and I read the transcript again and I said. at the request of 5 Mr. Murphy, "will you give something in writing which

6 memorializes the statement on the record that we're talking

7 about here. the one matter in dispute, that is, this
8 substitution of ethanol for propylene glycol, if I've got it
9 straight?" And the response. well, the specific thing Mr.

Counsel for Teva Pharmceuticals USA l

Inc. and Teva Pharceuticals
Industrias i LTO.

11 -000-G S 12 PRO C E ED! N
10

10 Murphy asked for, "\i want that formalized in a stip or an
Ii answer," meaning an answer referring back to contention

12 interrogatory number six. And they said "tine." So the
13 defense says "we did that." So yoiiwanted something in

13 (Teleplione conference began at 11: 30 a .il.) 14 THE COURT: Hi i this is Judge Jorda. ~"'1 do I 15 have on the line?
16 THE TELEPHONE OPETOR: ! 'm sorry?
17 THE COURT: ! said this is Judge Jorda. Wlo do

14 writing and you had agreed that contention interrogatory
15 number six being answered oughi to do it.

16 What is your issue, Mr. Murphy?
17 MR. ì'vfURPHY: Yes, Your Honor. The issue we

18 r have the on the line i pl~ase?
19 THE TELEPHONE OPERTOR: Just a momet. ! 'm 20 going to bring you in the conference.

¡ 8 have is simply that it's not an evidentiary, it's not for
19 evidentiar admission in order to complete the agreement,
20 which was to avoid all discovery on all of 2 I elements except for the so-called ethanol

the claim

21 Excuse me. Thi s is the opßrator, 11m joining
22 Judge Jorda to the conference call.
23 TH COunT: Good Dorning. I nead to klow who is
24 on the line. PleasQ identify yourself and who you represent

limitation. And I

22 think there is an agreement in spirit. I think it's a 23 question of process. 24 THE COURT: Well, let's cut through the process

25 for the record,

25 then.

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9

iI

I people and e-mails and we told them to please go talk to
2 those people so we can get it. We don't have it.

week, no. But we're starting to do that now. But i don't

2 believe Glaxo has tried to do that either.

3 THE COURT: Okay. I think I got your position.

3 MR. MURPHY: Your Honor, that is because until
4 this very moment, i had no knowledge or infonnation that
5 there was any entity other than Teva that had control of

4 Mr. Schuman.
5 MR. SCHUMAN: Yes, ¡think there are a few
6 things to be added to this. First of all, the first
7 deposition that Glaxo took in this case is one of

6 these documents. This is the very first time it's ever been
the people
7 mentioned to me.

8 from Novopharn who we brought down to Philadelphia for
9 deposition. His name was Tamas Szederkenyi. And i may get
10 this wrong. S-z-e-d-e-r-k-e-n-y-i. He has been involved in
II the project since the late 90s and what he testified to is

8 THE COURT: Okay. This is another example of
9 Heisenberg's Uncertainty Principle in operation. The

i 0 lawyers' behavior changes under observation. So you guys

I1 need to talk to each other, please.

12 that there were two divisions separated -- one was in Quebec 13 and one was i think in Toronto, but they were separated by
14 distance, two divisions of 15 And the bulk of 16 17 Novo ph

12 ri seems pretty clear that this is not at least
13 at this juncture is not a legal dispute, this is a dispute

ann that worked on this.

the work was done in a division. i believe it was in Quebec. Regardless of where it was located, that
Novo ph

i 4 about whether good faitli efforts have and are continuing to 15 take place to obtain concededly relevant documents, and you 16 folks need to get on the seem page and talk to each other
17 about how to make that happen. And I expect just exactly

i 8 division has been or was acquired by another company in

18 that. discussion and good faith efforts to make stuff

ann for many years. 20 We have been trying to get documents. We have very
i 9 Canada and has been not part of

i 9 happen. So there is really nothing for me to rule on right

20 now and I'm not going to rule on it except to tell you what

2 I sketching documents frankly in Canada and in the United

22 States for Teva. 23 THE COURT: Well, let me stop you because the
24 tenor of your remarks leads me to conclude that you are not 25 disagreeing with the plaintiff that these documents are
_.

have just said; okay? 22 ¡vIR. SCHUMAN: Yes, Your Honor.
2 I 1

23 THE COURT: Last but not least is the so-called
24 nonparty evidence which the folks at Teva tell me was never

25 surfaced before the letter that Gla,o sent to me and they

10

12

I

relevant to issues in the case. Do I understand that

i

assert that 1his is not ripe, and 1 guess I'll give YOll a

2
3 4

correctly?
lot

2
3
:1

shot, Mr. Murphy to tell me why you think i ought to be
addressing this now.

