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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-1221 (LPS)
`CONSOLIDATED
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`BAYER HEALTHCARE LLC and BAYER
`HEALTHCARE PHARMACEUTICALS
`INC.,
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`APOTEX INC. and APOTEX CORP., et al.,
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`v.
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`Plaintiffs,
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`Defendants.
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`JOINT STATUS REPORT
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`Pursuant to the Court’s Order dated May 8, 2020, the parties provide the following joint
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`status report regarding the above-captioned consolidated case:
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`1.
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`The parties have met and conferred, and respectfully request the September 8-11,
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`2020 trial date identified in the Court’s Order.
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`2.
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`The Court noted in its May 8, 2020 Order that “[i]f it is not possible for some or
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`all of the trial to be conducted in the courtroom, the Court may require that all or a portion of the
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`trial be conducted remotely using video technology.” In light of the Court’s Order and the
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`requested September trial date, Bayer respectfully submits that the entire bench trial should be
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`conducted remotely using video technology. At least some of Bayer’s witnesses, including
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`Bayer’s principal medicinal chemistry expert located in the UK, will need to testify remotely at a
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`September trial. In addition, given that the COVID-19 pandemic is expected to continue for
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`some time, a remote trial will minimize the health risks to everyone involved. Moreover, as the
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`Court will need to assess a significant portion of Bayer’s testimony by video, the equitable
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`approach would be to present all of the witnesses’ testimony remotely. Although Bayer would
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`prefer for the Court to determine now that the trial will be conducted remotely—which will
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`Case 1:16-cv-01221-LPS Document 148 Filed 05/15/20 Page 2 of 3 PageID #: 1100
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`provide certainty in terms of making the necessary preparations—Bayer of course defers to the
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`Court’s preference if the Court would like to wait until the proposed late June status conference
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`to make a final determination on that issue (see paragraph 4 below).
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`3.
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`Defendants are not insensitive to the current health climate, but believe it is too
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`early to commit to conducting an entire trial remotely. Indeed, if the trial was to occur remotely
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`in the first place, it could have begun on June 22nd, as previously scheduled. But, Defendants
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`recognize that circumstances may demand a remote/virtual trial. While that is not Defendants’
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`preference, Defendants and their witnesses – all of whom are prepared to conduct an in-person
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`trial if possible – defer to the Court on when that determination, if necessary, should be made.
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`4.
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`The parties respectfully request a status conference with the Court in late June to
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`discuss the logistical and technical issues associated with trial and how the trial will be
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`conducted.
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`5.
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`In addition, in order to account for logistical and/or technical issues that may arise
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`with use of video technology, the parties respectfully request that the Court allow for the
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`possibility of more than 6 hours per trial day.
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`6.
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`The parties request that the due date for submission of the Pre-Trial Order be set
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`for August 17, 2020, and that the Final Pre-Trial Conference be set for a date on or about
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`August 25, 2020.
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`2
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`Case 1:16-cv-01221-LPS Document 148 Filed 05/15/20 Page 3 of 3 PageID #: 1101
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`MORRIS JAMES LLP
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`/s/ Kenneth L. Dorsney
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`Kenneth L. Dorsney (#3726)
`500 Delaware Avenue, Suite 1500
`Wilmington, DE 19801-1494
`(302) 888-6855
`kdorsney@morrisjames.com
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`Attorneys for Defendants Apotex Inc. and
`Apotex Corp.
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
`Derek J. Fahnestock (#4705)
`Anthony D. Raucci (#5948)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`dfahnestock@mnat.com
`araucci@mnat.com
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`Attorneys for Plaintiffs Bayer Healthcare LLC
`and Bayer Healthcare Pharmaceuticals Inc.
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`May 15, 2020
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`3
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