Case 2:20-cv-00337-JRG Document 300 Filed 02/07/22 Page 1 of 9 PageID #: 10844
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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 MOTION FOR LEAVE TO
`USE CERTAIN DISCOVERY MATERIALS IN A PENDING ARBITRATION
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`Case 2:20-cv-00337-JRG Document 300 Filed 02/07/22 Page 2 of 9 PageID #: 10845
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`I.
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`INTRODUCTION
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`Daiichi Sankyo Company, Limited (“Daiichi Sankyo Japan”) respectfully moves pursuant
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`to the Discovery Order (Dkt. 51 at § 12(b)) and the Protective Order (Dkt. 55 at §§ 6, 8) for leave
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`to use certain documents produced by Plaintiff Seagen Inc. (“Seagen”) in this action, and
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`associated deposition testimony from this action, in a pending arbitration between Seagen and
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`Daiichi Sankyo Japan. As background, on January 6, 2022, Seagen moved the arbitrator to reopen
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`the hearing record in the arbitration that was scheduled to be decided by January 31, 2022. In
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`support of its motion, without first obtaining leave of this Court, Seagen used Daiichi Sankyo
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`Japan-produced discovery from this action in violation of the Court’s Discovery Order and
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`Protective Order. (See Dkt. 278.) Specifically, Seagen’s motion to reopen, as well as its reply, oral
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`argument, and demonstrative slides in support thereof, repeatedly quoted, provided, detailed, and
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`directly referenced the contents of the Daiichi Sankyo Japan’s discovery materials. (See id.)1
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`Daiichi Sankyo Japan opposed Seagen’s motion and disputed Seagen’s mischaracterization of the
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`materials, however, the arbitrator reopened the arbitration, reasoning in part that he needed to
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`reopen to evaluate whether the materials in question were mischaracterized and/or cumulative.
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`The arbitrator also acknowledged that reopening the hearing would afford Daiichi Sankyo Japan
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`the opportunity to present additional evidence.
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`Unlike Seagen, who used Daiichi Sankyo Japan’s discovery materials in the arbitration
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`first and filed a motion for leave of Court after-the-fact, Daiichi Sankyo Japan follows the Court’s
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`orders and has not used or introduced the Seagen-discovery materials as to which Daiichi Sankyo
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`Japan seeks leave in the arbitration. If and when leave is granted, Daiichi Sankyo Japan intends
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`1 Seagen moved for leave of Court after-the-fact (Dkt. 262), which Daiichi Sankyo Japan opposed
`due to Seagen’s violation of the Discovery Order and Protective Order (Dkt. 278).
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`Case 2:20-cv-00337-JRG Document 300 Filed 02/07/22 Page 3 of 9 PageID #: 10846
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`to use the materials (i) in a motion to the arbitrator for the materials to be received as evidence in
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`the arbitration, and (ii) if such motion is granted, as evidence in the arbitration. Given Seagen’s
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`position that there should be broad cross-use of discovery in this action and the arbitration, Seagen
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`will face no prejudice if Daiichi Sankyo Japan’s request for leave is granted.
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`II.
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`ADDITIONAL RELEVANT BACKGROUND
`A.
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`The Parties’ Disputes
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`On November 12, 2019, Seagen filed an arbitration against Daiichi Sankyo Japan
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`regarding, among other things, patent rights to Daiichi Sankyo Japan’s groundbreaking drug
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`product, DS-8201. The arbitration hearing was declared closed as of September 1, 2021. Seagen
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`and Daiichi Sankyo Japan had agreed that the final award in the arbitration would be due
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`November 30, 2021, after which they agreed to extend it to January 31, 2022 upon the arbitrator’s
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`request.
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`On January 6, Seagen filed a motion in the arbitration to reopen the arbitration hearing to
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`introduce certain discovery materials that Daiichi Sankyo Japan has produced in this action. In
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`support of its motion to reopen, Seagen repeatedly quoted, provided, detailed, and directly
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`referenced the contents of the Daiichi Sankyo Japan’s discovery materials, despite the fact Seagen
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`had not even requested leave of Court to use such materials in the arbitration. (See Dkt. 278.) On
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`January 25, 2022, the arbitrator reopened the hearing, while acknowledging Daiichi Sankyo
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`Japan’s request that if proceedings are reopened, then it must be permitted to move to present
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`additional evidence as well. (See id.)
