Case 2:20-cv-00337-JRG Document 195 Filed 11/02/21 Page 1 of 8 PageID #: 8155
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:20-CV-00337-JRG
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`SEAGEN INC.,
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`v.
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`Plaintiff,
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`DAIICHI SANKYO CO., LTD.,
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`Defendant,
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`ASTRAZENECA PHARMACEUTICALS LP, and
`ASTRAZENECA UK LTD,
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`Intervenor-Defendants.
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`SEAGEN INC.’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL
`DISCOVERY PRODUCTION
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`Case 2:20-cv-00337-JRG Document 195 Filed 11/02/21 Page 2 of 8 PageID #: 8156
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`I.
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`INTRODUCTION
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`Seagen Inc. (“Seagen”) opposes Daiichi Sankyo Company, Limited’s (“DSC’s”) Motion
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`to Compel on the basis that DSC’s Document Request No. 15 is overbroad and ambiguous, and
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`seeks information irrelevant to this litigation. As Seagen has explained to DSC on multiple
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`occasions, DSC unreasonably asks Seagen to produce all documents as to essentially all of
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`Seagen’s research on antibody-drug conjugates from 2003 to the present day, most of which is
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`beyond the scope of this infringement action. Given the broad scope of DSC’s request, Seagen
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`asked that DSC clarify its request and provide more specificity as to the documents they claim
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`are absent from Seagen’s production. DSC has yet to seriously engage on that question.
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`Despite DSC’s lack of clarity, Seagen has produced responsive documents related to
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`relevant Seagen research projects and continues to do so. Seagen’s document review efforts
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`remain on-going largely due to DSC’s own delay in clarifying what it is seeking. DSC cannot
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`claim undue prejudice for delay it brought upon itself. Based upon DSC’s delayed identification
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`of what it purports to be relevant Seagen research projects, Seagen is searching for repositories
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`containing representative documents and will produce any relevant files. As DSC itself
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`acknowledged in its motion, Seagen has not represented that its production is complete and in
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`fact, has produced additional responsive documents since the parties’ most recent
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`communication.
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`II.
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`ARGUMENT
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`A.
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`DSC’s document request is overbroad and ambiguous
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`DSC’s document request at issue seeks a broad range of documents that have nothing to
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`do with this dispute. Since its founding, Seagen’s principal business has been researching and
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`developing antibody-drug conjugates.
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`Case 2:20-cv-00337-JRG Document 195 Filed 11/02/21 Page 3 of 8 PageID #: 8157
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` (emphasis added). Per DSC’s explanation, DSC seeks research documents,
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`presentations, meeting minutes, research reports, and testing data from across 18 years. (See Ex.
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`A.)
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`. Accordingly, there are hundreds of thousands of irrelevant research documents that
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`would fall within DSC’s unreasonably broad document request. (Chivvis Decl. ¶ 3.) DSC has
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`not explained why such an extensive and burdensome production of Seagen’s ADC research
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`documents is warranted, especially when it is not directed to a specific claim limitation. That
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`alone is a sufficient basis to deny DSC’s motion.
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`DSC claims that its request properly seeks documents relevant to its theories of non-
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`enablement, but DSC cannot require Seagen to turn over every research document in its
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`possession, without limitation, based on mere speculation that there may be some documents at
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`some point in the past 18 years to support its tenuous theory of non-enablement. See, e.g., Micro
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`Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1328 (Fed. Cir. 1990) (“A litigant may not engage
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`in merely speculative inquiries in the guise of relevant discovery.”); Innovation Scis., LLC v.
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`Amazon.com, Inc., No. 4:18-CV-474, 2020 WL 3288082, at *3–4 (E.D. Tex. June 18, 2020)
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`(denying defendant’s motion to compel on the basis that the request for documents “spanning
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`fourteen years” is “vast and overbroad”, especially since plaintiff “has already produced—and
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`will continue to produce—information” responsive to the request). Documents near in time to
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`the effective filing date are at least arguably relevant to enablement, and Seagen has already
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`produced extensive amounts of documents from this time period, including inventor
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`Case 2:20-cv-00337-JRG Document 195 Filed 11/02/21 Page 4 of 8 PageID #: 8158
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`presentations, articles, and lab notebooks. DSC has no reason to demand other Seagen research
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`documents created years after the effective filing date that have no relevance to any aspect of this
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`action. See, e.g., MorphoSys AG v. Janssen Biotech, Inc., 358 F. Supp. 3d 354, 367 (D. Del.
