Case 2:20-cv-00337-JRG Document 357 Filed 04/01/22 Page 1 of 8 PageID #: 12666
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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 SUR-REPLY
`IN OPPOSITION TO SEAGEN INC.’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 357 Filed 04/01/22 Page 2 of 8 PageID #: 12667
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`Seagen’s Reply (Dkt. 283) fails to rebut the arguments in Daiichi Sankyo Japan’s
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`Opposition (Dkt. 278) or otherwise excuse Seagen’s failure to seek and obtain leave of this Court
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`prior to using discovery materials from this case in the Arbitration. Although Daiichi Sankyo
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`Japan does not oppose prospective leave, it opposes Seagen’s motion to the extent it asks the Court
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`to grant leave retroactively for Seagen’s actions before Seagen sought leave of this Court. As
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`requested in Daiichi Sankyo Japan’s related Motion for Sanctions (Dkt. 308), Seagen should be
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`sanctioned for its violations of the Court’s orders.
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`A.
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`Seagen Mischaracterizes Daiichi Sankyo Japan’s Arguments
`in an Attempt to Excuse its Failure to Seek and Obtain Leave of Court
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`As Daiichi Sankyo Japan explained in its opposition brief (Dkt. 278), Seagen’s reliance on
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`Milwaukee Elec. Tool Corp. v. Snap-On Inc., 2016 WL 1719657 (E.D. Wis. Mar. 16, 2016) to
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`excuse its conduct is unavailing, because the party in that case provided only Bates numbers and
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`high-level descriptions of documents. Seagen here did far more than provide high-level
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`descriptions of documents. (See Dkt. 278 at 6-7.) In an attempt to ignore the factual distinctions,
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`Seagen mischaracterizes Daiichi Sankyo Japan’s arguments regarding Milwaukee. Seagen states:
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`“[Daiichi Sankyo Japan] argues that Milwaukee is distinguishable because Seagen used direct
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`quotes from Dr. Morita’s deposition testimony in Seagen’s reply letter to the arbitrator and in its
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`presentation during hearing on the motion to reopen.” (Dkt. 283 at 3.) But that is inaccurate.
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`Daiichi Sankyo Japan’s argument was that Seagen’s motion, reply, oral argument, and
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`demonstrative slides all provided more than “high-level descriptions” of the documents and so
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`Milwaukee does not apply nor provide Seagen any cover whatsoever. (See Dkt. 278 at 6-7.)
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`Daiichi Sankyo Japan’s argument was not limited to the impropriety of Seagen’s direct quotation
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`of the Texas Discovery Materials, but also highlighted Seagen’s misconduct by including detailed
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`descriptions of the contents of the Texas Discovery Materials in Seagen’s motion to reopen.
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`Case 2:20-cv-00337-JRG Document 357 Filed 04/01/22 Page 3 of 8 PageID #: 12668
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`Seagen also argues that its extensive direct quotation of the Texas Discovery Materials in
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`its reply, oral argument, and demonstrative slides is excused because Daiichi Sankyo Japan
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`“opened the door for the parties to use the materials in the arbitration” when Daiichi Sankyo
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`Japan’s opposition used its own discovery materials (which it was free to do and was not restricted
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`by the Discovery Order and Protective Order). (Dkt. 283 at 3-4.) This argument (that a party’s
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`use of its own confidential materials opens the door to an opposing party breaching a protective
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`order with impunity) is entirely unsupported. Unsurprisingly, Seagen cites no case law or
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`provision of the Discovery Order or Protective Order that provides for such an exception.
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`B.
