Case 1:18-cv-00924-CFC-SRF Document 446 Filed 10/25/19 Page 1 of 16 PageID #:
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`GENENTECH, INC.,
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`v.
`AMGEN INC.,
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`Case No. 1:18-cv-00924-CFC
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`Plaintiff,
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`Defendant.
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`GENENTECH, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR SANCTIONS
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 37(B)
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`
`McCARTER & ENGLISH, LLP
`Michael P. Kelly (# 2295)
`Daniel M. Silver (#4758)
`Alexandra M. Joyce (#6423)
`Renaissance Centre
`405 N. King Street, 8th Floor
`Wilmington, Delaware 19801
`Tel.: (302) 984-6300
`Fax: (302) 984-6399
`mkelly@mccarter.com
`dsilver@mccarter.com
`
`Attorneys for Genentech, Inc.
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`
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`Of Counsel:
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`Daralyn J. Durie
`Adam R. Brausa
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, CA 94111
`
`William F. Lee
`Lisa J. Pirozzolo
`Emily R. Whelan
`Kevin S. Prussia
`Andrew J. Danford
`WILMER CUTLER PICKERING HALE
`AND DORR LLP
`60 State Street
`Boston, MA 02109
`
`Robert J. Gunther Jr.
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`7 World Trade Center
`250 Greenwich Street
`New York, NY 10007
`
`Dated: October 15, 2019
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`B.
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`C.
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`TABLE OF CONTENTS
`INTRODUCTION ...........................................................................................................................1
`ARGUMENT ...................................................................................................................................2
`Amgen In-House Counsel Lois Kwasigroch Is Subject To The Waiver
`A.
`Order. ...................................................................................................................................2
`Amgen Fails To Address Its Instructions To Ms. Kwasigroch To Withhold
`Uncommunicated Work Product..........................................................................................4
`Amgen Cannot Shield Ms. Kwasigroch’s Mental Impressions From
`Discovery By Claiming That They Were Informed By Communications
`With Trial Counsel. ..............................................................................................................5
`None Of Amgen’s Cases Allow Ms. Kwasigroch To Withhold Her Mental
`Impressions. .........................................................................................................................7
`Contrary To Amgen’s Opposition, Genentech Is Not Asking Amgen to
`“Disclose Its Trial Counsel Communications.” ...................................................................8
`Amgen’s Responses To Genentech’s Proposed Findings Continue To
`Abuse Privilege As A Sword And Shield. ...........................................................................8
`CONCLUSION ..............................................................................................................................10
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`D.
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`E.
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`F.
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`I.
`II.
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`III.
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Alloc, Inc. v. Pergo, L.L.C.,
`No. 00-C-0999, 2010 WL 3808977 (E.D. Wis. Sept. 23, 2010)................................................7
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`In re EchoStar Communications Corp.,
`448 F.3d 1294, 1298-99 (Fed. Cir. 2006) ..............................................................................2, 7
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`Krausz Industries Ltd., v. Smith-Blair, Inc.,
`No. 5:12-CV-00570-FL, 2016 WL 10538004 (E.D.N.C. Dec. 13, 2016) .................................7
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`In re Seagate Tech., LLC,
`497 F.3d 1360 (Fed. Cir. 2007), abrogated on other grounds by Halo Elecs.,
`Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923 (2016) ..................................................................6, 8
`
`Wisconsin Alumni Research Foundation v. Apple, Inc.,
`No. 14-062-wmc, 2015 WL5009880 (W.D. Wis. Aug. 20, 2015) ............................................7
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`I.
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`INTRODUCTION
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`Amgen’s third try to exempt its in-house lawyers from the scope of Amgen’s privilege
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`waiver should fare no better than its first two efforts. The Court’s order still extends the scope of
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`the privilege waiver “to Amgen’s in-house counsel,” Lois Kwasigroch still qualifies as such, and
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`Amgen produced her for a deposition pursuant to the Court’s order. Amgen has no answer for
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`why it instructed Ms. Kwasigroch to refuse to answer questions unless she had communicated
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`the information at issue to Amgen’s “business leaders.” The parties litigated that precise
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`question and Amgen lost. This Court drew a line as to the scope of the waiver in June, and Ms.
