Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 1 of 8 PageID #: 1844
`Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 1 of 8 PagelD #: 1844
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`EXHIBIT K
`EXHIBIT K
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`Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 2 of 8 PageID #: 1845
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
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`C.A. No. 22-252-MSG
`
`HIGHLY CONFIDENTIAL –
`OUTSIDE COUNSEL’S EYES
`ONLY
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`JURY TRIAL DEMANDED
`
`
`
`
`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`MODERNA, INC. and MODERNATX, INC.,
`
`
`Defendants.
`
`
`
`MODERNA, INC. and MODERNATX, INC.,
`
`
`Counterclaim-Plaintiffs,
`
`v.
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`
`
`
`
`
`
`
`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
`
`
`Counterclaim-Defendants.
`
`DEFENDANTS’ RESPONSES AND OBJECTIONS TO PLAINTIFFS’ THIRD SET OF
`REQUESTS FOR PRODUCTION TO DEFENDANTS (NOS. 128-173)
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`Pursuant to Federal Rules of Civil Procedure 26 and 34, Defendants Moderna, Inc. and
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`ModernaTX, Inc. (collectively, “Moderna” or “Defendants”) provide their responses and
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`objections to Plaintiffs Arbutus Biopharma Corporation (“Arbutus”) and Genevant Sciences
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`GmbH (“Genevant”)’s requests for production (Nos. 128-173).
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`GENERAL OBJECTIONS
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`Moderna incorporates by reference its General Objections provided in Moderna’s
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`Responses and Objections to Plaintiffs’ First Set of Requests for Production to Defendants (Nos.
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`1–98) served February 2, 2023.
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`

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`Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 3 of 8 PageID #: 1846
`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY
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`Moderna also objects the sheer number of requests, now totaling 173, as unreasonable
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`burdensome, duplicative, and not proportional to the needs of the case, particularly where Plaintiffs
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`expect Moderna to carry out an unreasonable number of searches at this stage in the case.
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`DEFINITIONS
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`Moderna incorporates by reference the Definitions provided in Moderna’s Responses and
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`Objections to Plaintiffs’ First Set of Requests for Production to Defendants (Nos. 1–98) served
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`February 2, 2023.
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`OBJECTIONS TO REQUESTS FOR PRODUCTION
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`REQUEST FOR PRODUCTION NO. 128
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`All documents that estimate, define, describe, assess, study, or summarize the market for
`the Accused Product, including but not limited to company reports or studies, third-party research,
`or other information related to the market for the Accused Product.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 128:
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`Moderna objects to this Request as overbroad, unduly burdensome, and calling for
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`information not relevant to any of the claims or defenses in this litigation and/or not proportional
`
`to the needs of this case, including because it seeks “[a]ll documents that estimate, define, describe,
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`assess, study, or summarize the market for the Accused Product,” which presumes that all such
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`documents are relevant. Moderna will not search for documents relating to batches of the Accused
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`Products (and materials used in those batches) that were not made, used, offered for sale, or sold
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`within the United States or imported into the United States, which are not accused of infringement.
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`Moderna will not produce irrelevant and/or non-responsive documents. Moderna objects to this
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`Request as overbroad, unduly burdensome, and calling for information not relevant to any of the
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`claims or defenses in this litigation and/or not proportional to the needs of this case, specifically
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`because it lacks reasonable temporal restrictions. Moderna objects to this Request as seeking the
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`production of documents protected from discovery by the attorney-client privilege, the work-
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`2
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`Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 4 of 8 PageID #: 1847
`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY
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`product doctrine, or any other applicable privilege or immunity. Moderna will not produce such
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`documents. Moderna objects to this Request to the extent it seeks documents that are protected by
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`confidentiality obligations to third parties that prohibit or restrict their disclosure by Moderna (by
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`agreement or by law) and will not produce such documents. Moderna objects to this Request as
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`duplicative of at least RFP Nos. 74, 76, 78, and 79. Moderna also objects to this Request to the
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`extent it calls for information that is publicly available. Moderna will not search for and produce
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`information that is publicly available. Moderna objects to this Request to the extent it seeks a legal
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`conclusion and/or expert discovery.
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`Subject to and without waiving any of its general or specific objections, Moderna will
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`produce non-privileged market reports and analyses for Moderna’s COVID-19 Vaccine identified
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`after a reasonable and proportionate search.
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`REQUEST FOR PRODUCTION NO. 129
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`All documents and other information relating to the pricing strategies for the Accused
`Product, including, but not limited to, the factors, information, and/or data that Moderna considered
`in developing pricing strategies for the Accused Product.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 129:
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`Moderna objects to this Request as overbroad, unduly burdensome, and calling for
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`information not relevant to any of the claims or defenses in this litigation and/or not proportional
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`to the needs of this case, including because it seeks “[a]ll documents and other information relating
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`to the pricing strategies for the Accused Product,” which presumes that all such documents and
`
`information are relevant. Moderna will not search for documents relating to batches of the Accused
`
`Products (and materials used in those batches) that were not made, used, offered for sale, or sold
`
`within the United States or imported into the United States, which are not accused of infringement.
