Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 1 of 18 PageID #: 32019
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GENENTECH, INC.,
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`Plaintiff and Counterclaim
`Defendant,
`
`C.A. No. 18-924-CFC
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`PUBLIC VERSION
`
`v.
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`AMGEN INC.,
`
`Defendant and Counterclaim
`Plaintiff.
`
`AMGEN’S ANSWERING BRIEF IN OPPOSITION TO GENENTECH’S
`MOTION FOR SANCTIONS PURSUANT TO
`FEDERAL RULE OF CIVIL PROCEDURE 37(b)
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`

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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 2 of 18 PageID #: 32020
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`Table of Contents
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`Page
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`INTRODUCTION ............................................................................................................. 1
`I.
`BACKGROUND ............................................................................................................... 3
`II.
`LEGAL STANDARD ........................................................................................................ 5
`III.
`IV. ARGUMENT ..................................................................................................................... 5
`A.
`Genentech Failed To Establish That Ms. Kwasigroch Is Subject To The
`Court’s Waiver Order ............................................................................................ 5
`Ms. Kwasigroch’s Mental Impressions Are Not Discoverable Because
`They Are Covered By Trial Counsel Privilege ...................................................... 8
`Genentech’s Proposed Fact Findings Are Incorrect ............................................ 11
`Amgen Would be Unfairly Prejudiced If It Were Compelled To Disclose
`Its Trial Counsel Communications And Trial Counsel Work Product ................ 13
`CONCLUSION ................................................................................................................ 14
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`B.
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`C.
`D.
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`V.
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`i
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 3 of 18 PageID #: 32021
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`Table of Authorities
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`Page(s)
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`Cases
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`Alloc, Inc. v. Pergo, L.L.C.,
`No. 00-C-0999, 2010 WL 3808977 (E.D. Wis. Sept. 23, 2010)..............................................13
`
`Hewlett v. Davis,
`844 F.2d 109 (3d Cir. 1988).......................................................................................................7
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`Hickman v. Taylor,
`329 U.S. 495 (1947) .................................................................................................................13
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`Krausz Indus. Ltd. v. Smith-Blair, Inc.,
`No. 5:12-CV-00570-FL, 2016 WL 10538004 (E.D. N.C. Dec. 13, 2016) ..........................9, 11
`
`Provine v. Ambulatory Health Serv. Inc.,
`Civ. No. 4:13-CV-0334, 2014 WL 47771 (M.D. Pa. Jan. 6, 2014) ...........................................5
`
`R.W. Int’l Corp. v. Welch Foods, Inc.,
`937 F.2d 11 (1st Cir. 1991) ........................................................................................................7
`
`In re Seagate Tech., LLC,
`497 F.3d 1360 (Fed. Cir. 2007), abrogated on other grounds by Halo Elecs.,
`Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923 (2016) ............................................................ passim
`
`Estate of Spear v. Comm’r of Internal Revenue,
`41 F.3d 103 (3d Cir. 1994).........................................................................................................5
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`Wisconsin Alumni Research Found. v. Apple, Inc.,
`No. 14-062-wmc, 2015 WL5009880 (W.D. Wis. Aug. 20, 2015) ......................................9, 11
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`Other Authorities
`
`Rule
`37................................................................................................................................................7
`37(b)(2) ......................................................................................................................................7
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`
`ii
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 4 of 18 PageID #: 32022
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`I.
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`INTRODUCTION
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`Genentech’s motion for discovery sanctions1 should be denied because it is based on
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`Genentech’s improper attempt to reach trial counsel’s work product and trial counsel’s direct and
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`indirect privileged communications with Amgen. The Court’s Order included an important and
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`appropriate limitation on the scope of waiver of the attorney-client privilege resulting from
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`Amgen’s reliance on opinions of counsel as a defense to Genentech’s allegation of willful
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`infringement: that waiver did not extend to outside trial counsel’s work product or trial counsel’s
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`direct or indirect privileged communications with Amgen. D.I. 259. The en banc Federal Circuit
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`firmly established in Seagate that reliance on opinions of counsel does not waive work product
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`immunity with respect to trial counsel. See In re Seagate Tech., LLC, 497 F.3d 1360, 1376 (Fed.
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`Cir. 2007) (“relying on opinion counsel’s work product does not waive work product immunity
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`with respect to trial counsel.”) (emphasis added), abrogated on other grounds by Halo Elecs., Inc.