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`Kwasigroch falls inside it.
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`Amgen does not try to defend those instructions per se. Instead, Amgen contends that
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`Ms. Kwasigroch was unable to answer any questions about her own state of mind because her
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`brain had melded with Amgen’s outside trial counsel, rendering her an empty vessel save for
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`what Cooley told her. That claim is not plausible on its face, but even if it were, the instructions
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`were improper. This Court has ruled that Amgen put at issue Amgen’s state of mind, that Ms.
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`Kwasigroch is Amgen, and that Amgen has therefore waived the privilege as to her state of
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`mind. The court’s order specifically exempted communications with trial counsel from the
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`scope of the waiver and Genentech did not inquire into them. But to allow Amgen’s in-house
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`counsel to refuse to answer questions about her state of mind because her state of mind might
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`have been informed by communications with trial counsel, without disclosing the
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`communications themselves, would effectively gut the Court’s order, as the instructions to Ms.
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`Kwasigroch made clear.
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`In view of Amgen’s violation of this Court’s order, already confirmed by this Court’s
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`denial of Amgen’s request for reargument, the Court should order the requested sanctions.
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`II.
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`ARGUMENT
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`A.
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`Amgen In-House Counsel Lois Kwasigroch Is Subject To The Waiver Order.
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`Amgen contends that Lois Kwaisgroch is not “subject to discovery under the Order[.]”
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`Opp’n at 5. But the Court’s June 20, 2019 order granting Genentech’s motion to compel held
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`that Amgen’s production of the opinion letters had “effected a subject matter waiver of Amgen’s
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`attorney-client privilege” and that the waiver “extends to Amgen’s in-house counsel.” Order at
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`1, D.I. 259. No one disputes that “Amgen’s in-house counsel” includes Ms. Kwasigroch.
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`The Court correctly extended Amgen’s waiver to Ms. Kwasigroch because she is Amgen
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`for purposes of assessing willfulness. The parties briefed this issue exhaustively over the
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`summer: Genentech explained that EchoStar forbids Amgen from releasing only those
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`communications that went to “Amgen decision-makers who relied upon the opinons[.]” Letter
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`Br. at 1, D.I. 254. Amgen pushed for a narrower scope of waiver, arguing that Amgen’s in-
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`house counsel should be treated as outside lawyers, not as the client, and that
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` Amgen
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`Letter Br. at 2, D.I. 255. The Court rejected that position, noting that “Amgen is the decision-
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`maker and Amgen’s ultimate decisions are informed by the knowledge of [] a number of people
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`within its organization. That includes in-house counsel.” See Reply Declaration of Daralyn J.
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`Durie (“Durie Reply Decl.”) Ex. 1, Hr’g Tr. at 41:21–42:3, June 18, 2019 (emphasis added); see
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`also id. at 43:20–23. Any doubt vanished when Amgen sought reargument, asking the Court to
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`reconsider whether “EchoStar and subsequent cases establish that in-house counsel’s work
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`product not communicated to decision makers is not subject to waiver.” See Amgen Mot. for
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`Reargument at 3, D.I. 266. This Court affirmed its prior conclusion, noting that it “already fully
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`considered and addressed these arguments[.]” Order Denying Mot. for Reargument ¶ 5, D.I.
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`345 (emphasis added).
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`Amgen’s brief ignores these decisions and relies solely on language in the Court’s order
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`specifying that Amgen must produce for deposition any in-house counsel “involved in (i)
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`obtaining the Opinion Letters; or (ii) providing advice with respect to (a) infringement or validity
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`of the [Kao] patent or (b) the validity of [the dosing] patents[.]” Opp’n at 6. Amgen now says
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`that Ms. Kwasigroch does not qualify. Id. That language does not limit the scope of the waiver,
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`but merely defines the individuals subject to deposition. Moreover, when Genentech asked to
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`depose Ms. Kwasigroch on the basis of the waiver order, Amgen did not dispute that the order
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`applied to her and produced her for a deposition.
