Case 2:20-cv-00337-JRG Document 441 Filed 08/11/22 Page 1 of 21 PageID #: 16855
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`
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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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`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.
`
`Civil Action No. 2:20-CV-00337-JRG
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`SEAGEN’S MOTION FOR AN EXCEPTIONAL CASE FINDING AND ATTORNEY
`FEES UNDER 35 U.S.C. § 285
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` SF-4883511
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`Case 2:20-cv-00337-JRG Document 441 Filed 08/11/22 Page 2 of 21 PageID #: 16856
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
`III.
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`IV.
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`INTRODUCTION ............................................................................................................. 1
`LEGAL STANDARD ........................................................................................................ 1
`ARGUMENT ..................................................................................................................... 2
`A.
`DSC’s Litigation Misconduct Makes This Case Stand Out from Others .............. 2
`1.
`DSC’s 30(b)(6) Deposition Obstruction. ................................................... 2
`2.
`DSC Withheld Key Documents ................................................................. 9
`3.
`DSC’s Further Deposition Obstruction .................................................... 10
`DSC Adopted Weak, Objectively Unreasonable Non-Infringement
`Positions and Pressed Already-Rejected Arguments ........................................... 12
`The Jury’s Verdict of Willfulness Supports a Finding of Exceptionality ............ 13
`C.
`CONCLUSION ................................................................................................................ 15
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`B.
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`TABLE OF AUTHORITIES
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`
`
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`Page(s)
`
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`Cases
`
`Brazos River Auth. v. GE Ionics, Inc.,
`469 F.3d 416 (5th Cir. 2006) .....................................................................................................3
`
`Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc.,
`No. 2:14-CV-00912-JRG, 2020 WL 1478396 (E.D. Tex. Mar. 26, 2020) ................................7
`
`Georgetown Rail Equip. Co. v. Holland L.P.,
`No. 6:13-CV-366, 2016 WL 3346084 (E.D. Tex. June 16, 2016) ......................................2, 14
`
`Innovation Scis., LLC v. Amazon.com, Inc.,
`842 F. App’x 555 (Fed. Cir. 2021) ..........................................................................................13
`
`Inventor Holdings, LLC v. Bed Bath & Beyond, Inc.,
`876 F.3d 1372 (Fed. Cir. 2017)................................................................................................12
`
`Jurgens v. CBK, Ltd.,
`80 F.3d 1566 (Fed. Cir. 1996)....................................................................................................2
`
`Monolithic Power Sys., Inc. v. O2 Micro Int’l Ltd.,
`726 F.3d 1359 (Fed. Cir. 2013)..................................................................................................2
`
`Motorola Sols., Inc. v. Hytera Commc'ns Corp.,
`No. 17 C 1973, 2019 WL 2774126 (N.D. Ill. July 2, 2019) ....................................................10
`
`In re Norplant Contraceptive Prods. Liab. Litig.,
`No. MDL 1038, 1996 WL 42053 (E.D. Tex. Jan. 19, 1996) ...................................................10
`
`Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
`572 U.S. 545 (2014) .............................................................................................................1, 11
`
`ReedHycalog UK, Ltd. v. Diamond Innovations Inc.,
`No. 6:08-CV-325, 2010 WL 3238312 (E.D. Tex. Aug. 12, 2010) ........................................8, 9
`
`Resol. Tr. Corp. v. S. Union Co.,
`985 F.2d 196 (5th Cir. 1993) .....................................................................................................8
`
`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`14 F.4th 1323 (Fed. Cir. 2021) ................................................................................................12
`
`Tinnus Enters., LLC v. Telebrands Corp.,
`369 F. Supp. 3d 704 (E.D. Tex. 2019) ...............................................................................13, 14
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`Case 2:20-cv-00337-JRG Document 441 Filed 08/11/22 Page 4 of 21 PageID #: 16858
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`
`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Whirlpool Corp. v. TST Water, LLC,
`No. 2:15-CV-01528-JRG, 2018 WL 1536874 (E.D. Tex. Mar. 29, 2018) ..............................14
`
`z4 Techs., Inc. v. Microsoft Corp.,
`No. 6:06-CV-142, 2006 WL 2401099 (E.D. Tex. Aug. 18, 2006) ....................................10, 11
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`Statutes
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`35 U.S.C. § 284 ................................................................................................................................2
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`35 U.S.C. § 285 ......................................................................................................................1, 2, 15
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`Other Authorities
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`Fed. R. Civ. P. 30(b)(6)................................................................................................................3, 8
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`Fed. R. Civ. P. 30(c)(2) ..................................................................................................................11
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`Fed. R. Civ. P. 30(d)(3)..................................................................................................................11
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`Fed. R. Civ. P. 54 ...........................................................................................................................15
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`Local Rule CV-30 ......................................................................................................................8, 11
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`I.
