`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 13-2046-GMS
`
`C.A. No. 13-1738-GMS
`C.A. No. 14-1042-GMS
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`C.A. No. 13-2080-GMS
`C.A. No. 14-1237-GMS
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`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`HETERO LABS LTD. and HETERO USA
`INC.,
`
`
`Defendants.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`v.
`EAGLE PHARMACEUTICALS, INC.,
`
`
`Defendant.
`
`
`
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`AGILA SPECIALTIES INC. F/K/A
`STRIDES, INC. and ONCO THERAPIES
`LIMITED,
`
`
`Defendants.
`
`
`ACTIVE/80449001.1
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`1
`
`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 2 of 12 PageID #: 128
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`
`C.A. No. 13-2081-GMS
`C.A. No. 14-590-GMS
`C.A. No. 14-1238-GMS
`
`C.A. No. 13-2082-GMS
`C.A. No. 14-0334-GMS
`C.A. No. 14-1241-GMS
`
`C.A. No. 13-2093-GMS
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`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`INNOPHARMA, INC.,
`
`
`Defendant.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`DR. REDDY’S LABORATORIES, LTD.
`and DR. REDDY’S LABORATORIES,
`INC.,
`
`
`Defendants.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`GLENMARK PHARMACEUTICALS LTD.,
`GLENMARK GENERICS LTD.,
`GLENMARK GENERICS S.A., and
`GLENMARK GENERICS INC., USA,
`
`
`Defendants.
`
`
`ACTIVE/80449001.1
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`2
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`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 3 of 12 PageID #: 129
`
`
`C.A. No. 13-2094-GMS
`C.A. No. 14-1242-GMS
`
`C.A. No. 13-2095-GMS
`
`C.A. No. 13-2096-GMS
`C.A. No. 14-0333-GMS
`C.A. No. 14-1243-GMS
`
`C.A. No. 13-2104-GMS
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`3
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`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`HOSPIRA INC.,
`
`
`Defendant.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`ACCORD HEALTHCARE, INC. and
`INTAS PHARMACEUTICALS LTD.,
`
`
`Defendants.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`SUN PHARMA GLOBAL FZE and SUN
`PHARMACEUTICAL INDUSTRIES LTD.,
`
`
`Defendants.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`SANDOZ INC.,
`
`
`Defendant.
`
`
`
`
`ACTIVE/80449001.1
`
`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 4 of 12 PageID #: 130
`
`
`C.A. No. 14-0122-GMS
`
`C.A. No. 14-335-GMS
`
`C.A. No. 14-568-GMS
`
`C.A. No. 14-671-GMS
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`4
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`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`ACTAVIS LLC, F/K/A ACTAVIS INC.,
`
`
`Defendant.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`EMCURE PHARMACEUTICALS LTD. and
`EMCURE PHARMACEUTICALS USA, INC.,
`
`
`Defendants.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`v.
`
`UMAN PHARMA, INC.
`
`
`Defendant.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`v.
`
`BRECKENRIDGE PHARMACEUTICAL,
`INC. and NATCO PHARMA LTD.,
`
`
`Defendants.
`
`
`
`
`ACTIVE/80449001.1
`
`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 5 of 12 PageID #: 131
`
`
`C.A. No. 14-1045-GMS
`
`C.A. No. 14-1116-GMS
`
`C.A. No. 14-1332-GMS
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`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`v.
`
`BEN VENUE LABORATORIES, INC.,
`formerly d/b/a BEDFORD LABORATORIES,
`HIKMA PHARMACEUTICALS PLC, and
`WEST-WARD PHARMACEUTICAL CORP.,
`
`
`Defendants.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`v.
`
`SAGENT PHARMACEUTICALS, INC.,
`
`
`Defendant.
`
`
`
`CEPHALON, INC.,
`
`
`Plaintiff,
`
`
`v.
`
`WOCKHARDT BIO LTD., WOCKHARDT
`LTD., and WOCKHARDT USA, LLC,
`
`
`Defendants.
