Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 1 of 31 PageID #: 1068
`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 1 of 31 PageID #: 1068
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`EXHIBIT B
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`EXHIBIT B
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 2 of 31 PageID #: 1069
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`BRISTOL-MYERS SQUIBB COMPANY and
`PFIZER INC.,
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`
`
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`v.
`MYLAN PHARMACEUTICALS INC.,
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`
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`Defendant.
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`Plaintiffs,
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`
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`C.A. No. 17-379-LPS
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`MYLAN PHARMACEUTICAL INC.’S RESPONSES AND OBJECTIONS TO
`PLAINTIFFS’ FIRST SET OF VENUE-RELATED REQUESTS FOR PRODUCTION OF
`DOCUMENTS AND THINGS TO DEFENDANT MYLAN PHARMACEUTICALS INC.
`
`Pursuant to Rules 26 and 30 of Federal Rules of Civil Procedure and D Del. LR 26.1,
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`
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`Defendant Mylan Pharmaceuticals Inc. (“MPI”) hereby serves its Responses and Objections to
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`Plaintiffs’ First Set of Venue-Related Requests for Production of Documents and Things to
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`Defendant Mylan Pharmaceuticals Inc. (the “Requests”) served by Plaintiffs Bristol-Myers
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`Squibb Company and Pfizer Inc. (collectively, “Plaintiffs”). MPI reserves the right to
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`supplement and/or amend its Responses and Objections as necessary or appropriate, including as
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`provided for under Federal Rule of Civil Procedure 26(e) or in accordance with any Court Order.
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`
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`Nothing herein is intended, or should be deemed, to waive any argument MPI has made
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`in its Motion to Dismiss for Improper Venue (D.I. 14-16, 25-26), including that discovery related
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`to MPI’s Motion to Dismiss is improper.
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`GENERAL OBJECTIONS
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`MPI incorporates by reference, to the extent applicable, its General and Specific
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`Objections set forth in response to Plaintiffs’ First Set of Venue-Related Interrogatories to
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`Defendant Mylan Pharmaceuticals Inc. and Plaintiffs’ Notice of Deposition Pursuant to Fed. R.
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`Civ. P. 30(b)(6) to Defendant Mylan Pharmaceuticals Inc. Regarding Venue-Related Discovery,
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`

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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 3 of 31 PageID #: 1070
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`which are served concurrently herewith. In addition, the following General Objections are
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`incorporated by reference in each of MPI’s specific Responses to Plaintiffs’ Requests as if fully
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`set forth herein:
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`1.
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`MPI objects to the definitions of “MPI,” “you,” “your,” and “yours” (a) to the
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`extent that the definitions cause any Request to exceed the permissible scope of discovery under
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`the Federal Rules of Civil Procedure; (b) to the extent they include any corporation, business,
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`entity, or individuals other than MPI or its employees; (c) as overly broad, rendering the
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`Requests unduly burdensome to the extent they seeks information that is neither relevant to this
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`lawsuit nor proportional
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`to
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`the needs of
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`the case; and (d) as
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`including “agents,”
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`“representatives,” and “attorneys” to the extent the definitions cause a Request to call for
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`information subject to the attorney-client privilege, work product doctrine, joint defense
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`privilege, or any other privilege, protection, or immunity.
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`2.
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`The discovery sought is improper, irrelevant, and disproportionate to the needs of
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`the case pursuant to In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). Under Cray, venue is
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`proper here only if: (1) there is “a physical place in the district;” (2) that place is “a regular and
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`established place of business;” and (3) that “place” is the defendant’s. See id. at 1360-64. The
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`undisputed facts already establish that there is no physical, geographical location fixed
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`permanently in Delaware from where MPI conducts its business.
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`3.
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`MPI objects to the definitions of “MPI Affiliate” and “MPI Delaware Affiliate” to
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`the extent those terms define, describe, or include any corporate entity, formal or informal, other
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`than MPI. Non-party subsidiaries are not relevant to the venue analysis. See, e.g., In re Cray
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`Inc., 871 F.3d 1355, 1363-64 (Fed. Cir. 2017); Papercraft Corp. v. Proctor & Gamble Co., 439
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`F. Supp. 1060, 1062 (W.D. Pa. 1977) (“[T]his court cannot subject the parent to venue within
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`2
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`

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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 4 of 31 PageID #: 1071
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`this district solely because the parent corporation owns a profitable subsidiary which is doing
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`business here.”); Am. Standard, Inc. v. Pfizer, Inc., No. 83-834-WKS, 1984 WL 63632, at *1 (D.
