Case: 1:21-cv-04413 Document #: 1 Filed: 08/18/21 Page 1 of 16 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Case No: 8:19-cv-1984 JVS (KESx)
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`Case in Other Court: Innovative Health
`LLC, v. Biosense Webster, Inc.,
`Case No.: 8:19-cv-1984 JVS (KESx)
`(C.D. Cal.)
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`BIOSENSE WEBSTER, INC.,
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`Petitioner,
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`v.
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`ABBOTT LABORATORIES,
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`Respondent.
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`MOTION TO ENFORCE SUBPOENAS ISSUED TO ABBOTT LABORATORIES
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`Biosense Webster, Inc. (“Biosense”) respectfully requests that the Court compel Abbott
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`Laboratories (“Abbott”) to comply, pursuant to Federal Rules of Civil Procedure 37 and 45, with
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`subpoenas issued in the in the above-captioned litigation pending in the Central District of
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`California. Specifically, Biosense has subpoenaed Abbott to (1) produce aggregated and
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`anonymized transactional data for its Advisor HD Grid Mapping Catheter (the “Requested
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`Data”) in response to Biosense’s subpoena to produce documents served on December 10, 2020,
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`and (2) designate a corporate witness to testify in response to Biosense’s Rule 30(b)(6)
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`deposition subpoena.
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`Over the past eight months, both Biosense and Plaintiff Innovative Health LLC
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`(“Innovative”, and together with Biosense, the “Parties”) have met and conferred numerous
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`times with Abbott to try to obtain relevant documents and data in response to their respective
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`subpoenas and were finally able to reach agreement with respect to almost all issues after the
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`Parties made significant concessions to Abbott, and Abbott has just now begun to produce
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`responsive documents as the close of fact discovery approaches on September 21, 2021.
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`However, despite agreeing to produce aggregated and anonymized transactional data for all of its
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`Case: 1:21-cv-04413 Document #: 1 Filed: 08/18/21 Page 2 of 16 PageID #:2
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`other mapping and ultrasound catheters, Abbott has refused to produce the same data for its
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`Advisor HD Grid Mapping Catheter, a direct competitor of Biosense’s Pentaray catheter,1 one of
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`the catheters at issue in the litigation, forcing Biosense to make this motion. The Requested Data
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`is highly relevant to Biosense’s defense against the antitrust claims brought against it; the
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`Requested Data is not burdensome for Abbott to collect and produce; and any confidentiality
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`concerns Abbott may have are more than adequately addressed both by the anonymized and
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`aggregated form in which the Requested Data is sought and by Abbott’s ability to designate the
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`Requested Data as Highly Confidential Material under the Protective Order entered by the Court
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`in this case (ECF No. 62, Stipulated Protective Order), which does not permit disclosure of non-
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`party Highly Confidential Material to any Party employee or the Parties’ in-house counsel, but
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`only to their outside counsel and experts.
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`In addition, Abbott has refused to designate a witness to testify orally in response to
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`Biosense’s July 23, 2021 Rule 30(b)(6) deposition subpoena (the “Rule 30(b)(6) Deposition”)
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`without articulating any reasonable basis for doing so. The subpoena requests relevant testimony
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`and is not unduly burdensome; it seeks a half-day of testimony that would be taken remotely on
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`three narrow topics relevant to market definition, including substitutability of products and the
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`ability of customers to switch between competing products. After two meet and confers, Abbott
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`declared that, absent a court order, it will not designate a witness to testify orally. As such,
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`Biosense now respectfully requests that the Court order Abbott to comply with its Rule 30(b)(6)
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`subpoena pursuant to Rules 37 and 45.2
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`1 Biosense also manufactures another multi-electrode catheter, the Lasso catheter, which also competes with
`the Advisor HD Grid Mapping Catheter.