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`Indeed, what little information Amgen has turned over suggests that Ms. Kwasigroch did,
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`in fact, provide advice on issues within the scope of waiver.
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`B.
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`Amgen Fails To Address Its Instructions To Ms. Kwasigroch To Withhold
`Uncommunicated Work Product.
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`Amgen instructed Ms. Kwasigroch not to disclose her views regarding the validity of the
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`dosing patents and the validity and infringement of the Kao patent—the subject matter as to
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`which privilege had been waived—unless those views had been communicated to
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` See Mot. at 3, 7
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`Amgen says nothing to defend these instructions. This Court squarely ruled that the
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`relevant test is not whether information had been communicated to “business decisionmakers.”
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`Compare Amgen Mot. for Reargument at 7 (“Amgen should not be found to have waived
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`protection for in-house counsel work product that has not been communicated to the relevant
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`decision-makers”), with Order Denying Mot. at 3 (“[The Court]: I already fully considered and
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`addressed these arguments[.]”). That these communications fall within the scope of the order is
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`confirmed by the fact that Amgen
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` Genentech’s proposed findings are an appropriate sanction for these
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`violations of the Court’s orders.
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`C.
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`Amgen Cannot Shield Ms. Kwasigroch’s Mental Impressions From
`Discovery By Claiming That They Were Informed By Communications With
`Trial Counsel.
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`The Court’s order excludes from its scope “communications with outside trial counsel.”
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`Amgen spends most of its brief striving to fit all of Ms. Kwasigroch’s mental impressions into
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`that exception. But that carve-out is narrow and clear: It applies only to “communications”—
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`not mental impressions—and then only to “communications with outside trial counsel.”
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`Genentech is not complaining about any failure to disclose communications with outside trial
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`counsel. It is complaining about Amgen’s effort to shield Ms. Kwasigroch’s state of mind based
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`on her own review of the relevant materials.1 For example, Genentech asked Ms. Kwasigroch
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`Amgen’s current position that Ms. Kwasigroch’s mental impressions are shielded from
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`disclosure because they would divulge outside trial counsel work product is an after-the-fact
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`rationalization, and is inconsistent with Amgen’s prior instructions that permitted disclosure of
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`her mental impressions provided that they were communicated to Amgen business decision
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`makers. If Ms. Kwasigroch’s mental impressions are immune from discovery because they
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`would reveal outside trial counsel work product, then Amgen would have instructed her not to
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`answer any questions calling for them, regardless of whether Ms. Kwasigroch communicated her
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`impressions to Amgen business decision makers.
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`1 Understanding Amgen’s state of mind was the whole point of Genentech’s June motion that led
`to the Court’s waiver order. See Letter Br. at 2, D.I. 254 (“As a subject matter waiver,
`Genentech is entitled to receive all legal advice that Amgen has received on the same subject
`matter in order to evaluate Amgen’s state of mind.”) (emphasis added).
`2 Amgen’s suggestion that Ms. Kwasigroch had no thoughts of her own other than what she was
`told by outside counsel is simply not plausible on its face. She has been a lawyer for 32 years.
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`D.
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`None Of Amgen’s Cases Allow Ms. Kwasigroch To Withhold Her Mental
`Impressions.
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`Amgen’s cases merely support the proposition that the privilege waiver should not extend
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`to communications with outside trial counsel themselves. Seagate arose from an order
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`compelling production of “all communications between it and any counsel, including its trial
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`attorneys . . . , concerning . . . infringement, invalidity, and enforceability.” In re Seagate Tech.,
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`LLC, 497 F.3d 1360, 1366–67 (Fed. Cir. 2007), abrogated on other grounds by Halo Elecs., Inc.
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`v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932 (2016). The Federal Circuit did not rule that
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`witnesses can decline to testify as to their state of mind simply because they communicated with
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`outside trial counsel.