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`INTRODUCTION
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`DSC’s litigation conduct was designed to conceal highly inculpatory evidence. In late
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`2009, in the middle of a research collaboration with Seagen to develop an antibody-drug
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`conjugate (ADC) cancer treatment, DSC launched an internal ADC development program. To
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`jump-start its development efforts, DSC appropriated highly sensitive know-how that Seagen had
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`shared with DSC solely for use in the collaboration. In particular, DSC scientists Drs. Hideki
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`Miyazaki and Koji Morita, who had been involved in the Seagen collaboration, copied Seagen’s
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`conjugation protocol to develop what would become the infringing product, Enhertu. This
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`copying was knowing and deliberate.
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`DSC tried to hide evidence of its misconduct from Seagen. DSC obstructed Seagen’s
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`discovery by preparing its deposition witnesses to be misleading, under-informed, and non-
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`responsive, and by improperly withholding key documents. DSC also advanced objectively
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`weak non-infringement arguments. The jury saw through the pretense and found that DSC
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`willfully infringed Seagen’s ’039 patent. (Dkt. 369.)
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`DSC’s litigation misconduct, unreasonable non-infringement arguments, and willful
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`infringement merit an exceptional case declaration and an award of attorney fees to Seagen.
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`II.
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`LEGAL STANDARD
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`A “court in exceptional cases may award reasonable attorney fees to the prevailing
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`party.” 35 U.S.C. § 285. A case is “exceptional” when it “stands out from others with respect to
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`the substantive strength of a party’s litigating position (considering both the governing law and
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`the facts of the case) or the unreasonable manner in which the case was litigated.” Octane
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`Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014). In evaluating
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`exceptionality, courts should consider the “totality of the circumstances.” Id. One such
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`circumstance is whether the infringement was found willful: this Court has previously explained
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`that such a finding is a “compelling indication that this is an exceptional case.” Georgetown Rail
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`Equip. Co. v. Holland L.P., No. 6:13-CV-366, 2016 WL 3346084, at *22 (E.D. Tex. June 16,
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`2016) (cleaned up). The standard for whether a case is “exceptional” is different from that for
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`determining enhanced damages under 35 U.S.C. § 284, which the Court declined to award. (Dkt.
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`432 at 2.) See, e.g., Jurgens v. CBK, Ltd., 80 F.3d 1566, 1573 n. 4 (Fed. Cir. 1996) (explaining
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`that “conduct which a court may deem ‘exceptional’ and a basis for awarding attorneys fees may
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`not qualify for an award of increased damages.”).
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`III. ARGUMENT
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`Under the “totality of the circumstances” test, DSC’s repeated instances of litigation
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`misconduct, weak noninfringement positions, and willful infringement of Seagen’s patent
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`warrant an exceptional case finding and a grant of attorney fees.
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`A.
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`DSC’s Litigation Misconduct Makes This Case Stand Out from Others
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`DSC’s litigation misconduct is alone sufficient to render this case exceptional.
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`Monolithic Power Sys., Inc. v. O2 Micro Int’l Ltd., 726 F.3d 1359, 1366 (Fed. Cir. 2013)
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`(explaining that there is a “well-established rule that litigation misconduct and unprofessional
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`behavior may suffice, by themselves, to make a case exceptional under § 285.”) (cleaned up).
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`DSC obstructed Seagen’s 30(b)(6) depositions, withheld key documents, and then, after the
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`Court remedied that violation, further obstructed deposition testimony.
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`1.
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`DSC’s 30(b)(6) Deposition Obstruction.1
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`DSC obstructed the depositions of the 30(b)(6) witnesses it designated to testify to the
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`research and development of Enhertu. DSC designated Dr. Gormley and Dr. Naito, but they then
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`1 In addressing an in limine motion directed to DSC’s discovery conduct at the pre-trial conference, the Court
`observed that DSC’s deposition behavior would be a “data point in what … will be a very interesting [Section] 285
`motion” and that the Court would “certainly consider it along with the totality of the circumstances when we get to
`285.” (Dkt. 343 at 125:19–126:05.)