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`2 Pursuant to Local Rule 37.2, Biosense states that after multiple good faith attempts to resolve these issues
`with Abbott, Biosense and Abbott were unable to reach agreement. With respect to the HD Grid transactional data,
`counsel for the Parties (Lillian Grossbard and Jeff Berhold) met and conferred telephonically with counsel for
`2
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`Case: 1:21-cv-04413 Document #: 1 Filed: 08/18/21 Page 3 of 16 PageID #:3
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`BACKGROUND
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`Innovative, a reprocessor of catheters used with cardiac mapping systems and ultrasound
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`systems in electrophysiology (“EP”) procedures, alleges against Biosense in this action
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`monopolization and restraint of trade in violation of federal and state antitrust laws in the alleged
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`nationwide markets for the sale of high-density mapping catheters and ultrasound catheters for
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`use with Biosense’s cardiac mapping system, the CARTO 3.3 (Figliulo Decl. Ex. I [ECF No. 59,
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`Corrected Second Amended Complaint for Damages and Injunctive Relief for Violations of
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`Sherman Act and Cartwright Act (“Corrected Second Amended Complaint”), ¶¶ 12-19].) Abbott
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`is one of a number of original equipment manufacturers of cardiac mapping systems and
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`catheters and is Biosense’s leading competitor.
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`Relevant here, Innovative claims that as a result of Biosense’s alleged anticompetitive
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`conduct, Biosense has been able to force customers to pay supra-competitive prices for high-
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`density mapping and ultrasound catheters.4 In particular, Innovative alleges as purported
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`evidence of supra-competitive pricing that Biosense charges 20% more for new high-density
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`mapping catheters and 10-20% more for new ultrasound catheters for use with the CARTO 3
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`system than Biosense’s competitor Abbott charges for those catheters for use with its cardiac
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`mapping system. (Figliulo Decl. Ex. I [Corrected Second Amended Complaint, ¶ 51].)
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`Abbott (Rohit Singla) on February 22, 2021, March 3, 2021, June 3, 2021, August 5, 2021 and August 11, 2021.
`With respect to Biosense’s Rule 30(b)(6) subpoena, counsel for Biosense (Lillian Grossbard and Colleen
`Kozikowski) met and conferred telephonically with counsel for Abbott (Rohit Singla) on August 5, 2021 and August
`11, 2021.
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`3 Biosense files herewith the Declaration of James R. Figliulo (“Figliulo Decl.”) and accompanying exhibits in
`support of this motion.
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`4 According to Innovative’s complaint, high-density mapping catheters “provide extremely rapid and highly
`accurate mapping of the heart’s electrical activity to show where to ablate, i.e., destroy, the [cardiac] tissue”.
`Figliulo Decl. Ex. I [Corrected Second Amended Complaint, ¶ 6]. Ultrasound catheters are used to “visualize
`anatomical structures and blood flow in the heart”. Id.
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`3
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`Case: 1:21-cv-04413 Document #: 1 Filed: 08/18/21 Page 4 of 16 PageID #:4
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`1.
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`Requested Data
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`Given these allegations, both Innovative and Biosense served targeted subpoenas on
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`competing manufacturers of cardiac mapping systems and catheters, including Abbott,
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`requesting (among other things) transactional data for sales of catheters used in EP procedures:
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`i.
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`ii.