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`As for Wisconsin Alumni Research Foundation v. Apple, Inc., No. 14-062-wmc, 2015
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`WL5009880, at *1 (W.D. Wis. Aug. 20, 2015), Krausz Industries Ltd., v. Smith-Blair, Inc., No.
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`5:12-CV-00570-FL, 2016 WL 10538004, at *12 (E.D.N.C. Dec. 13, 2016), and Alloc, Inc. v.
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`Pergo, L.L.C., No. 00-C-0999, 2010 WL 3808977, at *4 (E.D. Wis. Sept. 23, 2010), each of
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`those extrajurisdictional opinions likewise confirm that communications with trial counsel
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`remain privileged. The cases do not discuss the discoverability of mental impressions
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`Finally, far from being mandated by In re EchoStar Communications Corp., Amgen’s
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`position contravenes it. EchoStar held that advice-of-counsel defenses effect a subject matter
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`waiver over communications relating to the defense. EchoStar, 448 F.3d 1294, 1298-99 (Fed.
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`Cir. 2006), and at 1304. Only opinions and impressions “never communicated to the client” are
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`exempt—and “the client” means the company. See id. at 1305 (“Here, Merchant & Gould work
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`product that was not communicated to EchoStar . . . is not within the scope of EchoStar's
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`waiver[.]”) (emphasis added). Amgen would narrow EchoStar by carving out company
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`employees who
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` Echostar does
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`not that endorse that result. Genentech wants to know what Amgen itself, in the form of Ms.
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`Kwasigroch, thought about the validity (and in the case of Kao, infringement) of the patents
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`subject to waiver. That is precisely the discovery authorized by this Court.
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`E.
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`Contrary To Amgen’s Opposition, Genentech Is Not Asking Amgen to
`“Disclose Its Trial Counsel Communications.”
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`Amgen’s final argument—that Ms. Kwasigroch is somehow equivalent to outside trial
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`counsel—was rejected long ago. Specifically, when Amgen in June sought to reargue the
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`Court’s waiver order, Amgen argued that “[t]reating in-house attorneys as de facto decision-
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`makers would eviscerate the work product privilege entirely for in-house counsel.” See Mot. for
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`Reargument at 5, D.I. 266. Amgen repeats that argument here. See Opp’n at 13 (invoking
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`Seagate for the proposition that “mental process work product such as a plans, strategies, tactics,
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`and impressions” is afforded “nearly, absolute protection”). But repetition does not undo what
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`this Court decided: Amgen’s advice-of-counsel defense effects a subject matter waiver that
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`encompasses in-house counsel such as Ms. Kwasigroch. Contrary to Amgen’s argument, that
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`waiver will not “unfairly prejudice Amgen’s trial preparations.” Opp’n at 13. Genentech does
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`not seek discovery into Amgen’s litigation positions now—Genentech only wants to know
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`Amgen’s mental state when Amgen launched Kanjinti.
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`F.
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`Amgen’s Responses To Genentech’s Proposed Findings Continue To Abuse
`Privilege As A Sword And Shield.
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`Finally, Amgen takes issue with the specifics of the relief that Genentech requests. See
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`Opp’n at 11–13. But Amgen’s responses only underscore the prejudice to Genentech caused by
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`Amgen’s selective waiver.3 First, Genentech proposed that the Court find that Ms. Kwasigroch
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`“was not aware of any errors in the PTAB’s analysis regarding the validity of the [dosing]
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`patents.” Mot. at 17. Amgen challenged that finding by asserting that
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`clearer:
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` The abuse of privilege could not be
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`Second, Genentech asked for a finding that Ms. Kwasigroch “was not aware of any
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`invalidity arguments or any prior art that was not presented to and considered by the PTAB when
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`it found that the ’196 and ’379 patents are not invalid.” Mot. at 17. Amgen challenges that
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`finding because
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`Kwasigroch
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`she was aware of new prior art.
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` But that is beside the point: The fact that Ms.