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`claimed not to know about these topics. Rather than adequately prepare them, DSC trained them
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`to give non-responsive, even false, answers to Seagen’s questions. Both asserted that Dr. Naito
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`was the sole person involved in the development of Enhertu. As Dr. Morita’s testimony and
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`DSC lab notebooks would later reveal, this was untrue. (See Dkt. 380 at 158:11–23; PX-0724;
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`PX-0230.) DSC’s designation of uninformed representatives and failure to adequately prepare
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`them violated Federal Rules of Civil Procedure Rule 30(b)(6). See, e.g., Brazos River Auth. v.
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`GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006). To further obstruct Seagen, DSC’s counsel
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`also made improper objections throughout Dr. Naito’s deposition.
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`DSC designated Dr. Gormley to testify to the research and development of Enhertu and
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`to DSC’s collaboration with Seagen. At his deposition, Dr. Gormley testified that he had no
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`detailed personal knowledge of the drug’s development or of the collaboration. (See Ex. 1,
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`Gormley Dep. Tr. at 76:15–18; 76:22–77:05; 91:08–13; 125:17–126:13; 155:14–156:03;
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`177:01–16.) Nor was he prepared to testify to those topics. Dr. Gormley testified that he did not
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`recall speaking with any DSC scientists or reviewing any DSC lab notebooks. (See id. at 45:03–
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`11, 74:18–75:21; 76:19–77:14; 82:14–18, 83:04–09, 85:17–86:07, 122:14–25; 132:04–17;
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`177:01–178:21.) He gave scripted, non-responsive answers to nearly all of Seagen’s questions:
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`Questioning Attorney: Is there anything else other than the statement that you just
`referred to that forms the basis of your belief that [Dr. Naito’s] work was entirely
`independent?
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`Dr. Gormley: Sitting here today, I can’t recall. That doesn’t mean there isn’t more
`information, but I can’t recall additional information. But I did rely on the preparation
`for this meeting to reinforce my understanding that this was a unique contribution by
`Daiichi Sankyo from our labs by very brilliant scientists who had – you know, as I
`mentioned to you, both Daiichi and Sankyo were interested in this field many decades
`ago, and Daiichi was working on concepts of linkers and copolymers in the ’90s. Sankyo
`was interested in antibody-drug conjugate research in as early as 2003. There was a lot
`of knowledge in both companies, and when we came together in a merger, those – that
`knowledge, you know, generally, as science works, contributes to expanding further
`knowledge, and then Dr. Naito made the great leap of inventing a unique molecule with
`unique properties that would then go on, as I described to you, to make such a difference
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`in patients’ lives where there was no hope before. How wonderful is that?
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`(Id. at 94:11–95:12.) And:
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`Questioning Attorney: And based on what you know about the research and
`development of DS-8201 and any other information you learned in the course of
`preparing for today’s deposition, are you able to say that Daiichi Sankyo did not use
`information it received from Seagen in connection with the development of DS-8201?
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`Dr. Gormley: So let me make sure that we’re clear. I don’t get involved in the details of
`my scientists’ day-to-day work. I don’t know what they do on a day-to-day. I know that
`DS-8201 was discovered by Dr. Naito. I know what we’ve been able to do with that
`discovery. I know that there was a lot of knowledge by both Daiichi and Sankyo
`scientists that date back to the mid ’90s and early 2000s which I can only imagine
`informed their investigations. I know that Dr. Naito made a critical discovery. We
`recognized early that value of that discovery, and we put it through a rigorous research
`and development program as rapidly as we could to develop the drug that is now saving
`lives.
`
`(Id. at 125:17–126:13 (objections omitted).) And:
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`Questioning Attorney: What was the subject of the collaboration between Seagen and
`Daiichi Sankyo, if you know?
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`Dr. Gormley: You know, I don’t know the answer to that question. I don’t know the
`breadth and depth of that collaboration. It was not something I paid attention to.
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`(Id. at 91:08–13; see also id. at 41:07–44:11, 50:11–52:03, 57:02–60:06, 60:22–61:10, 76:15–18,
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`78:04–13, 91:01–13, 92:01–08, 92:17–94:04. 95:13–96:04, 96:10–98:23, 98:24–100:02, 102:24–
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`103:21, 105:21–108:04, 113:18–114:06, 119:19–121:24, 125:01–16, 141:13–142:18, 155:14–
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`156:03, 156:12–19, 165:11–166:15, 177:01–178:07.)
