Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 1 of 11 PageID #: 11152
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`SEAGEN INC.,
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`Plaintiff,
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`v.
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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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`) CASE NO. 2:20-cv-00337-JRG
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`DAIICHI SANKYO COMPANY, LIMITED'S OPPOSITION TO
`SEAGEN'S MOTION TO USE DISCOVERY FROM THIS CASE
`TO PRESENT IN A PREVIOUSLY CLOSED PRIVATE ARBITRATION
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 2 of 11 PageID #: 11153
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`I.
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`INTRODUCTION
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`Seagen has intentionally abused the protections and processes afforded by the Comt to seek
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`and obtain discove1y in this action for use in a private arbitration (the "Arbitration") between
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`Seagen and Daiichi Sankyo Japan. Specifically, while the Arbitration closed over fom months
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`ago and the arbitrator's final decision had been
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`, Sea gen went to the
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`arbitrator seeking to delay that final decision and reopen the Arbitration proceedings based on
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`supposed new evidence it tactically sought in this action. 1 Rather than seek leave of the Comt to
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`use discove1y materials from this action in the Arbitration, as required by the Comt's Discove1y
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`Order and Protective Order in this action, Seagen proceeded to use discove1y from this case
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`extensively in its effo1ts to reopen the Arbitration proceeding. For example, in support of its
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`motion to reopen the Arbitration, Seagen unabashedly quoted, displayed, described, and referenced
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`the contents of discovery materials produced by Daiichi Sankyo Japan in this action without having
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`obtained the requisite leave of Comt.
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`Confusingly, Seagen now comes to the Comt seeking pennission after-the-fact to do what
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`it has already done, i.e., use discove1y for another proceeding. The Comt should not endorse
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`Seagen's blatant violation of this Comt's Discove1y Order and Protective Order as well as its abuse
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`of the process of this Comt. To grant Seagen leave, after it has already used the materials in
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`another forum and violated the Discovery Order and Protective Order provisions that required pre-
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`use leave of Comt , would render the cross-use provisions of the Comt's orders meaningless and
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`condone and encourage litigants to flout this Comt's procedures, mies, and orders. Because
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`Seagen already violated this Comt's procedures, the Comt should take whatever action it deems
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`appropriate under these egregious circumstances, including imposing sanctions against Seagen.
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`1 At issue are four lab notebooks, emails, and patts of deposition transcripts ("Texas Discove1y Material").
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 3 of 11 PageID #: 11154
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`II.
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`RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
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`A.
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`A1·bitration Between Seagen and Daiichi Sankyo Japan
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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 drng
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`product, DS-8201.
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`.2
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` The "co-pending" Arbitration in which Seagen
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`intends to use the Texas Discove1y Material is all but completed at this point,3 but Seagen's gambit
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`is actively disrnpting the timely resolution of that dispute.
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`B.
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`Discovery Order and Protective Order in This Lawsuit
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`Here, the patent-in-suit claims the overall strncture or design of ce1tain ADCs.
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`Impo1tantly, none of the Texas Discove1y Material concerns the design of an ADC or anything
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`relevant to the Asse1ted Claims; the lab notebooks concern
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`which are not claimed by the patent-in-suit.
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`From the beginning of this action, the use of discove1y from this case in another proceeding
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`was disputed between Seagen and Daiichi Sankyo Japan. Seagen sought open cross-use among
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`all proceedings, however, the Comt resolved the Pa1t ies' dispute by pemlitting cross-use, but only
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`upon obtaining leave of this Court. (See Dkt. 51 (Discove1y Order) at ,i 12(b).) The Protective
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`2 In the Arbitration,
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`. Moreover, Daiichi Sankyo Japan's
`as demonstrated by Daiichi Sankyo Japan's expert in this action, Dr. Lambe1t.
`3 The Arbitration hearing was declared closed on September l , 2021. Seagen and Daiichi Sankyo Japan agreed that
`, after which they agreed to extend it to
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`the final award in the Arbitration would be due
` upon the arbitrator's request.
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`- 2 -
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 4 of 11 PageID #: 11155
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`Order similarly prohibits the use of any discovery materials from this case in any other proceeding
`without prior leave of this Court. (See Dkt. 248 at ,r 8.)
`C.