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`Del. Apr. 26, 1984) (“I cannot, in the absence of some justifying evidence, ignore the separate
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`corporate identities of these two corporations and attribute the allegedly infringing acts of [the
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`subsidiary] to Pfizer for venue purposes.”).
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`4.
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`MPI objects to the definitions of “Communication,” “Relate to,” “relates to,”
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`“refers to,” “relating to,” “Describe,” “state,” “Identify,” and “Basis” as vague, overly broad and
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`unduly burdensome and an attempt to impose burdens on MPI greater than or inconsistent with
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`those imposed by the Federal Rules of Civil Procedure or the Local Rules for the United States
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`District Court for the District of Delaware.
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`5.
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`MPI objects to Plaintiffs’ definition that the “use of a verb in any tense shall be
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`construed as the use of the verb in all other tenses” as vague, overly broad and unduly
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`burdensome and an attempt to impose burdens on MPI greater than or inconsistent with those
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`imposed by the Federal Rules of Civil Procedure or the Local Rules for the United States District
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`Court for the District of Delaware. For example, and without limitation, this definition provides
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`an unbounded irrelevant time periods.
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`6.
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`These objections are made without waiver of and with preservation of:
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`a.
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`all questions as to competency, relevancy, materiality, privilege and
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`admissibility of any information, documents and things, and the subject
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`matter thereof, as evidence for any purpose and in any further proceeding
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`in this action and in any other action;
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`3
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 5 of 31 PageID #: 1072
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`b.
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`the right to object to the use of any such information, documents or things,
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`or the subject matter thereof, on any ground in any further proceeding in
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`this action and any other action;
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`c.
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`the right to object on any ground at any time to a demand or topic for
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`further information, documents or things to these or any other deposition
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`topics, requests for production or other discovery proceedings involving or
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`related to the subject matter of the discovery to which these responses are
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`provided; and
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`d.
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`the right at any time to review, revise, correct, add to, supplement or
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`clarify any of the responses contained herein or the information,
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`documents and things provided herewith.
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`7.
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`MPI objects to the Requests as seeking premature discovery to the extent the
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`Court has not fully addressed MPI’s and Plaintiffs’ joint initiation of the Discovery Matters
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`Procedure with Judge Stark in connection with the Federal Circuit’s precedential opinion, In re
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`Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017), and responds only and to the extent required in view
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`of the Federal Rules of Civil Procedure and/or the Local Rules for the United States District
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`Court for the District of Delaware. In responding, MPI does not waive and will not waive its
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`objections to venue, its arguments that this Court lacks venue, or its motion seeking dismissal for
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`venue.
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`8.
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`MPI objects to the Requests to the extent they are not reasonably calculated to
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`lead to the discovery of admissible evidence or relevant to any claims or defenses of any party to
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`this litigation. By responding to the Requests, MPI does not concede the relevancy or materiality
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`of any Request, and MPI reserves the right to object to any further discovery on these matters
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`4
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 6 of 31 PageID #: 1073
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`and to the admissibility of the Requests and any answer thereto in any deposition, filing, or
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`proceeding, including, but not limited to, at trial. MPI further objects to the Requests to the
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`extent they are overly broad, unduly burdensome, vague, and/or ambiguous.
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`9.
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`MPI objects to the Requests to the extent Plaintiffs seek documents and/or things
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`that are not in proportion to the needs of the case, considering the importance of the issues at
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`stake in the action, the amount in controversy, the parties’ relative access to relevant information,
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`the parties’ resources, the importance of the documents and/or things in resolving the issues, and
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`whether the burden or expense of the proposed documents and/or things outweighs its likely
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`benefit.
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`10. MPI objects to the Requests to the extent Plaintiffs seek information subject to the
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`attorney-client privilege, work product doctrine, expert communication privilege, joint defense
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`or common interest privilege, any other applicable privilege or doctrine, or which is otherwise
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`privileged, confidential, or not subject to discovery.
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`11. MPI objects to the Requests to the extent they seek to flip the burden of proving
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`proper venue onto MPI, and purport to require MPI to undertake an exhaustive venue analysis.
