Case 2:20-cv-00337-JRG Document 291 Filed 02/03/22 Page 1 of 8 PageID #: 10774
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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’S REPLY IN SUPPORT OF SEAGEN’S MOTION FOR LEAVE TO USE
`CERTAIN DOCUMENTS PRODUCED BY DAIICHI SANKYO CO., LTD IN CO-
`PENDING PROCEEDING
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`sf-4681967
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`Case 2:20-cv-00337-JRG Document 291 Filed 02/03/22 Page 2 of 8 PageID #: 10775
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`I.
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`INTRODUCTION
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` Seagen has fully complied with the Discovery Order and the Protective Order in this
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`case. In its motion to reopen the arbitration record, Seagen described DSC-produced documents
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`and testimony at a high level of generality, and only disclosed a more complete picture of the
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`evidence to the arbitrator after DSC itself introduced that evidence through its briefing. Instead,
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`it is DSC that has abused the discovery process—both in this case and in the parties’ pending
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`arbitration—by withholding documents from discovery and attempting to run out the clock in
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`both proceedings. DSC cannot now claim prejudice when the delay occasioned by reopening the
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`arbitration record and the parties’ related expenses were a result of DSC’s own misconduct.
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`II.
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`BACKGROUND
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`On January 3, Seagen informed DSC that Seagen would seek to reopen the arbitration
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`record to introduce the lab notebooks that DSC produced in this case in late December 2021, and
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`asked DSC to confirm whether it would agree to cross-use of the produced documents for
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`purposes of such a motion.1 (Ex. 1.) Seagen requested a response as soon as possible in light of
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`the arbitrator’s award deadline of January 31, but DSC did not respond. In a meet and confer on
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`January 5, Seagen again asked DSC to confirm as soon as possible its position on use of the
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`materials. DSC responded only that it too would seek to introduce new evidence in the
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`arbitration if the record was reopened. DSC would not commit to a date to respond to Seagen on
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`cross-use. (Ex. 2.) Due to the impending award deadline, Seagen could not wait for DSC’s
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`response and filed its motion to reopen with an offer of proof on January 6.2 Because the parties
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`1 As explained in Seagen’s January 14 motion for leave (Dkt. 262), these notebooks are relevant to Seagen’s
`arbitration claims and should have been produced in that proceeding.
`2 In the motion to reopen, Seagen asked the arbitrator to order DSC to produce the requested documents in the
`arbitration, and explained that Seagen would also seek leave from this Court to use the produced documents if the
`arbitrator did not order such production. Pursuant to the cross-use provision in the Discovery Order (Dkt. 51), on
`January 7, Seagen sought DSC’s agreement to file a joint stipulation permitting the cross-use of documents
`produced in this case in the arbitration. (Ex. 3.) Due to DSC’s stonewalling, the parties were unable to meet and
`confer on the issue until January 12. During the meet and confer, DSC suggested that it might be open to filing a
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`had not agreed to the cross-use of documents and Seagen had not yet obtained leave from this
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`Court to use DSC-produced documents in the arbitration, Seagen’s motion did not include any
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`excerpts of Dr. Morita’s deposition or other litigation documents. Instead, Seagen’s offer of
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`proof described the lab notebooks at a high level of generality and referred to information that
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`had already been presented publicly in this Court’s December 20 hearing, where DSC had
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`confirmed it would not seek sealing or redactions.
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`DSC opposed Seagen’s motion to reopen, but again noted that it too would seek to
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`introduce documents from this litigation if the hearing record were reopened. In its opposition,
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`DSC also attached excerpts of Dr. Morita’s deposition transcript and select pages from Seagen
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`and DSC’s expert reports from this case without prior notice to Seagen or leave from this Court.
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`In response, Seagen submitted other excerpts from Dr. Morita’s testimony as well as missing
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`pages from the supplemental expert report of Dr. Bertozzi (Seagen’s expert) for completeness.
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`The arbitrator held a hearing on the motion to reopen on January 19. During the hearing,
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`Seagen referred only to information that had been previously submitted with the parties’ papers.
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`On January 25, the arbitrator granted Seagen’s motion to reopen,
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`concluded that the evidence in question should be made part of the record so the arbitrator could
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` (Dkt. 281, Ex. A at 5-6.) The arbitrator
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`joint stipulation. Following the meet and confer, Seagen immediately provided DSC with a draft joint motion on the
`cross-use of documents, requesting approval to file as soon as possible in light of the arbitrator’s January 31 award
`deadline. DSC failed to respond within the requested time, so Seagen filed its motion for leave to use certain DSC-
`produced documents on January 14.
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`consider it, and directed the parties to confer on a schedule for the reopened hearing. (Id.)
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`On January 28, Seagen and DSC met and conferred to address the arbitrator’s order.
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`Prior to the discussion, DSC sent a list of Seagen-produced documents from this case to
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`introduce into the arbitration record and requested Seagen’s approval to present those documents
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`to the arbitrator. Seagen proposed that the parties file a stipulation permitting the use of certain
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`documents produced in this case in the arbitration and offered to withdraw its motion for leave to
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`use DSC-produced documents as moot if the parties could come to such an agreement. DSC
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`refused and instead filed its opposition. (Dkt. 278.) DSC has since notified Seagen that it will
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`be seeking leave from this Court to introduce its list of Seagen-produced documents into the
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`arbitration record. Seagen responded that it likely would not oppose that request. (Ex. 4.)