MR. SCHUMAN: Yes, and we've already produced a of these ethanol tests that they've been able to read

MR. MURPHY: Yes, Your Honor. Two comments. We
did produce the documents, all the documents we intend to

5

and then ask for additional documents. For instance, there
are 15 formulations tbat we have given them tbat were these
precursor fonnulations but we can't get the base documents. We've been trying to do tbat.

5

6
7 8

6
7 8 9 10

rely on in the last two weeks but I also take from their letter that I guess is in accordance with kind of your
instruction to us to start talking to each other, they'd
like us to give them specific designations of testimony

9
10

THE COURT: Well, tell me why you can't get
them.
MR. SCHUMAN: Well, first of

II
12 13

all, we don't

Ii
12 13 14 15

and give them three weeks to object and then see what the issues are, and that makes sense to me.

have the documents in-house. We have been looking for the

documents in-house in locations. We've done the electronic

14
15

sweep. We've done that alL. We've looked in Teva.
Now, the one anomaly 1 will say is the
preformulation memo. It comes up, it

THE COURT: Okay. MR. MURPHY: I'm happy to proceed that wa)'. THE COURT: Good. Then we're done. You guys
see what you can work out. And if you can't work it out, you know how to get ahold of me and we'll get it hammered

16
17

looks like it should

16 17 18 19

be around but we can't find a copy of it and we're still

out.

18 19

looking for it. But the other ones, it doesn't surprise me because most of that work was done for a division that was
sold off and is now a separate company. THE COURT: Has there been any effort to acquire
those documents from the sister company by either you or by

Okay. i think that takes care of the issues we had teed up for today. But Mr. Murphy, I'll ask you first,
is there anyihing else we need to address while we're all on

20
21

20
21

the line 10gether?
MR. MURPHY: No, judge. Only to note that we're running short on time to resolve these issues. And so we will try. We would ask for cooperation to do this as quickly as possible so we don't run into the discovery

22

22 23 24
25

?" _J
24 25

Gla,o that you are aware of. Mr. Schuman? MR. SCHUMAN: I asked that we start doing that
when this dispute came to a head this week, so prior to this

United States District Court for the District of Delaware Before the Honorable Kent A. Jordan

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1

1

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE

2 3

5 Plaintiff 1
7 TEVA PHARMACEUTICALS USAi INC.
and TEVA PHARMACEUTICALS

4

6 v.

GLAXO GROUP LIMITED1

CIVIL ACTION

8 INDUSTRIES LIMITED1
9

Defendants.

NO. 04-171 (KAJ)

10
11
Wilmington 1 Delaware Fridayi October 71 2006 at 9;30 a.m. TELEPHONE CON FERENCE

12 13
14
BEFORE;

HONORABLE KENT A. JORDAN

i U. S. D. C. J.

15

16 APPEARANCES;
17 18
CONNOLLY BOVE LODGE & HUTZ 1 LLP BY; FRANCIS DiGIOVANNI1 ESQ.

19 20

-andMORGAN LEWIS & BOCKIUS1 LLP BY; BRIAN P. MURPHY 1 ESQ. 1 and THOMAS J. PUPPA1 ESQ. (New Yorki New York)

21 22

Counsel for Glaxo Group Limited

23
24
Brian P. Gaffigan Official Court Reporter

25

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1

MR. SCHUMAN: Sure ( judge. I i 11 try to cover.

2 If I cover the topics you didn i t anticipate me covering ( let

3 me know and I i 11 move to something else. But when I tried
4 to go through the letter

i starting with 1 (a) i which is the

5 documents produced

i very interestingly i we had made a very

6 good document production and we made it very early in this

7 case. There is a complaint i for instancei here on page two
8 of the letter. They want the files and documents under

9 to do with the chief formulator.
10
THE COURT: I i m sorry. You are going to have to

11 get closer to your speakerphone or something because you are

12 cutting out.
13
MR. SCHUMAN: For instance

i they asked for the

14 files and documents of Subrata Mazumder. At that timei that

15 was under page two of the letter i Item No. 3 at the top of
16 the page. We have been telling them for a long time that
17 we i ve looked for those files and that they don i t exist.

