Case 2:20-cv-00337-JRG Document 463 Filed 09/16/22 Page 1 of 5 PageID #: 19692
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:20-CV-00337-JRG
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`SEAGEN INC.,
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`v.
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`Plaintiff,
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`DAIICHI SANKYO CO., LTD.,
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`Defendant,
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`ASTRAZENECA PHARMACEUTICALS LP,
`and ASTRAZENECA UK LTD,
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`Intervenor-Defendants.
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`SEAGEN’S RESPONSE TO DEFENDANTS’ MOTION FOR DEPOSITION
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` SF-4920842
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`Case 2:20-cv-00337-JRG Document 463 Filed 09/16/22 Page 2 of 5 PageID #: 19693
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`I.
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`ARGUMENT
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`Defendants style their motion for a deposition of Seagen’s expert, Ms. Distler, as
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`“opposed,” (Mot. at 1), but that is inaccurate. The parties were, in fact, in the midst of
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`negotiating depositions relating to Seagen’s ongoing royalties motion. In a meet-and-confer on
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`August 26, the parties agreed that, should Defendants proceed with a deposition of Ms. Distler,
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`they would also offer their own expert for deposition. The parties also agreed that, due to the
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`concise nature of Ms. Distler’s declaration, these depositions would require far less than a full
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`day of deposition time. The parties left that discussion with proposals to take back to their
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`respective clients. Defendants’ position was that they should be accorded at least 4 hours with
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`Ms. Distler. Seagen’s position was that something closer to 1 hour would be appropriate.
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`On Monday, August 29, Seagen asked for an update from Defendants, and they offered
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`that the depositions could be 3.5 hours. On August 30, Seagen offered 1.5 hours as a potential
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`compromise. Instead of continuing the discussion—and without confirming Seagen’s opposition
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`or holding a further meet-and-confer as required by the local rules of this Court—Defendants
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`filed their motion seeking 3.5 hours of deposition time with Ms. Distler. What is more, their
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`motion failed to mention the parties’ discussions regarding the deposition of Defendants’ own
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`expert. Had they continued to negotiate, as Seagen was willing to do, the parties might have
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`naturally arrived at a compromise of 2.5 hours of time for the deposition of each side’s expert.
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`Although her schedule is very tight, Seagen has already confirmed that it can make Ms. Distler
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`available remotely on or before September 15 for this amount of time.
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`Defendants have not substantiated why they should receive more than 2.5 hours of
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`deposition time. As they note, Ms. Distler’s declaration is only 15 pages long. (Mot. at 2.)
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`They reference her “31 different exhibits,” but acknowledge that just 12 contain financial and
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`market data. (Id.) What they fail to mention is that these 12 exhibits only update the Enhertu®
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` SF-4920842
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`Case 2:20-cv-00337-JRG Document 463 Filed 09/16/22 Page 3 of 5 PageID #: 19694
`Case 2:20-cv-00337-JRG Document 463 Filed 09/16/22 Page 3 of 5 PagelD #: 19694
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`financial figures and projections on which sherelied earlier in the case to calculate a royalty
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`base. (See Dkt. 443-1.) Defendants had a full opportunity to depose Ms. Distler on her analysis
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`of the royalty base in pre-trial discovery—in a deposition lasting from 9:05 a.m. to 6:43 p.m. on
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`January 7, 2022—anddid not contest her baseat trial. The agreements she analyzes were also
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`the subject of her trial testimony, although her focus was different given the different
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`hypothetical negotiation. Defendants do not explain why these, or any of her other exhibits,
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`require substantial deposition time.
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`At the end of the day, Ms. Distler’s opinionis really quite straightforward. In her
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`declaration, she explains:
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`In the post-verdict hypothetical negotiation, DSC would no longer
`be a willing licensee but an adjudged infringer negotiating with
`Seagen for rights to the ’039 patent. As a result of DSC’s changed
`status, the bargaining position of the parties has changed since the
`pre-verdict hypothetical negotiation. In other words, Seagen
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`would have a stronger bargaining
`position than DSC and would
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`look to
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`as the appropriate benchmark for
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`royalties payable through the remaininglife of the ’039 patent.
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`(Id. § 30.) She then concludes,“the ultimate outcometo the post-verdict hypothetical
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`negotiation would be an ongoing royalty rate of 10% to 12% through the life of the ’039 patent.”
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`Ud.) 2.5 hours is a more than adequate amountof timeto test this opinion.
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`II.
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`CONCLUSION
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`The depositions of the parties’ experts should not be something the parties take to the
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`Court piecemeal. If the Court is inclined to grant Defendants’ motion instead of sending
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`Defendants back for further meet-and-confer, Seagen submits that the order should provide for
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`2.5 hours for the remote deposition of each side’s expert, with Seagen to produce Ms. Distler for
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`deposition on or before September 15, 2022, and Defendants to produce their expert for
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`deposition in the week ending September 30, 2022 (a week before Seagen’s reply is due).
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`SF-4920842
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`Case 2:20-cv-00337-JRG Document 463 Filed 09/16/22 Page 4 of 5 PageID #: 19695
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`Dated: September 2, 2022
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`By: /s/ Michael A. Jacobs
`Michael A. Jacobs
`MJacobs@mofo.com
`Matthew A. Chivvis
`MChivvis@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105
`Telephone: 415.268.7000
`Facsimile: 415.268.7522
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`Bryan Wilson
`BWilson@mofo.com
`MORRISON & FOERSTER LLP
`755 Page Mill Road
`Palo Alto, California 94304-1018
`Telephone: 650.813.5600
`Facsimile: 650.494.0792
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`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Of Counsel:
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`jw@wsfirm.com
`Wesley Hill
`Texas State Bar No. 24032294
`wh@wsfirm.com
`Charles Everingham IV
`Texas State Bar No. 00787447
`ce@wsfirm.com
`Andrea L. Fair
`Texas State Bar No. 24078488
`andrea@wsfirm.com
`WARD, SMITH & HILL, PLLC
`1507 Bill Owens Parkway
`Longview, Texas 75604
`Telephone: 903.757.6400
`Facsimile: 903.757.2323
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`Attorneys for Plaintiff Seagen Inc.
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`Case 2:20-cv-00337-JRG Document 463 Filed 09/16/22 Page 5 of 5 PageID #: 19696
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have
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`consented to electronic services are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on this the 2nd day of September, 2022.
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`/s/ Melissa R. Smith
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