Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 1 of 49 PageID #: 644
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`REDACTED - PUBLIC VERSION
`
`C.A. No. 20-1524-LPS
`
`)))))))))))
`
`DAIICHI SANKYO, INC., DAIICHI
`SANKYO COMPANY, LIMITED, and
`ASTRAZENECA PHARMACEUTICALS LP,
`
`v.
`
`SEAGEN INC.,
`
`Plaintiffs,
`
`Defendant.
`
`DECLARATION OF PIETER S. DE GANON IN SUPPORT OF SEAGEN INC.’S
`REPLY BRIEF IN SUPPORT OF ITS MOTION TO STAY OR DISMISS
`
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`
`Anne Shea Gaza (No. 4093)
`Samantha G. Wilson (No. 5816)
`Rodney Square
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6727
`agaza@ycst.com
`swilson@ycst.com
`
`Attorneys for Defendant
`Seagen Inc.
`
`Of Counsel:
`
`MORRISON & FOERSTER LLP
`Michael A. Jacobs
`Matthew A. Chivvis
`425 Market Street
`San Francisco, CA 94105-2482
`(415) 268-7000
`mjacobs@mofo.com
`mchivvis@mofo.com
`
`Bryan Wilson
`Pieter S. de Ganon
`755 Page Mill Road
`Palo Alto, CA 94304-1018
`(650) 813-5600
`bwilson@mofo.com
`pdeganon@mofo.com
`
`Dated: February 1, 2021
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 2 of 49 PageID #: 645
`
`I, Pieter S. de Ganon, declare:
`
`1.
`
`I am an attorney duly admitted to practice before the courts of the State of
`
`California and am an associate at Morrison & Foerster LLP, counsel of record for Seagen Inc.
`
`(“Seagen”) in the above-captioned action.
`
`2.
`
`Attached hereto as Exhibit 11 is a true and correct copy of Seagen’s notice of
`
`Disclosure of Asserted Claims and Infringement Contentions in Case No. 2:20-cv-337 in the
`
`United States District Court for the Eastern District of Texas dated January 6, 2021.
`
`3.
`
`Attached hereto as Exhibit 12 is a true and correct copy of Seagen’s Letter
`
`Seeking Discovery in Case No. 2:20-cv-337 in the United States District Court for the Eastern
`
`District of Texas dated January 21, 2021.
`
`4.
`
`Attached hereto as Exhibit 13 is a true and correct copy of Seagen’s First Set of
`
`Interrogatories to Defendant Daiichi Sankyo Co., Ltd. Regarding Jurisdiction and Venue in Case
`
`No. 2:20-cv-337 in the United States District Court for the Eastern District of Texas dated
`
`January 27, 2021.
`
`5.
`
`Attached hereto as Exhibit 14 is a true and correct copy of Seagen’s Notice of
`
`Deposition of Defendant Daiichi Sankyo Co., Ltd. Pursuant to Fed. R. Civ. P. 30(b)(6)
`
`Regarding Jurisdiction and Venue in Case No. 2:20-cv-337 in the United States District Court
`
`for the Eastern District of Texas dated January 27, 2021.
`
`6.
`
`Attached hereto as Exhibit 15 is a true and correct copy of the top page of DSC’s
`
`website, available at https://www.daiichisankyo.com/.
`
`7.
`
`Attached hereto as Exhibit 16 is a true and correct copy of a page from DSC’s
`
`website entitled “About Us,” available at https://www.daiichisankyo.com/about us/.
`
`
`
`2
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 3 of 49 PagelD i4: 646
`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 3 of 49 PageID #: 646
`
`8.
`
`Attached hereto as Exhibit 17 is a true and correct copy of a page from DSl’s
`
`website entitled “Daiiehi Sankyo Business Development.“ available at https://dsi.com/business-
`
`development.
`
`I declare under penalty of perjury under the laws of the United States of America that the
`
`foregoing is true and correct.
