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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ROCHE DIAGNOSTICS OPERATIONS, INC., and CORANGE INTERNATIONAL LIMITED, Plaintiffs, v. ABBOTT DIABETES CARE, INCORPORATED, ABBOTT DIABETES CARE SALES CORPORATION, BAYER HEALTHCARE, LLC, DIAGNOSTICS DEVICES, INC., LIFESCAN, INCORPORATED, and NOVA BIOMEDICAL CORPORATION Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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DEFENDANT BAYER HEALTHCARE, LLC'S OPPOSITION TO ROCHE'S SECOND MOTION TO COMPEL

OF COUNSEL: Rachel Krevans Wesley E. Overson Parisa Jorjani Daniel P. Muino MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 (415) 268-7000 Kenneth P. George Joseph M. Casino AMSTER ROTHSTEIN & EBENSTEIN LLP 90 Park Avenue New York, NY 10016 (212) 336-8000 DATED: June 30, 2008

YOUNG CONAWAY STARGATT & TAYLOR, LLP John W. Shaw (No. 3362) Karen E. Keller (No. 4489) Jeffrey T. Castellano (No. 4837) 1000 West Street, 17th Floor Wilmington, DE 19801 (302) 571-6600 [email protected] Attorneys for Bayer Healthcare, LLC

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CERTIFICATE OF SERVICE

I, Karen E. Keller, Esquire, hereby certify that on July 1, 2008, I caused to be electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record: Philip A. Rovner, Esquire Potter Anderson & Corroon LLP 1313 North Market Street P.O. Box 951 Wilmington, DE 19899-0951 Frederick L. Cottrell, III, Esquire Anne Shea Gaza, Esquire Richards Layton & Finger PA One Rodney Square 920 North King Street Wilmington, DE 19801 Mary W. Bourke, Esquire Connolly Bove Lodge & Hutz LLP The Nemours Building 1007 North Orange Street P.O. Box 2207 Wilmington, DE 19899 Rodger D. Smith, II, Esquire Morris Nichols Arsht & Tunnell LLP 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899-1347 Steven J. Balick, Esquire Lauren E. Maguire, Esquire Ashby & Geddes 500 Delaware Avenue P.O. Box 1150 Wilmington, DE 19899

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I further certify that on July 1, 2008, I caused a true and correct copy of the foregoing document to be served by e-mail on the above-listed counsel of record and on the following non-registered participants in the manner indicated:

BY E-MAIL Daniel A. Boehnen, Esquire [[email protected]] Grantland G. Drutchas, Esquire [[email protected]] Gary E. Hood, Esquire [[email protected]] Nicole Keenan, Esquire [[email protected]] Paula S. Fritsch, Esquire [[email protected]] Sherri L. Oslick, Esquire [[email protected]] Jeffrey P. Armstrong [[email protected]] McDonnell Boehnen Hulbert & Bergoff LLP 300 South Wacker Drive Chicago, IL 60606 Bradford J. Badke, Esquire [[email protected]] Sona De, Esquire [[email protected]] Michael Kahn, Esquire [[email protected]] Ropes & Gray LLP 1211 Avenue of the Americas New York, NY 10036-8704 Michael G. Adams, Esquire [[email protected]] Ashley L. Ellis, Esquire [[email protected]] Parker Poe Adams & Bernstein LLP Three Wachovia Center, Suite 3000 401 South Tryon Street Charlotte, NC 28202 Edward A. Mas II, Esquire [[email protected]] Stephen F. Sherry, Esquire [[email protected]] Kirk A. Vander Leest, Esquire [[email protected]] James M. Hafertepe, Esquire [[email protected]] Merle S. Elliott, Esquire [[email protected]] McAndrews, Held & Malloy, Ltd. 500 West Madison Street Chicago, IL 60661

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YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Karen E. Keller John W. Shaw (No. 3362) [[email protected]] Karen E. Keller (No. 4489) [[email protected]] Jeffrey T .Castellano (No. 4837) [[email protected]] The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19899 (302) 571-6600 Attorneys for Defendant Bayer Healthcare, LLC