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`v. Pulse Elecs., Inc., 136 S. Ct. 1923 (2016).
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`Nonetheless, Genentech attempted to obtain deposition testimony from Ms. Kwasigroch
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`that unavoidably would have exposed trial counsel’s invalidity and non-infringement work product
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`that Ms. Kwasigroch received from (or developed with) Amgen’s outside trial counsel. Ms.
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`Kwasigroch is the Amgen in-house counsel representing Amgen in this litigation, has
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`responsibility for managing the case, is admitted pro hac vice by the Court and is bound by the
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`Protective Order. In reliance on Seagate and the Court’s limited waiver Order, Amgen’s counsel
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`appropriately objected to some of the questions posed during Ms. Kwasigroch’s deposition and
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`instructed Ms. Kwasigroch to protect trial counsel’s work-product immunity and privilege.
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`1 Genentech filed a motion and supporting brief in lieu of utilizing the Court’s discovery dispute
`resolution procedure, so Amgen is responding in kind.
`1
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 5 of 18 PageID #: 32023
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`Genentech turned a blind-eye to the important limitations in the Court’s Order, provoking
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`this unnecessary and inappropriate motion for sanctions. The motion—and Genentech’s attempts
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`to break Amgen’s trial counsel work product immunity and privilege (together, Amgen’s “trial
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`counsel privilege”)—should be denied for three reasons.
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`First, Genentech failed to lay a foundation during Ms. Kwasigroch’s deposition to establish
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`that Ms. Kwasigroch fell within the scope of the waiver defined by the Court’s Order. Ms.
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`Kwasigroch’s testimony demonstrated that she does not fall within the scope of the waiver defined
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`by the Court. Counsel’s objections and instructions reflected Genentech’s failure to lay the
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`required foundation, so there was no violation of the Order.
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`Second, counsel’s privilege objections and instructions to Ms. Kwasigroch were consistent
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`with the Court’s Order and appropriate under Seagate. Ms. Kwasigroch’s mental impressions
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`concerning the non-infringement and invalidity of the patents-in-suit were created by receiving
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`and refining trial counsel’s work product. Ms. Kwasigroch could not testify about those mental
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`impressions without waiving the trial counsel privilege—and Seagate squarely holds that Amgen
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`is entitled to maintain its trial counsel privilege notwithstanding its reliance on opinions of counsel.
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`Third, Genentech’s proposed findings of fact are wrong: the proposed findings are
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`contradicted by Ms. Kwasigroch’s sworn testimony. Therefore, regardless of how the Court views
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`the merits of the parties’ positions on the scope of the privilege waiver, it would be wrong for the
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`Court to adopt Genentech’s proposed findings.
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`Genentech’s motion should be denied for each of the foregoing reasons, which are
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`explained in more detail below.
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`2
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 6 of 18 PageID #: 32024
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`II.
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`BACKGROUND
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`On June 20, 2019, the Court issued an order setting forth the scope of subject matter waiver
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`of Amgen’s attorney-client privilege concerning the (i) infringement and/or invalidity of U.S.
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`Patent No. 8,574,869 (“the ’869 patent”); and (ii) the validity of U.S. Patent Nos. 6,627,196 (“the
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`’196 patent”), 7,371,379 (“the ’379 patent”), and/or 10,160,811 (“the ’811 patent”). D.I. 259.
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`The Order expressly states that “[t]he waiver does not extend to communications with
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`outside trial counsel.” Id. at 1.2 In that regard, the Order rejected Genentech’s proposal, which
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`would have extended the waiver to Amgen’s trial counsel’s direct and indirect communications
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`concerning the non-infringement and invalidity of the sparging patent, and the invalidity of the
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`dosing patents. Id.
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`Regarding depositions, the Order specifically extends waiver discovery only to “any in-
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`house counsel involved in (i) obtaining the Opinion Letters; or (ii) providing advice with respect
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`to (a) infringement or validity of the ’869 patent or (b) the validity of ’196, ’379 or ’811 patents to
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`any business decisionmakers at Amgen.” Id. at 2, ¶6.
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`In August 2019, the Court denied Amgen’s motion for reargument and ordered Amgen to
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`produce documents falling within the scope of the privilege waiver by September 4, 2019. D.I.