`
`Dated: February I. 202]
`
`OVA,» 3w W
`Pieter S. de Ganon
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 4 of 49 PageID #: 647
`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 4 of 49 PageID #: 647
`
`EXHIBIT 11
`
`EXHIBIT 11
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 5 of 49 PageID #: 648
`
`From:
`To:
`Cc:
`
`Subject:
`Date:
`Attachments:
`
`Visitacion, Daisy Belle
`ddacus@dacusfirm.com; blake@themannfirm.com; mark@themannfirm.com; prestonratliff@paulhastings.com
`Jacobs, Michael A.; Chivvis, Matthew Alan; de Ganon, Pieter Sebastian; Kim, Janet S.; Wilson, Bryan; Chang,
`Evelyn Li-Jin; Fix, Cynthia D.; Hoang, Nancy; "Melissa Smith"; ce@wsfirm.com; andrea@wsfirm.com
`Seagen Inc. v. Daiichi Sankyo Co., Ltd., C.A. No. 2:20-cv-00337 (E.D. Tex.)
`Wednesday, January 6, 2021 7:29:38 PM
`2021.01.06 Seagen v DSC (E.D. Tex.) Infringement Contentions.pdf
`2021.01.06 Seagen v DSC (E.D. Tex.) Ex. A - Infringement Contentions (Chart).pdf
`
`Counsel,
`
`Attached for service are the following:
`
`
`• Seagen Inc.’s Disclosure of Asserted Claims and Infringement Contentions
`• Exhibit A to Seagen Inc.’s Disclosure of Asserted Claims and Infringement Contentions
`
`
`Sincerely,
`DAISY BELLE VISITACION
`Senior Paralegal | Morrison & Foerster LLP
`755 Page Mill Road | Palo Alto, CA 94304-1018
`P: +1 (650) 813-5693
`mofo.com | LinkedIn | Twitter
`
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 6 of 49 PageID #: 649
`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 6 of 49 PageID #: 649
`
`EXHIBIT 12
`
`EXHIBIT 12
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 7 of 49 PageID #: 650
`
`
`
`
`
`
`
`January 21, 2021
`
`
`
`425 MARKET STREET
`SAN FRANCISCO
`CALIFORNIA 94105-2482
`
`TELEPHONE: 415 268 7000
`FACSIMILE: 415 268 7522
`
`WWW MOFO COM
`
`
`
`M O R R I S O N & F O E R S T E R L L P
`B E I J I N G , B E R L I N , B O S T O N ,
`B R U S S E L S , D E N V E R , H O N G K O N G ,
`L O N D O N , L O S A N G E L E S , N E W Y O R K ,
`N O R T H E R N V I R G I N I A , P A L O A L T O ,
`S A N D I E G O , S A N F R A N C I S C O , S H A N G H A I
`S I N G A P O R E , T O K Y O , W A S H I N G T O N , D . C .
`
`
`
`Writer’s Direct Contact
`+1 (415) 268.7307
`MChivvis@mofo.com
`
`
`
`Via Email
`
`Paul Hastings LLP
`Joseph M O'Malley, Jr., josephomalley@paulhastings.com
`Ashley Mays-Williams, ashleymayswilliams@paulhastings.com
`Isaac S Ashkenazi, isaacashkenazi@paulhastings.com
`Preston K Ratliff II, prestonratliff@paulhastings.com
`Jeffrey A. Pade, jeffpade@paulhastings.com
`
`The Dacus Firm, PC
`Deron R Dacus, ddacus@dacusfirm.com
`Shannon Marie Dacus, sdacus@dacusfirm.com
`
`Mann Tindel & Thompson
`Gregory Blake Thompson, Blake@TheMannFirm.com
`James Mark Mann, Mark@TheMannFirm.com
`
`Re:
`
`Seagen Inc. v. Daiichi Sankyo Co., Ltd., Case No. 2:20-cv-00337-JRG (E.D. Tex.)
`
`Dear Counsel:
`
`The following are categories of documents that Seagen expects to see in DSC’s production.
