Case 2:20-cv-00337-JRG Document 237 Filed 12/07/21 Page 1 of 5 PageID #: 8599
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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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`PLAINTIFF SEAGEN’S
`MOTION TO COMPEL PRODUCTION OF ARBITRATION EXPERT REPORTS AND
`TESTIMONY
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`Seagen moves to compel production of the reports and testimony of DSC’s technical and
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`damages experts from the co-pending arbitration between Seagen and DSC. Last July, Seagen
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`sent DSC a discovery request for the report and testimony of Dr. Dalton King, DSC’s technical
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`expert from that arbitration. (See Ex. A (7.15.21 Seagen discovery letter to DSC).) DSC
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`countered with a position that favored itself: only the reports and testimony of arbitration
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`experts on whom a party relies in this action should be produced. (See Ex. B (7.29.21 DSC
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`discovery letter to Seagen).) Seagen disagreed with DSC’s position. The parties could not
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`resolve their disagreement, and put the issue aside for several months.
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`Last week, AstraZeneca re-raised the issue on behalf of Defendants and took the same
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`position DSC had taken previously, explaining that its request was timely because the expert
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`Case 2:20-cv-00337-JRG Document 237 Filed 12/07/21 Page 2 of 5 PageID #: 8600
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`discovery cut-off is not until December 23. Seagen offered a deal similar to its earlier proposal.
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`(See Ex. C (12.3.21 Chivvis email to DSC and AZ re meet and confer agenda).) Defendants
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`declined Seagen’s proposed compromise in a December 6 meet and confer, and threatened
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`motion practice if Seagen would not produce the arbitration reports and testimony of its technical
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`expert Dr. Carolyn Bertozzi and its damages expert Carrie Distler. Defendants claimed their
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`position was justified because only Seagen would be using the same experts in both proceedings,
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`while DSC had chosen to use different experts. But their position on relevance—that the prior
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`testimony concerned DS-8201 (Enhertu®), the accused product here—undermined this claim.
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`Like Seagen’s experts, DSC’s own experts in the arbitration analyzed and discussed DS-8201
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`extensively. Since Defendants concede that expert reports and testimony on DS-8201 from the
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`arbitration are relevant to this dispute, Seagen explained that any production of expert materials
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`should not be limited to Seagen’s experts. The same materials for DSC’s experts should also be
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`produced. Defendants were un-swayed, and DSC again refused to produce the complementary
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`materials from its own arbitration experts. Rather than withholding the requested materials of its
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`experts in a tit for tat, Seagen agreed to produce its own without the need for a motion. (See Ex.
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`C (12.6.21 Chivvis email to DSC and AZ re meet and confer follow-up).) Seagen then notified
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`Defendants that it would be moving to compel production DSC’s expert materials unless they
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`changed their position. (See id.) They would not.
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`Defendants’ position that discovery of expert materials from the arbitration should be
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`asymmetric cannot be correct. Their argument for production of these materials relied on the
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`relevance of the subject matter that Seagen’s experts analyzed: the accused product, DS-8201.
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`DSC’s experts analyzed the same subject matter. Moreover, Seagen’s experts referred and
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`responded to DSC’s experts and vice versa. The reports and testimony of DSC’s experts will
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`Case 2:20-cv-00337-JRG Document 237 Filed 12/07/21 Page 3 of 5 PageID #: 8601
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`thus be necessary to understand the testimony of Seagen’s experts in context. They may also be
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`necessary to rebut positions that defendants take in this case based on the arbitration materials
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`that Seagen produced. Now that defendants will have access to that information—access that
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`Seagen provided without the need for motion practice—Seagen should be allowed access to the
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`complementary materials from DSC’s experts. See L.R. CV-26(d) (scope of discovery includes
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`“information that is likely to have an influence on or affect the outcome of a claim or defense”;
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`“information that deserves to be considered in the preparation, evaluation, or trial of a claim or
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`defense”; and even “information that would not support the disclosing parties’ contentions.”)
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`For these reasons, the Court should compel DSC to produce the reports and testimony of
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`its technical expert Dr. Dalton King and its damages expert Dr. Mohan Rao from the arbitration.
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`Case 2:20-cv-00337-JRG Document 237 Filed 12/07/21 Page 4 of 5 PageID #: 8602
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`Dated: December 7, 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 237 Filed 12/07/21 Page 5 of 5 PageID #: 8603
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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) this December 7, 2021.
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`/s/ Melissa R. Smith
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`CERTIFICATE OF CONFERENCE
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`On December 6, 2021, counsel for Seagen, with Michael Jacobs as lead counsel and Travis
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`Underwood and Andrea Fair as local counsel, met and conferred via telephone with counsel for
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`Daiichi Sankyo Co., Ltd., with Preston Ratliff as lead counsel and Blake Thompson as local
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`counsel. AstraZeneca was also present on December 6 with David Berl as lead counsel and
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`Jennifer Ainsworth as local counsel. The parties were unable to reach agreement at these meet
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`and confers and have reached an impasse, leaving an open issue for the Court to resolve. This
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`motion is opposed by Defendants.
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`/s/ Michael A. Jacobs
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`/s/ Melissa R. Smith
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