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`345. The Court reiterated that its Order on waiver “denied the motions to the extent they sought
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`communications with outside ‘trial counsel,’” and observed that “[o]ne recognized exception [to
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`waiver] is communications with trial counsel. See In re Seagate Tech., LLC, 497 F.3d 1360, 1373
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`(Fed. Cir. 2007).”). Id. at 2 n.2. Shortly after the issuance of the Order on reargument, Genentech
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`requested the depositions of 19 Amgen employees, including Ms. Kwasigroch. (Declaration of
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`Benjamin Lin in Support of Amgen Inc.’s Responsive Brief (“Lin Decl.”), Ex. 1 (Robert Gunther
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`2 See also Order on Reargument, D.I. 345 at 2 n.2 (same).
`3
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 7 of 18 PageID #: 32025
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`Aug. 28, 2019 email).) Amgen complied with the Order by (i) producing documents subject to
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`the C01u1’s findings on waiver. and (ii) making its in—house attorneys and business decisionmakers
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`available for deposition. So far, Genentech has taken the depositions of
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`—. totaling approximately 23.5 hours on the record. And
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`eesessesses—. and see-e1 essse
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`Amgen employees are scheduled to occ1u‘ soon. Besides the present dispute. there are no pending
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`discovery disputes regarding the deposition testimony provided by any other Amgen witnesses
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`who have appeared for deposition pursuant to the Corut’s Order on waiver.
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`Genentech took the deposition of Ms. Kwasigroch on September 17. 2019. At the
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`assesses assesses essesssseesses—
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`Genentech also established that Ms. Kwasigroch
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`4
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 8 of 18 PageID #: 32026
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` (See also Declaration of Lois Kwasigroch in Support of Amgen Inc.’s Responsive
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`Brief (“Kwasigroch Decl.”), ¶¶ 1-9.)
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`Genentech did not inquire in detail about the sparging patent, but
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`(Kwasigroch Decl., ¶¶ 6-7.)
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`In spite of Ms. Kwasigroch’s testimony explaining that her focus was working with outside
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`trial counsel to develop district court defenses, Genentech attempted to elicit testimony from her
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`that implicated the information and litigation strategies that trial counsel communicated to Ms.
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`Kwasigroch, which led to the present dispute. (See, e.g., Ex. 2 at 74:3-11; 94:4-13.)
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`III. LEGAL STANDARD
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`In deciding whether taking facts as established is an appropriate sanction for a discovery
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`violation, courts are to assess the culpability of the offending party and the prejudice to the party
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`seeking sanctions. See Estate of Spear v. Comm’r of Internal Revenue, 41 F.3d 103, 111 (3d Cir.
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`1994). “Any sanction imposed should be just and must be specifically related to the particular
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`claim or claims at issue in the order to provide discovery violated by the offending party.” Provine
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`v. Ambulatory Health Serv. Inc., Civ. No. 4:13-CV-0334, 2014 WL 47771, at *4 (M.D. Pa. Jan. 6,
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`2014).
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`IV. ARGUMENT
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`A.
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`Genentech Failed To Establish That Ms. Kwasigroch’s Role Or Conduct Made
`Her Subject To The Court’s Waiver Order
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`Genentech’s motion for sanctions fails to prove any violation of the Court Order because
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`Genentech never established that Ms. Kwasigroch’s role or conduct brought her within the group
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`of in-house counsel who are subject to discovery under the Order on waiver.
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`5
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 9 of 18 PageID #: 32027
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`Genentech requested, and the Court found, that the Order extends to “in-house counsel
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`involved in (i) obtaining the Opinion Letters; or (ii) providing advice with respect to (a)
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`infringement or validity of the ’869 patent or (b) the validity of ’196, ’379 or ’811 patents to any
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`business decisionmakers at Amgen.” D.I. 259 at 2, ¶6. Ms. Kwasigroch does not fall into this
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`group of individuals.
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`. Id.
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` (Id.; see also Kwasigroch Decl., ¶¶1-9.)
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`Genentech did not inquire in detail about the sparging patent during the deposition,
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`.
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`(Kwasigroch Decl., ¶¶6-7.)
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`Discovery provided by other Amgen employees confirms Ms. Kwasigroch’s testimony that
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`6
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 10 of 18 PageID #: 32028
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` (Lin Decl., Ex. 3 (Stuart Watt Sept. 23, 2019 Deposition Transcript) at
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`63:21-64:1.)