`
`Moderna will not produce irrelevant and/or non-responsive documents and information. Moderna
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`objects to this Request as overbroad, unduly burdensome, and calling for information not relevant
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`3
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`Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 5 of 8 PageID #: 1848
`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY
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`to any of the claims or defenses in this litigation and/or not proportional to the needs of this case,
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`specifically because it lacks reasonable temporal restrictions. Moderna objects to this Request as
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`vague and ambiguous, at least with respect to the phrase “other information,” which is not defined.
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`Moderna objects to this Request as seeking the production of documents protected from discovery
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`by the attorney-client privilege, the work-product doctrine, or any other applicable privilege or
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`immunity. Moderna will not produce such documents. Moderna objects to this Request to the
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`extent it seeks documents that are protected by confidentiality obligations to third parties that
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`prohibit or restrict their disclosure by Moderna (by agreement or by law) and will not produce such
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`documents. Moderna objects to this Request as duplicative of at least RFP Nos. 69, 74, and 76.
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`Moderna also objects to this Request to the extent it calls for information that is publicly available.
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`Moderna will not search for and produce information that is publicly available. Moderna objects
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`to this Request to the extent it seeks a legal conclusion and/or expert discovery.
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`Subject to and without waiving any of its general or specific objections, Moderna will
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`produce non-privileged documents concerning pricing strategy for Moderna’s COVID-19 Vaccine
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`identified after a reasonable and proportionate search.
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`REQUEST FOR PRODUCTION NO. 130
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`All documents and communications created, prepared, and/or reviewed for or by
`Moderna’s Board of Directors, or any committee of such Board, related to the Accused Product,
`including, but not limited to, meeting minutes of Moderna’s Board of Directors, presentations
`prepared for or provided to Moderna’s Board of Directors, or financial analyses or projections
`about sales of the Accused Product provided to Moderna’s Board of Directors.
`
`RESPONSE TO REQUEST FOR PRODUCTION NO. 130:
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`Moderna objects to this Request as overbroad, unduly burdensome, and calling for
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`information not relevant to any of the claims or defenses in this litigation and/or not proportional
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`to the needs of this case, including because it seeks “[a]ll documents and communications created,
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`prepared, and/or reviewed for or by Moderna’s Board of Directors, or any committee of such
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`4
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`Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 6 of 8 PageID #: 1849
`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Mark McLennan
`Jack B. Blumenfeld (#1014)
`Brian P. Egan (#6227)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`began@morrisnichols.com
`
`Attorneys for Defendants
`
`Dated: September 5, 2023
`
`
`
`OF COUNSEL:
`
`Patricia A. Carson
`Jeanna M. Wacker
`Mark C. McLennan
`Nancy Kaye Horstman
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`(212) 446-4679
`
`Alina Afinogenova
`KIRKLAND & ELLIS LLP
`200 Clarendon Street 47th Floor
`Boston, MA 0211
`(617) 385 -7500
`
`Yan-Xin Li
`KIRKLAND & ELLIS LLP
`555 California Street 27th Floor
`San Francisco, CA 94104
`(415) 439-1400
`May 25, 2023
`
`
`
`
`
`
`
`
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`55
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`Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 7 of 8 PageID #: 1850
`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY
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`CERTIFICATE OF SERVICE
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`I hereby certify that on September 5, 2023, I caused the foregoing to be served on upon the
`
`
`
`
`following in the manner indicated:
`
`John W. Shaw, Esquire
`Karen E. Keller, Esquire
`Nathan R. Hoeschen, Esquire
`Emily S. DiBenedetto, Esquire
`SHAW KELLER LLP
`I.M. Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`
`Attorneys for Plaintiffs Arbutus Biopharma
`Corporation and Genevant Sciences GmbH
`
`Daralyn J. Durie, Esquire
`Adam R. Brausa, Esquire
`Eric C. Wiener, Esquire
`Annie A. Lee, Esquire
`Shaelyn K. Dawson, Esquire
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105
`
`Attorneys for Plaintiff Arbutus Biopharma
`Corporation
`Kira A. Davis, Esquire
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard
`Los Angeles, CA 90017
`
`Attorneys for Plaintiff Arbutus Biopharma
`Corporation
`David N. Tan, Esquire
`MORRISON & FOERSTER LLP
`2100 L Street, NW, Suite 900
`Washington, DC 20037
`
`Attorneys for Plaintiff Arbutus Biopharma
`Corporation
`David I. Berl, Esquire
`Adam D. Harber, Esquire
`Thomas S. Fletcher, Esquire
`Shaun P. Mahaffy, Esquire
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`56
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`Case 1:22-cv-00252-MSG Document 134-4 Filed 10/03/23 Page 8 of 8 PageID #: 1851
`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY
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`Jessica Palmer Ryen, Esquire
`Anthony H. Sheh, Esquire
`Jihad J. Komis, Esquire
`Denis R. Hurley, Esquire
`Philip N. Haunschild, Esquire
`WILLIAMS & CONNOLLY LLP
`680 Maine Avenue S.W.
`Washington, DC 20024
`
`Attorneys for Plaintiff Genevant Sciences
`GmbH
`
`
`
`
`/s/ Mark McLennan
`
`Mark McLennan
`
`57
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`