`
`
`
`
`[PROPOSED] SCHEDULING ORDER
`
`This ______ day of _______________ 20___, the Court having conducted a Rule 16
`
`Scheduling Conference pursuant to Local Rule 16.2(b) on October 30, 2014, and the parties
`
`having determined after discussion that the matter cannot be resolved at this juncture by
`
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`ACTIVE/80449001.1
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`5
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`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 6 of 12 PageID #: 132
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`
`settlement, voluntary mediation or binding arbitration;
`
`IT IS ORDERED that:
`
`1.
`
`Consolidation. Civil Action Nos. 13-1738-GMS, 13-2046-GMS, 13-2080-GMS,
`
`13-2081-GMS, 13-2082-GMS, 13-2093-GMS, 13-2094-GMS, 13-2095-GMS, 13-2096-GMS,
`
`13-2104-GMS, 14-0122-GMS, 14-0333-GMS, 14-0334-GMS, 14-0335-GMS, 14-0568-GMS,
`
`14-0590-GMS, 14-1042-GMS, 14-1045-GMS, 14-1237-GMS, 14-1238-GMS, 14-1239-GMS,
`
`14-1241-GMS, 14-1242-GMS, 14-1243-GMS, and 14-1332-GMS are consolidated. All filings
`
`in those actions shall be made only in Civil Action No. 13-2046-GMS, and the case caption shall
`
`be as follows:
`
`C.A. No. 13-2046-GMS (consolidated)
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`))))))))))
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`IN RE BENDAMUSTINE CONSOLIDATED
`CASES
`
`
`
`2.
`
`Rule 26(a) and Other Initial Disclosures. Unless otherwise agreed to by the
`
`parties, they shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)
`
`and on or before November 6, 2014.
`
`3.
`
`Joinder of other Parties and Amendment of Pleadings. Unless otherwise
`
`agreed to by the parties, all motions to join other parties and amend the pleadings shall be filed
`
`on or before February 16, 2015.
`
`4.
`
`Markman Claim Construction Hearing. A Markman claim construction
`
`hearing shall be held on March 4, 2015at 9:30 a.m. The Markman hearing is scheduled for a
`
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`ACTIVE/80449001.1
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`6
`
`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 7 of 12 PageID #: 133
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`total of 7 hours with each side having 3.5 hours, unless the parties later agree otherwise. On or
`
`before November 6, 2014, the parties shall meet and confer regarding narrowing and reducing
`
`the number of claim construction issues. On or before November 21, 2014, the parties shall
`
`submit a Final Joint Claim Chart which shall include citations to intrinsic evidence. The plaintiff
`
`shall submit to the court, a Joint Appendix of Intrinsic Evidence (the “Joint Appendix”)
`
`containing all intrinsic evidence relied upon in the claim construction briefing. A sample table of
`
`contents of the Joint Appendix can be located on this court’s website at www.ded.uscourts.gov.
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`The Joint Appendix shall be filed on the same day as the answering claim construction briefs.
`
`The parties shall file opening claim construction briefs on December 19, 2014, and answering
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`claim construction briefs on January 16, 2015. Each side shall have a maximum of 50 pages per
`
`brief, and briefing otherwise will be presented pursuant to the Court’s Local Rules. Any
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`Defendant may further seek leave of court to file short concise supplemental briefing on term(s)
`
`which that Defendant cannot join with the consolidated briefing, and should leave be granted,
`
`Cephalon may file supplemental briefing of equal length.
`
`5.
`
`Discovery. All fact discovery in this case shall be initiated so that it will be
`
`completed on or before April 17, 2015. Opening expert reports on issues on which a party bears
`
`the burden of proof shall be served on or before June 19, 2015. Rebuttal expert reports shall be
`
`served on or before July 17, 2015. Reply expert reports only as to objective indicia of
`
`nonobviousness, if raised, shall be served on or before August 7, 2015. A status teleconference
`
`is set for July 27, 2015 at 1:00 p.m. regarding expert depositions, if necessary. The parties shall
`
`file a joint status letter with the court one week prior to the teleconference, on July 23, 2015,
`
`explaining the issues that need to be discussed. Expert Discovery in this case shall be initiated so
`
`that it will be completed on or before September 25, 2015.