`Please note that the following categories are in no way meant to be exclusive or exhaustive,
`and Seagen expects DSC to “produce or permit the inspection of all documents,
`electronically stored information, and tangible things in the possession, custody, or control of
`the party that are relevant to the pleaded claims or defenses involved in this action” as we
`expect will be provided in the Discovery Order to be entered in this matter.
`
`Types of Documents Seagen Expects to Receive:
`
`1. All package inserts for ENHERTU® and all drafts and precursors thereof.
`
`2. All documents that reflect DSC’s research and development work for the linker used
`in DS-8201, including without limitation, documents reflecting the work of Toshinori
`Agatsuma, Yuki Abe, Yusuke Ogitani, Toshiaki Ohtsuka, Kimihisa Ichikawa, Yuji
`Kasuya, Koji Morita, Hideki Miyazaki, Hiroshi Kuga, Noriko Okudaira, Masataka
`
`sf-4395214
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 8 of 49 PageID #: 651
`
`January 21, 2021
`Page Two
`
`Oitate, Toshimasa Jindo, Daisuke Ama, Yuji Suzuki, Takeshi Honda, and/or
`Tomofumi Kimotsuki relating to ADC linkers.
`
`3. All documents that reflect the formulation, development, or manufacture of DSC’s
`DS-8201 product by or with any outside contract manufacturing or research
`organization, for any purpose, including without limitation, clinical trial testing, sales,
`or marketing.
`
`4. All documents that reflect any quality control or testing of DSC’s DS-8201 product,
`for any purpose, including without limitation, FDA submissions, clinical trial testing,
`sales, or marketing.
`
`5. All documents that reflect any comparison or evaluation between or among the linker
`used in DS-8201 and the linkers used in Seagen’s ADCs with respect to their
`respective performance, effectiveness, toxicity, present or future market and market
`share, preference for, present or future profitability, present or future sales, side
`effects, or any other property.
`
`6. All documents that refer to Seattle Genetics, SGI, Seagen, or any other name used
`within DSC to refer to Seagen or any of Seagen’s ADC research and/or development
`work, including without limitation, documents that refer to information obtained from
`Seagen.
`
`7. All documents that refer to the named inventors of the patent-in-suit.
`
`8. All documents that relate to any attempt by DSC to reproduce or duplicate any of the
`disclosure of the patent-in-suit or its parent applications.
`
`9. All documents that relate to any attempt to study, evaluate, acquire, and/or analyze
`ADCETRIS®, including the results thereof and what decisions or actions were taken
`by or on behalf of DSC as a result thereof.
`
`10. All documents that relate, reflect, or refer to the decision by DSC, including all facts
`pertaining thereto, (i) to undertake the project(s) that resulted in the filing of DSC’s
`DS-8201 IND; (ii) to file DSC’s DS-8201 IND; and (iii) to develop the DS-8201
`product.
`
`11. All documents that relate to the circumstances surrounding when DSC began
`development of the linker used in DS-8201.
`
`12. All documents that reflect knowledge of the patent-in-suit, the application from
`which it issued, and its parent applications, including without limitation, all
`documents relating to when DSC first became aware of each of the patent-in-suit, the
`
`sf-4395214
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 9 of 49 PageID #: 652
`
`January 21, 2021
`Page Three
`
`application from which it issued, and its parent applications, and the circumstances of
`such awareness.
`
`13. All documents that reflect any analysis regarding whether the DS-8201 product
`infringes or might infringe the patent-in-suit or any intellectual property owned or
`controlled by Seagen.
`
`14. All documents that reflect DSC’s policies or procedure for avoiding infringement of
`others’ intellectual property, including without limitation, documents relating to steps
`taken to avoid any intellectual property owned or controlled by Seagen and/or use of
`information provided by Seagen to DSC.
`
`15. All documents that reflect any attempt by DSC to design around or avoid the
`patent-in-suit or any intellectual property owned or controlled by Seagen.
`
`16. All documents relied upon or referred to by DSC in connection with investigating and
`preparing its response to Seagen’s complaint.
`
`17. DSC’s quarterly financial reports since December 20, 2019.