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`DSC similarly designated Dr. Naito to testify to DSC’s discovery of DS-8201, including
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`the identity of all persons involved in the discovery, the contribution of each such person to the
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`alleged discovery, and the period in which the discovery occurred. But Dr. Naito claimed to
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`have no knowledge of DSC’s work on ADCs between 2009 and 2011, nor any knowledge of the
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`roles of the other scientists who helped develop Enhertu. (Ex. 2, Naito Dep. Tr. at 16:21–17:19,
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`19:24–20:09, 22:3-25, 65:8-17, 120:24-121:18, 129:2-129:20, 186:10-188:11, 197:24-198:18,
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`206:13-207:19, 209:23-210:25, 215:9-217:6, 234:13-235:12, 248:25-251:8.) Dr. Naito even
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`claimed he was “not able to understand the content” of the 30(b)(6) topics for which he had been
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`designated. (Id. at 173:23–25.) And as with Dr. Gormley, DSC prepared Dr. Naito to give non-
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`responsive answers to nearly all questions:
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`Questioning Attorney: Dr. Naito, what role did Koji Morita play in the working group at
`Daiichi Sankyo Company?
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`Dr. Naito: Similar to Mr. – or Dr. Masuda that you brought up earlier Mr. – or Dr.
`Morita is also a capable researcher. I’m familiar with that. But again, I don’t recall
`exactly what he was doing around that time. I can see that there are various names
`written here on this document; however, I should let you know that I’m not fully
`understanding the content or the nature of this document. And so even if you ask me
`detailed questions about it, chances are I’m not going to know the answer. What I do
`know is that Daiichi Sankyo DS-8201 is a life-saving drug that is giving patients hope,
`and that I invented it. I’m seeing this for the first time. Please understand.
`
`(Id. at 16:21–17:19.) Again:
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`Questioning Attorney: Dr. Naito, what role did Hideki Miyazaki have in Daiichi
`Sankyo Company’s antibody drug conjugate working group?
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`Dr. Naito: I’ll have to repeat. I don’t clearly recall what kind of role he played.
`Regarding the DS-8201 invention, I’m the inventor. I’ll have to repeat, but without me,
`DS-8201 would not exist.
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`(Id. at 19:24–20:09.) Again:
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`Questioning Attorney: Dr. Naito, I think you already testified as to this, but you have no
`idea what role Koji Morita played in the development of DS-8201, right?
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`Dr. Naito: We’re talking about 10 years ago, so in terms of what Dr. Morita did or how
`he contributed to the DS-8201, this is not something that I remember and is not
`something that I can affirm. I’m trying to think back to what Dr. Morita was doing back
`then, but I really don’t clearly recall. But one thing I can tell you is that the person that
`brought DS-8201, this life-saving drug, to its existence is me. I am the inventor. It is the
`entire design and making of the entire structure that resulted – that led to the invention of
`DS-8201. And my past experience, or should I say my whole life experience, as well as
`all of the unique ideas that come to – came into my mind, this is what led to the
`invention. And only I could have invented DS-8201. I’ve been referring to these unique
`ideas that came to my mind. Indeed, this drug has a very unique structure. There is
`nothing else like it in the world. It is unrivaled. My colleagues’ names that you see here
`in this report, these are all very capable researchers; however, they were not able to
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`discover DS-8201. This wonderful drug, I invented it. We’re talking about 10 years ago,
`so, regrettably, I’m not able to clearly recall today what each and every person did.
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`(Id. at 156:19–158:15 (cleaned up).) Again:
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`Questioning Attorney: So Dr. Naito, isn’t it true that if we look at the components of
`the drug linker used in DS-8201, you did not invent the MC part or the GGFG part of that
`drug linker?
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`Dr. Naito: The invention of DS-8201 – and I think I explained this to you earlier. The
`point – the key to that whole invention, this wonderful drug that is saving the lives of
`patients, is in its entire design and form of the ADC. And so in order to come up with the
`idea and the invention of DS-8201, I had to think of the entire structure. Without the
`entire structure, this invention would not exist. But in terms of the parts, the MC part and
`the tetrapeptide part were already being used.