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` is not a statement that
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`3 Indeed, Amgen has already abused privilege by wielding it as both a sword and a shield. For
`example, the company now says that
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` But that’s clearly not
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`what Amgen thought a month ago, when Amgen
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`Third, Genentech asked the Court to find that Ms. Kwasigroch “did not have a basis for
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`believing that the ’196, ’379, and ’811 dosing patents are invalid.” Mot. at 17. Amgen again
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`responds by asserting that Ms. Kwasigroch
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` But that is again not the point. Amgen overreads Ms.
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`Kwasigroch’s remark
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` Genentech’s proposed findings should stand.
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`III. CONCLUSION
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`For the reasons above and contained in Genentech’s motion for sanctions, the Court
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`should deem established the facts set forth on page 17 of Genentech’s motion. The Court should
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`also grant Genentech leave to request fees and costs incurred in connection with Ms.
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`Kwasigroch’s deposition and Genentech’s sanctions motion.
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`By:
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`
`McCARTER & ENGLISH, LLP
`
`
`/s/ Daniel M. Silver
`Michael P. Kelly (# 2295)
`Daniel M. Silver (#4758)
`Alexandra M. Joyce (#6423)
`Renaissance Centre
`405 N. King Street, 8th Floor
`Wilmington, Delaware 19801
`Tel.: (302) 984-6300
`Fax: (302) 984-6399
`mkelly@mccarter.com
`dsilver@mccarter.com
`
`Attorneys for Genentech, Inc.
`
`Dated: October 15, 2019
`
`Of Counsel:
`
`Daralyn J. Durie
`Adam R. Brausa
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, CA 94111
`(415) 362-6666
`
`William F. Lee
`Lisa J. Pirozzolo
`Emily R. Whelan
`Kevin S. Prussia
`Andrew J. Danford
`WILMER CUTLER PICKERING HALE
`AND DORR LLP
`60 State Street
`Boston, MA 02109
`(627) 526-6000
`
`Robert J. Gunther Jr.
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`7 World Trade Center
`250 Greenwich Street
`New York, NY 10007
`(212) 230-8800
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`CERTIFICATE OF SERVICE
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`The undersigned counsel hereby certifies that true and correct copies of the foregoing
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`document were caused to be served on October 15, 2019 on the following counsel in the manner
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`indicated:
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`VIA EMAIL:
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`Neal C. Belgam
`Eve H. Ormerod
`Jennifer M. Rutter
`SMITH, KATZENSTEIN & JENKINS, LLP
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`eormerod@skjlaw.com
`jrutter@skjlaw.com
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`
`Orion Armon
`COOLEY, LLP
`380 Interlocken Crescent, Suite 900
`Broomfield, CO 80021-8023
`(720) 566-4119
`oarmon@cooley.com
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`
`Eamonn Gardner
`COOLEY, LLP
`4401 Eastgate Mall
`San Diego, CA 92121-1909
`(858) 550-6086
`egardner@cooley.com
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`Christopher B. Mead
`London & Mead
`1225 19th Street, NW, Ste. 320
`Washington, DC 20036
`(202) 331-3334
`cmead@londonandmead.com
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`Michelle Rhyu
`Susan Krumplitsch
`Daniel Knauss
`Philip H. Mao
`Alexandra Leeper
`Lauren Krickl
`Benjamin S. Lin
`Alissa M. Wood
`COOLEY, LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`(650) 843-5287
`rhyums@cooley.com
`skrumplitsch@cooley.com
`dknauss@cooley.com
`pmao@cooley.com
`aleeper@cooley.com
`lkrickl@cooley.com
`blin@cooley.com
`amwood@cooley.com
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`Brian Kao
`Lois Kwasigroch
`AMGEN, INC.
`One Amgen Center Drive
`Thousand Oaks, CA 91320-1799
`(805) 447-1000
`bkao@amgen.com
`loisk@amgen.com
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`Attorneys for Defendant Amgen Inc.
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`Dated: October 15, 2019
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`/s/ Daniel M. Silver
`Daniel M. Silver (#4758)
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`ME1 31716101v.1
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`2
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