18 Mr. Subrata Mazumder i when he did his notes i he put them in
19 the common filei the notes had been produced

i and there is a

20 letter which is attached to our letter to the Court dated
2 i June 27th that says that in very clear terms. And I don i t

22 understand why I need to repeat over and over again. This
23 is a theme you are going to hear from mei over and over

24 againi that we have done these thingsi that they either
25 don i t exist or we don i t have them and we continue to get
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1 these letters to the Court berating us for not doing things.

2 THE COURT: Okay. How about -3 MR. SCHUMAN: For instance -- I i m sorry, Your

4 Honor.

5 THE COURT: Well, the assertion then you 're
6 making is that you folks, you have nothing to share on the
7 development of the formulation of the rani tidine -- if I 1m

8 saying that name right -- hydrochloride oral syrup. You
9 have given all you i ve got to give and there is no more.

10 MR. SCHUMAN: We continue to dig. And, for
11 instance, we just sent some e-mails that we found going

12 through personal computers. And in there, for instance,
13 they weren't the type of documents that are going to give
14 you a "Clarence Darrow" moment. They were like, "I want to

15 have a meeting at 10 o'clock. Can you make it?" And the

16 other guy says, "No, I can i t do it that type of thing." So
1 7 we i ve been digging very deep to get these things.

18 THE COURT: Well, where are they? That is the

19 question that must be frustrating Mr. Murphy & Co. You
20 know, somebody someplace came up with what you folks think
21 is a non

infringing excellent cough medication, and it didn i t

22 spring into existence all by itself. It's not flowing from
23 a rock some place.

24 MR. SCHUMAN: Right.
25 THE COURT: Somebody formulated this --

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1 MR. SCHUMAN: Right.
2 THE COURT: I confess to being a little wet
3 behind the ears, but usually in these cases somebody has

4 notes about what they did to develop it. So where is

5 it?
6 MR. SCHUMAN: And we have given them. For
7 instance, Item No. 2 on page two 1 Your Honor, he wants all

8 these batch numbers. I'm going to give you some batch
9 numbers that starts with 3G-04 31. We produced documents

10 T1890 through 1898 which are the stability testing, et

11 cetera, for that batch.
12 For batch numer 1853-005, it says document

13 production is replete with those. I pulled out a few
14 samples this morning, T1535 through T1577.

15 I can go on and on, judge.
16 THE COURT: Well
17 MR. SCHUMAN: We did produce documents but the

18 problem you may recall that gets us into the Pharmascience
19 area is that the development for this drug was done by
20 another division of Novopharm called Novopharm Quebec which

21 was spun off in, if my memory is correct, the late 90s to a
22 company called Tangeo, which is now Pharmascience, and we

23 have attempted to get those documents. After the June call
24 with Your Honor, we made repeated phone calls and we sent a 25 letter to them trying to get two letters to them trying to

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1 get those documents. We informed Glaxo we could not get
2 them and asked them to serve process under the Hague

3 Convention. We did not oppose that, either here or in
4 Canada, and they have done that. They served the Hague 5 Convention documents. That has been opposed by Pharma6 science in Canada based upon a Business Records Act up

7 there that apparently precludes.

8 THE COURT: Okay. Yes, let me stop you because
9 I read the letters. I understand, nobody is disagreeing
10 that Pharmascience is being less than cooperative in turning

1 i information over. So I i m taking it as a given for sake of
12 discussion -- just a moment.

13 (Pause.)

14 THE COURT: Excuse me. I'm taking it as a
15 gi ven for purposes of discussion that Mr. Murphy & Co. don't
i 6 want to wait a year to see how that plays out and that
i 7 Pharmascience isn i t going to see the light and decide they

18 ought to be cooperative. And I i m going to assume that you

19 have done everything you can, Teva, to extract that
20 information. You've pushed them. You i ve prodded them.
2 i You i ve used your business influence with them, et cetera.