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`ACTIVE/80449001.1
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`7
`
`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 8 of 12 PageID #: 134
`
`
`a.
`
`Discovery and Scheduling Matters. Should counsel find they are unable
`
`to resolve a discovery1 or scheduling matter, the party seeking the relief shall contact chambers
`
`at (302) 573-6470 to schedule a telephone conference. Not less than forty-eight hours prior to
`
`the teleconference, the parties shall file with the court, via electronic means (CM/ECF), a Joint
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`Letter Agenda, which is non-argumentative, not to exceed two (2) pages outlining the issue(s)
`
`in dispute. A sample letter can be located on this court’s website at www.ded.uscourts.gov.
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`After the parties have had six (6) discovery teleconferences, they will be required to file a joint
`
`letter showing why the court should permit a seventh discovery teleconference. Should the court
`
`find further briefing necessary upon conclusion of the telephone conference, unless otherwise
`
`directed, the party seeking relief shall file with the court a TWO PAGE LETTER, exclusive of
`
`exhibits, describing the issues in contention. The responding party shall file within five (5) days
`
`from the date of service of the opening letter an answering letter of no more than TWO PAGES.
`
`The party seeking relief may then file a reply letter of no more than TWO PAGES within three
`
`(3) days from the date of service of the answering letter.
`
`b.
`
`Discovery Limitations. The parties agree to adhere to the limitations on
`
`discovery set forth in the Federal Rules of Civil Procedure, the Local Rules, and Paragraph 4(e)
`
`of the Court’s Default Discovery Standard, except as further ordered by the Court, and except
`
`that:
`
`i.
`
`Requests for Admission: Cephalon shall be limited to fifty (50)
`
`requests for each defendant group,2 except for the purpose of
`
`
`1 Unless the court otherwise orders, should counsel be unable to agree on the discovery of paper
`and electronic documents, the court’s “Default Standard for Discovery, Including Discovery of
`Electronically Stored Information” (“ESI”) shall govern.
`2 A “defendant group” consists of (a) a group of defendants in this case who have a common
`parent company, including such parent company; (b) a single defendant that does not share a
`
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`ACTIVE/80449001.1
`
`8
`
`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 9 of 12 PageID #: 135
`
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`authenticity. Each defendant group shall be limited to fifty (50)
`
`requests for admission, except for the purpose of authenticity.
`
`ii. Interrogatories: Cephalon shall be permitted to serve twenty-five
`
`(25) interrogatories, including distinct and separate subparts, per each
`
`defendant group. Each defendant group shall be permitted to serve
`
`fifteen (15) interrogatories, including distinct and separate subparts, on
`
`Cephalon. Defendants collectively shall be permitted to serve twenty-
`
`five (25) common interrogatories, including distinct and separate
`
`subparts.
`
`iii. Fact Depositions: Cephalon shall be permitted five (5) depositions of
`
`each defendant group and three (3) third-party depositions per each
`
`defendant group. Cephalon shall be permitted a pool of twenty-five
`
`(25) additional fact depositions to use as it sees fit, except that
`
`Cephalon shall not take more than eight (8) fact depositions of any one
`
`defendant group. Those eight (8) fact depositions do not include third-
`
`party depositions.
`
`Each defendant group shall be permitted a maximum of ten
`
`(10) depositions of Cephalon and a maximum of ten (10) third party
`
`depositions, provided, however, that Defendants shall at one time
`
`collectively take the deposition of an individual or 30(b)(6) issue-
`
`designee that is common to those Defendants. The parties are
`
`continuing to negotiate additional limitations on fact depositions, and
`
`common parent with any other defendant; or (c) a group of defendants in this case who have
`acted in concert to file with FDA either an NDA or ANDA.
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`ACTIVE/80449001.1
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`9
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`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 10 of 12 PageID #: 136
`
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`will submit an amendment to this section of the Scheduling Order on
`
`or before December 1, 2014.
`
`iv. Third-Party Subpoenas: Any party which serves a subpoena upon a
`
`third party will simultaneously serve a copy of such subpoena upon
`
`every other party. Moreover, any party that receives documents from
`
`a third party pursuant to a subpoena will reproduce those documents to
`
`the other parties within ten (10) days. Where reproduction of
`
`documents within the above time frame is not possible, the party that
`
`received the documents will provide immediate notice to the other
`
`parties and the parties, on a case-by-case basis, will resolve the issue.