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`(Id. at 68:09–69:06 (objections omitted).) Again:
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`Questioning Attorney: Dr. Naito, earlier we discussed some of the components of DS-
`8201, including the MC component. You would agree with me that it wasn’t you who
`first came up with the idea within Daiichi Sankyo Company to build an ADC that linked
`to the antibody using MC, right?
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`Dr. Naito: … What is inventive about DS-8201, as I said yesterday, is the entire design
`and how it is created based on that entire structure. In inventing DS-8201, which is a
`wonderful life-saving drug – I think your question was talking about various partial
`structures, components. To give you some specifics, it is comprised – an ADC is
`comprised of an antibody linker, spacer, and drug moiety, DX-8951. You seem to be
`asking about the MC part. And although I don’t quite understand your question yet, the
`MC part was being used by the ADC working group prior to my joining it. But when it
`comes to the invention of DS-8201, what is inventive about [sic] is its overall design and
`synthesis. I am the one that invented the design and synthesis of this overall structure,
`vision, of DS-8201, which is a wonderful drug.
`
`(Id. at 175:13–176:25 (objections omitted); see also id. at 22:3–25, 44:3–45:11, 45:21–47:21,
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`56:3–58:10, 61:11–62:21, 76:18–80:18, 81:14–83:2, 97:5–98:25, 99:16–101:22, 104:23–106:4,
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`125:19–127:4, 140:13–143:02, 153:01–19, 158:16–159:23, 180:10–182:6, 191:1–192:16,
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`209:23–210:25, 215:9–217:6, 223:16–229:20, 248:25–251:8, 271:17–273:13, 273:14–274:10.)
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`Dr. Gormley and Dr. Naito’s non-responsive answers followed a similar theme—that Dr.
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`Naito was the sole individual responsible for the development of Enhertu. But as Dr. Morita
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`testified, this was not true. (Dkt. 380 at 158:11–23. See also PX-0724; PX-0230.) This false
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`testimony from DSC’s 30(b)(6) designees warrants an exceptional case finding. See, e.g., Core
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`Wireless Licensing S.A.R.L. v. LG Elecs., Inc., No. 2:14-CV-00912-JRG, 2020 WL 1478396, at
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`*2 (E.D. Tex. Mar. 26, 2020) (defining “exceptional conduct” to include “giving patently false
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`testimony to extend valueless cases as long as possible.”).
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`DSC’s counsel further obstructed Dr. Naito’s deposition by making improper objections
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`intended to coach the witness:
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`Questioning Attorney: Doctor, are you prepared to testify today as to Dr. Kasuya and
`Dr. Miyazaki’s roles in the development of DS-8201? And I refer you to topic 1.
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`DSC’s Counsel: Are you trying to trick the witness again? Topic No. 1 refers to the
`discovery of DS-8201. And are you representing to the doctor that Dr. Kasuya and Dr.
`Miyazaki actually played a role in the development of DS-8201?
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`Questioning Attorney: Counsel, it’s clear that you’re blocking all inquiry into the roles
`of others that Dr. Naito worked with on DS-8201, and not in good faith preparing the
`witness to testify on the topics we identified, so I will move on to my next question.
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`DSC’s Counsel: I disagree. It’s clear you’re actually trying to trick Dr. Naito because
`you point to Topic No. 1, which relates to the discovery of DS-8201. And Dr. Naito has
`explained repeatedly that he invented DS-8201, and invented DS-8201 alone. It was his
`design and concept. So your question becomes very confusing when you’re suggesting
`otherwise as to Topic No. 1, which relates to the discovery of DS-8201. … And
`Counselor, I think what you said was very disrespectful to Dr. Naito. He has voluntarily
`agreed to appear here for a deposition. … Dr. Naito is doing his best to respond to your
`questions. And as he explained, he gave rise to this amazing, wonderful life-saving
`medication. We will remember this time when you are showing disrespect to someone
`who has given so much to society.
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`(Ex. 2, Naito Dep. Tr. at 251:09–254:02 (cleaned up).) Also:
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`Questioning Attorney: Dr. Naito, I think you’ve already testified as to this, but you have
`no idea what role Koji Morita played in the development of DS-8201 right?
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`DSC’s Counsel: And, Counsel, are you representing that Dr. Morita played a role in the
`development of DS-8201? Because your question asked it in a way as if that was a fact.
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`Questioning Attorney: Improper objection. Please answer.
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`DSC’s Counsel: Translate what I said first, and then what [Questioning Attorney] said.
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`Questioning Attorney: Please answer, Dr. Naito.