22 MR. SCHUMAN: Yes. 23 THE COURT: I i 11 take that as a given for
24 purposes of this discussion. I i m just trying to get to the 25 nub of this issue. Is what you are telling this court, that
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1 you have no development documents you can give, nor any

2 access to them? Because if that is what you are saying, I

3 want to hear it.
4 MR. SCHUMAN: We doi and we have given those i
5 judge. We have limited documents on the thing because there

6 is always intercompany correspondence back and forth. We

7 have given what we have.

8 THE COURT: So you got nothing else to give?

9 MR. SCHU~~N: We have nothing else to give.
10 THE COURT: Okay. Then I hand the ball to youl

11 Mr. Murphy. I i m getting an affirmation from an Officer of

12 the Court that there is nothing further that they have under
13 their control or within their possession that they can give,

14 so that being upset about it won't help. The question is
15 what do you do next?

16 MR. SCHUMAN: Judge i I have to qualify that with
17 two things. We have recent stability studies, 24-month
18 stability studies that just came out that have been asked
19 for this month that we i re getting and going to produce and

20 there is 1S-month stability as well but those are the two

21 things that I'm aware of. Everything else has been

22 produced.
23
24

THE COURT: And when are you going to produce

those?
MR. SCHUMAN: We're hoping to do it this week --

25

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1 judge and one who is prepared, in the context of this case,

2 where the documents evidently are just not to be had, to
3 have extremely limited patience with the position that not

4 only do you not get documents, you don't get to ask about

5 it.
6 Am I communicating effectively the feel I i ve got
7 for the way this deposition ought to proceed and ought not

8 to proceed, I hope? Mr. Schuman?

9 MR. SCHUMAN: Yes, Your Honor. Very clearly.

10 THE COURT: Okay. Thanks.

11 All right. So although I i m not saying designate
12 by Tuesday, I am saying you need to move forward and get

13 that done with relative dispatch, if you would.

14 All right. Now, I think we've handled the l(a)
15 and frankly we i ve handled the 1 (b) because as to the

16 "Pharmascience," excuse me, as Glaxo labels it, sounds like
17 a pretty good excuse to me. Pharmascience isn't owned,

18 operated by or controlled by Teva. If they want to stand
19 on their rights under Canadian law, I i m not sure what it is

20 you want me to do in that regard, Mr. Murphy. You i ve got a
21 third party and they i re doing what they i re doing, so are

22 you, pursuing what you are pursuing. I don i t know if there
23 is anything else to say about that except, perhaps, to raise
24 the question of how the deposition testimony from Glaxo vs.

25 Pharmadyne might work in here.

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1 What are the positions of the parties here?
2 Because if there is information that isn i t being provided 3 and was somehow available in another context, that i s
4 something I i m going to be interested in hearing about.

5 Mr. Murphy, do these issues relate to each other at all or

6 is that just a misstep by me to think they might?

7 MR. MURPHY: Well, Your Honor, I'm not sure
8 they i re linked. Let me address Pharmascience. Given
9 counsel i s representations f I agree with you, there is

10 nothing more we can ask of Teva and we won It. We'll pursue
11 it if the client chooses to expend the resources to make a

12 consti tutional challenge to a Canadian statute, which I

13 think is highly unlikely.
14 On Pharmadyne, we i ve attempted to locate the
15 current whereabouts of the witnesses and we i re basically

16 considering what, if anything, we can or should do to try to
17 preserve testimony or make an evidentiary record for this

18 case, based on what they testified to under oath in the
19 previous case which may be relevant. We just haven't
20 finally decided what to do yet. Teva has objected to all of

21 that testimony entirely and indicated that they will object
22 if it is offered into evidence at trial or I guess on the

23 summary judgment motion.
24

THE COURT: Well, it's evidence as to what?
MR. MURPHY: The stabilizing effect of propylene

25

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LEXSEE 2006 U.S. DIST. LEXIS 11972

DINO G. PETROCELLI, Plaintiff, v. DAIMLERCHRYSLER CORPORATION, Defendant.
Civil Action No. 04-943-KAJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

2006 u.s. Dist. LEXIS 11972
March 22, 2006, Decided

PRIOR HISTORY: Petrocell v. DaimlerChrysler
Corp.. 2005 Us. Dist. LEXIS 39051 (D. Del.. Sept. 28. 2005)

that the Company defamed him by accusing him of theft

and by making derogatory statements about his work habits. Before me now is DaimlerChrsler's Motion for
Summary Judgment. (Docket Item ("D.!.") 56; the "Motion".) This court has subject matter jurisdiction over the

COUNSEL: (*11 Dino G. Petrocelli, Plaintiff, Pro se.

case pursuant 10 28 Us.e. § § 1331, 1343, and 1367.
Jennifer Gim1er Brady, Esq., Sarah E. DiLuzio, Esq., Potter Anderson & Correon LLP, Wilmington, Delaware, for Defendant. Of Counsel: William C. Marucci,
Esq., Kristen Agge1er Page, Esq., Shook Hardy & Bacon LLP, Kansas City, Missouri.
For the reasons that follow, the Motion will be granted in
part and denied in part.