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`2019) (explaining that a certain “pentapeptide motif” was “‘evidence illuminating the state of the
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`art subsequent to the priority date’ and, therefore, ‘[was] not relevant’” under section 112),
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`quoting Amgen Inc v. Sanofi, 872 F.3d 1367, 1379 (Fed. Cir. 2017).
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`DSC’s sole cited case offers it no support. In ALZA Corp. v. Andrx Pharmaceuticals,
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`LLC, the defendants used the testimony of plaintiff’s employees to show that the plaintiffs were
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`unable to practice their own invention. 603 F.3d 935, 942 (Fed. Cir. 2010). Nothing in the case
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`suggests that the plaintiffs there were obligated to turn over their repository of research
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`documentation over an eighteen year period for defendants to sift through for purported evidence
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`of non-enablement. Seagen is already making ten research scientists—including the four
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`inventors listed on the ’039 patent—available to defendants for deposition.1 DSC is welcome to
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`test its theories of non-enablement through these depositions. A further extensive fishing
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`expedition, however, is unwarranted.
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`B.
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`Seagen has complied with its production obligation
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`Contrary to DSC’s assertions that “Seagen has not produced any internal documents”
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`responsive to DSC’s Topic No. 15, Seagen has in fact already produced hundreds of responsive
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`documents and will continue producing responsive documents to the extent that they can be
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`located based upon a reasonable search. Seagen even identified exemplary documents by Bates
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`Number to DSC in its October 8 communication. (See Chivvis Decl. ¶ 3; Ex. A.)
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`DSC contends that Seagen’s on-going production unduly prejudices DSC because there is
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`1 In contrast, DSC has repeatedly refused to make available its own research scientists for
`deposition, offering just one individual despite Seagen’s request for the testimony of others.
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`Case 2:20-cv-00337-JRG Document 195 Filed 11/02/21 Page 5 of 8 PageID #: 8159
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`less than 3 weeks until the close of fact discovery.2 Since the parties’ last communication
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`regarding documents responsive to DSC’s Topic No. 15, Seagen has produced over 5,000
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`documents consisting of over 52,000 pages, many of which are responsive to DSC’s Topic No.
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`15. (Chivvis Decl. ¶ 5.) Any delay in Seagen’s production is attributable to DSC’s own delay in
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`clarifying its production request. (Chivvis Decl. ¶¶ 2–3.) Based upon DSC’s recent explanation,
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`Seagen is diligently searching for repositories that contain additional relevant documents about
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`each of the projects DSC has specifically identified.
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`Seagen’s on-going production is a result of the impractical breadth of DSC’s request. As
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`explained above, DSC seeks 18 years of research documents related to a substantial portion of
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`Seagen’s research. This request entails hundreds of thousands of documents. (Chivvis Decl.
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`¶ 3.) DSC has not demonstrated a need for or an identifiable reason to request such voluminous
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`production. In contrast, a search and review of these hundreds of thousands of documents is
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`highly burdensome for Seagen and disproportional to the needs of this case. Seagen has
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`produced and has represented to DSC on multiple occasions that it intends to continue
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`production of relevant responsive documents based upon a reasonable search and review.3 DSC
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`has no reason to demand production of additional irrelevant documents that would comprise
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`nearly the entirety of Seagen’s research repository.
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`2 DSC’s criticism of the timing of Seagen’s production is puzzling as DSC’s production also
`remains on-going.
`3 DSC claims that Seagen has not produced any internal documents
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`Case 2:20-cv-00337-JRG Document 195 Filed 11/02/21 Page 6 of 8 PageID #: 8160
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`Accordingly, DSC’s motion to compel is both unwarranted at this time and an improper
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`waste of court resources and attorney time.
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`III. CONCLUSION
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`For all the reasons articulated above, DSC’s motion to compel should be denied.
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`Case 2:20-cv-00337-JRG Document 195 Filed 11/02/21 Page 7 of 8 PageID #: 8161
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`Dated: October 29, 2021
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`By: /s/ Michael A. Jacobs
`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
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`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
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`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
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`Of Counsel:
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`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
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`Attorneys for Plaintiff Seagen Inc.
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`Case 2:20-cv-00337-JRG Document 195 Filed 11/02/21 Page 8 of 8 PageID #: 8162
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have
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`consented to electronic services are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on this 29 day of October, 2021.
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`/s/ Melissa R. Smith
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