`Seagen's Motions in the Arbiti·ation and This Case
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`On Janua1y 6, Seagen filed a motion in the Arbitration to reopen the Arbitration hearing to
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`introduce the Texas Discove1y Material. Seagen's motion to reopen repeatedly detailed and
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`directly referenced the contents of the Texas Discove1y Material. (See, e.g., Ex. A.) On January
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`11, Daiichi Sankyo Japan filed in the Arbitration its opposition to Seagen's motion to reopen.
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`Because Seagen's motion had selectively quoted and mischaracterized the Texas Discove1y
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`Material, Daiichi Sankyo Japan's opposition thereto, out of necessity, cited and refened to Daiichi
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`Sankyo Japan's own confidential material in order to conect Seagen's mischaracterizations.
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`On January 12, Seagen in the Arbitration filed an unsolicited reply in support of its motion
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`to reopen. In that reply, Seagen again quoted, detailed, and referenced the content of Daiichi
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`Sankyo Japan's confidential-designated discove1y material from this lawsuit-including going so
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`far as to include seven pages of excerpts from Dr. Morita's deposition transcript. (See Ex. B.)
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`On Januruy 14, Seagen filed the instant Motion after Daiichi Sankyo Japan's repeated
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`communications regarding Seagen's violation of the Comi's Orders. (See Ex. E.)
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`On Januaiy 19, the arbitrator heai·d oral argument on Seagen' s motion to reopen. Dming
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`that oral argument, Seagen continued to quote and refer to the Texas Discove1y Material, even
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`displaying demonstrative slides displaying quotations from Dr. Morita's deposition transcript
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`(discove1y obtained solely from this action).4 (See Ex. D.)
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`4 The arbitrator raised the concern and questioned whether he was pennitted to see the discovery mate1i als that Sea.gen
`was displaying and discussing, asking
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`(Id. at 18:6-11.) Amazingly, Seagen's counsel
`went further and proposed an end-nm around this Com1 and its orders:
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`.., - ., -
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 5 of 11 PageID #: 11156
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`Unfortunately, Seagen's gambit reopened the Arbitration. On January 25, 2022, the
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`arbitrator reopened the hearing while acknowledging Daiichi Sankyo Japan's request that if
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`proceedings are reopened, then it must be pennitted to present additional evidence as well;
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`recognizing additional arbitration hearing dates will be necessa1y; and directing the patties to meet
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`and confer about a path fo1ward. Notably, as to Daiichi Sankyo Japan's argument that Seagen was
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`mischaracterizing the supposed "new" evidence from this case, the arbitrator rnled that he could
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`not make such a determination without reopening the proceedings.
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`III. Argument
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`A.
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`Seagen's Actions Are Causing Undue Prejudice to Daiichi Sankyo Japan
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`Contra1y to Seagen's perfunct01y argument, (Mot. 4), Daiichi Sankyo Japan faces, and
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`indeed is already incmTing, substantial undue prejudice if the requested leave is granted. Daiichi
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`Sankyo Japan proceeded with discove1y in this action relying on the procedmes and protections
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`implemented in the Comt's Discove1y Order and Protective Order. Simply allowing Seagen leave
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`after it has already used this action's discove1y material in another proceeding would set a
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`dangerous precedent for fmther misuse and misconduct by Seagen. 5 It would also set a dangerous
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`precedent for litigants in this Comt, who cannot rely on the protections of the Comt's protective
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`orders if opposing patties are permitted to breach those orders and receive forgiveness thereafter.
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`Moreover, Seagen continues to propagate a false nanative about the discove1y materials in
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` (Id. at 18:18-19:2.)
`5 Additionally, Seagen has now leveraged the Texas Discove1y Material, without leave of this Comt, to reopen the
`arbitration hearing, thus eliminating the possibility of Daiichi Sankyo Japan and Seagen to obtain a final award by the
`. The result is additional discove1y, evidence submission, and
`previously agreed-upon deadline of
`ru·bitration hearing in the coming months, which will consmne substantial time and resources during the pe1iod that
`the Patties ru·e othe1wise prepruing for trial in this action. This threatens to affect the procedural schedule of this case
`as it heads to trial, contrruy to Seagen' s suggestion othe1wise.
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 6 of 11 PageID #: 11157
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`question, which is further unduly prejudicing Daiichi Sankyo Japan. Seagen' s Motion avoids
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`discussing the nature of the Texas Discovery Material which it seeks leave to use in the Arbitration.