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`See Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 322 (3d Cir. 2014) (finding that a party
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`need not be “forced to prove a negative,” because “[t]he law has long recognized that such an
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`evidentiary feat is next to impossible”).
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`12. MPI objects to the Requests to the extent they seek information outside the
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`protections afforded by the Protective Order entered in this case.
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`13. MPI objects to the Requests to the extent they seek to elicit information that is
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`subject to an obligation of confidentiality to a third party that is not adequately provided for in
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`the Protective Order entered in this case.
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`5
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 7 of 31 PageID #: 1074
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`14. MPI objects to the Requests to the extent they seek information, documents, or
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`things not in the possession, custody, or control of MPI and/or are not limited as to time.
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`15. MPI objects to the Requests to the extent that they request any confidential
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`information protected by any law or regulation including but not limited to the Health Insurance
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`Portability and Accountability Act of 1996, Public Law 104-191.
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`16. MPI objects to the Requests as overly broad and unduly burdensome to the extent
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`that they require the production of “any,” “each,” or “all” documents related to a particular topic.
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`17. MPI objects to the term “MPI Product” to the extent it relates to information
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`about any product that is not identified in MPI’s Abbreviated New Drug Application (“ANDA”)
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`No. 210128. See Novartis Pharms. Corp. v. Eon Labs Mfg., 206 F.R.D. 392, 394 (D. Del. 2002)
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`(declining to compel discovery of documents and testimony pertaining to products that were not
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`the subject of the ANDA giving rise to the litigation). MPI objects to the Requests to the extent
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`they seek information related to any product that is not identified in MPI’s ANDA No. 210128.
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`Id.
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`18. MPI objects to the Requests as irrelevant, unduly burdensome, not reasonably
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`calculated to lead to the discovery of admissible evidence, and calculated to harass to the extent
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`they call for documents and information related to a finding of willful infringement as the fact
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`that MPI has filed an ANDA and Paragraph IV certification cannot support a finding of willful
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`infringement as a matter of law. See Glaxo Group, Ltd. v. Apotex, Inc., 376 F.3d 1339, 1350-51
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`(Fed. Cir. 2004) (“We hold that the mere filing of an ANDA cannot constitute an act of willful
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`infringement compensable by attorney’s fees under the Drug Price Competition and Patent
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`Restoration Act of 1984, also known as the Hatch-Waxman Act.”)
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`6
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 8 of 31 PageID #: 1075
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`19. MPI objects to the Requests to the extent they depend for their meaning on terms
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`yet to be construed by the Court. See Lexion Med., LLC v. Northgate Techs., Inc., 641 F.3d
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`1352, 1356 (Fed. Cir. 2011) (“Claim construction is a question of law . . . .”); Tulip Computers
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`Int’l, 210 F.R.D. at 108 (“[D]etermining whether a product or process infringes or whether
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`infringement has occurred involves the requirement of claim construction, which is a legal
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`determination within the province of the court.”).
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`20. MPI objects to the Requests as premature because MPI and Plaintiffs have jointly
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`initiated a Discovery Matters Procedures before Judge Stark in the underlying patent litigation
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`that is relevant to this request.
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`21. MPI objects to any request that seeks information obtainable from some other
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`source that is more convenient, less burdensome, less expensive, or in the public domain. MPI
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`objects that related documents may be derived or ascertained from the following sources, to
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`which Plaintiffs have the same or better access than MPI: (a) persons who are not parties to this
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`action; and (b) documents and things in the possession, custody, and control of Plaintiffs.
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`Information that is equally accessible to Plaintiffs as it is to MPI is beyond the proper scope of
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`discovery.
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`22.
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`These objections apply to all responses below. Insofar as specific objections are
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`repeated in a particular response, they are made because they are believed to be particularly
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`applicable. No waiver of other general objections is intended by the presence of specific
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`objections.
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`RESPONSES TO REQUESTS FOR PRODUCTION
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`
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`Subject to and without waiving any General Objection, MPI responds to the Requests
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`below:
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`7
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 9 of 31 PageID #: 1076
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`REQUEST NO. 1: All documents, testimony, and other evidence on which MPI will seek to
`rely to demonstrate that venue is improper as to MPI in the above-
`captioned civil action.