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EXHIBIT 1

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Dachtler, Amy C
From: Sent: To: Cc: Hood, Gary [[email protected]] Thursday, June 12, 2008 3:09 PM Muino, Daniel P. Krevans, Rachel; Overson, Wesley E.; Jorjani, Parisa; Boehnen, Daniel; Drutchas, Grantland; Oslick, Sherri

Subject: Bayer's Objections/Responses To Roche Second RFP's Daniel I'm following up on a voicemail message that I left you this afternoon. As I noted in my message, I want to confirm that Bayer is objecting to and not producing documents to permit Roche to identify Bayer customers, including warranty registrations and claims, and is objecting to and not producing documents that it claims relate to products sold by Bayer before October 2, 2007 - all as set forth in Bayer's responses and objections to Roche's Requests for Production, and specifically Requests 121-124. We expect that Bayer intends to stand on its objections - please let me know no later than 1pm Eastern time tomorrow if this is not the case. In view of the case schedule, if we don't hear from you by then that Bayer does not intend to stand on its objections, we intend to file an appropriate motion with the Court. Best Regards, Gary Gary E. Hood, Esq. McDonnell Boehnen Hulbert & Berghoff LLP 300 S. Wacker, Ste. 3100 Chicago, IL 60606 312-913-2146 (d) 312-913-0001 (p) 312-913-0002 (f) [email protected]
THE INFORMATION CONTAINED IN AND ATTACHED TO THIS TRANSMISSION IS ATTORNEY/CLIENT PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED FOR THE SOLE USE OF THE RECIPIENT(S) NAMED ABOVE. ANY USE OF THIS COMMUNICATION BY ANYONE OTHER THAN THE INTENDED RECIPIENT IS STRICTLY PROHIBITED.

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EXHIBIT 2

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Dachtler, Amy C
From: Sent: To: Cc: Muino, Daniel P. Saturday, June 14, 2008 4:28 PM 'Hood, Gary' Krevans, Rachel; Monach, Andrew E.; Overson, Wesley E.; Jorjani, Parisa; Boehnen, Daniel; Drutchas, Grantland; Oslick, Sherri

Subject: RE: Bayer's Objections/Responses To Roche Second RFP's Gary, Bayer stands by its objections to producing documents identifying end users of the Bayer accused products. We are available to meet and confer to attempt a resolution of this issue, if you wish. Daniel P. Muino Morrison & Foerster LLP 425 Market Street | San Francisco, CA 94105 415.268.7475 | 415.268.7522 fax [email protected] | www.mofo.com

From: Hood, Gary [mailto:[email protected]] Sent: Thursday, June 12, 2008 3:09 PM To: Muino, Daniel P. Cc: Krevans, Rachel; Overson, Wesley E.; Jorjani, Parisa; Boehnen, Daniel; Drutchas, Grantland; Oslick, Sherri Subject: Bayer's Objections/Responses To Roche Second RFP's Daniel I'm following up on a voicemail message that I left you this afternoon. As I noted in my message, I want to confirm that Bayer is objecting to and not producing documents to permit Roche to identify Bayer customers, including warranty registrations and claims, and is objecting to and not producing documents that it claims relate to products sold by Bayer before October 2, 2007 - all as set forth in Bayer's responses and objections to Roche's Requests for Production, and specifically Requests 121-124. We expect that Bayer intends to stand on its objections - please let me know no later than 1pm Eastern time tomorrow if this is not the case. In view of the case schedule, if we don't hear from you by then that Bayer does not intend to stand on its objections, we intend to file an appropriate motion with the Court. Best Regards, Gary Gary E. Hood, Esq. McDonnell Boehnen Hulbert & Berghoff LLP 300 S. Wacker, Ste. 3100 Chicago, IL 60606 312-913-2146 (d) 312-913-0001 (p) 312-913-0002 (f) [email protected]
THE INFORMATION CONTAINED IN AND ATTACHED TO THIS TRANSMISSION IS ATTORNEY/CLIENT PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED FOR THE SOLE USE OF THE RECIPIENT(S) NAMED ABOVE. ANY USE OF THIS COMMUNICATION BY ANYONE OTHER THAN THE INTENDED RECIPIENT IS STRICTLY PROHIBITED.