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`Innovative’s Request No. 1: “Transaction Data. Electronically stored
`information to be produced in xls format for all of your customer transactions in
`electrophysiology catheters, including any transaction number, transaction type
`(e.g., sale, return, credit, rebate, service or administrative fee or charge), invoice
`number, transaction date, order date, shipping date, delivery date, customer name,
`customer id, facility name, facility id, billing address, delivery address, order
`code, item code, product code, part number, product name, product description,
`unit cost, unit price, product quantity, and total price.”5
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`Biosense’s Request No. 3: “Documents sufficient to show, by year, by month, by
`customer and by each Cardiac Mapping System and/or Ultrasound System and/or
`Diagnostic and Mapping Catheter product, your gross revenues, sales allowances,
`sales discounts, returns, cost of goods sold, other selling costs (e.g.,
`commissions), net revenues, gross profits or losses, gross profit margins, net
`profits or losses, net profit margins, units sold, list prices and average selling
`price.”6
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`Abbott initially objected in full to Biosense’s request but stated its willingness to meet
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`and confer.7 In addition, Abbott demanded that the Parties “come up with a single proposal for
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`data that would be produced by Abbott.” (Figliulo Decl. Ex. J [2021.01.26 Email from R. Singla
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`to L. Grossbard].) Biosense and Innovative agreed and proposed that Abbott produce only data
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`responsive to Biosense’s less granular Request No. 3, forgoing Innovative’s request for
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`5 Figliulo Decl. Ex. A [Innovative’s 2020.09.25 Subpoena to Produce Documents, Information, or Objects or to
`Permit Inspection of Premises in a Civil Action]. Innovative served a second document subpoena on Abbott with a
`nearly identical request for transaction data on February 26, 2021, but covering a longer time period. Figliulo Decl.
`Ex. D [Innovative’s 2021.02.26 Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of
`Premises in a Civil Action].
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`6 Figliulo Decl. Ex. B [Biosense’s 2020.12.10 Subpoena to Produce Documents, Information, or Objects or to
`Permit Inspection of Premises in a Civil Action].
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`7 Figliulo Decl. Ex. C [Abbott’s Responses and Objections to Subpoena for Production of Documents Served
`by Biosense Webster].
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`4
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`transaction-level data. Abbott continued to object, however, citing concerns about disclosing
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`confidential customer sales data. In an effort to compromise, the Parties proposed that Abbott
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`produce anonymized data—i.e., data without customer information—aggregated by month.
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`(Figliulo Decl. Ex. K [2021.05.14 Email from L. Grossbard to R. Singla].) Abbott still refused.
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`Biosense and Innovative agreed to further narrow their request to anonymized catheter sales data
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`aggregated by quarter rather than by month. (Figliulo Decl. Ex. L [2021.06.24 Email from J.
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`Berhold to R. Singla and L. Grossbard].)
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`After months of negotiations and concessions, Abbott agreed on June 25, 2021 to
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`produce the following aggregated, anonymized sales data for all of its diagnostic, mapping and
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`ultrasound catheters except its Advisor HD Grid Mapping Catheter: “[S]ummary sales data for
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`specific lines of diagnostic catheters listed below for 2013‐2020 on quarterly basis in the U.S.
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`including average net selling price and quantity . . . [and] its standard cost measure (including
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`components, labor, and operations overhead; but not R&D, marketing, and SGA) on an annual
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`basis” for specific lines of catheters. (Figliulo Decl. Ex. N [2021.06.25 Email from R. Singla to
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`L. Grossbard and J. Berhold]; Figliulo Decl. Ex. P [2021.07.19 Email from R. Singla to L.
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`Grossbard and J. Berhold].) Even after reaching agreement on the scope of Abbott’s data
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`production, Abbott insisted on a “global agreement” on each of the Parties’ document requests
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`before producing the transactional data or any other responsive documents. (Figliulo Decl. Ex.
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`M [2021.06.25 Email from R. Singla to L. Grossbard and J. Berhold].) As a result, Abbott did
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`not make its first data production until July 30, 2021, less than two months before the close of
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`fact discovery.
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`For the Advisor HD Grid, Abbott refused to produce any information, claiming that the
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`product was not relevant because certain unspecified features of the Advisor HD Grid differ from
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`5
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`Biosense’s high-density mapping catheters, the Pentaray and Lasso. (Figliulo Decl. Ex. M
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`[2021.06.25 Email from R. Singla to L. Grossbard and J. Berhold]; Figliulo Decl. Ex. N
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`[2021.06.28 Email from R. Singla to L. Grossbard and J. Berhold].) Despite both Parties’
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`explanations that the Advisor HD Grid is comparable to Biosense’s high-density mapping
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`catheter products, attempts at further negotiations failed, and the parties reached an impasse.