`
`
`RESPONSE TO REQUEST NO. 1
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`
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`MPI hereby incorporates its General Objections as set forth above. The discovery sought
`
`by this Request is improper, irrelevant, and disproportionate to the needs of the case pursuant to
`
`In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). Under Cray, venue is proper here only if: (1)
`
`there is “a physical place in the district;” (2) that place is “a regular and established place of
`
`business;” and (3) that “place” is the defendant’s. See id. at 1360-64. The undisputed facts
`
`already establish that there is no physical, geographical location fixed permanently in Delaware
`
`from where MPI conducts its business. MPI further objects to this Request as seeking premature
`
`discovery to the extent the Court has not addressed MPI’s and Plaintiffs’ joint initiation of the
`
`Discovery Matters Procedure with Judge Stark in connection with the Federal Circuit’s
`
`precedential opinion, In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). MPI further objects to this
`
`Request as seeking information protected by the attorney-client privilege, the attorney work-
`
`product doctrine, the joint defense privilege, the common interest privilege, and/or any other
`
`applicable doctrine of privilege or immunity. MPI objects to this Request to the extent it is
`
`unbounded with respect to any relevant time period. MPI further objects to this Request as
`
`overly broad, unduly burdensome, not relevant to any party’s claim or defense, not proportional
`
`to the needs of the case, and not reasonably calculated to lead to the discovery of evidence
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`admissible in this case to the extent that the Request seeks (i) information related to “[a]ll
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`documents, testimony, and other evidence on which MPI will seek to rely to demonstrate that
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`venue is improper as to MPI;” (ii) information unrelated to the product at issue in this litigation;
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`and (iii) information relating to entities that are not parties to this litigation. For example, and
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`
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`8
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 10 of 31 PageID #: 1077
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`without limitation, this Request is impossibly overbroad and unduly burdensome as it requires
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`MPI to research, find, and produce “[a]ll documents, testimony, and other evidence on which
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`MPI will seek to rely to demonstrate that venue is improper as to MPI in the above-captioned
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`civil action,” but Plaintiffs may not assert any such underlying facts. MPI further objects to this
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`Request to the extent it seeks information that is not in MPI’s possession, custody or control.
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`Additionally, MPI objects to this Request on the basis that it is part of a “fishing expedition”
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`undertaken by Plaintiffs “based only upon bare allegations under the guise of jurisdictional
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`discovery.” Book v. Mendoza, No. 3:07-CV-1468 (CSH), 2012 WL 201732, at *3 (D. Conn. Jan.
`
`23, 2012) (citing Bacarella Transp. Servs., Inc. v. J.M. Logistics, LLC, 2011 WL 4549400, at *5
`
`(D. Conn. Sept. 29, 2011); Belden Techs., Inc. v. LS Corp., 626 F.Supp.2d 448, 459 (D. Del.
`
`2009)).
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`
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`MPI reserves the right to revise, supplement and modify its responses and objections to
`
`this Request as it deems necessary and as allowed pursuant to Rule 26(e) of the Federal Rules of
`
`Civil Procedure, Delaware Default Discovery Rules and Delaware Local Rules, including
`
`supplementing as appropriate after the Court resolves the pending discovery dispute between the
`
`parties.
`
`REQUEST NO. 2: All contracts, leases, agreements, or communications showing, containing,
`or relating to MPI’s and each MPI Affiliate’s physical presence in
`Delaware, including, but not limited to, interests in, possession, or control
`over real property in Delaware (e.g., ownership, leases, short-term
`occupancy, or any other form of interest in real property), employees
`working in Delaware, inventory located in Delaware, and procurement of
`services performed in Delaware, including, but not limited to, secretarial
`services, professional services, advertising, or marketing.