`
`18. Documents sufficient to show past and projected (i) gross sales, (ii) gross revenue,
`(iii) gross profit, (iv) net profit, and (v) costs of goods sold for ENHERTU®.
`
`19. All documents that reflect any indemnification by DSC or by any person concerning
`the actual or any future use, import, export, distribution or sale of ENHERTU®,
`including without limitation, any actual, proposed, or requested indemnity
`agreements, or hold harmless agreements, and all related documents and drafts.
`
`20. All documents that reflect any actual or proposed agreements, licenses,
`cross-licenses, patent pooling arrangements, assignments, joint ventures or other
`affiliation between DSC and any other person relating to the production, use, import,
`export, or sale of ENHERTU®, including without limitation, any agreements
`between DSC and AstraZeneca plc or any of its subsidiaries or affiliates.
`
`21. Documents sufficient to show any or all milestone(s) accrued under any actual or
`proposed agreements, licenses, cross-licenses, patent pooling arrangements,
`assignments, joint ventures or other affiliation between DSC and any other person
`relating to the production, use, import, export, or sale of ENHERTU®.
`
`22. All documents that reflect any reserve DSC has established to cover intellectual
`property licensing or settlements.
`
`sf-4395214
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 10 of 49 PageID #: 653
`
`January 21, 2021
`Page Four
`
`23. Complete copies of any pre-IND submissions to the FDA for DS-8201, the DS-8201
`IND, and the DS-8201 BLA, and any amendments, supplements, or modifications
`thereto.
`
`24. All communications with the FDA regarding DS-8201.
`
`25. Complete copies of DSC’s DS-8201 clinical trial application (CTA) and/or marketing
`authorisation application (MAA) to the EMA, and any amendments, supplements, or
`modifications thereto.
`
`26. All communications with the EMA regarding DS-8201.
`
`27. Organizational charts, directories, personnel lists, routing or distribution lists, or
`minutes of meetings sufficient to show the identities, responsibilities, or duties of
`each of the DSC officers, employees, or representatives who are or were involved in
`the conception, creation, research, design, development, engineering, reduction to
`practice, testing, product refinement, quality control, manufacture, distribution, sale,
`marketing, or licensing of ENHERTU®.
`
`28. All documents that relate to any individuals whom DSC and/or Seagen identify in
`their initial disclosures pursuant to paragraph 1 of the Discovery Order to be entered
`in this matter, including without limitation any documents reflecting any business
`relationship such individuals may have with DSC or Seagen, and all books, articles,
`treatises, reports and other publications authored or co-authored by such individuals.
`
`29. Documents sufficient to describe each of DSC’s document and record retention
`policies applicable to documents (electronic or hardcopy) that relate, reflect, or refer
`to the research and/or development of DSC’s ADC products, including without
`limitation, DS-8201.
`
`We are providing this list in an effort to facilitate communication between the parties
`concerning document production. If you disagree about the scope or relevance of our
`enumerated categories, please let us know within 14 days so we can discuss any potential
`issues.
`
`*
`
`*
`
`*
`
`Separately, Seagen also expects to receive documents concerning DSC’s claims that it is not
`subject to personal jurisdiction in the Eastern District of Texas and that the District of
`Delaware is a more convenient venue than the Eastern District of Texas for this action:
`
`1. All documents related to any and all distribution chain(s) established for the purpose
`of bringing the ENHERTU® product to the U.S. market, starting at manufacturing
`
`sf-4395214
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 11 of 49 PageID #: 654
`
`January 21, 2021
`Page Five
`
`and ending with the product reaching individual end users, including the identity of
`any and all entities involved, and the location of those entities; each entity’s role
`within each stage of distribution; the identity of who, at all times, holds the title to the
`product (including without limitation, stating whether the product is “FOB origin” or
`“FOB destination”); all ports of entry through which the product is imported into the
`U.S.; and the identity (by full name, job description, and location of residence and
`work) of any and all entities or individuals involved in the distribution chain that are
`located in Texas.