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`Under the language of the Court’s Order on waiver, Ms. Kwasigroch is not one of the
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`Amgen in-house attorneys who are subject to the Order on waiver discovery. See D.I. 259 at 2,
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`¶6. Genentech bore the burden of laying a foundation that Ms. Kwasigroch fell within the group
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`of in-house attorneys who may be included within the scope of the Order on waiver, and it failed
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`to do so. Counsel’s objections and instructions appropriately reflected Genentech’s inability to
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`meet the requirements for waiver discovery.3
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`Genentech’s motion fails as a threshold matter because it has not shown any violation of
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`any order. R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991) (explaining that
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`a motion under Rule 37 “clearly requires two things as conditions precedent to engaging the gears
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`of the rule’s sanction machinery: a court order must be in effect, and then must be violated, before
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`the enumerated sanctions can be imposed,” and reversing order granting sanctions for failure to
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`answer questions during deposition because movant failed to clear “the initial hurdle” of showing
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`that a discovery order was violated); see also Hewlett v. Davis, 844 F.2d 109, 113 (3d Cir. 1988)
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`(“Rule 37(b)(2) offers a wide range of sanctions for noncompliance with an order to compel
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`discovery.”) (emphasis added).
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`3 Amgen employees who fall within the scope of waiver discovery defined by the Court, including
` testified concerning their mental impressions relating to the non-
`infringement and invalidity of the ’869 sparging patent, and the invalidity of the ’196, ’379 and
`’811 patents, to the extent that they were able to do so without divulging trial counsel
`communications and trial counsel work product. Genentech has not disputed the sufficiency of
`their testimony.
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`7
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 11 of 18 PageID #: 32029
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`B. Ms. Kwasigroch’s Mental Impressions Are Not Discoverable Because They
`Are Covered By Trial Counsel Privilege
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`The Court specifically found that “the waiver does not extend to communications with
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`outside trial counsel.” D.I. 259 at 1; D.I. 345 at 2 n.2. Consistent with the holding in Seagate, this
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`includes work product communicated from trial counsel to Amgen concerning the non-
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`infringement and/or invalidity of the relevant patents. In re Seagate Tech., LLC, 497 F.3d at 1376
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`(“Relying on opinion counsel’s work product does not waive work product immunity with respect
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`to trial counsel.”).4 In light of Ms. Kwasigroch’s
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`, it was not practicable for her to separate her personal views
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`on the issues of non-infringement and invalidity from those of Amgen’s trial counsel. Any
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`testimony regarding Ms. Kwasigroch’s mental impressions about non-infringement or invalidity
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`would indirectly disclose trial counsel work product and attorney-client communications. See id.
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`Therefore, Ms. Kwasigroch’s mental impressions on these topics are not discoverable.5
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`The testimony of Ms. Kwasigroch shows that her assessment of the relevant patents is
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`derived from her interactions with trial counsel.
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`4 The Court heard a joint argument with C.A. No. 17-1407-CFC (“the Avastin case”) on June 18,
`2019. In the Avastin case, the Court issued a similar order on waiver, which similarly noted the
`Court’s intent to follow Seagate. See C.A. No. 17-1407-CFC, D.I. 407 (“[t]he waiver does not
`extend to Amgen’s outside trial counsel.”).
`5 Other Amgen employees, including
`, whose roles and responsibilities
`differ from Ms. Kwasigroch’s, testified about their mental impressions concerning non-
`infringement and invalidity to the extent they were able to do so without disclosing trial counsel
`communications and work product. Genentech has not disputed the sufficiency of their testimony.
`8
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 12 of 18 PageID #: 32030
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` (Id. at 80:4-14; Kwasigroch Decl., ¶¶1-9; Ex. 3 at
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`63:21-64:1.)
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`Ms. Kwasigroch’s mental impressions concerning the invalidity of the sparging and dosing
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`patents are based upon, and inextricably intertwined with, outside litigation counsel trial strategy
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`and therefore protected by trial counsel privilege. (Kwasigroch Decl., ¶¶1-9). Other courts have
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`applied Seagate in this manner. For example, in Wisconsin Alumni Research Found. v. Apple,
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`Inc., No. 14-062-wmc, 2015 WL5009880 (W.D. Wis. Aug. 20, 2015), the court relied on Seagate
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`to find that the plaintiff was not entitled to information as to why in-house counsel “chose to
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`discuss … certain topics to the extent protected by [defendant’s] larger attorney-client and work
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`privileges, nor what was in his mind more generally, and certainly not what privileged
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`communications he had with [defendant’s] prosecution, IPR or litigation counsel.” Id. at *1
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`(emphasis added). Notably, Genentech endorses this interpretation of Wisconsin Alumni Research
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`Foundation’s holding. It recently argued to this Court that “Wisc. Alumni Research Foundation
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`v. Apple, Inc., No. 14-062-wmc, 2015 WL 5009880 (W.D. Wis. Aug 20, 2015), relied on Seagate
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`to prohibit discovery of in-house counsel on his communications with trial counsel.” See D. I. 270
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`at 7.