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`Make no mistake: the materials are inelevant and immaterial in that proceeding as well as this
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`one.6 Seagen's hope is to disto1t and confuse the factual record in the Arbitration to make up for
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`the absence of supp01t for its Arbitration claims.7
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`Meanwhile, Seagen's other arguments that Daiichi Sankyo Japan would not be prejudiced
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`are unconvincing. (Mot. 4.) Seagen's emphasis that the documents will remain subject to the
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`protective order in the Arbitration is cold comfort, given that Seagen has already flouted the
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`procedures and protections of this Court's Discove1y Order and Protective Order to tiy to gain an
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`advantage (and if Seagen is granted the requested leave even after such violations, it will only be
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`more emboldened to breach its obligations under this Court's orders). And Seagen's claim that its
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`request would not "require any additional effo1t or expense" is plainly false, given the additional
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`Arbiti·ation proceedings that will now occm.
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`B.
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`Seagen Repeatedly Violated the Discove1·y Order and
`Protective Orde1·, So Sanctions Should Be Imposed Against It
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`Under the Discove1y Order and Protective Order in this case, Seagen was required to obtain
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`leave of this Court before using discove1y materials from this case in the Arbitration. (Dkt. 51 at
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`6 Seagen insists that they represent some "smoking gun" because they r
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` Indeed, the material in question is cumulative of other discove1y in
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`the Arbitration, as it
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`7 Indeed, Seagen is already manufacturing impediments to resolution of the Arbitration; in response to Daiichi Sankyo
`Japan's explanation that the Texas Discove1y Material is cumulative and not relevant, the arbitrator in his order
`granting the motion to reopen the Arbitration noting that he cannot make that determination unless he reopens the
`hearing and receives and evaluates the evidence. Seagen has thus bootstrapped itself into delaying resolution of the
`Arbitration: it mischaracterized the Texas Discove1y Material to manufacture a basis for reopening, and the arbitrator
`believes he must reopen in order to detennine whether Seagen mischaractetized the evidence. This gamesmanship
`began with and is being perpetrated by Seagen's violation of this Comt's orders and intentional use of this Comt to
`seek discovery for the Arbitration, which should not be condoned.
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`- 5 -
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 7 of 11 PageID #: 11158
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`,r 12(b); Diet. 248 at ,r 8.) Indeed, Seagen concedes this point. (Mot. 1-2.) Yet, ignoring these
`requirements, Seagen used Daiichi Sankyo Japan's discovery materials in the Arbitration without
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`leave of this Court. For example, Seagen has repeatedly directly quoted, described, summarized,
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`referenced, and/or attached the contents of the Texas Discove1y Material. (See, e.g. , Ex. A; Ex.
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`B; Ex. C; Ex. D) Seagen doing so, without leave of this Court, violates the Discove1y Order and
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`Protective Order. See Jazz Pharms., Inc. v. Amneal Phanns. LLC, 2016 WL 11480203, at *2-4
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`(D.N.J. Jan. 22, 2016) (finding use of confidential discovery materials from one proceeding to
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`argue for additional discove1y in another was a use violating a protective order); Hydro-Blok USA
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`LLC v. Wedi Corp., 2017 WL 6513697, at *2 (W.D. Wa. Dec. 20, 2017) (finding patty violated
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`protective order by basing allegations in one proceeding on confidential discovery material
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`obtained in another proceeding); Wolters Kluwer Fin. Servs. Inc. v. Scivantage, 2007 WL 1498114,
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`at *7-8 (S.D.N.Y. May 23, 2007) (similar).8
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`Seagen attempts to defend its conduct by suggesting that it provided only "high-level
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`descriptions of the documents and testimony" to the arbitrator, citing Milwaukee, 2016 WL
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`1719657, at *5. Seagen's argument is unavailing. First, Seagen provided far more than "high-
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`level descriptions" of Daiichi Sankyo Japan's discove1y material; instead, it repeatedly provided
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`direct quotes, displayed po1tions of testimony, and described in detail the contents of the Texas
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`Discove1y Material. This distinguishes Seagen's conduct from that at issue in Milwaukee, where
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`the plaintiffs merely listed Bates numbers and provided a general description of the documents.