`
`2. All documents related to the relationship between DSC and any DSC Affiliate,
`including without limitation, Daiichi Sankyo, Inc., that has any role in any
`distribution chain(s) established for the purpose of bringing the ENHERTU® product
`to the U.S. market, including without limitation, organizational charts for DSC and
`any such DSC Affiliate.
`
`3. Documents sufficient to show DSC’s gross revenues in U.S. dollars on a monthly
`basis from sales of ENHERTU® to each entity that sells or distributes ENHERTU®
`in Texas, the identity each such entity, and the quantity of sales made in Texas by
`each such entity.
`
`4. All agreements between DSC or any DSC Affiliate, including without limitation,
`Daiichi Sankyo, Inc., on one hand, and any person that sells or distributes
`ENHERTU® in Texas, on the other hand, and all documents related to DSC’s role in
`the procurement, negotiation, execution, and/or performance of the foregoing
`agreements.
`
`5. All documents related to the activities of DSC, any DSC Affiliate, including without
`limitation, Daiichi Sankyo, Inc., or their distributors or sellers in Texas relating to the
`research, development, testing, manufacture, marketing, use, importation, sale, and/or
`offer to sell of ENHERTU®, including without limitation, the identity (by full name,
`job description, and location of residence and work) of each current and former DSC
`or DSC Affiliate employee or contractor residing or working in Texas with personal
`knowledge (whether such knowledge is uniquely held by the individual or not) about
`the features, composition, functionality, marketing, distribution, and/or sales of
`ENHERTU® or that is or was involved in the research, development, testing,
`manufacture, marketing, use, importation, sale, and/or offer to sell of ENHERTU®.
`This includes telecommuters.
`
`6. All documents relating to DSC’s assertion, in its Motion to Transfer Under 28 U.S.C.
`§ 1404 to the District of Delaware (ECF No. 24 at 3), that: “In 2015, Daiichi Sankyo
`Japan terminated the Agreement and continued with its own independent ADC
`research, which led to the discovery of Enhertu®.”
`
`sf-4395214
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 12 of 49 PageID #: 655
`
`January 21, 2021
`Page Six
`
`Seagen anticipates discussing these, as well as corresponding interrogatories and deposition
`topics, at our conference of counsel scheduled for Friday, January 22, at 1pm CT. Absent
`agreement to the contrary, Seagen requests these documents within 30 days in order for
`Seagen to request adequate time from the Court to address discovery from DSC in Seagen’s
`responses to DSC’s motion to dismiss and motion to transfer.
`
`*
`
`*
`
`*
`
`The term “document(s)” means the documents and things within the broadest scope of the
`Federal Rules of Civil Procedure, including electronically stored information, data, code,
`materials stored in any media, and any other information stored magnetically, optically, or
`electronically.
`
`“Communication(s)” means any transmission of information by any means or medium,
`whether in original, draft, or copy form, whether stored in hard copy, on tape, or
`electronically, and whether oral or in writing, including without limitation, conversations,
`correspondence, electronic mails, facsimile transmissions, recordings, telephone or message
`logs, notes or memoranda, and any translations.
`
`“DSC” means Defendant Daiichi Sankyo Co., Ltd. and all predecessors, successors, or
`divisions, thereof, and all past or present officers, directors, agents, employees, consultants,
`accountants, attorneys, representatives, and any other person or entity acting on behalf of any
`of the foregoing.
`
`“DSC Affiliate” means all related entities, subsidiaries, or affiliates of DSC, including
`without limitation, Daiichi Sankyo, Inc., and all past or present officers, directors, agents,
`employees, consultants, accountants, attorneys, representatives, and any other person or
`entity acting on behalf of any of the foregoing.
`
`“Seagen” means Plaintiff Seagen Inc., formerly known as Seattle Genetics, Inc.
`
`The term “patent-in-suit” refers to U.S. Patent No. 10,808,039.
`
`The term “parent applications” refers to U.S. Provisional Application Nos. 60/518,534,
`60/557,116, 60/598,899, and 60/622,455, filed on November 6, 2003, March 26, 2004,
`August 4, 2004, and October 27, 2004, respectively.