`
`v. Expert Depositions: The parties agree that expert depositions will not
`
`count towards the fact deposition limits defined above by each
`
`defendant group. The parties shall meet and confer to set discovery
`
`limitations on expert depositions during the period between when
`
`opening expert reports are served and rebuttal expert reports are due.
`
`6.
`
`Confidential Information and Papers filed under Seal. Should counsel find it
`
`will be necessary to apply to the court for a protective order specifying terms and conditions for
`
`the disclosure of confidential information, they should confer and attempt to reach an agreement
`
`on a proposed form of order and submit it to the court within ten days from the date of this order.
`
`When filing papers under seal, counsel should deliver to the Clerk an original and two copies of
`
`the papers.
`
`7.
`
`Settlement Conference. Pursuant to 28 U.S.C. § 636, this matter is referred to
`
`the United States Magistrate Judge for the purpose of exploring the possibility of a settlement.
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`ACTIVE/80449001.1
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`10
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`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 11 of 12 PageID #: 137
`
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`The parties shall wait to be contacted by the assigned United States Magistrate Judge.
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`8.
`
`Applications by Motion. Except as provided in this Scheduling Order or for
`
`matters relating to scheduling, any application to the Court shall be by written motion filed, via
`
`electronic means (CM/ECF). Unless otherwise requested by the Court, counsel shall not deliver
`
`copies of papers or correspondence to Chambers. Any non-dispositive motion should contain the
`
`statement required by Local Rule 7.1.1.
`
`9.
`
`Oral Argument. If the Court believes that oral argument is necessary, the Court
`
`will schedule a hearing Pursuant to District of Delaware Local Rule 7.1.4.
`
`10.
`
`Pretrial Conference. On November 9, 2015, beginning at 9:30 a.m., the Court
`
`will hold a Pretrial Conference in Chambers with counsel. Unless otherwise ordered by the
`
`Court, the parties should assume that filing the Joint Pretrial Order satisfies the pretrial
`
`disclosure requirement in Federal Rule of Civil Procedure 26(a)(3). A sample form of Pretrial
`
`Order can be located on this court’s website at www.ded.uscourts.gov. Thirty (30) days before
`
`the Joint Proposed Pretrial Order is due, Plaintiff’s counsel shall forward to defendant’s counsel
`
`a draft of the pretrial order containing the information Plaintiff proposes to include in the draft.
`
`Defendant’s counsel shall, in turn, provide to Plaintiff’s counsel any comments on the Plaintiff’s
`
`draft, as well as the information defendant proposes to include in the proposed pretrial order.
`
`Motions in limine3: NO MOTIONS IN LIMINE SHALL BE FILED; instead, the parties shall
`
`be prepared to address their evidentiary issues at the Pretrial Conference and during trial (before
`
`and after the trial day). The parties shall file with the court the joint Proposed Final Pretrial
`
`Order in accordance with the terms and with the information required by the form of Final
`
`Pretrial Order, which can be located on this court’s website at www.ded.uscourts.gov on or
`
`3The parties should simply list, in an Exhibit to be attached to the Pretrial order, the issues under
`a heading such as “Plaintiff’s [name of party] List of Evidentiary Issues It Intends To Raise.”
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`ACTIVE/80449001.1
`
`11
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`
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`Case 1:14-cv-01239-GMS Document 12 Filed 11/17/14 Page 12 of 12 PageID #: 138
`
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`before October 9, 2015.
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`11.
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`Trial. This matter is scheduled for a 10-day (jury or bench) bench trial beginning
`
`at 10:00 a.m. on November 30, 2015.
`
`12.
`
`Scheduling. The parties shall contact chambers, at (302) 573-6470, only in
`
`situations where scheduling relief is sought, and only then when ALL participating counsel is on
`
`the line for purposes of selecting a new date.
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`
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`
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`UNITED STATES DISTRICT JUDGE
`
`
`
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`ACTIVE/80449001.1
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`12