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`In the context of waiver resulting from an advice of counsel defense, other district courts
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`have also applied Seagate to exempt from waiver communications between in-house counsel and
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`trial counsel. See, e.g., Krausz Indus. Ltd. v. Smith-Blair, Inc., No. 5:12-CV-00570-FL, 2016 WL
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`10538004, at *12 (E.D. N.C. Dec. 13, 2016) (“any communications solely between Smith-Blair’s
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`9
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 13 of 18 PageID #: 32031
`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 13 of 18 PageID #: 32031
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`in-house counsel and attomeys from [trial counsel at] Smith Anderson are not subject to the
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`waiver.” .
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`The questions that Genentech’s counsel posed to Ms. Kwasigroch that elicited privilege
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`objections were objectionable because they could not be answered by Ms. KwasigIoch without
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`divulging work product that tn'al counsel communicated to, or developed with, Ms. Kwasigroch.
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`For example, after establishing that Ms. Kwasigroch—
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`— (Ex. 2 at 18:24-25), Genentech’s counsel attempted to
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`delve into Amgen’s trial strategies:
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`(Ex. 2 at 94:4—13.) Similarly, Genentech tried to elicit testimony on the ongoing development of
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`Amgen’s trial invalidity positions on the dosing patents:
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`(Ex. 2 at 7423-11.)
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`Genentech’s counsel’s repeated attempts to delve into Amgen’s trial c01msel privilege were
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`inappropriate and inconsistent with Genentech’s representations to this Comt that it lmderstood
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`that the Order on waiver left intact Amgen’s trial counsel plivilege. See D1. 270 at 4 (“The limited
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`10
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 14 of 18 PageID #: 32032
`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 14 of 18 PageID #: 32032
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`exception to this rule, articulated by the Federal Circuit in Seagate, concerns litigation advice from
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`outside trial counsel. Id. at 1373.”) (footnote omitted).
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`Moreover, Genentech misused the discovery process by improperly probing the witness
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`about topics that are entirely outside of the scope of waiver. Although the June Order expressly
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`limited the scope waiver to the assessment of invalidity of the ’196, ’379, or ’811 patents (the
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`dosing patents), Genentech neveltheless asked questions about noninfringement of the dosing
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`patents—a topic outside the scope of waiver:
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`(Ex. 2 at 60:12—22.) As illustrated by these exemplary exchanges, Amgen’s c01msel properly
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`objected to Genentech’s inquiries designed to obtain indirectly through Ms. Kwasigroch Amgen’s
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`district court litigation strategy.
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`Cormsel’s objections and instructions were consistent with the Corut’s Order finding a
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`limited waiver, were necessary to protect Amgen’s trial cormsel privilege, and were authorized by
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`the holding in Seagate.
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`In re Seagate Tech., 497 F.3d at 1376 (“Relying on opinion counsel’s
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`work product does not waive work product irmnunity with respect to trial c01msel.”). See also
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`Wise. Alumni Research Found., 2015 WL 5009880 at * 1; Kraus: Indus. Ltd, 2016 WL 10538004,
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`at *12.
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`C.
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`Genentech’s Proposed Fact Findings Are Incorrect
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`Genentech’s proposed fact findings should not be adopted by the Court for the additional
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`reason that they are factually incorrect and contradicted by Ms. Kwasigroch’s sworn testimony.
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`ll
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 15 of 18 PageID #: 32033
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`Taking them in reverse order, Genentech’s third proposed fact finding is wrong because
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`Ms. Kwasigroch testified that she has a basis to believe that the ’196, ’379, and ’811 patents are
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`invalid. Ms. Kwasigroch has been
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`.” (Ex. 2 at 80:4-14.) And she
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`testified
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`that
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`(Ex. 2 at 93:10-14.) Accordingly, Ms. Kwasigroch’s bases for believing the dosing patents are
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`invalid are contained in Amgen’s invalidity contentions served in this lawsuit.
