`
`John W. Shaw
`I.M. Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 298-0700
`(302) 298-0701 – Direct
`jshaw@shawkeller.com
`
`
`
`
`
`
`
`August 1, 2022
`
`
`BY CM/ECF
`
`The Honorable Mitchell S. Goldberg
`United States District Court
`Eastern District of Pennsylvania
`James A. Byrne U.S. Courthouse, Room 17614
`601 Market Street
`Philadelphia, PA 19106-1797
`
`
`Arbutus Biopharma Corporation, et al. v. Moderna, Inc., et al.,
`C.A. No. 22-252-MSG (D. Del.)
`
`
`
`Re:
`
`
`Dear Judge Goldberg:
`
`On July 20, 2022, Plaintiffs sent Defendants a draft proposed Scheduling Order (Exhibit
`A) and invited edits or discussion. Defendants declined to engage, citing their partial motion to
`dismiss as grounds for refusing to negotiate a schedule or proceed with discovery. See Exhibit
`B. Plaintiffs wrote Defendants again on July 28, 2022, and requested a Rule 26(f) conference.
`Defendants again refused, stating that they “see no need for a Rule 26(f) conference while
`Moderna’s motion is pending and before the Court has ordered a Rule 16 conference in light of
`the pending partial motion to dismiss.” See Exhibit B.
`
`Defendants’ unwillingness to hold a Rule 26(f) conference is improper under both
`Federal Rule of Civil Procedure 26(f)(1)—which directs the parties to “confer as soon as
`practicable”—as well as under paragraph 2 of Your Honor’s Policies and Procedures guidelines
`regarding civil matters, which states that “[o]utstanding motions will not excuse counsel from
`timely holding” a Rule 26(f) conference “and submitting a Rule 26 plan.” See also Grape
`Technology Group Inc. et al. v. Jingle Networks Inc., No. 08-cv-00408-GMS, Doc. No. 18 (D.
`Del. Jan. 13, 2009) (directing that “parties are not precluded from commencing and engaging in
`discovery prior to the court noticing and/or conducting a Rule 16/Local Rule 16.2(b) scheduling
`conference”) (attached as Exbibit C).
`
`
`
`
`
`
`
`Case 1:22-cv-00252-MSG Document 28 Filed 08/01/22 Page 2 of 2 PageID #: 687
`
`
`
`SHAW KELLER LLP
`Letter to the Honorable Mitchell S. Goldberg
`Page 2
`
`Given Defendants’ refusal to participate in the Rule 26(f) process, Plaintiffs respectfully
`request that Your Honor enter the attached Scheduling Order that Plaintiffs proposed (Exhibit A)
`or convene a Rule 16 conference.1
`
`
`
`Respectfully submitted,
`
`/s/ John W. Shaw
`
`John W. Shaw (No. 3362)
`
`Enclosure
`cc: Clerk of the Court (by CM/ECF and hand delivery)
`
` All counsel of record (by CM/ECF and email)
`
`
`
`1 Plaintiffs served their identification of the accused products and their damages model on July
`26 in accordance with this proposed schedule.
`
`
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