`Case 1:18-cv-00924-CFC Document 345 Filed 08/28/19 Page 1 of 4 PageID #: 26390
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`GENENTECH, INC. and CITY OF
`HOPE,
`
`Plaintzfls',
`
`Civ. No. 17—1407- CFC
`
`V.
`
`AMGEN INC.,
`
`Defendant.
`
`.
`
`GENENTECH, INC. and CITY OF
`
`HOPE,
`
`V.
`
`Plaintiffis‘,
`
`AMGEN INC.,
`
`Defendant.
`
`Civ. No. 18-924—CFC
`
`MEMORANDUM ORDER
`
`Currently pending before the Court are Amgen’s identical motions for
`
`reargument. C.A. 17—1407 at D.I. 423; CA. 18-924 at D.I. 266.
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`1. Background. Genentech has asserted claims of willful patent
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`infringement based on Amgen’s biosimilar drug products for Avastin and
`
`
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`Case 1:18-cv-00924-CFC Document 345 Filed 08/28/19 Page 2 of 4 PageID #: 26391
`Case 1:18-cv-00924-CFC Document 345 Filed 08/28/19 Page 2 of 4 PageID #: 26391
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`Herceptin.I Amgen has responded with an advice-of-counsel defense. The
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`assertion of that defense, with some exceptions, waives attorney-client privilege
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`over all communications “relating to the same subject matter.”2 See In re EchoStar
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`Commc ’ns Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006) (quoting Fort James Corp.
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`v. Solo Cup Co., 412 F3d 1340, 1349 (Fed. Cir. 2005)).
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`2. Based on Amgen’s advice-of-counsel defense, Genentech moved, on
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`June 13, 2019, to compel discovery of privileged communications that pre-date
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`March 2019 and/or involve in-house counsel. C.A. 17-1407 at D.I. 395; CA 18-
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`924 at D1. 254. On June 18, 2019, I held a discovery conference and, on June 20,
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`2019, entered an order granting Genentech’s motions to compel for the reasons
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`stated at the discovery conference, except I denied the motions to the extent they
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`sought communications with “outside trial counsel.” C.A. 17-1407 at D.I. 407;
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`CA. 18-924 at D.I. 259.
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`I also ordered Amgen to produce the relevant documents
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`(hereinafter, the “Privileged Documents”) no later than July 2, 2019. CA. 17-1407
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`at D.I. 407; CA. 18-924 at D.I. 259.
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`3. Amgen has not yet produced the Privileged Documents. Instead, on June
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`28, 2019, Amgen filed a motion for reargument pursuant to D. Del. LR 7.1.5. CA.
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`1 The biosimilar for Avastin is at issue in CA. 17-1407, and the biosimilar for
`Herceptin is at issue in CA. 18-924.
`2 One recognized exception is communications with trial counsel. See In re
`Seagate Tech, LLC, 497 F.3d 1360, 1373 (Fed. Cir. 2007).
`2
`
`
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`Case 1:18-cv-00924-CFC Document 345 Filed 08/28/19 Page 3 of 4 PageID #: 26392
`Case 1:18-cv-00924-CFC Document 345 Filed 08/28/19 Page 3 of 4 PageID #: 26392
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`17-1407 at D.I. 423; CA. 18-924 at D.I. 266.
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`4. Standard. A motion for reargument is the “functional equivalent” of a
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`motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). Jones v.
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`Pittsburgh Nat ’1 Corn, 899 F.2d 1350, 1352 (3d Cir. 1990). A court should
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`exercise its discretion to alter or amend its judgment only if the movant
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`demonstrates one of the following: (1) a change in the controlling law; (2) a need
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`to correct a clear error of law or fact or to prevent manifest injustice; or (3)
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`availability of new evidence not available when the judgment was granted. Max’s
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`Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
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`5. Discussion. Amgen argues that reargument is necessary to prevent
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`manifest injustice, because I erred in applying the law to the facts of this case. D.I.
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`423 at 3. The errors Amgen raises generally repeat the same points Amgen
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`advocated at the discovery conference. Since I already fully considered and
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`addressed these arguments, they do not provide grounds to grant Amgen’s motions.
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`See Butamax Advanced Biofuels LLC v. Gevo Inc., 2015 WL 4919975, at *1 (D.
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`Del. Aug. 18, 2015) (stating that a motion for reargument is “not properly
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`grounded on a request that a court rethink a decision already made”).
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`6. At the time the motions for reargument were filed, I recognized that I
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`may have improvidently issued my rulings, because willfulness would not be an
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`issue unless and until Amgen launched a biosimilar drug product. But before I
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`3
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`
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`Case 1:18-cv-00924-CFC Document 345 Filed 08/28/19 Page 4 of 4 PageID #: 26393
`Case 1:18-cv-00924-CFC Document 345 Filed 08/28/19 Page 4 of 4 PageID #: 26393
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`could issue an order granting Amgen’s motion, Amgen launched both of its
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`biosimilar drug products. Based on this change in circumstances, I find no basis to
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`grant Amgen’s motions.
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`7. On August 20, 2019, Amgen represented to the Court that, if the Court
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`were to deny Amgen’s motions for reargument, Amgen would be prepared to
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`produce the Privileged Documents “within a few days.” C.A. 17-1407, D.I. 481-1
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`at 3.
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`NOW THEREFORE, it is hereby ORDERED that:
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`1. Amgen’s Motions for Reargument (C.A. 17-1407 at D1. 423; CA. 18-
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`924 at D.I. 266) are DENIED;
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`2. Amgen shall produce the Privileged Documents no later than September
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`4, 2019.
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`Dated: August 2322019
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`UNITED ST TES DIST CT JUDGE
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`2
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`1 2: éi-
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`g
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