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`DSC’s Counsel: I don’t think the interpretation was finished. I still don’t think the
`interpretation is finished, but given that you won’t answer my question, I object to the
`form of your question.
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`(Id. at 155:19–156:18.) And again:
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`Questioning Attorney: My question to you, Dr. Naito, is this: When you synthesized
`that drug linker in late 2011, you did not perform the steps to conjugate the drug linker to
`the antibody trastuzumab, did you?
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`DSC’s Counsel: I object to the form of the question. I also object to the background of
`the question. You’re trying to trick Dr. Naito. Dr. Naito never said that there was a MC-
`GGFG-AM-DXd drug linker; he told you the opposite. He explained that there was an
`aminomethylene hydroxyacetyl in the drug linker.
`
`Questioning Attorney: That’s an improper –
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`DSC’s Counsel: She’s not finished interpreting. … Aminomethylene hydroxyacetyl.
`Please refrain from tricking – trying to trick Dr. Naito.
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`(Id. at 71:23–72:25; see also id. at 59:2–61:10, 75:5–9, 78:17–79:04, 79:21–80:18, 93:24–94:22,
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`99:07–15, 103:22–104:4, 107:01–109:10, 128:3–25, 131:10–17, 136:2–138:8, 177:22–180:5,
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`197:3–21, 205:5–206:10, 206:13–207:3, 207:22–209:22, 262:24–263:15, 282:10–282:22.) DSC
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`counsel made similarly disruptive objections throughout the case. (See, e.g., Ex. 3, Smith Dep.
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`Tr. at 11:24–12:19; 35:23–36:12, 38:19–39:07, 56:6–17, 102:10–103:10, 104:12–106:3; 118:07–
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`13, 119:07–120:02, 213:23–214:09; Ex. 4, Switzer Dep. Tr. at 44:19–24, 54:22–56:3, 56:8–11,
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`57:24–58:16, 60:01–06, 67:12–68:17, 117:21–118:01, 138:25–139:08.) Such objections violate
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`Local Rule CV-30, which limits objections to “Objection, leading” and “Objection, form.”
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`DSC’s deposition tactics represent serious litigation misconduct. See, e.g., Resol. Tr.
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`Corp. v. S. Union Co., 985 F.2d 196, 196 (5th Cir. 1993) (awarding sanctions against a party
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`whose 30(b)(6) designees “possessed no knowledge relevant to the subject matters identified in
`
`the Rule 30(b)(6) notice.”); ReedHycalog UK, Ltd. v. Diamond Innovations Inc., No. 6:08-CV-
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`325, 2010 WL 3238312, at *7 (E.D. Tex. Aug. 12, 2010) (finding litigation misconduct where
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`Defendants behaved inappropriately during depositions, such as “repeatedly interrupt[ing]
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`testimony by making improper objections that were contrary to the Local Rules.”).
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`2.
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`DSC Withheld Key Documents.
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`The Court is familiar with DSC’s document production transgressions. DSC violated this
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`Court’s standing order to produce relevant documents during discovery and falsely certified to
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`Seagen and the Court that it had complied with its discovery obligations. It did so despite
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`knowing that it had withheld evidence of its scientists’ deliberate copying of Seagen information
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`in developing Enhertu. (Dkt. 267.)
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`Seagen waited months for DSC to produce relevant development documents. After
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`sending DSC multiple requests to no avail, Seagen filed its first motion to compel in April 2021.
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`(Dkt. 79.) Seagen withdrew this motion based on DSC’s representation that it would produce all
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`relevant research and development documents. (Dkt. 92.) DSC failed to do so. Seagen renewed
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`its motion to compel, but withdrew that second motion after DSC made a false written
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`certification to Seagen and the Court that it had completed its search for and production of all
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`relevant and responsive documents. (Dkt. 225.) Upon deposing Dr. Morita and learning of
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`crucial unproduced lab notebooks, Seagen had to file another motion to compel. When finally
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`produced, the lab notebooks revealed that DSC scientists deliberately copied Seagen information
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`in developing Enhertu. (Dkt. 380 at 90:11–91:03, 168:04–169:23. See also PX-0724; PX-0230.)