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`Thus, Biosense brings this motion to compel.8 (Figliulo Decl. Ex. O [2021.06.29 Email from J.
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`Berhold to L. Grossbard and R. Singla].)
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`2.
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`Rule 30(b)(6) Deposition
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`Biosense also served Abbott with a Rule 30(b)(6) deposition subpoena on July 23,
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`2021, seeking testimony on just three narrow topics:
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`i.
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`ii.
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`iii.
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`“The Cardiac Mapping Systems, Ultrasound Systems, and Diagnostic and
`Mapping Catheters for use in electrophysiology studies or procedures that are
`manufactured and/or sold by you, the identity of your competitors for sales of
`those Systems and Catheters, and the substitutability of your Systems and
`Catheters for other manufacturers’ Systems or Catheters”;
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`“The nature of competition for sales of Cardiac Mapping Systems, Ultrasound
`Systems, and Diagnostic and Mapping Catheters, including whether competition
`is at the Catheter and/or System level”; and
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`“Purchasing programs or offers made by you for your Cardiac Mapping Systems
`or Ultrasound Systems to reduce the capital outlay required for customers to
`purchase your System and/or to switch from a competing System to your
`System.” (Figliulo Decl. Ex. E [Rule 30(b)(6) Deposition Subpoena at 3].)
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`In a meet and confer on August 5, 2021, Biosense explained that it would only need a
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`half-day remote deposition on these topics and was willing to address any questions or concerns
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`8 Although Innovative has conceded that the Requested Data is “quite relevant to this case” and “may be the
`most useful benchmark for analyzing sales and prices in the market for high-density mapping catheters,” it declined
`to join this motion to compel. (Figliulo Decl. Ex. O [2021.06.29 Email from J. Berhold to R. Singla and L.
`Grossbard].) Innovative did not provide any reason for declining to join, but to the extent that it is because
`Innovative has subsequently determined that the Requested Data may not be favorable to its case, that is even more
`reason why Biosense is entitled to the Requested Data.
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`6
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`Abbott might have with respect to the scope of the topics. Biosense also made clear that, with
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`respect to Topic No. 3, it would not seek any competitively sensitive customer-specific
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`information. Nevertheless, on August 9, 2021, Abbott objected in full to the subpoena on the
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`grounds that the topics are vague and ambiguous, burdensome in light of Abbott’s status as a
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`third party, and seek confidential and/or privileged information. (Figliulo Decl. Ex. F
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`[2021.08.09 Email from R. Singla to L. Grossbard attaching Responses and Objections to
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`Subpoena to Testify at Deposition, dated August 6, 2021].)
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`Biosense and Abbott met and conferred again on August 11, 2021. Biosense repeated its
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`offer to discuss the scope of the topics, but Abbott declined, insisting that, absent a court order, it
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`would not designate a witness to sit for any live testimony. Abbott did not articulate any reason
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`why a half-day remote deposition on these three narrow topics would be unduly burdensome.
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`Instead, Abbott proposed a deposition by written questions in which the Parties would provide
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`Abbott with written questions and Abbott would provide written responses. However, due to the
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`inability to ask follow up questions using this method and the lack of burden associated with a
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`half-day remote deposition, Biosense explained that a deposition by written questions would not
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`be sufficient. Thus, Biosense brings the present motion to compel.