II. BACKGROUND n1

JUDGES: Kent A. Jordan, UNITED STATES DISTRlCT JUDGE.

n1 The following background information is taken from the parties' submissions and does not constitute findings of fact.
A. Perceived Harassment During Petrocelli's Employment at DaimlerChrysler

OPINIONBY: Kent A. Jordan

OPINION:

MEMORADUM OPINION
March 22, 2006 Wilmington, Delaware

Petrocelli applied for employment with DaimlerChrsler on March 15, 1997 (D.!. 58 at AI-2), after being referred 10 the Company through the Latin American Community Center (id. at A8, 66:21-67: 14). On his ap-

JORDAN, District Judge
i. INTRODUCTION
This is an employment discrimination case brought by Dino G. Petrocelli ("Petrocelli"), who is proceeding pro se, against his former employer, DaimlerChrsler
Corporation ("DaimlerChrsler" or the "Company").

plication, Petrocelli listed "Spanish" as one of his skils (id. at AI), and during his interview with DaimlerChrsler, 1*3) he was asked to "say a few things in Spanish," because he "didn't look Hispanic" (id. at A9-10, 73:2474:8, 74:23-75:3). In May 1997, Petrocelli began working at DaimlerChrsler's Parts Distribution Center in
Newark, Delaware ("Newark PDC"). (Jd. at A 1 I, 8 1:2-

4.) Petrocelli worked on the night shift at Newark PDC,

Petrocelli, a Hispanic American, claims that while he was working for DaimlerChrsler he was the target of discrimination based on his national origin, in violation of Title VII of the Civil Rights Act of 1964 ("Tiile VIl), 42 Us.e. § § 2000e et seq., and of the Delaware Discrimination in Employment Act (the "Delaware Act"), 19
Del. Code § 711. He also alleges that, in viola

initially on the dock and later in the warehouse as a
picker/packer. (Id. at AIO-11, 77: 12-78: 10.)

iion of

Title VII, DaimlerChrysler retaliated against him for

Petrocelli testified at his deposition about several incidents at Newark PDC that he perceived to be harassment based on his national origin. First, he testified that his coworkers drew piciures of his "face with a beard. . . and (his) name under there and saying, 'Me no speak English' . . . (with) a sombrero. . . or a jail cell with a
sombrero with (his) name." (Jd. at A23, 140:7-11.) Those

filing the first (*2) of two charges of discrimination and

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2006 U.S. Dist. LEX1S 11972, ..

pictures were drawn with markers "in the bathrooms, on
the work equipment, (and) out in the work area on
boxes." (Id. at A23, 140: 1 2-18.) One pariicular picture,

id. at A96-97 (DaimlerChrsler Standards of Conduct).)
Between April 14, 1999 and June 14,2001, Petrocelli

drawn in the bathroom in October 2001, depicted "a
snake with a sombrero, (Petrocelli's) name underneath of it, . . . bars of a jail cell around it, . . . (and) references to
. . . (him) not (*4) speaking English." (Id. at A25,

received four disciplinary layoffs, each lasting between five and thirty days. (Id. at AIOO-10.) On September 19, 2001, Petrocelli was suspended for attempting to steal
DaimlerChrsler property. (!d. at A 11 i - i 4.) Finally, on January 9, 2002, Petrocelli was suspended indefinitely

169:21-24.) He further testified that "on several occasions," starting in January 2000, pictures and notes were left in work areas "referrng to burritos and tacos. . . and

for violating DaimlerChrsler's standards of conduct. (Id.

at Al15-17.) That suspension was modified to a discharge effective January 11,2002. (ld. at Al 18.)

references to (him) wearing a bandanna . . . being in
gangs and calling (him) 'Esse'." (Id. at A26