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`The second proposed factual finding is also clearly inaccurate in light of the same
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`testimony. It would be erroneous to find that Ms. Kwasigroch was not aware of any invalidity
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`argument or prior art that was not presented to and considered by the PTAB, because she
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`Genentech’s first proposed factual finding lacks foundation. Ms. Kwasigroch testified that
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`. (Ex. 2 at 80:4-14; 93:10-14.)
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` Accordingly, she had no basis—other than communications with trial counsel—for
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`forming an opinion regarding whether there were errors in the PTAB’s analysis. As a result, it
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`12
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 16 of 18 PageID #: 32034
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`would be misleading and inaccurate for the Court to find that Ms. Kwasigroch was unaware of, or
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`found no, errors in the PTAB’s analysis.
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`D.
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`Amgen Would be Unfairly Prejudiced If It Were Compelled To Disclose Its
`Trial Counsel Communications And Trial Counsel Work Product
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`The Court should also deny Genentech’s motion because its interpretation of the Court’s
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`waiver Order would unfairly prejudice Amgen’s trial preparations and its ability to defend this
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`lawsuit. “While a broad waiver of privilege as to opinion counsel is necessary to prevent
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`exploitation and ensure full disclosure, the adversarial process requires that trial counsel be
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`afforded room to ‘prepare ... legal theories and plan ... strategy without undue and needless
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`interference.’” Alloc, Inc. v. Pergo, L.L.C., No. 00-C-0999, 2010 WL 3808977, at *4 (E.D. Wis.
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`Sept. 23, 2010) (internal citations omitted). It would be impossible for Amgen’s trial counsel to
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`correspond freely, and to develop litigation strategies with Amgen, if counsel for Genentech could
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`access those strategies through deposition testimony from Ms. Kwasigroch. The Federal Circuit
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`has recognized that “mental process work product such as a plans, strategies, tactics, and
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`impressions” is afforded “nearly, absolute protection.” In re Seagate Tech., 497 F.3d at 1375
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`(citations omitted). “Extending the scope of waiver to include trial counsel, thereby giving
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`opposing counsel access to trial counsel’s thoughts and strategies, would result in ‘inefficiency,
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`unfairness and sharp practices,’ and both litigants and the administration of justice overall would
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`suffer.” Alloc, Inc., 2010 WL 3808977, at *4 (quoting Hickman v. Taylor, 329 U.S. 495, 510–11
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`(1947)).
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 17 of 18 PageID #: 32035
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`V.
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`CONCLUSION
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`Amgen has complied with its disclosure obligations by offering witnesses for deposition
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`on topics defined by the scope of waiver in the Court’s Order. Because the sanctions sought by
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`Genentech are inconsistent with the Court’s Order and are at odds with well-understood contours
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`of the attorney-client privilege set forth in Seagate, the Court should deny Genentech’s motion.
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`Case 1:18-cv-00924-CFC Document 420 Filed 10/15/19 Page 18 of 18 PageID #: 32036
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`Michelle Rhyu
`Susan Krumplitsch
`Daniel Knauss
`Cooley LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`P 650-843-5287
`skrumplitsch@cooley.com
`mrhyu@cooley.com
`dknauss@cooley.com
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`Orion Armon
`Cooley LLP
`380 Interlocken Crescent, Suite 900
`Broomfield, CO 80021-8023
`(720) 566-4119
`oarmon@cooley.com
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`Eamonn Gardner
`Cooley LLP
`4401 Eastgate Mall
`San Diego, CA 92121-1909
`(858) 550-6086
`egardner@cooley.com
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`Dated: October 8, 2019
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`/s/ Neal C. Belgam
`Neal C. Belgam (No. 2721)
`Eve H. Ormerod (No. 5369)
`Smith Katzenstein & Jenkins LLP
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`eormerod@skjlaw.com
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`Lois Kwasigroch
`Nancy Gettel
`Brian Kao
`Amgen Inc.
`One Amgen Center Drive
`Thousand Oaks, CA 91320-1799
`P 805-447-1000
`loisk@amgen.com
`ngettel@amgen.com
`bkao@amgen.com
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`Attorneys for Defendant Amgen Inc.
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