`
`Sincerely,
`y,
`
`
`
`Matthew A. Chivvis
`
`cc:
`
`Counsel of Record
`
`sf-4395214
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 13 of 49 PageID #: 656
`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 13 of 49 PageID #: 656
`
`EXHIBIT 13
`
`EXHIBIT 13
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 14 of 49 PageID #: 657
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`SEAGEN INC.,
`
`v.
`
`Civil Action No. 2:20-CV-00337-JRG
`
`Plaintiff,
`
`
`
`DAIICHI SANKYO CO., LTD.,
`
`Defendant.
`
`PLAINTIFF SEAGEN INC. FIRST SET OF INTERROGATORIES TO DEFENDANT
`DAIICHI SANKYO CO., LTD. REGARDING JURISDICTION AND VENUE
`
`Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Plaintiff Seagen Inc.
`
`(“Seagen”) hereby requests that within thirty days of service, Defendant Daiichi Sankyo Co.,
`
`Ltd. (“DSC”) serve written responses to the following Interrogatories on Seagen’s counsel of
`
`record, Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105.
`
`DEFINITIONS
`
`1.
`
`“Seagen” means Seagen Inc., and all predecessors, successors, subsidiaries,
`
`divisions and affiliates thereof, past or present, and all past or present officers, directors, agents,
`
`employees, consultants, accountants, attorneys, representatives, and any other person or entity
`
`acting on behalf of any of the foregoing.
`
`2.
`
`“DSC,” “you” and “your” means Defendant Daiichi Sankyo Co., Ltd. and all
`
`predecessors, successors, or divisions, thereof, and all past or present officers, directors, agents,
`
`employees, consultants, accountants, attorneys, representatives, and any other person or entity
`
`acting on behalf of any of the foregoing.
`
`sf-4408446
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 15 of 49 PageID #: 658
`
`3.
`
`“DSC Affiliate” means all related entities, subsidiaries, or affiliates of DSC,
`
`including without limitation, Daiichi Sankyo, Inc., and all past or present officers, directors,
`
`agents, employees, consultants, accountants, attorneys, representatives, and any other person or
`
`entity acting on behalf of any of the foregoing.
`
`4.
`
`“Person” or “persons” means individual, individuals, business entity or entities,
`
`including, but not limited to, associations, corporations, partnerships, or business trusts, any
`
`federal, state, or local government or governmental agency, and any foreign government or
`
`foreign government agency or other organization recognizable at law.
`
`5.
`
`“Identify” or “Identification,” as used with respect to any person, means to
`
`provide the person’s full name, address, telephone number, e-mail address, company or
`
`employer, title or occupation, and employment duties, functions, and responsibilities.
`
`6.
`
`“Identify” or “Identification,” as used with respect to any document, means to
`
`provide the Bates number(s) of the document, or, if not Bates numbered, to provide information
`
`sufficient to specifically identify the document, including but not limited to the document’s title,
`
`author, subject matter, recipients, reviewers, date created, dates received and reviewed, source,
`
`person(s) having possession, custody, or control, and the identifying or descriptive code number,
`
`file number, title, or label of the document.
`
`7.
`
`The singular includes the plural, and the plural includes the singular. “Any” or
`
`“each” should be understood to include and encompass “all.” The terms “and” and “or” shall be
`
`construed as disjunctive and conjunctive.
`
`INSTRUCTIONS
`
`1.
`
`Please answer each Interrogatory fully in writing and under oath in accordance
`
`with Fed. R. Civ. P. 33(b)(1).
`
`
`sf-4408446
`
`2
`
`
`
`

`

`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 16 of 49 PageID #: 659
`
`2.
`
`Answer each Interrogatory separately and as completely as possible. The
`
`omission of any name, fact, or other item of information from your answers shall be deemed a
`
`representation that such information is not known to you or your agents, counselors, other
`
`representatives, or otherwise within your possession, custody, or control, at the time of the
`
`service of your responses or thereafter.