`
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`RESPONSE TO REQUEST NO. 2
`
`
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`MPI hereby incorporates its General Objections as set forth above. The discovery sought
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`by this Request is improper, irrelevant, and disproportionate to the needs of the case pursuant to
`
`
`
`9
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`

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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 11 of 31 PageID #: 1078
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`In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). Under Cray, venue is proper here only if: (1)
`
`there is “a physical place in the district;” (2) that place is “a regular and established place of
`
`business;” and (3) that “place” is the defendant’s. See id. at 1360-64. The undisputed facts
`
`already establish that there is no physical, geographical location fixed permanently in Delaware
`
`from where MPI conducts its business. MPI further objects to this Request as seeking premature
`
`discovery to the extent the Court has not addressed MPI’s and Plaintiffs’ joint initiation of the
`
`Discovery Matters Procedure with Judge Stark in connection with the Federal Circuit’s
`
`precedential opinion, In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). MPI further objects to this
`
`Request as seeking information protected by the attorney-client privilege, the attorney work-
`
`product doctrine, the joint defense privilege, the common interest privilege, and/or any other
`
`applicable doctrine of privilege or immunity. MPI objects to this Request to the extent it is
`
`unbounded with respect to any relevant time period. MPI objects to the term “MPI Affiliate” to
`
`the extent it includes any corporation, business, entity, or individuals other than MPI or its
`
`employees. MPI further objects to this Request as overly broad, unduly burdensome, not
`
`relevant to any party’s claim or defense, not proportional to the needs of the case, and not
`
`reasonably calculated to lead to the discovery of evidence admissible in this case to the extent
`
`that the Request seeks (i) information related to “[a]ll contracts, leases, agreements, or
`
`communications showing, containing, or relating to MPI’s and each MPI Affiliate’s physical
`
`presence in Delaware, including, but not limited to, interests in, possession, or control over real
`
`property in Delaware (e.g., ownership, leases, short-term occupancy, or any other form of
`
`interest in real property), employees working in Delaware, inventory located in Delaware, and
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`procurement of services performed in Delaware, including, but not limited to, secretarial
`
`services, professional services, advertising, or marketing;” (ii) information unrelated to the
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`
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`10
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`

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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 12 of 31 PageID #: 1079
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`product at issue in this litigation; and (iii) information relating to entities that are not parties to
`
`this litigation. For example, and without limitation, this Request is impossibly overbroad and
`
`unduly burdensome as it requires MPI to research, find, and produce “[a]ll contracts, leases,
`
`agreements, or communications showing, containing, or relating to MPI’s and each MPI
`
`Affiliate’s physical presence in Delaware,” but Plaintiffs may not assert any such underlying
`
`facts, even if they exist. MPI further objects to this Request to the extent it seeks information
`
`that is not in MPI’s possession, custody or control. Additionally, MPI objects to this Request on
`
`the basis that it is part of a “fishing expedition” undertaken by Plaintiffs “based only upon bare
`
`allegations under the guise of jurisdictional discovery.” Book v. Mendoza, No. 3:07-CV-1468
`
`(CSH), 2012 WL 201732, at *3 (D. Conn. Jan. 23, 2012) (citing Bacarella Transp. Servs., Inc. v.
`
`J.M. Logistics, LLC, 2011 WL 4549400, at *5 (D. Conn. Sept. 29, 2011); Belden Techs., Inc. v.
`
`LS Corp., 626 F.Supp.2d 448, 459 (D. Del. 2009)).
`
`
`
`MPI reserves the right to revise, supplement and modify its responses and objections to
`
`this Request as it deems necessary and as allowed pursuant to Rule 26(e) of the Federal Rules of
`
`Civil Procedure, Delaware Default Discovery Rules and Delaware Local Rules, including
`
`supplementing as appropriate after the Court resolves the pending discovery dispute between the
`
`parties.
`
`REQUEST NO. 3: All contracts and communications between MPI and any MPI Affiliate
`related to any MPI Product, property, inventory, employees, or any
`transfer of funds from one entity to another whether or not in exchange for
`goods or services or pursuant to contractual rights or obligations.
`
`
`RESPONSE TO REQUEST NO. 3
`
`
`
`MPI hereby incorporates its General Objections as set forth above. The discovery sought
`
`by this Request is improper, irrelevant, and disproportionate to the needs of the case pursuant to
`
`In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). Under Cray, venue is proper here only if: (1)
`
`
`
`11
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`

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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 13 of 31 PageID #: 1080
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`there is “a physical place in the district;” (2) that place is “a regular and established place of
`
`business;” and (3) that “place” is the defendant’s. See id. at 1360-64. The undisputed facts
`
`already establish that there is no physical, geographical location fixed permanently in Delaware
`
`from where MPI conducts its business. MPI further objects to this Request as seeking premature
`
`discovery to the extent the Court has not addressed MPI’s and Plaintiffs’ joint initiation of the
`
`Discovery Matters Procedure with Judge Stark in connection with the Federal Circuit’s
`
`precedential opinion, In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). MPI further objects to this
`
`Request as seeking information protected by the attorney-client privilege, the attorney work-
`
`product doctrine, the joint defense privilege, the common interest privilege, and/or any other
`
`applicable doctrine of privilege or immunity. MPI objects to this Request to the extent it is
`
`unbounded with respect to any relevant time period. MPI objects to the term “MPI Affiliate” to
`
`the extent it includes any corporation, business, entity, or individuals other than MPI or its
`
`employees. MPI objects to the term “MPI Product” to the extent it relates to information about
`
`any product that is not identified in MPI’s ANDA No. 210128. See Novartis Pharms. Corp. v.
