Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 1 of 9 PageID #: 8657
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`SEAGEN INC.,
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`v.
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`Plaintiff,
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`CASE NO. 2:20-cv-00337-JRG
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`DAIICHI SANKYO CO., LTD.,
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`Defendant, and
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`ASTRAZENECA PHARMACEUTICALS
`LP and ASTRAZENECA UK LTD.,
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`Intervenor-Defendants.
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`DAIICHI SANKYO COMPANY, LIMITED’S OPPOSITION
`TO PLAINTIFF’S MOTION TO COMPEL PRODUCTION
`OF EXPERT REPORTS AND TESTIMONY OF TWO
`NON-TESTIFYING EXPERTS IN A PRIVATE ARBITRATION
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`Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 2 of 9 PageID #: 8658
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`Seagen seeks production of expert reports and testimony from two witnesses who testified
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`in a private arbitration and who are not witnesses in this present Action. Seagen’s motion to
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`compel should be denied for at least three reasons. First, Seagen misrepresents Daiichi Sankyo
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`Japan’s position. Daiichi Sankyo Japan has never stated that all arbitration expert reports and
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`testimony (“arbitration materials”) are relevant and should be produced in this Action—nor is such
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`an overbroad position reasonable. Daiichi Sankyo Japan has instead stated that only arbitration
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`materials for experts testifying in this Action should be produced. Seagen’s suggestion that
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`Daiichi Sankyo Japan has conceded the relevance of all arbitration materials is simply mistaken.
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`Instead, the appropriate resolution is that if an expert is testifying in this Action, any prior
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`arbitration testimony from that same expert should be produced, because a given expert’s
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`arbitration materials may be relevant for the cross-examination of that same expert.
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`Second, Seagen does not comply with existing orders to address discovery disputes
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`regarding arbitration materials. Seagen acknowledges it is a party to the arbitration. Under the
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`Protective Order of the arbitrator Former Chief Judge of the United States District Court for the
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`District of New Jersey, Garrett E. Brown,1
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`Yet Seagen
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`inexplicably has never asked Judge Brown whether it may use the materials it now seeks to use
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`here. To allow what Seagen seeks would, in effect, permit Seagen to win reconsideration of the
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`private arbitration Protective Order to which it agreed.
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`1 Chief Judge Brown is retired and is the sole arbitrator presiding over a pending arbitration
`between Seagen and Daiichi Sankyo Japan. See Seagen Inc. v. Daiichi Sankyo Company,
`Limited, Case No. 01-19-0004-0115 (AAA). Neither AstraZeneca UK nor AstraZeneca US is a
`party to the arbitration and therefore neither Party has access to confidential arbitration materials.
`Except in limited circumstances to which the Parties agreed, Seagen is not permitted to use the
`confidential materials presented in the arbitration.
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`Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 3 of 9 PageID #: 8659
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`Third, Seagen’s position regarding its own production is irrelevant. That Seagen may have
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`voluntarily produced its own expert reports does not broaden any rights. It cannot manufacture its
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`own arguments. Rather, the question for production is whether experts overlap from the arbitration
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`to this Action (they do not—Seagen is seeking reports from individuals not testifying here) and
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`whether Seagen followed the arbitration Protective Order, which binds it (Seagen did not).
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`BACKGROUND
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`Following Seagen’s document requests, Daiichi Sankyo Japan has maintained a consistent
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`position since July 2021 with respect to the production of arbitration materials—i.e., “only the
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`reports and testimony of arbitration experts on whom a party relies in this action should be
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`produced.” (Dkt. No. 237 (“Mot.”) at 1.) But Seagen did not renew its disagreement with Daiichi
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`Sankyo Japan’s position for “several months.” (Id.) It was not until December 3, following
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`AstraZeneca’s request for the arbitration materials of Seagen experts who submitted expert reports
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`in this Action (namely Dr. Bertozzi and Ms. Distler), that Seagen refashioned its dormant request
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`to include the arbitration materials of both Drs. King and Rao—who are neither retained nor
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`testifying in this Action.