`
`3.
`
`If you claim that an Interrogatory is in any way objectionable, please respond to
`
`the portion of the Interrogatory believed to be unobjectionable and specifically explain which
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`aspect of the Interrogatory is objectionable and why.
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`4.
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`If you object to any Interrogatory on the ground that it is vague and/or ambiguous,
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`please identify the language you consider vague and/or ambiguous and state the interpretation
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`you are using in answering the Interrogatory.
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`5.
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`Should you deem any information requested by any of the following
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`Interrogatories to be privileged and/or subject to the work product doctrine, please list and
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`identify each such piece of information, and state all grounds and facts upon which the privilege
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`and/or work product claim rests, as to allow a determination of whether such information is, in
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`fact, privileged and/or subject to the work product doctrine.
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`6.
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`If any information requested by these Interrogatories is withheld by reason of the
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`attorney-client privilege, please also specifically identify the attorney, the client, the nature of the
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`confidential communication, all entities or persons who know or knew of the information, and
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`the date the information was exchanged.
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`7.
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`If an attorney work product claim is asserted, please also specifically identify the
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`person or attorney who prepared the work product, each person to whom the information was
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`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 17 of 49 PageID #: 660
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`disclosed, the date when the work product was prepared, and the litigation for which the work
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`product was prepared.
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`8.
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`Pursuant to Fed. R. Civ. P. 26(e)(1)(A), the following Interrogatories are deemed
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`to be continuing. If DSC subsequently discovers additional responsive information, Seagen
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`requests that DSC provide such information to Immersion within thirty (30) days of acquiring
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`such information or advise Seagen in writing as to why it cannot do so.
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`INTERROGATORY NO. 1:
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`INTERROGATORIES
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`Describe with particularity any and all distribution chain(s) established for the purpose of
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`bringing the ENHERTU® product to the U.S. market, starting at manufacturing and ending with
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`the product reaching individual end users, including without limitation, by identifying any and
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`all entities involved, and the location of those entities; describing with particularity each entity’s
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`role within each stage of distribution; identifying, at all times, who holds the title to the product
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`(including without limitation, stating whether the product is “FOB origin” or “FOB
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`destination”); identifying all ports of entry through which the product is imported into the U.S.;
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`identifying (by full name, job description, and location of residence and work) any and all
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`entities or individuals involved in the distribution chain that are located in Texas; and identifying
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`the DSC individual(s) most knowledgeable about each stage.
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`INTERROGATORY NO. 2:
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`Describe with particularity the relationship between DSC and any DSC Affiliate,
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`including without limitation, Daiichi Sankyo, Inc., that has any role in any distribution chain(s)
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`established for the purpose of bringing the ENHERTU® product to the U.S. market, including
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`without limitation, by identifying any and all DSC Affiliates involved; identifying the location of
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`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 18 of 49 PageID #: 661
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`said DSC Affiliates; stating the corporate relationship between DSC and said DSC Affiliates;
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`describing any and all interactions (by category) between DSC and said DSC Affiliates;
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`identifying any and all employees or consultants of DSC that interact with said DSC Affiliates,
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`and explaining their roles and responsibilities; identifying any and all employees or consultants
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`of DSC that also hold positions at any DSC Affiliate, and explaining their roles and
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`responsibilities within each entity; and explaining the meaning of “day-to-day operations” used
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`in Paragraph 4 of the January 5, 2021 Declaration of Hiroaki Miki.
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`INTERROGATORY NO. 3:
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`State DSC’s gross revenues in U.S. dollars on a monthly basis from sales of
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`ENHERTU® to each entity that sells or distributes ENHERTU® in Texas, identify each such
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`entity, and identify the quantity of sales made in Texas by each such entity.
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`INTERROGATORY NO. 4:
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`Identify all agreements between DSC or any DSC Affiliate, including without limitation,
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`Daiichi Sankyo, Inc., on one hand, and any person that sells or distributes ENHERTU® in
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`Texas, on the other hand, and describe DSC’s role in the procurement, negotiation, execution,
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`and/or performance of foregoing agreements.