`
`Eon Labs Mfg., 206 F.R.D. 392, 394 (D. Del. 2002) (declining to compel discovery of
`
`documents and testimony pertaining to products that were not the subject of the ANDA giving
`
`rise to the litigation). MPI further objects to this Request as overly broad, unduly burdensome,
`
`not relevant to any party’s claim or defense, not proportional to the needs of the case, and not
`
`reasonably calculated to lead to the discovery of evidence admissible in this case to the extent
`
`that the Request seeks (i) information related to “[a]ll contracts and communications between
`
`MPI and any MPI Affiliate related to any MPI Product, property, inventory, employees, or any
`
`transfer of funds from one entity to another whether or not in exchange for goods or services or
`
`pursuant to contractual rights or obligations;” (ii) information unrelated to the product at issue in
`
`
`
`12
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`

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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 14 of 31 PageID #: 1081
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`this litigation; and (iii) information relating to entities that are not parties to this litigation. For
`
`example, and without limitation, this Request is impossibly overbroad and unduly burdensome as
`
`it requires MPI to research, find, and produce “[a]ll contracts and communications between MPI
`
`and any MPI Affiliate related to any MPI Product, property, inventory, employees, or any
`
`transfer of funds from one entity to another whether or not in exchange for goods or services or
`
`pursuant to contractual rights or obligations,” but Plaintiffs may not assert any such underlying
`
`facts, even if they exist. MPI further objects to this Request to the extent it seeks information
`
`that is not in MPI’s possession, custody or control. Additionally, MPI objects to this Request on
`
`the basis that it is part of a “fishing expedition” undertaken by Plaintiffs “based only upon bare
`
`allegations under the guise of jurisdictional discovery.” Book v. Mendoza, No. 3:07-CV-1468
`
`(CSH), 2012 WL 201732, at *3 (D. Conn. Jan. 23, 2012) (citing Bacarella Transp. Servs., Inc. v.
`
`J.M. Logistics, LLC, 2011 WL 4549400, at *5 (D. Conn. Sept. 29, 2011); Belden Techs., Inc. v.
`
`LS Corp., 626 F.Supp.2d 448, 459 (D. Del. 2009)).
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`
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`MPI reserves the right to revise, supplement and modify its responses and objections to
`
`this Request as it deems necessary and as allowed pursuant to Rule 26(e) of the Federal Rules of
`
`Civil Procedure, Delaware Default Discovery Rules and Delaware Local Rules, including
`
`supplementing as appropriate after the Court resolves the pending discovery dispute between the
`
`parties.
`
`REQUEST NO. 4: All contracts and communications between any MPI Delaware Affiliate
`and any other MPI Affiliate related to any MPI Product, property,
`inventory, employees, or any transfer of funds from one entity to another
`whether or not in exchange for goods or services or pursuant to contractual
`rights or obligations.
`
`
`
`
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`
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`13
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 15 of 31 PageID #: 1082
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`RESPONSE TO REQUEST NO. 4
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`
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`MPI hereby incorporates its General Objections as set forth above. The discovery sought
`
`by this Request is improper, irrelevant, and disproportionate to the needs of the case pursuant to
`
`In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). Under Cray, venue is proper here only if: (1)
`
`there is “a physical place in the district;” (2) that place is “a regular and established place of
`
`business;” and (3) that “place” is the defendant’s. See id. at 1360-64. The undisputed facts
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`already establish that there is no physical, geographical location fixed permanently in Delaware
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`from where MPI conducts its business. MPI further objects to this Request as seeking premature
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`discovery to the extent the Court has not addressed MPI’s and Plaintiffs’ joint initiation of the
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`Discovery Matters Procedure with Judge Stark in connection with the Federal Circuit’s
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`precedential opinion, In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). MPI further objects to this
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`Request as seeking information protected by the attorney-client privilege, the attorney work-
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`product doctrine, the joint defense privilege, the common interest privilege, and/or any other
`
`applicable doctrine of privilege or immunity. MPI objects to this Request to the extent it is
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`unbounded with respect to any relevant time period. MPI objects to the term “MPI Affiliate”
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`and “MPI Delaware Affiliate” to the extent those terms include any corporation, business, entity,
`
`or individuals other than MPI or its employees. MPI objects to the term “MPI Product” to the
`
`extent it relates to information about any product that is not identified in MPI’s ANDA No.