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`Seagen’s Attempts to Distinguish Jazz and Other Cases Fail and Instead
`Underscore the Conclusion that Seagen Violated the Court’s Orders Here
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`Seagen attempts to distinguish Jazz Pharms., Inc. v. Amneal Pharms. LLC, 2016 WL
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`11480203 (D.N.J. Jan. 22, 2016), by highlighting that, unlike the Court’s Discovery Order and
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`Protective Order here, the protective order in that case “included no instructions regarding the use
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`of produced information in another proceeding.” (Dkt. 283 at 4.) But that supposed distinction
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`does not help Seagen; in fact, it highlights the impropriety of Seagen’s conduct. The court in Jazz
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`found a party’s use of discovery materials in another proceeding to violate the protective order
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`even though it did not include express provisions regarding cross-use. Here, the Court’s
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`Discovery Order and Protective Order specifically include express provisions regarding cross-use
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`and the requirements therefor, and Seagen ignored those express requirements.
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`Likewise, Seagen’s attempts to distinguish Jazz and the other cases cited by Daiichi Sankyo
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`Japan—by arguing it used the materials in another proceeding for different reasons than the parties
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`in those cases, (Dkt. 283 at 4-5)—are inapposite because those are distinctions without a difference
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`here. The Court’s Discovery Order and Protective Order set out the requirements for any cross-use
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`of materials; they do not distinguish between different reasons or contexts for such cross-use. (See
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`Case 2:20-cv-00337-JRG Document 357 Filed 04/01/22 Page 4 of 8 PageID #: 12669
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`Dkt. 51 at ¶ 12(b); Dkt. 248 at ¶ 8.).
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`Also unavailing is Seagen’s reference to the fact that the court in Jazz expressed possible
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`concern if protective orders were used to block legitimate discovery in other actions. Notably, the
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`court’s directive in that case to address that potential concern was for the parties to reach agreement
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`on a cross-use provision to add to the protective order. Jazz Pharms., 2016 WL 11480203, at *4.
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`Here there are such cross-use provisions already, and (again) the issue is that Seagen failed to
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`follow those procedures. There was nothing preventing Seagen from seeking leave of Court prior
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`to filing its motion to reopen the Arbitration. Seagen could have sought the required leave on an
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`expedited basis. Instead, it ignored this Court’s orders and now seeks forgiveness after-the-fact.
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`C.
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`Seagen Fails to Rebut Daiichi Sankyo Japan’s Prejudice Showing
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`Seagen’s arguments regarding prejudice are unavailing. Seagen disputes that it is using
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`this Court’s processes to obtain discovery that has no relevance to this action and that Seagen
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`instead wishes to use in the Arbitration, but it still fails to connect the materials in question to any
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`of the claims of the patent-in-suit. (See Dkt. 299 at 3-4.) Seagen states: “As Seagen explained in
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`its three motions to compel and renewed motion for sanctions (Dkts. 79, 187, 234, 267), the lab
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`notebooks reflect the
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` in this case and prove that
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`[Daiichi Sankyo Japan] copied Seagen’s
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` in designing aspects of that product
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`that meet elements of the asserted claims.” (Dkt. 283 at 5.) But there are at least two deficiencies
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`in this argument by Seagen. First, Seagen’s first two motions to compel did not say anything
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`about lab notebooks; instead, lab notebooks were first asserted in Seagen’s third motion to compel.
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`Thus, while Seagen seemingly references the fact it filed three motions to compel (two of which
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`it voluntarily withdrew after Daiichi Sankyo Japan produced the material Seagen requested) in an
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`effort to paint Daiichi Sankyo Japan as a bad actor, Seagen’s argument highlights how (i) Seagen’s
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`request for lab notebooks was only recently made (undermining Seagen’s accusations of
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`Case 2:20-cv-00337-JRG Document 357 Filed 04/01/22 Page 5 of 8 PageID #: 12670
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`misconduct and request for sanctions, see Dkt. 299 at 5), and (ii) Seagen has made a habit of
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`prematurely filing motions, accepting document productions in satisfaction thereof, and then
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`moving the goalposts to demand still further documents (while dressing up their new requests as
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`“renewed” motions). Second, Seagen’s assertion that the
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`and
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` is factually incorrect because, among other
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`things, the lab notebooks show
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`certain drug products and not any method of making them). (See Dkt. 299 at 1-4, 6-7.)
