Case 1:20-cv-01580-LPS Document 62 Filed 04/26/21 Page 1 of 4 PageID #: 12283
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 20-1580 (LPS) (CJB)
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`GUARDANT HEALTH, INC.,
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`Plaintiff,
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`v.
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`FOUNDATION MEDICINE, INC.,
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`Defendant.
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`JOINT LETTER TO THE HONORABLE LEONARD P. STARK
`REGARDING D.I. 53
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`Case 1:20-cv-01580-LPS Document 62 Filed 04/26/21 Page 2 of 4 PageID #: 12284
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`Dear Chief Judge Stark:
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`Pursuant to Your Honor’s April 22, 2021 Oral Order (D.I. 60), the parties submit this joint
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`status report setting out their positions for how the upcoming hearings should proceed. The parties
`met and conferred on April 23, 2021, regarding the Preliminary Injunction Hearing scheduled for
`May 14, 2021. At the meet and confer, related issues arose regarding how to proceed with the
`upcoming Spoliation Evidentiary Hearing in C.A. No. 17-1616-LPS-CJB, scheduled for May 13,
`2021. This joint status report therefore addresses both upcoming hearings, and the parties
`respectfully request the opportunity to discuss these issues on the conference call scheduled for
`tomorrow, including the parties’ joint request to conduct both hearings in-person in Delaware.
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`May 13, 2021 Spoliation Evidentiary Hearing (C.A. No. 17-01616-LPS-CJB)
` At this time, the parties anticipate that at least two witnesses will testify at the evidentiary
`hearing: Guardant’s co-founder and CEO, Dr. Helmy Eltoukhy, and Guardant’s in-house counsel,
`Kim Moore. Subject to the Court’s approval and preferences, the parties propose that the hearing
`be changed from a remote hearing to an in-person hearing so that the Court may hear the witnesses’
`testimony live.
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`The parties have not yet decided whether they will call their forensic experts or whether
`the parties will submit expert reports and deposition testimony instead of live testimony at the
`hearing. FMI will confirm its position on this issue in its pre-hearing statement due on April 30,
`and Guardant has agreed to confirm its position by no later than May 3, 2021. To the extent that
`the Court has a preference regarding this issue, the parties would benefit from the Court’s guidance
`on tomorrow’s call. In addition to any live testimony and evidence at the hearing, the parties agree
`that the remainder of the evidentiary record (including expert reports, fact and expert depositions
`and all other exhibits and materials previously submitted by the parties in connection with FMI’s
`Spoliation Motion) may be relied upon in post-hearing briefing.
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`Subject to the Court’s approval and preferences, the parties propose that each party be
`permitted to give an opening statement of no more than 15 minutes and a closing argument of no
`more than 45 minutes. The parties propose that any witness who will testify at the hearing be
`sequestered during opening statements.
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`The parties do not agree on whether FMI may call Dr. Eltoukhy in support of its motion
`before Guardant conducts a direct examination. The parties’ positions regarding this issue are set
`forth in sections A & B below.
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`A.
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`Both parties plan to present testimony from Dr. Eltoukhy in support of their positions at
`the one-day evidentiary hearing on May 13, 2021. Guardant requests that Dr. Eltoukhy testify first
`on direct examination followed by a cross examination by FMI. FRE 611 provides that the Court
`“should exercise reasonable control” over the “order of examining witnesses” so as to “make those
`procedures effective for determining the truth” and to “avoid wasting time.” Presenting direct
`testimony from Dr. Eltoukhy first fulfills both objectives by providing Dr. Eltoukhy a fair
`opportunity to explain his conduct that has been subject to criticism based on Defendant’s over
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`Plaintiff’s Position Concerning the Ordering of Dr. Eltoukhy’s Testimony
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`Case 1:20-cv-01580-LPS Document 62 Filed 04/26/21 Page 3 of 4 PageID #: 12285
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`Defendant’s Position Concerning the Ordering of Dr. Eltoukhy’s Testimony
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`18 hours of deposition cross-examinations. Beginning the hearing with a cross examination of
`Dr. Eltoukhy first will be disjointed and inefficient. After Guardant presents Dr. Eltoukhy on
`direct, FMI will almost certainly seek to cross examine Dr. Eltoukhy again leading to multiple
`cross examinations. As such, Guardant respectfully requests that the Court permit Guardant to
`present direct testimony from Dr. Eltoukhy first.
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`B.
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`FMI contends that it should be permitted to call Dr. Helmy Eltoukhy as its first witness as
`part of its affirmative case in support of its Motion for Sanctions Based on Spoliation of Evidence
`(see C.A. No. 17-1616-LPS-CJB, D.I. 467). FMI, as the moving party, should be able to present
`the evidence supporting its motion as it sees fit, including by calling Dr. Eltoukhy as an adverse
`witness who may be interrogated by leading questions. Fed. R. Evid. 611(c)(2). Dr. Eltoukhy is
`the central witness supporting FMI’s Spoliation Motion. Rather than creating inefficiency as
`Guardant suggests, permitting FMI to call Dr. Eltoukhy first, as a part of FMI’s affirmative case,
`is the logical way to proceed. Guardant will still be free to conduct whatever examination of
`Dr. Eltoukhy that it believes is necessary and appropriate (and FMI would not object to Guardant
`exceeding the scope of direct so that he need be called only once). Moreover, Guardant’s reference
`to Dr. Eltoukhy’s prior “18 hours of deposition cross examination” has nothing to do with FMI’s
`case presentation and is misleading given that thirteen of those 18 hours took place before
`Dr. Eltoukhy deleted his e-mail files and the Court-ordered second five-hour deposition also
`included questioning about many highly relevant documents that were not produced by Guardant
`until after Dr. Eltoukhy’s first deposition. In any event, Dr. Eltoukhy has had the opportunity to
`“explain his conduct” at his most recent deposition and in Guardant’s responses to FMI’s
`spoliation motion. That he did not do so previously should not impact FMI’s ability to present the
`evidence that supports its motion in the manner it sees fit.
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`May 14, 2021 Preliminary Injunction Hearing (C.A. No. 20-01580-LPS-CJB)
`The parties propose and agree to the following, subject to the Court’s preferences and
`expectations:
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` An in-person hearing consisting solely of attorney argument, relying on the
`submitted record, with no live witnesses at the hearing;
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` Presentation of issues on an issue-by-issue basis, with Guardant presenting first on
`each issue and FMI responding, followed by additional rebuttal by Guardant and
`FMI subject to the Court’s preferences;
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` Three hours total per side, inclusive of any rebuttal.
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`Case 1:20-cv-01580-LPS Document 62 Filed 04/26/21 Page 4 of 4 PageID #: 12286
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`JAT/rs
`cc:
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`Respectfully,
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`/s/ Jeremy A. Tigan
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`Jeremy A. Tigan (#5239)
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`Clerk of the Court (by CM/ECF)
`Counsel of Record (by CM/ECF and email)
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