IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
`
`C. A. No.: 2022-0291-MTZ
`
`))))))))))
`
`APOTEX INC. and APOTEX CORP.,
`
`Plaintiffs,
`
`v.
`
`OTSUKA PHARMACEUTICAL, CO.,
`LTD.,
`
`Defendant.
`
`STIPULATION AND [PROPOSED] ORDER
`GOVERNING EXPERT DISCOVERY
`
`WHEREAS, the parties have discussed and agreed upon the proposed
`
`procedures to govern discovery in connection with expert witnesses in this action as
`
`set forth below;
`
`IT IS HEREBY STIPULATED AND AGREED, by the parties hereto,
`
`through their undersigned counsel, subject to the approval of the Court, pursuant to
`
`Court of Chancery Rules 26 and 29, that the following procedures shall govern
`
`discovery in connection with expert witnesses in this action:
`
`1. With respect to any person whom a party to this action expects to call
`
`as a witness at trial or any hearing to present evidence under Rules 702, 703, or 705
`
`of the Delaware Uniform Rules of Evidence (an “Expert”), the party shall, in
`
`accordance with the deadlines agreed upon and ordered in the Stipulation and Order
`
`1
`
`EFiled: Apr 27 2022 01:55PM EDT
`Transaction ID 67512095
`Case No. 2022-0291-MTZ
`
`
`
`C. A. No.: 2022-0291-MTZ
`
`))))))))))
`
`APOTEX INC. and APOTEX CORP.,
`
`Plaintiffs,
`
`v.
`
`OTSUKA PHARMACEUTICAL, CO.,
`LTD.,
`
`Defendant.
`
`STIPULATION AND [PROPOSED] ORDER
`GOVERNING EXPERT DISCOVERY
`
`WHEREAS, the parties have discussed and agreed upon the proposed
`
`procedures to govern discovery in connection with expert witnesses in this action as
`
`set forth below;
`
`IT IS HEREBY STIPULATED AND AGREED, by the parties hereto,
`
`through their undersigned counsel, subject to the approval of the Court, pursuant to
`
`Court of Chancery Rules 26 and 29, that the following procedures shall govern
`
`discovery in connection with expert witnesses in this action:
`
`1. With respect to any person whom a party to this action expects to call
`
`as a witness at trial or any hearing to present evidence under Rules 702, 703, or 705
`
`of the Delaware Uniform Rules of Evidence (an “Expert”), the party shall, in
`
`accordance with the deadlines agreed upon and ordered in the Stipulation and Order
`
`1
`
`EFiled: Apr 27 2022 01:55PM EDT
`Transaction ID 67512095
`Case No. 2022-0291-MTZ
`
`
`
`Governing Case Schedule, designate its Expert or Experts. Such designation shall
`
`include, at a minimum, the following:
`
`The identification of each Expert by name and title;
`
`The Expert’s curriculum vitae; and
`
`A summary of the subject matters on which each Expert will
`
`a.
`
`b.
`
`c.
`
`testify.
`
`2.
`
`Any report from an Expert (each an “Expert Report”) shall include, at
`
`a minimum, the following:
`
`a.
`
`a complete statement of all opinions to be expressed by the
`
`Expert and the basis and reasons therefore;
`
`b.
`
`a list of the documents, data, and other information on which the
`
`Expert relied in forming the opinions reflected in the Expert Report;
`
`c.
`
`a list of the documents, data, and other information, other than
`
`that encompassed by subparagraphs (a) and (b) above, on which the Expert
`
`intends to rely upon in testifying in this matter;
`
`d.
`
`a list of any exhibits used in the Expert Report. This shall not
`
`preclude the Expert from using demonstrative exhibits when testifying at trial
`
`so long as such demonstrative exhibits are provided to all parties in
`
`accordance with such schedule as may be agreed by the parties or established
`
`by the Court;
`
`2
`
`
`
`e.
`
`f.
`
`a statement of the qualifications of the Expert;
`
`a list of all articles, treatises, books, working papers or other
`
`publications authored by the Expert within the preceding 10 years and, upon
`
`request, copies of all such (or relevant portions of such) publications so listed;
`
`g.
`
`a statement of the compensation paid or to be paid to the Expert
`
`by the party sponsoring that Expert or by any other individual or entity in
`
`connection with his or her work in the above-captioned action (including
`
`payments by or to outside data consultants reviewing work product to assist
`
`in the Expert’s analysis); and
`
`h.
`
`a list of any other litigation or any administrative proceeding, in
`
`which the Expert has been retained or testified as an expert in a deposition,
`
`hearing or at trial, within the preceding four years, including, to the extent not
`
`otherwise prohibited by confidentiality obligations, the names of the parties,
`
`the name of the party for whom the Expert has been retained by or testified
`
`on behalf of, the court in which the action was filed, or, if transferred, the
`
`court where the action was transferred, the docket number, and any other
`
`information necessary to identify the litigation or proceeding.
`
`3.
`
`Notwithstanding anything in Paragraph 2, discovery shall not be
`
`permitted into the following:
`
`3
`
`
`
`a.
`
`draft reports, draft studies, draft affidavits, or draft work papers;
`
`preliminary or intermediate calculations, computations, analyses, or data; or
`
`other preliminary, intermediate, or draft materials prepared by, for, or at the
`
`direction of an Expert, unless the Expert relies on the aforementioned as a
`
`basis for his or her opinion(s);
`
`b.
`
`any notes or other writings taken or prepared by or for an Expert
`
`in connection with this matter, including, but not limited to, e-mail (or other
`
`electronic communication), correspondence or memoranda to or from, and
`
`notes of conversations with the Expert’s assistants and/or clerical or support
`
`staff, other Experts, non-testifying expert consultants, or attorneys for the
`
`party offering the testimony of such Expert, unless the Expert relies on the
`
`aforementioned as a basis for his or her opinion(s);
`
`c.