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`LEGAL STANDARD
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`“The limits and breadth of discovery expressed in Rule 26 are applicable to non-party
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`discovery under Rule 45.” Breuder v. Bd. of Trustees of Cmty. Coll. Dist. No. 502, No. 15 CV
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`9323, 2020 WL 4676666, at *3 (N.D. Ill. Aug. 12, 2020) (internal citation omitted). Biosense is
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`thus entitled to discovery from Abbott concerning “any non-privileged matter that is relevant to
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`any party’s claim or defense and proportional to the needs of the case, considering the
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`importance of the issues at stake in the action, the amount in controversy, the parties’ relative
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`7
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`access to relevant information, the parties’ resources, the importance of the discovery in
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`resolving the issues, and whether the burden or expense of the proposed discovery outweighs its
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`likely benefit.” FED. R. CIV. P. 26(b)(1). “Requests for discovery are relevant if there is any
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`possibility that the information sought may be relevant to the subject matter of the action [and
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`t]hus, the scope of discovery should be broad.” Kodish v. Oakbrook Terrace Fire Prot. Dist.,
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`235 F.R.D. 447, 450 (N.D. Ill. 2006) (emphasis added); see also Methodist Health Servs. Corp.
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`v. OSF Healthcare Sys., No. 13-1054, 2014 WL 1612838, at *1 (C.D. Ill. Apr. 22, 2014) (“For
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`discovery purposes, relevancy is construed broadly to encompass any matter that bears on, or
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`that reasonably could lead to other matters that could bear on, any issue that is or may be in the
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`case.” (internal citation and quotation marks omitted)). In particular, courts routinely have held
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`that non-privileged data of a non-party are relevant in antitrust cases and have ordered non-
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`parties to produce such data. In re Novartis & Par Antitrust Litig., No. 2:19-MC-00149, 2019
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`WL 5722055, at *6 (E.D. Pa. Nov. 5, 2019) (“Plaintiffs correctly note sales data pertaining to
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`[non-party competitors] in antitrust cases i[s] routinely produced”).9
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`In addition, a Rule 30(b)(6) request for deposition can be served on a non-party whose
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`attendance can be “compelled by subpoena under Rule 45.” FED. R. CIV. P. 30(a)(1). Rule
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`45(d)(3)(A) instructs a district court to quash or modify a subpoena only when it “(i) fails to
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`allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical
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`9 See also, e.g., Direct Purchaser Class Plaintiffs v. Apotex Corp., 2017 WL 4230124, *3-5 (S.D.
`Fla. May 15, 2017) (ordering production of non-party sales data because of its relevance in establishing
`the true competitive price of the product at issue); In re Namenda Direct Purchaser Antitrust Litig., 2017
`WL 4700367, *3 (S.D.N.Y. Oct. 19, 2017) (ordering production of non-party sales data because of
`relevance to analysis of product pricing and feasibility of market entry); Stanislaus Food Prods. Co. v.
`Uss-Posco Indus., No. CV F 09-0560 LJO BAM, 2012 WL 1940662, at *3, *5 (E.D. Cal. May 29, 2012)
`(granting a motion to compel the production of “[t]ransactional data show[ing] to whom the defendant
`sold the Tin Mill Products, at what price it was sold and at what quantity” in light of claims that the
`defendant “priced its Tin Mill Products at supracompetitive, monopoly-levels”).
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`8
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`limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if
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`no exception or waiver applies; or (iv) subjects a person to undue burden.” FED. R. CIV. P.
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`45(d)(3)(A). Courts have found that confidentiality orders are sufficient to protect a third party’s
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`interests with respect to discovery. In re Dealer Mgmt. Sys. Antitrust Litig., 2018 WL 6413199,
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`at *3 (N.D. Ill. Dec. 6, 2018) (granting motion to compel non-party direct competitor to produce
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`documents because of the confidentiality order in place was more than sufficient to protect the
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`non-party’s confidential information), objections overruled, No. 18-CV-864, 2019 WL
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`11583408 (N.D. Ill. Apr. 25, 2019). In particular, “courts have deemed an attorneys’ eyes only
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`provision for financial information, including pricing information, sufficient protection for such
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`information.” JAB Distributors, LLC v. London Luxury, LLC, No. 09-CV-5831, 2010 WL
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`4008193, at *3 (N.D. Ill. Oct. 13, 2010) (granting motion to compel because the protective order
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`in place adequately protected highly confidential information of business competitor).
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`ARGUMENT
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`1.