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`During the Parties’ subsequent December 6 meet and confer, Defendants explained to
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`Seagen that they were seeking Dr. Bertozzi and Ms. Distler’s arbitration materials because they
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`previously testified in the arbitration. Defendants never stated that arbitration materials are
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`relevant generally or that the fact that Dr. Bertozzi and Ms. Distler’s testimony concerned the
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`accused product DS-8201 alone made it relevant; instead, Defendants explained that Dr. Bertozzi
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`and Ms. Distler’s arbitration materials are warranted at least for cross-examination purposes
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`because there is no justifiable basis for withholding their prior testimony concerning issues that
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`may bear on the subject matter of this Action. Although Defendants offered to similarly produce
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`Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 4 of 9 PageID #: 8660
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`the arbitration materials of any Daiichi Sankyo Japan arbitration expert witness who testifies in
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`this Action, Seagen, advancing yet another “tit for tat” position, insisted on the production of the
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`arbitration materials of Drs. King and Rao. Defendants do not agree.
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`In filing the present motion, Seagen ignores the Protective Order issued in the arbitration,
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`which Seagen and Daiichi Sankyo Japan jointly proposed to Judge Brown and to which Judge
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`Brown agreed and issued as a protective measure for the private arbitration.
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`not even bothered to take the step of seeking leave from Judge Brown prior to burdening this Court
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` Yet Seagen has
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`with motions practice.
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`ARGUMENT
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`A.
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`Seagen Seeks Irrelevant and Asymmetric Discovery
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`Seagen incorrectly characterizes Defendants’ position as asymmetric with respect to the
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`production of arbitration materials. It is Seagen who seeks asymmetric discovery. Daiichi Sankyo
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`Japan has repeatedly made plain to Seagen that it will produce the arbitration report and testimony
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`of any expert who testifies on Defendants’ behalf in this Action. Under Seagen’s position, Daiichi
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`Sankyo Japan—unlike Seagen—will be compelled to produce arbitration materials from experts
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`who are neither retained nor testifying in this Action. Thus, unlike Dr. Bertozzi and Ms. Distler,
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`who will have an opportunity to explain any prior testimony in deposition or at trial, Daiichi
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`Sankyo Japan will be unduly prejudiced to the extent that Seagen seeks to rely on and misinterpret
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`the arbitration materials of Drs. King and Rao.
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`Seagen also ignores the fact that the scope of this Action and the private arbitration are
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`fundamentally different. For example,
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`Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 5 of 9 PageID #: 8661
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` (3) this Action does not concern any allegations of breach of contract as is
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`the case in the private arbitration; and (
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`.3
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`Further, Seagen’s argument that the requested arbitration materials are “necessary to
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`understand the testimony of Seagen’s experts in context” and “may also be necessary to rebut
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`positions that defendants take in this case based on the [produced] arbitration materials” should be
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`rejected. (Mot. at 2-3.)
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` Nevertheless, if Seagen believes this to be the case, then this argument should have
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`been presented by Seagen to Judge Brown after Daiichi Sankyo Japan did not consent to their
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`production. If Seagen’s request is so reasoned and straightforward, why has Seagen not even
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`attempted to ask Judge Brown for relief pursuant to the arbitration Protective Order? Instead,
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`Seagen seeks to flout the arbitration Protective Order to which it agreed. Rather than approach
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`Judge Brown, it voluntarily produces its own arbitration materials in order to claim prejudice in
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`hopes that this Court will endorse its circumvention of Judge Brown’s Protective Order.
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`2 The triable issues relate to non-infringement, invalidity, and unenforceability of the patent-in-
`suit alone.
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`3 DS-8201 is the sole accused product in this Action.
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`4
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`Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 6 of 9 PageID #: 8662
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`Acceptance of Seagen’s demand here would establish a dangerous precedent and its behavior and
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`strategy to circumvent Judge Brown should not be rewarded.