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`III. ARGUMENT
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`A. Seagen Did Not Violate the Discovery Order or the Protective Order
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`In its motion to reopen and the accompanying offer of proof, Seagen provided only high-
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`level descriptions and Bates numbers of the requested documents, and cited facts already
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`discussed by both parties in open court. Such reference revealed no confidential content and
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`cannot be considered a violation of the Protective Order. See Milwaukee Elec. Tool Corp. v.
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`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
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`violate the other proceeding’s protective order). DSC argues that Milwaukee is distinguishable
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`because Seagen used direct quotes from Dr. Morita’s deposition testimony in Seagen’s reply
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`letter to the arbitrator and in its presentation during hearing on the motion to reopen. But DSC
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`had first provided excerpts of Dr. Morita’s testimony as well as pages from Dr. Bertozzi’s expert
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`report to the arbitrator in its opposition letter. Seagen quoted from Dr. Morita’s testimony only
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`after DSC opened the door for the parties to use the materials in the arbitration, and only to
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`provide context for DSC’s misleading excerpts.
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`DSC offers no relevant authority to support its argument that Seagen violated the
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`Protective Order. Unlike the parties in Jazz, for example, whose protective order included no
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`instructions regarding the use of produced information in another proceeding,3 the Discovery
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`Order in this case specifically contemplates the use of information from produced documents to
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`inform other proceedings. (Dkt. 51.) Jazz is distinguishable on another basis. There, a party
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`sought new discovery in a PTAB proceeding involving third parties after the information was
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`revealed in a court proceeding. See Jazz Pharms., 2016 WL 11480203, at *1–2. Here, Seagen is
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`not seeking new discovery in a proceeding involving other parties based on evidence produced in
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`this case. Seagen requested such evidence in the arbitration before discovery even opened in this
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`action, and the arbitrator confirmed that DSC should have produced these documents then. (Dkt.
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`281, Ex. A.) DSC should not be permitted to benefit from its misconduct in the arbitration by
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`hiding behind the Protective Order in this case.4
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`DSC’s other cited cases are similarly inapposite. In Hydro-Blok, the district court found
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`that a party violated the protective order by citing confidential information produced in the case
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`in a publicly-filed complaint against a third party. See Hydro-Blok USA LLC v. Wedi Corp., No.
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`C15-671 TSZ, 2017 WL 6513697, at *1–2 (W.D. Wash. Dec. 20, 2017); see also Wolters
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`Kluwer Fin. Servs. Inc. v. Scivantage, No. 07 CV 2352 (HB), 2007 WL 1498114, at *7-8
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`(S.D.N.Y. May 23, 2007) (violation to use information in lawsuit involving unrelated party).
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`Seagen is not relying on DSC-produced documents to advance new allegations against a third
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`3 See Discovery Confidentiality Order, Jazz Pharms., Inc. v. Amneal Pharms. LLC, C.A. No. 13-391(ES) (JAP),
`2016 WL 11480203, at *2 (D.N.J. Jan. 22, 2016), Dkt. 48.
`4 The court in Jazz also recognized that it would be a serious problem if a protective order in one proceeding
`“prohibit[s] the legitimate use of information in other proceedings (e.g., to establish that a party has wrongfully
`failed to produce relevant documents, or for potentially for other legitimate purposes),” and ordered the parties to try
`to amend the protective order to allow for the limited use of produced information in the PTAB proceeding. Jazz
`Pharms., 2016 WL 11480203, at *4.
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`party or even new claims against DSC. The documents will become of record in a private
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`arbitration between Seagen and DSC—a proceeding that is also governed by a protective order
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`that protects the parties’ confidential information.
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`B. DSC Suffers No Prejudice From the Use of Produced Documents in the
`Arbitration
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`DSC’s claim that Seagen fabricated discovery disputes in this case to obtain documents
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`for use in the arbitration is meritless. As Seagen explained in its three motions to compel and
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`renewed motion for sanctions (Dkts. 79, 187, 234, 267), the lab notebooks
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` DSC’s contention that the notebooks are “irrelevant and immaterial” in the arbitration is
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`also false—the arbitrator found that the documents are relevant to the arbitration and should have
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`been produced,
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` (Dkt. 281, Ex. A.) DSC’s assertion that the evidence reflects its own
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`confidential information also lacks support.
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`. Tellingly, DSC’s
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`opposition identifies none of its own confidential information that Seagen allegedly misused.
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`In light of DSC’s own misconduct in withholding relevant, responsive documents in two
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`separate proceedings despite their responsiveness to Seagen’s requests, DSC cannot complain
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`that reopening the arbitration hearing is somehow prejudicial because of the “additional
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`Arbitration proceedings that will now occur.” (Opp. at 5.) The fault for any additional cost or
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`expense associated with those additional proceedings lies with DSC.
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`Case 2:20-cv-00337-JRG Document 291 Filed 02/03/22 Page 7 of 8 PageID #: 10780
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`Dated: February 2, 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: 650.494.079
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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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`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 February 2, 2022.
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`/s/ Melissa R. Smith
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