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`The Court Should Compel Abbott to Produce the Requested Data.
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`A.
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`The Requested Data Is Highly Relevant to Market Definition and Alleged
`Anticompetitive Effects.
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`As the “HD” in its name and its product description suggests,10 the Advisor HD Grid
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`Mapping Catheter is a high-density mapping catheter and, as such, falls squarely within the
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`alleged market definition at issue in this litigation. Further, the sales, cost and profit data for the
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`Advisor HD Grid has been put directly at issue by Innovative’s stated intent to try to demonstrate
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`supra-competitive pricing based on a comparison of Abbott-manufactured EP catheters that
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`10 See Figliulo Decl. Ex. T [Advisor HD Grid Product Information] (“The Advisor HD Grid Mapping Catheter,
`Sensor Enabled, is a first-of-its-kind, grid-patterned electrode configuration that offers high-density wave bipole
`recordings along and across the splines for direction independent mapping. Advisor HD Grid Mapping Catheter, SE
`gives you fast, accurate, easy-to-use high-density cardiac maps.”)
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`9
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`compete with similar Biosense catheters. (Figliulo Decl. Ex. I [ECF No. 59, Corrected Second
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`Amended Complaint, ¶ 51]) (“Biosense charges 20% more for new high-density mapping
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`catheters and 10% to 20% more for new ultrasound catheters for use with the CARTO 3 system
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`than Abbott, which is the second leading seller of cardiac mapping systems behind Biosense,
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`charges for those catheters for use with its cardiac mapping system.”).
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`Both Parties to this litigation agree that the Advisor HD Grid transaction data is highly
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`relevant. In fact, Innovative’s counsel has represented that the Advisor HD Grid “may be the
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`most useful benchmark for analyzing sales and prices in the market for high-density mapping
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`catheters” for use with Biosense’s cardiac mapping system. (Figliulo Decl. Ex. O [2021.06.29
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`Email from J. Berhold to R. Singla and L. Grossbard].) Further, the Advisor HD Grid’s
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`indications for use as reported by Abbott to the FDA are precisely the same as those of
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`Biosense’s Pentaray catheter. (Compare Figliulo Decl. Ex. R [Abbott’s Advisor HD Grid Form
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`510(k)] (“The Advisor HD Grid Mapping Catheter, Sensor Enabled, is indicated for multiple
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`electrode electrophysiological mapping of cardiac structures in the heart, i.e., recording or
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`stimulation only. This catheter is intended to obtain electrograms in the atrial and ventricular
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`regions of the heart.”) with Figliulo Decl. Ex. S [Biosense’s Pentaray Form 510(k)] (“The
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`Biosense Webster PentaRay Nav eco High-Density Mapping Catheter is indicated for multiple
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`electrode electrophysiological mapping of cardiac structures in the heart, i.e., recording or
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`stimulation only. The catheter is intended to obtain electrograms in the atrial and ventricular
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`regions of the heart.”).)
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`The medical community likewise recognizes that the Advisor HD Grid and Pentaray
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`catheters perform the same function. (See, e.g., Figliulo Decl. Ex. G [Dan T. Nguyen & Alexis
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`Z. Tumolo, Narrowing the Field: Closely Spaced Bipoles for Enhanced Detection of Low
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`10
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`Voltage EGM, 5 J. AM. COLL. CARDIOLOGY: CLINICAL ELECTROPHYSIOLOGY 79, 80 (2019)
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`(“Further studies, including comparisons of the different multipolar mapping catheters (Abbott
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`HD Grid, Biosense Webster Pentaray, and Boston Scientific Orion), will continue to inform
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`mapping practices and ablation strategies.”)]; Figliulo Decl. Ex. H [Yong-Hoon Kim, et al., 2019
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`APHRS Expert Consensus Statement on Three‐Dimensional Mapping Systems for Tachycardia
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`Developed in Collaboration with HRS, EHRA, and LAHRS, 36 J. ARRHYTHMIA 215, 222 (2020)
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`(“Each 3D mapping system has developed its own multiple electrode catheters. The Rhythmia
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`system uses the IntellaMap Orion catheter . . . . The PentaRay [] is used with the CARTO 3
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`system . . . . The EnSite Precision system can use the Advisor HD Grid Mapping Catheter”)].)