`
`materials or information that may have been reviewed or
`
`considered but not relied upon by the Expert; and
`
`d.
`
`written or oral communications between or among the Expert,
`
`any person at the Expert’s firm and any party or counsel or other agent for the
`
`party on whose behalf the Expert was engaged, except to the limited extent
`
`that an Expert expressly relies on a communication of a matter of fact from
`
`such counsel, agent, or party in the Expert Report or in testimony.
`
`4
`
`
`
`4.
`
`Documents and other written materials referred to in Paragraph 2 shall
`
`be identified at the time the Expert Report is delivered to the opposing party by Bates
`
`number if such documents have been produced in this litigation, and otherwise shall
`
`be identified with reasonable particularity. Copies of such documents, if they have
`
`not been produced in this litigation, shall be produced at the time the Expert Report
`
`is delivered to the opposing party; provided, however, that a party may prepare and
`
`use additional demonstrative exhibits during the course of any trial or hearing
`
`(including recesses) so long as such demonstrative exhibits are provided to all parties
`
`in accordance with such schedule as may be agreed by the parties or established by
`
`the Court.
`
`5.
`
`Spreadsheets, data sets, and like supporting materials, which the Expert
`
`relied on in forming the opinions reflected in the Expert Report, shall be produced
`
`in native electronic and fixed formats. Native format documents may be stripped of
`
`their metadata, provided that formulae, hidden columns, and algorithms in native
`
`format documents that are required to derive the results displayed therein are
`
`preserved.
`
`6.
`
`Any fees charged by an Expert for responding to discovery, including
`
`time spent at depositions, shall be paid by the party who has retained the Expert;
`
`provided, however, that nothing herein shall preclude or constitute a waiver of any
`
`party’s right to seek recovery of any fees or expenses paid in connection with the
`
`5
`
`
`
`work of any Expert retained in connection with the above-captioned action,
`
`including in any fee and expense request made in connection with any settlement or
`
`final judgment in the above-captioned action, or any party’s right to oppose any such
`
`request.
`
`7.
`
`Nothing herein shall limit or waive any party’s rights to object for any
`
`reason to (i) the admission, in whole or in part, of any opposing party’s Expert Report
`
`into evidence, (ii) the qualification of any person to serve as an expert witness, or
`
`(iii) the admission of some or all of any Expert’s testimony.
`
`8.
`
`Nothing herein shall be deemed to authorize or permit discovery of
`
`facts known or opinions held by an Expert who has been retained or specially
`
`employed by a party exclusively in anticipation of and connection with litigation or
`
`preparation for trial or any hearing and who the party will not call as an expert
`
`witness at trial or any hearing.
`
`9.
`
`The scope of a party’s rebuttal Expert Report shall be limited to
`
`rebutting positions taken in the opposing Party’s opening Expert Report, and no
`
`party may submit a rebuttal report on a topic not addressed by the other party in an
`
`opening Expert Report.
`
`10. No subpoena for deposition or documents need be served on any
`
`Expert. Instead, the party who retained the Expert shall make the Expert available
`
`for a deposition at a time and place mutually agreeable to the parties and in
`
`6
`
`
`
`accordance with the case scheduling order. The parties agree that they will provide
`
`their respective Expert(s)’ general availability for deposition concurrently with the
`
`service of rebuttal Expert Reports.
`
`11.
`
`This Stipulation and Order applies solely to discovery of or from
`
`Experts in their capacity as experts and does not apply to discovery of fact witnesses.
`
`None of the individuals or entities that served as Defendant’s legal or financial
`
`advisors in connection with any of the transactions that are the subject of this action
`
`shall constitute Experts or be subject to the terms of this Stipulation and Order.
`
`12.
`
`This Stipulation may be amended only by a subsequent written
`
`stipulation between the Parties or upon order of the Court for good cause shown.
`
`7
`
`
`
`YOUNG CONAWAY STARGATT &
`TAYLOR, LLP
`
`MORRIS, NICHOLS, ARSHT &
`TUNNELL, LLP
`
`/s/ James L. Higgins
`
`/s/ Thomas W. Briggs, Jr.
`
`James L. Higgins (No. 5021)
`Taylor E. Hallowell (No. 6815)
`1000 North King Street
`Wilmington, DE 19801
`(302) 571-6600
`
`OF COUNSEL:
`
`D. Jacques Smith
`Taniel E. Anderson
`Michael F. Dearington
`Pascal F. Naples
`ARENTFOX SCHIFF LLP
`1717 K Street, NW
`Washington, DC 20006
`jacques.smith@afslaw.com
`taniel.anderson@afslaw.com
`michael.dearington@afslaw.com
`pascal.naples@afslaw.com
`
`Attorneys for Plaintiffs Apotex Inc. and
`Apotex Corp.
`
`Thomas W. Briggs, Jr. (#4076)
`Jennifer Ying (#5550)
`Michael J. Slobom, Jr. (#6726)
`1201 N. Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302)658-9200
`
`OF COUNSEL:
`
`Steven F. Barley
`Scott R. Haiber (#2995)
`HOGAN LOVELLS US LLP
`100 International Drive
`Suite 2000
`Baltimore, MD 21202
`(410) 659-2700
`
`Attorneys for Defendant Otsuka
`Pharmaceutical Corp.
`
`SO ORDERED
`
` day of
`
`, 20
`
`.
`
`Vice Chancellor Zurn
`
`
`
`8
`
`
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