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EXHIBIT 4

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Bayer Diabetes Care
Bayer HealthCare
Home Our Products Current Owners Diabetes & You Español Healthcare Professionals Small Medium Large

Privacy Statement
Bayer is aware that the security of your private information from the use of our web-site is an important concern. We take the protection of your personal data very seriously. Therefore we would like you to know what data we maintain and what data we discard. With this privacy statement, we would like to inform you about our security measures. Collection of Data You can use our web site without disclosing your personal data. You are not required to provide personal information as a condition of using our site, except as may be necessary to provide you a product or service at your request. When you use our web site, we store data on our servers for various security purposes. This data may include the name of your internet service provider, the web site that you used to link to our site, the web sites that you visit from our site and your IP-Address. This data could possibly lead to your identification, but we do not use it to do so. We do use the data from time to time for statistical purposes, but maintain the anonymity of each individual user so that the person cannot be identified. In cases when personal data is provided to others to provide you products or services you have requested, or for other purposes you have authorized, we rely on technical and organizational means to assure that applicable data security regulations are followed. Collection and processing of personal data We collect personal data only when you provide it to us, through registration, completion of forms or emails, as part of an order for products or services, inquiries or requests about materials being ordered and similar situations in which you have chosen to provide the information to us. The database and its contents remain at our company and stay with data processors or servers acting on our behalf and responsible to us. Your personal data will not be passed on by us or by our agents for use by third parties in any form whatsoever, unless we have obtained your consent or are legally required to do so. We will retain control of and responsibility for the use of any personal data you disclose to us. Some of this data may be stored or processed at computers located in other jurisdictions, such as the United States, whose data protection laws may differ from the jurisdiction in which you live. In such cases, we

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will ensure that appropriate protections are in place to require the data processor in that country to maintain protections on the data that are equivalent to those that apply in the country in which you live. Purposes of Use The data we collect will only be used for the purpose of supplying you with the requested products or services or for other purposes for which you have given your consent, except where otherwise provided by law. Right of Access and Correction You have the right to review and amend any personal data stored in our system if you believe it may be out of date or incorrect. Just send an e-mail to the address given in the imprint or contact the Data Security Officer at the address below. Right of Cancellation You have the right at any time to withdraw your consent to the use of your personal data in the future. Again, just send an e-mail to the address given in the imprint or contact the Data Security Officer at the address below. Data Retention We only retain personal data for as long as is necessary for us to render a service you have requested or to which you have given your consent, except where otherwise provided by law (e.g. in connection with pending litigation). Use of Cookies In some web sites, so-called Cookies are used in order for us to improve the efficiency of your individual use of the web site. Cookies are identifiers that our web-server could send to your computer in order to identify the computer being used for the duration of the session. Most browsers are set-up to accept these Cookies automatically. In addition, you can deactivate the storing of cookies or adjust your browser to inform you before the Cookie is stored on your computer. If cookies are going to be saved to your computer not only for the duration of a session, with automatic subsequent deletion, but for the long term, we will provide you notice of this fact when the relevant cookies are set. Security Bayer uses technical and organizational security precautions to protect your data from manipulation, loss, destruction or access by unauthorized persons. Any personal data that is provided to Bayer by you will be encrypted in transit to prevent its possible misuse by third parties. Our security procedures are continuously revised based on new technological developments. Children In light of the importance of protecting children's privacy, we do not collect, process or use on our website any information relating to an individual whom we know to be under 13 years old without the prior, verifiable consent of his or her legal representative. Such legal representative has the right, upon request, to view the information provided by the child and/or to require that it be deleted.

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Contacts Please contact the Data Security Officer of Bayer AG with any problems, questions or suggestions that you may have. The constant development of the internet requires occasional adjustments to our privacy statement. We retain the right to make changes when necessary. Data Security Officer, Bayer AG: Rainer Meyer, Bldg. 4813, Leverkusen Phone: +49 (0) 214 30 2 05 22 Fax.: +49 (0) 214 30 2 03 46 E-mail: [email protected] print page Home Our Products Current Meter Users Diabetes & You About Us News Contact Us Healthcare Professionals Español Bayer Diabetes Global Bayer Global General Condition of Use Privacy Statement © Copyright 2008 Bayer HealthCare LLC - Published by: Bayer HealthCare LLC Diabetes Care 555 White Plains Road - Tarrytown, New York, 10591-5097 - United States - Tel: 1-800-348-8100

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