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`B.
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`The Court’s Orders
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`The Court’s Discovery Order permits cross-use of discovery materials from this action in
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`other proceedings such as the arbitration “so long as the parties obtain leave from the tribunal
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`presiding over the proceeding in which the document was produced.” (Dkt. 51 § 12(b).) Likewise,
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`Case 2:20-cv-00337-JRG Document 300 Filed 02/07/22 Page 4 of 9 PageID #: 10847
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`the Protective Order in this case requires leave of Court for discovery materials from this case to
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`be used in other proceedings such as the arbitration. (Dkt. 55 §§ 6, 8.)
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`C.
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`Seagen-Produced Discovery Materials As To Which
`Daiichi Sankyo Japan Seeks Leave To Use In The Arbitration
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`Daiichi Sankyo Japan seeks leave to use in the arbitration certain Seagen-produced
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`documents and certain transcripts of depositions of Seagen witnesses from this lawsuit that provide
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`additional context for the content of the Seagen-produced documents.
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`With regard to documents, Daiichi Sankyo Japan seeks leave to use in the arbitration the
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`following Seagen-produced documents:
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`SGIEDTX00163494-558,
`SGIEDTX00163806-830,
`SGIEDTX00164811-856,
`SGIEDTX00165790,
`SGIEDTX00165845-946,
`SGIEDTX00166018-021,
`SGIEDTX00170097-104,
`SGIEDTX00173542-543,
`SGIEDTX00186566,
`SGIEDTX00187910-960,
`SGIEDTX00202204-230,
`SGIEDTX00218668-669,
`SGIEDTX00221715-716,
`SGIEDTX00228965-9071,
`SGIEDTX00232961-963,
`SGIEDTX00239276-277,
`SGIEDTX00266973-975, and
`SGIEDTX00353537-588.
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`These documents show Seagen’s awareness and analysis as early as 2017 of Daiichi Sankyo
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`Japan’s DS-8201 technology, and further indicate Seagen’s understanding and acknowledgement
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`that the technology was “proprietary” to Daiichi Sankyo Japan. These documents were produced
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`to Daiichi Sankyo Japan by Seagen for the first time in this action after the September 1, 2021
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`close of the arbitration hearing.
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`With regard to deposition transcripts, Daiichi Sankyo Japan seeks leave to use in the
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`Case 2:20-cv-00337-JRG Document 300 Filed 02/07/22 Page 5 of 9 PageID #: 10848
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`arbitration the transcripts of the following depositions taken in this action:
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`Scott Jeffrey (November 12, 2021), and
`Peter Senter (November 17-18, 2021).2
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`Although the identified materials became known to Daiichi Sankyo Japan after the
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`September 1, 2021 close of the arbitration, Daiichi Sankyo Japan initially did not move for leave
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`of Court to use them in the arbitration because it understood and respected that the arbitration had
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`been closed and both Seagen and Daiichi Sankyo Japan had agreed to a prompt resolution of that
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`dispute. With the arbitration now reopened, Daiichi Sankyo Japan should be permitted to use the
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`identified materials that should have been produced in the arbitration.
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`Seagen and Daiichi Sankyo Japan have met and conferred regarding cross-use of discovery
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`materials in the arbitration as well as Daiichi Sankyo seeking leave of this Court. Seagen indicated
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`it would oppose Daiichi Sankyo Japan’s request for leave unless Daiichi Sankyo Japan withdrew
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`its response (Dkt. 278) to Seagen’s request for leave (Dkt. 262). Daiichi Sankyo Japan is unwilling
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`to so withdraw its response, because it is based in part on the fact that Seagen already violated the
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`Discovery Order and Protective Order (which precipitated the reopening of the arbitration, delayed
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`the resolution thereof, and necessitated the instant motion so Daiichi Sankyo Japan can introduce
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`the newly-produced Seagen material as well).