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`B.
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`Seagen Inappropriately Circumvents This Court’s Prior
`Rulings and Chief Judge Brown’s Arbitration Protective Order
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`Despite the plain language of the Cross-Use provision of this Court’s Discovery Order,
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`Seagen unilaterally attempts to create its own pathway for the production of the arbitration
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`materials at issue. Paragraph 12(b) of the Discovery Order requires that the Parties seek leave
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`from Judge Brown before obtaining or using in this Action any documents produced in the
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`arbitration. (Dkt. No. 58 ¶ 12(b).) There is no reason why arbitration reports and testimony—
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`which detail highly confidential documents and information that are unambiguously governed by
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`Paragraph 12(b) of the Discovery Order—should be treated differently. The requested arbitration
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`materials are unquestionably Protected Material under the arbitration Protective Order, which does
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`not permit their use outside of the Parties’ private arbitration. Because Seagen has not even
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`attempted to seek leave from Judge Brown following Daiichi Sankyo Japan’s refusal to consent,
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`Seagen’s request seeks to circumvent not only this Court’s Discovery Order but usurp Judge
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`Brown’s authority over the arbitration to which he presides.
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`That Seagen voluntarily produced the arbitration materials of Dr. Bertozzi and Ms. Distler
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`should not serve to undermine Judge Brown’s authority. It would be perverse for Seagen’s
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`voluntary production to create an obligation for Daiichi Sankyo Japan to produce opposing
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`materials. That is precisely what the plain language of this Court’s Discovery Order and the
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`arbitration Protective Order are designed to prevent.
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`Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 7 of 9 PageID #: 8663
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` Here, Daiichi Sankyo Japan has taken the position that arbitration
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`materials for overlapping testifying experts should be produced. Defendants asked Seagen for
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`certain overlapping experts’ arbitration materials and Seagen agreed. Seagen, by contrast, has
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`asked for arbitration materials beyond overlapping testifying expert materials. Daiichi Sankyo
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`Japan does not think that is appropriate as it explained during the Parties December 6 meet and
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`confer. (See supra Background.) As required by the arbitration Protective Order, Seagen should
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`have petitioned Judge Brown if it wanted to press this issue. It did not. Daiichi Sankyo Japan has
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`followed the arbitration Protective Order, and has been faithful to its position (only the arbitration
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`materials of overlapping experts are relevant). By coming to this Court—rather than going to
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`Judge Brown—it is Seagen who is taking inconsistent steps. Seagen’s motion to compel should
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`be denied.
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`CONCLUSION
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`For the reasons explained above, Seagen’s motion to compel should be denied.
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`Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 8 of 9 PageID #: 8664
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`Dated: December 10, 2021
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`Respectfully submitted,
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`/s/ Preston K. Ratliff II
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`Deron R. Dacus
`State Bar No. 00790553
`The Dacus Firm, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas, 75701
`+1 (903) 705-1117
`+1 (903) 581-2543 facsimile
`ddacus@dacusfirm.com
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`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`(903) 657-8540
`(903) 657-6003 (fax)
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`Attorneys for Defendant Daiichi Sankyo Company,
`Limited
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`OF COUNSEL:
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`Preston K. Ratliff II
`Joseph M. O’Malley, Jr.
`Ashley N. Mays-Williams
`Paul Hastings LLP
`200 Park Avenue
`New York, NY 10166
`(212) 318-6000
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`Jeffrey A. Pade
`Paul Hastings LLP
`2050 M Street NW
`Washington, DC 20036
`(202) 551-1700
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`Attorneys for Defendant Daiichi Sankyo Company,
`Limited
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`Case 2:20-cv-00337-JRG Document 243 Filed 12/15/21 Page 9 of 9 PageID #: 8665
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who have consented to
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`electronic service are being served with a copy of this document via electronic mail on December
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`10, 2021.
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`/s/ Preston K. Ratliff II
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