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`Seagen also argues that Daiichi Sankyo Japan “cannot complain that reopening the
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`arbitration hearing is somehow prejudicial” because of Daiichi Sankyo Japan’s “own misconduct”
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`in purportedly withholding documents. (Dkt. 283 at 5.) Daiichi Sankyo Japan did not engage in
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`any misconduct or withhold any documents; instead, it acted in good faith and produced the lab
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`notebooks in question promptly after they were identified for the first time during Dr. Morita’s
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`deposition and others were requested by Seagen. (See Dkt. 299 at 3-5.)
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`D.
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`Seagen’s Reply is Replete with Other Mischaracterizations
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`Seagen’s Reply is filled with factual mischaracterizations regarding the materials in
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`question, the parties’ interactions, and these proceedings (as an example, Seagen’s assertion
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`discussed above where it claimed to have explained the relevance of the lab notebooks in all three
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`of its motions to compel despite not raising the lab notebooks until the third such motion). Seagen
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`has employed the strategy of flooding its Reply with so many misstatements that it is impractical
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`for Daiichi Sankyo Japan to address and correct them all. Set forth below are examples of Seagen’s
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`mischaracterizations.
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`For example, Seagen claims that the parties met and conferred on January 12 about
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`Seagen’s intent to seek leave to cross-use the Texas Designated Materials. Although the motion
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`would necessarily be belated (by this time Seagen had already used the Texas Designated Materials
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`Case 2:20-cv-00337-JRG Document 357 Filed 04/01/22 Page 6 of 8 PageID #: 12671
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`in the Arbitration), Seagen states that it provided the draft joint motion “immediately” thereafter,
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`and that it proceeded to file its motion on January 14 after Daiichi Sankyo Japan “failed to respond
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`within the requested time.” (Dkt. 283 at 1 n.2.) In reality, the draft joint motion was provided at
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`6:28pm CT (after close of business) the following day on January 13, and Seagen demanded
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`Daiichi Sankyo Japan’s agreement by 10:00am CT on January 14. Notably, the draft joint motion
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`was materially different in scope than the parties discussed during the January 12 meet and confer;
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`where Seagen previously indicated it only sought leave as to the Texas Discovery Materials, the
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`draft joint motion would permit Seagen cross-use of all discovery from this action. Further,
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`Daiichi Sankyo Japan did not “fail[] to respond within the requested time.” Seagen provided the
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`draft motion after close of business CT on January 13 and demanded a response by 10:00am CT
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`the next morning, an unreasonable timeframe to expect counsel for Daiichi Sankyo Japan to confer
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`with its client and make a decision on whether to agree to the draft motion. Daiichi Sankyo Japan
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`nevertheless responded by 10:00am CT on January 14, confirming it was in receipt and would get
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`back to Seagen. (Ex. 1.) Seagen, however, proceeded to file its motion.
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`Seagen also claims that during a January 28 meet and confer, it proposed filing a stipulation
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`permitting the cross-use of certain documents and offered to withdraw its motion seeking leave as
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`moot, but Daiichi Sankyo Japan “refused and instead filed its opposition.” (Dkt. 283 at 3.) That
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`is misleading. Daiichi Sankyo Japan filed its opposition—which disclosed and illustrated to the
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`Court Seagen’s violations of the Discovery Order and Protective Order—before the Parties’ meet
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`and confer on January 28.1
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`1 Moreover, Seagen omits that it conditioned its proposed stipulation on Daiichi Sankyo Japan withdrawing its
`opposition (which would have the effect of concealing and condoning Seagen’s violations of the Court’s orders),
`which was a condition Daiichi Sankyo Japan understandably would not agree to.
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`Case 2:20-cv-00337-JRG Document 357 Filed 04/01/22 Page 7 of 8 PageID #: 12672
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`Dated: February 10, 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
`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 357 Filed 04/01/22 Page 8 of 8 PageID #: 12673
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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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`10, 2022.
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`/s/ Preston K. Ratliff II
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