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`See id. at *4. Indeed, the court in Milwaukee drew a distinction between "the use of knowledge
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`regarding the existence of ce1tain documents" (what the plaintiff did in that case) "versus the use
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`8 In contrast to Seagen's improper conduct, now that the Arbitration is reopened, Daiichi Sankyo Japan is following
`the Comt's orders and contacted Seagen about obtaining leave of this Comt to use ce1tain Seagen-produced materials
`from this lawsuit in the Arbitration before actually using them in the Arbitration. Seagen ignored our request.
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 8 of 11 PageID #: 11159
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`of the confidential content within the documents" (what Seagen has done here). Id.
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`Second, the Milwaukee comt's rationale is inapplicable here. Specifically, the comt there
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`reasoned that the purpose of the protective order was to protect against disclosure of commercial
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`secrets and "to protect from the disclosure of confidential info1mation- not to prevent the
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`discove1y of relevant documents" in other proceedings. Id. at *5. But the protective order in that
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`case-unlike here-notably did not include express cross-use provisions prohibiting use of
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`discovery materials in other proceedings without prior leave of comt. See Protective Order,
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`Milwaukee Elec. Tool Corp. v. Snap-On Inc. , No. 14-CV-1296-JPS (E.D. Wis. Apr. 13, 2015),
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`Dkt. No. 23. The cross-use provision here, by contrast, confnms that one purpose of the orders is
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`protecting against exactly what Seagen did. See Moore v. Ford Motor Co. , 755 F.3d 802,806 (5th
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`Cir. 2014) ("Analysis begins with the plain language of the Protective Orders ... ").
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`In sum, Seagen repeatedly violated the Comt's Discove1y Order and Protective Order by
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`quoting, displaying, providing, summarizing, describing, and referencing the contents of the Texas
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`Discove1y Material. 9 The Collli should not countenance Seagen 's conduct and should take
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`whatever action it deems appropriate, including imposing sanctions for Seagen's violations of the
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`Colllt's orders. Fed. R. Civ. P. 37(b).
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`9 Seagen argues Daiichi Sankyo Japan, in its opposition to Seagen's motion to reopen the Arbitration, "provid[ed]
`confidential infmmation that is covered by the Protective Order in this case without first seeking leave." (Mot. at 3).
`is unfounded.
`However, Seagen's apparent insinuation-that Daiichi Sankyo Japan did the same thing Seagen did-
`The materials Daiichi Sankyo Japan referenced in its arbitration opposition reflect only Daiichi Sankyo Japan
`informatio11 and a single Seagen document that was already of record in the Arbitration. The Discovery Order and
`Protective Order restrict what a receiving party can do with the other party's discovery materials and do not restrict a
`party from using its own information. Also, Daiichi Sankyo Japan's reference to its own confidential infmmation was
`necessitated by the fact that Seagen mischaracterized Daiichi Sankyo Japan's discovery material.
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 9 of 11 PageID #: 11160
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`Dated: Januaiy 28, 2022
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`Respectfully submitted,
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`Isl Preston K. Ratliff II
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`Deron R. Dacus
`State Bai· No. 00790553
`The Dacus Fi1m , P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas, 75701
`+ 1 (903) 705-1117
`+l (903) 581-2543 facsimile
`ddacus@dacusfnm.com
`
`J. Mark Mann
`State Bai· No. 12926150
`mark@themannfirm.com
`MANN JTINDEL JTHOMPSON
`300 West Main Street
`Henderson, Texas 75652
`(903) 657-8540
`(903) 657-6003 (fax)
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`Attorneys f or 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 A venue
`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 316 Filed 02/15/22 Page 10 of 11 PageID #: 11161
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`CERTIFICATE OF SERVICE
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`The undersigned hereby ce1tifies 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 Janua1y 28,
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`2022.
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`Isl Preston K. Ratliff'JI
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`Case 2:20-cv-00337-JRG Document 316 Filed 02/15/22 Page 11 of 11 PageID #: 11162
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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, and
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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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`ASTRAZENECA PHARMACEUTICALS
`LP and ASTRAZENECA UK LTD.,
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`Intervenor-Defendants.
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`[PROPOSED] ORDER
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`The Court, having considered Plaintiff’s Motion for Leave to Use Certain Documents
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`Produced by Daiichi Sankyo Company, Limited in Co-Pending Proceeding (Dkt. No. 262), any
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`responses, and all other things properly before it, finds that Plaintiff’s Motion should be
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`DENIED in its entirety.
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`United States District Court Judge
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