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`Abbott’s position that the Requested Data is somehow irrelevant because of certain unspecified
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`differences between the Advisor HD Grid and the Pentaray falls flat; the Advisor HD Grid falls
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`within Plaintiff’s alleged market definition and the two high-density mapping catheters clearly
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`compete. Thus, the Requested Data is highly relevant in assessing Innovative’s claims regarding
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`the competitive effects of Biosense’s alleged conduct.
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`B.
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`The Requested Data Is Not Burdensome To Produce.
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`There is no burden associated with pulling the aggregated and anonymized
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`transaction data for the Advisor HD Grid Mapping Catheter. Notably, in an email on July 19,
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`2021, Abbott represented that if the Parties could reach agreement on Abbott’s production that
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`morning, the data could be produced by the end of the month, less than two weeks later.
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`(Figliulo Decl. Ex. P [2021.07.19 Email from R. Singla to J. Berhold and L. Grossbard].) In fact,
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`Abbott had no trouble quickly collecting and producing such data for ten other catheters once it
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`finally agreed to the production.
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`11
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`C.
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`Any Confidentiality Concerns Associated with Producing the Requested Data
`Are Mooted.
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`Finally, Abbott cannot credibly claim it will suffer competitive harm from the production
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`of the Requested Data. As an initial matter, the Requested Data is anonymized, meaning that no
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`customer names are included, and is aggregated by quarter. That means that Abbott will be
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`producing a single figure for the standard cost measure of the HD Grid annually from 2013 to
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`2020 as well as a single figure for each of the following data fields quarterly over the same time
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`period: average net selling price, quantity sold and sales revenue.
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`Moreover, the Protective Order entered in this case provides that material designated
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`Highly Confidential by a non-party cannot be disclosed to any Party employee or the Parties’ in-
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`house counsel, but only to their outside counsel and experts. (See ECF No. 62, Stipulated
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`Protective Order Section 7.4.) In addition, the Parties have also agreed to provide Abbott with
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`seven days’ advance notice if any data will be shared with an expert. (Figliulo Decl. Ex. Q
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`[2021.07.19 Email from L. Grossbard to R. Singla and J. Berhold].) There is therefore no
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`meaningful risk of competitive harm from the production of the Requested Data.
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`2.
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`The Court Should Compel Abbott To Produce a Witness for a Live Rule 30(b)(6)
`Deposition.
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`A.
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`The Rule 30(b)(6) Deposition Topics Are Highly Relevant.
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`The Court should compel Abbott to designate a live witness to testify in response to
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`Biosense’s Rule 30(b)(6) subpoena because the subpoena seeks testimony on topics that are
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`highly relevant to this litigation. Specifically, the Rule 30(b)(6) Deposition topics seek
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`information with respect to the following categories of information: competing manufacturers’
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`understanding of the nature of competition for cardiac mapping systems and catheters; the
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`substitutability of cardiac mapping systems, ultrasound systems and the catheters used with those
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`Case: 1:21-cv-04413 Document #: 1 Filed: 08/18/21 Page 13 of 16 PageID #:13
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`systems; and customers’ ability to switch systems and catheters, including whether capital
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`expense associated with systems limits customers’ access to competing catheter products. These
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`topics are all highly relevant to market definition, a disputed issue in the litigation, and therefore
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`Biosense is entitled to such discovery.
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`B.
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`The Rule 30(b)(6) Deposition Is Not Improper Under Rule 45.
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`Biosense’s motion to compel Abbott to designate a live witness to testify in response to
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`its Rule 30(b)(6) subpoena should be granted because the subpoena is not improper under Rule
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`45. The subpoena (1) allows Abbott a reasonable time to comply; (2) allows Abbott’s corporate
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`representative to testify remotely, so geography is not at issue; (3) does not seek the disclosure of
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`privileged or other protected information; and (4) is not unduly burdensome.