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`210128. See Novartis Pharms. Corp. v. Eon Labs Mfg., 206 F.R.D. 392, 394 (D. Del. 2002)
`
`(declining to compel discovery of documents and testimony pertaining to products that were not
`
`the subject of the ANDA giving rise to the litigation). MPI further objects to this Request as
`
`overly broad, unduly burdensome, not relevant to any party’s claim or defense, not proportional
`
`to the needs of the case, and not reasonably calculated to lead to the discovery of evidence
`
`
`
`14
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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 16 of 31 PageID #: 1083
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`admissible in this case to the extent that the Request seeks (i) information related to “[a]ll
`
`contracts and communications between any MPI Delaware Affiliate and any other MPI Affiliate
`
`related to any MPI Product, property, inventory, employees, or any transfer of funds from one
`
`entity to another whether or not in exchange for goods or services or pursuant to contractual
`
`rights or obligations;” (ii) information unrelated to the product at issue in this litigation; and (iii)
`
`information relating to entities that are not parties to this litigation. For example, and without
`
`limitation, this Request is impossibly overbroad and unduly burdensome as it requires MPI to
`
`research, find, and produce “[a]ll contracts and communications between any MPI Delaware
`
`Affiliate and any other MPI Affiliate related to any MPI Product, property, inventory,
`
`employees, or any transfer of funds from one entity to another whether or not in exchange for
`
`goods or services or pursuant to contractual rights or obligations,” but Plaintiffs may not assert
`
`any such underlying facts, even if they exist. MPI further objects to this Request to the extent it
`
`seeks information that is not in MPI’s possession, custody or control. Additionally, MPI objects
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`to this Request on the basis that it is part of a “fishing expedition” undertaken by Plaintiffs
`
`“based only upon bare allegations under the guise of jurisdictional discovery.” Book v.
`
`Mendoza, No. 3:07-CV-1468 (CSH), 2012 WL 201732, at *3 (D. Conn. Jan. 23, 2012) (citing
`
`Bacarella Transp. Servs., Inc. v. J.M. Logistics, LLC, 2011 WL 4549400, at *5 (D. Conn. Sept.
`
`29, 2011); Belden Techs., Inc. v. LS Corp., 626 F.Supp.2d 448, 459 (D. Del. 2009)).
`
`
`
`MPI reserves the right to revise, supplement and modify its responses and objections to
`
`this Request as it deems necessary and as allowed pursuant to Rule 26(e) of the Federal Rules of
`
`Civil Procedure, Delaware Default Discovery Rules and Delaware Local Rules, including
`
`supplementing as appropriate after the Court resolves the pending discovery dispute between the
`
`parties.
`
`
`
`15
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`

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`Case 1:17-cv-00379-LPS Document 53-2 Filed 11/03/17 Page 17 of 31 PageID #: 1084
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`REQUEST NO. 5: All contracts, leases, agreements, or communications by MPI or any party,
`including any MPI Affiliate, acting on behalf of or for the benefit of MPI,
`related to the procurement, maintenance, or upkeep of any physical space
`in Delaware, including, but not limited to, commercial space, retail space,
`office space, event space (e.g., banquet rooms or hotel trial war rooms),
`visitor office space (e.g., in law firms, hospitals, or universities), and
`lodging (e.g., short-term rentals, hotels, or apartments).
`
`RESPONSE TO REQUEST NO. 5
`
`
`
`MPI hereby incorporates its General Objections as set forth above. The discovery sought
`
`by this Request is improper, irrelevant, and disproportionate to the needs of the case pursuant to
`
`In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). Under Cray, venue is proper here only if: (1)
`
`there is “a physical place in the district;” (2) that place is “a regular and established place of
`
`business;” and (3) that “place” is the defendan