Case 2:20-cv-00337-JRG Document 272 Filed 01/26/22 Page 1 of 8 PageID #: 10566
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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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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`FILED UNDER SEAL
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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 FOR LEAVE TO USE CERTAIN DOCUMENTS
`PRODUCED BY DAIICHI SANKYO CO., LTD. IN CO-PENDING PROCEEDING
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`sf-4649327
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`Case 2:20-cv-00337-JRG Document 272 Filed 01/26/22 Page 2 of 8 PageID #: 10567
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`I.
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`INTRODUCTION
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`Seagen moves for leave pursuant to the Discovery Order (Dkt. 51) and the Protective
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`Order (Dkt. 55) in this case to use certain DSC-produced lab notebooks and emails, as well as
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`the deposition testimony of Dr. Koji Morita, in a co-pending arbitration between the parties.
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`Seagen has filed a motion with the arbitrator to reopen the arbitration to consider this evidence.
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`Seagen’s request does not affect the procedural schedule or any substantive issues in this case.
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`II.
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`BACKGROUND
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`A.
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`The Parties’ Litigation History
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`Seagen and DSC are presently involved in a co-pending arbitration, Seagen Inc. vs.
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`Daiichi Sankyo Co., Ltd., American Arbitration Association, Case No. 01-19-0004-0115 (Judge
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`Garrett E. Brown, Jr., Ret.).
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`A stipulated Protective Order is in place in the arbitration. That Protective Order protects
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`both Seagen and DSC from unauthorized disclosure of the parties’ highly confidential
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`information.
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`In this case, the Discovery Order contains the following provision related to the cross-use
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`of confidential information in co-pending proceedings:
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`Cross-Use. The parties agree that any document produced in any currently-pending
`proceedings between or amongst the parties may be used in this case or in any of
`the foregoing proceedings where a Protective Order is in place, so long as the
`parties obtain leave from the tribunal presiding over the proceeding in which the
`document was produced. Any such use remains subject to the Protective Order in
`the proceeding where the document is used.
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`(Dkt. 51 § 12(b).) Similarly, the Stipulated Protective Order in this case requires leave of Court
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`sf-4649327
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`Case 2:20-cv-00337-JRG Document 272 Filed 01/26/22 Page 3 of 8 PageID #: 10568
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`before “[d]ocuments, information or material produced pursuant to any discovery request in this
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`Action, including but not limited to Protected Material designated as DESIGNATED
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`MATERIAL,” can be used beyond this case. (Dkt. 55 § 8.)
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`B.
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`Documents and Information For Which Seagen Seeks Leave
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`Seagen seeks leave to present, in the arbitration, four DSC lab notebooks
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` DSC produced the notebooks in this action only after Seagen filed multiple motions
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`to compel. (Dkts. 79, 187, 233.)
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` Seagen also seeks leave to present the deposition testimony of Dr. Morita and emails
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`between DSC scientists
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`DSC has designated the lab notebooks, emails, and deposition testimony as highly confidential
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`under the Protective Order in this case. Seagen is not seeking to present any materials that
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`AstraZeneca designated.
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`On January 3, 2022, Seagen informed DSC that it intended to present these materials in
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`the arbitration, seeking to confirm its non-opposition. On January 7, Seagen informed DSC and
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`AstraZeneca that it intended seek leave from this Court to use the materials in that other
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`proceeding in parallel to Seagen’s pending request to the arbitrator that they produced. Lead and
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`Texas counsel for the parties met and conferred on January 12, 2022. In that discussion, DSC
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`indicated that it might join in Seagen’s request so long as DSC could also present evidence from
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`Case 2:20-cv-00337-JRG Document 272 Filed 01/26/22 Page 4 of 8 PageID #: 10569
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`this action in the arbitration. Seagen prepared a joint motion for leave consistent with this
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`direction and provided it to DSC and AstraZeneca on January 13, requesting a response by
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`January 14. As of this filing, DSC has not responded to this proposal. AstraZeneca has taken no
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`position on Seagen’s request.