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`Abbott has not articulated any undue burden argument when refusing to designate a live
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`witness. The subpoena seeks testimony regarding three specific and narrow topics, and it would
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`not be difficult for Abbott to prepare an Abbott witness to testify concerning its own products,
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`the nature of competition in the markets in which it competes, and its own purchasing programs.
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`Moreover, Biosense remains willing to address any questions or concerns Abbott might have
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`with respect to the scope of the topics.
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`Further, any confidentiality concerns Abbott may have are again more than adequately
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`addressed by Biosense’s agreement not to seek customer-specific information with respect to
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`Topic No. 3, and Abbott has the ability to designate its testimony Highly Confidential pursuant
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`to the Protective Order in any event.
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`Case: 1:21-cv-04413 Document #: 1 Filed: 08/18/21 Page 14 of 16 PageID #:14
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`C.
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`Abbott’s Proposal of a Deposition by Written Questions Still Requires a Live
`Witness.
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`Abbott’s proposal of a deposition by written questions instead of a live deposition is
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`insufficient. Proceeding with a deposition by written questions would mean that Biosense would
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`forfeit the right to ask follow up questions or seek clarifying information in response to the
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`witness’s testimony. Given the lengthy exchange of direct, cross, and re-direct questions
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`contemplated by Rule 31,11 Biosense would not have any opportunity to address any
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`shortcomings in Abbott’s testimony provided in response to written questions before the close of
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`fact discovery on September 21, 2021. In any event, under Rule 31 and the law of this Circuit,
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`Abbott would still need to produce a witness to testify orally in response to the written deposition
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`questions.12 As such, Abbott would be in substantially the same position as Biosense is
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`requesting even if Biosense agreed to proceed with a deposition by written questions, but
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`Biosense would be prejudiced.
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`CONCLUSION
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`As set forth above, the Requested Data is highly relevant to alleged anticompetitive
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`effects, is not burdensome to collect and produce, and production of the data will not cause
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`Abbott any competitive harm because it is aggregated, contains no customer data and may only
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`be disclosed to outside counsel for the Parties and the Parties’ experts after notice is provided to
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`Abbott. In addition, designating a live witness in response to Biosense’s Rule 30(b)(6) subpoena
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`11 Rule 31 contemplates that this exchange of questions between Biosense and Innovative would take 28 days
`before even being able to serve the questions on Abbott.
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`12 See Stanek v. Saint Charles Cmty. Unit Sch. Dist. #303, No. 13-CV-3106, 2020 WL 9348202, at *1 (N.D. Ill.
`May 26, 2020) ([“A] deposition on written questions is not like a take-home exam: it would still require [the
`witness] to listen to the written questions be read to him by an officer and would still require [the witness] to provide
`oral answers”); Brooks v. Wilson, No. 3:07-CV-0278 PS, 2008 WL 428005, at *1 (N.D. Ind. Feb. 13, 2008)
`(“Written responses to depositions upon written questions are not permissible.”) (internal citation omitted).
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`seeking targeted and highly relevant testimony is not unduly burdensome (and in any event is no
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`more burdensome than a deposition by written questions). Therefore, Biosense respectfully
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`moves the Court to grant its motion to compel Abbott to produce the Requested Data and
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`designate a live witness to testify in response to Biosense’s Rule 30(b)(6) subpoena within seven
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`days of its entry of an order granting Biosense’s motion to compel.
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`Dated: August 18, 2021
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`James R. Figliulo
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`Figliulo & Silverman, P.C.
`10 South La Salle Street, Suite 3600
`Chicago, IL 60603
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`Telephone: (312) 251-4600
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`Respectfully submitted,
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`Biosense Webster, Inc.
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`By: s/ James R. Figliulo .
`James