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`INTERROGATORY NO. 5:
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`Describe in detail the activities of DSC or any DSC Affiliate, including without
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`limitation, Daiichi Sankyo, Inc., or their distributors or sellers in Texas relating to the research,
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`development, testing, manufacture, marketing, use, importation, sale, and/or offer to sell of
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`ENHERTU®, including without limitation, by identifying (by full name, job description, and
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`location of residence and work) each current and former DSC or DSC Affiliate employee or
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`contractor residing or working in Texas with personal knowledge (whether such knowledge is
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`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 19 of 49 PageID #: 662
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`uniquely held by the individual or not) about the features, composition, functionality, marketing,
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`distribution, and/or sales of ENHERTU® or that is or was involved in the research,
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`development, testing, manufacture, marketing, use, importation, sale, and/or offer to sell of
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`ENHERTU®. This includes telecommuters.
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`INTERROGATORY NO. 6:
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`Identify (by categorical description and location) all documents, electronic materials and
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`data, and physical objects and equipment (such as servers and data centers) that describe or
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`depict (or are used to provide, in the case of objects or equipment) the research, development,
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`testing, manufacture, marketing, use, importation, sale, and/or offers to sell of ENHERTU®,
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`including without limitation, a detailed description of the manner by which any physical or
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`electronic documents, materials, data, or information is or can be accessed by DSC or any DSC
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`Affiliate, including without limitation, Daiichi Sankyo, Inc., including via remote access,
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`network access, and/or the use of a VPN connection (whether from a DSC facility or any DSC
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`Affiliate facility, third party facility, home, or other location); and including without limitation,
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`for the records referenced in Paragraph 6 of the January 5, 2021 Declaration of Kevin Smith,
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`stating whether the records referenced were or are electronically stored, and whether the records
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`referenced are or can be accessed by DSC or any DSC Affiliate.
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`sf-4408446
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`6
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`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 20 of 49 PageID #: 663
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`Dated: January 27, 2021
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`
`
`By:
`Michael A. Jacobs
`MJacobs@mofo.com
`Matthew A. Chivvis
`MChivvis@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105
`Telephone: 415.268.7000
`Facsimile: 415.268.7522
`
`Bryan Wilson
`BWilson@mofo.com
`Pieter S. de Ganon
`PdeGanon@mofo.com
`MORRISON & FOERSTER LLP
`755 Page Mill Road
`Palo Alto, California 94304-1018
`Telephone: 650.813.5600
`Facsimile: 650.494.0792
`
`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Of Counsel:
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`jw@wsfirm.com
`Charles Everingham IV
`Texas State Bar No. 00787447
`ce@wsfirm.com
`Andrea L. Fair
`Texas State Bar No. 24078488
`andrea@wsfirm.com
`WARD, SMITH & HILL, PLLC
`1507 Bill Owens Parkway
`Longview, Texas 75604
`Telephone: 903.757.6400
`Facsimile: 903.757.2323
`
`Attorneys for Plaintiff Seagen Inc.
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`sf-4408446
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`7
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`

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`Case 1:20-cv-01524-LPS Document 27 Filed 02/09/21 Page 21 of 49 PageID #: 664
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`CERTIFICATE OF SERVICE
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`I declare that I am a partner with the law firm of Morrison & Foerster LLP, whose address
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`is 425 Market Street, San Francisco, California 94105. I am not a party to the within cause, and I
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`am over the age of eighteen years.
`
`I further declare that on January 27, 2021, I served a copy of:
`
`PLAINTIFF SEAGEN INC. FIRST SET OF INTERROGATORIES TO
`DEFENDANT DAIICHI SANKYO CO., LTD. REGARDING JURISDICTION
`AND VENUE
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`BY ELECTRONIC SERVICE [Fed. Rule Civ. Proc. rule 5(b)] by electronically mailing a
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`true and correct copy through Morrison & Foerster LLP’s electronic mail system to the email
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`address(es) set f