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`This motion does not ask the Court to make any findings about the admissibility or
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`import of the evidence in the arbitration. Those are separate questions to be resolved by the
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`arbitrator. In its motion to the arbitrator to reopen the proceedings, Seagen identified and
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`provided high-level descriptions of the documents and testimony. See Milwaukee Elec. Tool
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`Corp. v. Snap-on Inc., No. 14-CV-1296-JPS, 2016 WL 1719657, at *5 (E.D. Wis. Mar. 16, 2016)
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`(referencing confidential materials from a different proceeding in discovery requests did not violate
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`the other proceeding’s protective order). DSC responded to Seagen’s submission by providing
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`confidential information that is covered by the Protective Order in this case without first seeking
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`leave, including excerpts of the deposition testimony of Dr. Morita and the report of Seagen’s
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`expert, Dr. Carolyn Bertozzi. Seagen, in reply, responded with additional excerpts from the
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`same deposition and report for completeness. The arbitrator has set a hearing on Seagen’s
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`motion to reopen for Wednesday, January 19.
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`III. ARGUMENT
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`A.
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`Leave Is Appropriate Under The Discovery Order And The Protective Order
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`Leave to use the lab notebooks, emails, and deposition testimony of DSC scientists in the
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`co-pending arbitration is warranted. At the parties’ behest, the Discovery Order contemplates
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`the cross-use of documents produced in this case in other pending proceedings between the
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`parties so long as a protective order is in place in the proceeding where the document is to be
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`used and leave of Court is granted. (Dkt. 51 ¶ 12(b).) The Protective Order in this case also
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`allows such use with leave of this Court. (Dkt. 55 § 8.) Here, the arbitration has a protective
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`Case 2:20-cv-00337-JRG Document 272 Filed 01/26/22 Page 5 of 8 PageID #: 10570
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`order that will protect the confidentiality of any information that is received in the arbitration,
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`and only Seagen and DSC are parties to that proceeding.
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`Permitting the cross-use of documents in co-pending proceedings between the same
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`parties is favored. See, e.g., Team Worldwide Corp. v. Walmart Inc., No. 17-cv-235-JRG, 2019
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`WL 13078780, at *3 (E.D. Tex. Jan. 24, 2019) (granting request to modify protective order to
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`allow production of documents in a co-pending IPR proceeding); see also Garcia v. Continental
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`Tire N. Am., Inc., No. 05-cv-666-XR, 2006 WL 8434211, at *3 (W.D. Tex. June 19, 2006)
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`(citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1131 (9th Cir. 2003) (“Allowing
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`the fruits of one litigation to facilitate preparation in other cases advances the interests of judicial
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`economy by avoiding the wasteful duplication of discovery.”).
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`B.
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`DSC Would Not Be Prejudiced
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`DSC would not be cognizably prejudiced by the cross-use of the lab notebooks, emails,
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`or deposition testimony. The documents would be subject to the protective order in place in the
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`arbitration (that DSC agreed to), and they would not be disclosed to any additional parties
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`because the arbitration involves only Seagen and DSC. The documents would likewise remain
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`subject to the Protective Order in place in this case.
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`Seagen’s request would not affect the procedural schedule in this case, nor would it
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`require any additional effort or expense from DSC. The documents and information for which
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`Seagen seeks leave have already been produced by DSC in this action, and Seagen’s request
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`would not subject DSC to any additional search or expense in this action.
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`Granting leave for Seagen to produce these documents in the arbitration also does not
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`determine whether these documents and information will be admissible in the arbitration.
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`Rather, it merely gives the arbitrator the ability to consider their admissibility and exercise his
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`discretion whether to re-open the factual record.
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`Case 2:20-cv-00337-JRG Document 272 Filed 01/26/22 Page 6 of 8 PageID #: 10571
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`IV. CONCLUSION
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`This Court should grant Seagen leave to use the documents and information outlined
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`above in the parties’ co-pending arbitration.
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`Dated: January 14, 2022
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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
`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
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`Case 2:20-cv-00337-JRG Document 272 Filed 01/26/22 Page 7 of 8 PageID #: 10572
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`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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`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 the 14th day of January, 2022.
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`/s/ Melissa R. Smith
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`CERTIFICATE OF CONFERENCE
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`On January 12, 2022, counsel for Seagen, with Michael Jacobs as lead counsel and Travis
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`Underwood as local counsel, met and conferred via telephone with counsel for DSC and AZ,
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`with Preston Ratliff as lead counsel and Mark Mann as local counsel participating for DSC, and
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`David Berl and Jennifer Ainsworth participating for AZ. The parties were unable to reach
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`agreement 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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`Case 2:20-cv-00337-JRG Document 272 Filed 01/26/22 Page 8 of 8 PageID #: 10573
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`I hereby certify that the foregoing document and all supporting exhibits are being filed
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`under seal pursuant to the Protective Order (Dkt. 55) approved and entered in this action.
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`/s/ Melissa R. Smith
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