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`III. ARGUMENT
`A.
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`Leave Is Appropriate Under The Discovery Order
`And The Protective Order, As Daiichi Sankyo Japan
`Has Not Yet Used The Materials In The Arbitration.
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`The Discovery Order and Protective Order contemplate and provide for cross-use of certain
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`2 The above-identified documents and deposition transcripts shall be referred to herein as the
`“Seagen Materials.”
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`Case 2:20-cv-00337-JRG Document 300 Filed 02/07/22 Page 6 of 9 PageID #: 10849
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`materials from this action in the arbitration, so long as the party seeking such cross-use first obtains
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`leave of the Court. Here, Daiichi Sankyo Japan is doing just that. It has not yet used the Seagen
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`Materials in any way in the srbitration.3 Daiichi Sankyo Japan’s request for leave is limited to a
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`narrow set of certain documents and deposition transcripts, all of which were not provided until
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`after the arbitration had closed. If leave is granted, Daiichi Sankyo Japan intends to use the Seagen
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`Materials in a motion to the arbitrator to receive the materials as evidence in the arbitration, and if
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`that motion is granted, Daiichi Sankyo Japan will use the materials as evidence in the arbitration.
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`B.
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`Seagen Would Not Be Prejudiced
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`Seagen will not face any prejudice from leave being granted. As discussed above, if leave
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`is granted, Daiichi Sankyo Japan will file a motion to have the materials received as evidence in
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`the arbitration and, if such motion is granted, will use the materials as evidence in the arbitration.
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`The arbitrator’s order reopening the arbitration contemplates this occurrence. Fairness dictates
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`that if Seagen is permitted to submit new materials in the reopened arbitration, so too should
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`Daiichi Sankyo Japan. And any time it takes for Daiichi Sankyo Japan to submit its motion and
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`present and argue these materials as evidence in the arbitration is a result of Seagen’s actions in
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`reopening the hearing; thus, Seagen can hardly claim any undue prejudice from the consequences
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`that precipitate from its own actions. Further, Seagen has consistently argued for broad cross-use
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`of discovery in this action and the arbitration since the inception of this action.
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`3 Indeed, during the oral argument on Seagen’s motion to reopen the arbitration, the arbitrator
`asked Daiichi Sankyo Japan what evidence it would seek to introduce, and Daiichi Sankyo Japan
`explained that it needed leave of Court to disclose the materials to the arbitrator and so it could not
`yet discuss them.
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`Case 2:20-cv-00337-JRG Document 300 Filed 02/07/22 Page 7 of 9 PageID #: 10850
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`IV. CONCLUSION
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`In light of the foregoing, Daiichi Sankyo Japan respectfully requests the Court grant this
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`motion and grant leave for Daiichi Sankyo Japan to present and use the Seagen Materials in the
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`arbitration.
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`Case 2:20-cv-00337-JRG Document 300 Filed 02/07/22 Page 8 of 9 PageID #: 10851
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`Dated: February 2, 2022
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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 300 Filed 02/07/22 Page 9 of 9 PageID #: 10852
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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 February
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`2, 2022.
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`/s/ Preston K. Ratliff II
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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 Daiichi Sankyo
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`Japan and the AstraZeneca Intervenor-Defendants, with Preston Ratliff as lead counsel and Mark
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`Mann as local counsel participating for Daiichi Sankyo Japan and David Berl and Jennifer
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`Ainsworth participating for the AstraZeneca Intervenor-Defendants, regarding cross-use of
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`documents produced in Texas. Further, on January 28, 2022 and February 1, 2022, counsel for
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`Daiichi Sankyo Japan, with Preston Ratliff as lead counsel, met and conferred via telephone with
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`counsel for Seagen, with Michael Jacobs as lead counsel. 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. Daiichi
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`Sankyo Japan understands this motion is opposed by Seagen.
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`/s/ Preston K. Ratliff II
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