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`The Court’s award of sanctions against DSC for this misconduct does not moot its
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`relevance to an exceptional case finding. (Dkt. 347 at 2–3.) DSC’s lab notebook obstruction
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`exemplifies DSC’s litigation misconduct. Accordingly, it remains an important data point for the
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`Court’s “totality of the circumstances” exceptionality analysis. See, e.g., ReedHycalog UK, Ltd.,
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`2010 WL 3238312, at *7 (granting attorney fees because “[t]he Court is concerned by the
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`repeated instances of litigation misconduct committed by [Defendant], particularly its attempt to
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`conceal relevant and discoverable but damaging documents.”); z4 Techs., Inc. v. Microsoft
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`Corp., No. 6:06-CV-142, 2006 WL 2401099, at *24 (E.D. Tex. Aug. 18, 2006) (granting
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`attorney fees in part because defendants withheld key evidence).
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`3.
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`DSC’s Further Deposition Obstruction.
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`Seeking to discover the truth about Enhertu’s development, Seagen sought the deposition
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`of Dr. Morita, which the Court granted. (Dkt. 230.) Through that deposition, Seagen obtained
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`the inculpatory evidence that DSC had prepared its 30(b)(6) witnesses to hide: Dr. Morita and
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`Dr. Miyazaki’s roles in the development of Enhertu and lab notebooks showing their work. In
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`light of the latter revelation, the Court granted Seagen a second deposition of Dr. Morita. (Dkt.
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`251 at 1.) Astoundingly, DSC counsel again made numerous improper speaking objections and
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`gave inappropriate instructions not to answer. (Ex. 5, Morita Dep. Tr. at 188:22–189:20,
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`189:23–190:14, 190:16–191:21, 191:25–196:08, 196:23–197:10, 197:22–200:07, 212:22–
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`215:24, 243:21–245:22.) When Seagen attempted to learn when Dr. Morita first told DSC’s
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`counsel about the existence of the lab notebooks or when Dr. Morita first reviewed the notebooks
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`in connection with the Seagen dispute, DSC’s counsel repeatedly instructed him not to answer:2
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`Questioning Attorney: Dr. Morita when did you first disclose the existence of your
`laboratory notebooks to counsel for Daiichi Sankyo Company Limited?
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`DSC’s Counsel: Yes, Counselor, I’m going to still object to that line of question
`because of the assumptions that are loaded into the question thereby it would go to
`attorney-client privilege, as well as will go beyond the scope of the deposition. So I’m
`going to instruct Dr. Morita not to answer that question.
`
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`2 The questions called for foundational, non-privileged information. See, e.g., In re Norplant Contraceptive Prods.
`Liab. Litig., No. MDL 1038, 1996 WL 42053, at *3 (E.D. Tex. Jan. 19, 1996) (“When a privilege is claimed, the
`witness should nevertheless answer questions relevant to the existent, extent, or waiver of the privilege, such as the
`date of a communication, who made the statement, to whom and in whose presence the statement was made, and the
`identity of other persons to whom the contents of the statement have been disclosed.”); see also Motorola Sols., Inc.
`v. Hytera Commc'ns Corp., No. 17 C 1973, 2019 WL 2774126, at *2 (N.D. Ill. July 2, 2019) (“Courts have
`consistently held that the facts surrounding attorney-client communications, including the fact that they occurred,
`their dates, topics and subject matter are discoverable and not privileged.”).
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`(Morita Dep. Tr. at 191:09–18.) Similarly:
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`Questioning Attorney: Dr. Morita, when did you first disclose to counsel for Daiichi
`Sankyo Company Limited that you had relied on the laboratory notebooks of Dr.
`Miyazaki and Dr. Kasuya in performing the first conjugation of the linker – drug linker
`that’s in DS-8201 to trastuzumab?
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`DSC’s Counsel: Objection, form. Objection as to privilege and Dr. Morita has already
`stated to this in his deposition in November and December. So, Dr. Morita, I’m going to
`instruct you not to answer the question. Dr. Morita, I’m going to instruct you not to
`answer the question. And, Counselor, as I mentioned earlier, this is something that Dr.
`Morita has stated in his deposition back in November and December. So Dr. Morita, I’m
`going to instruct you not to answer the question.
`
`Questioning Attorney: I’m a little bit confused, Counselor. I actually don’t think he
`told us when this was first disclosed in his deposition in November and December. And
`if it is something that he testified to, what’s your basis to assert privilege now and instruct
`him not to answer?
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`DSC’s Counsel: So Dr. Morita, I’m going to object on the basis of privilege and also
`we’ll just let you know that as to the facts that could potentially be disclosed in
`connection with your question, as to the