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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`ARBUTUS BIOPHARMA CORPORATION
`and GENEVANT SCIENCES GmbH,
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`Plaintiffs,
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`v.
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`MODERNA, INC. and MODERNATX, INC.,
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`Defendants.
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`C.A. No. 22-252-MSG
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`PLAINTIFFS’ UNOPPOSED MOTION TO TAKE DEPOSITIONS OF THIRD-PARTY
`GOVERNMENT WITNESSES AFTER THE CLOSE OF FACT DISCOVERY
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`Pursuant to the Court’s instruction provided at the Status Conference held August 15,
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`2024, Arbutus Biopharma Corporation and Genevant Sciences GmbH (“Plaintiffs”) submit the
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`following unopposed Motion and respectfully request the Court grant Plaintiffs permission to
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`depose certain third-party government witnesses identified below after the close of fact
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`discovery.
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`WHEREAS, on March 20, 2023, Plaintiffs served subpoenas for documents and/or
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`testimony on the Department of Health and Human Services (“HHS”), the Administration of
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`Strategic Preparedness and Response (“ASPR”), and the Centers for Disease Control and
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`Prevention (“CDC”);
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`WHEREAS, on March 24, 2023, Plaintiffs served subpoenas for documents and
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`testimony on the Department of Army (“Army”);
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`WHEREAS, Plaintiffs also served requests for authorization of testimony pursuant to
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`United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), on HHS, ASPR, CDC, and the Army,
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`Case 1:22-cv-00252-MSG Document 400 Filed 08/23/24 Page 2 of 5 PageID #: 22555
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`(collectively, with the Department of Justice,1 the “Government”) between March 2023 and May
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`2023;
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`WHEREAS, Plaintiffs and the Government then undertook a protracted process of
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`meeting and conferring about the scope and timing of the Government’s document production
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`and testimony that spanned more than a year and involved Plaintiffs sending at least fifty letters
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`and emails to the Government regarding the scope and timing of the production and depositions,
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`and having at least eight meet-and-confer calls;
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`WHEREAS, the Government initially agreed to produce limited documents in response
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`to Plaintiffs’ subpoenas and Touhy requests and refused to authorize deposition testimony;
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`WHEREAS, beginning as early as July 2023, Plaintiffs negotiated with the Government
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`to obtain additional documents and for the Government to authorize deposition testimony;
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`WHEREAS, the Government began producing documents in July 2023 but did not
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`complete its production until June 2024, notwithstanding Plaintiffs’ diligent efforts to obtain
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`expeditiously all requested documents;
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`WHEREAS, Plaintiffs and the Government engaged in good-faith negotiations to reach
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`agreement on the scope of authorized deposition testimony, starting as early as July 2023 and
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`continuing with diligence through July 2024;
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`WHEREAS, over Plaintiffs’ objection, the Government maintained that the issue of
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`deposition testimony should be addressed only after the Government completed its production of
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`documents, notwithstanding the amount of time it was taking for such production to be
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`completed;
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`1 On a meet-and confer call on June 28, 2024, the Government indicated, for the first time, that
`certain requested testimony was more properly sought from the Department of Justice, and so
`Plaintiffs served a request for such testimony on July 3, 2024.
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`2
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`Case 1:22-cv-00252-MSG Document 400 Filed 08/23/24 Page 3 of 5 PageID #: 22556
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`WHEREAS, after the Government completed its document productions, the parties
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`engaged in further meet-and-confer calls and correspondence regarding the scope and timing of
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`deposition testimony;
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`WHEREAS, after those discussions were complete, the Government requested that
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`Plaintiffs serve updated Touhy requests so that the respective Government agencies could review
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`and issue decisions either approving or declining to approve the requested testimony;
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`WHEREAS, on July 31, 2024, and August 2, 2024, ASPR and CDC, respectively,
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`authorized Plaintiffs to take depositions of agency witnesses;
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`WHEREAS, on August 15, 2024, the Army denied Plaintiffs’ request to authorize
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`testimony, but the request is still outstanding and Plaintiffs are considering whether a motion to
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`compel is needed;
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`WHEREAS, Plaintiffs are awaiting authorization from the Government to depose an
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`agency witness from the Department of Justice;
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`WHEREAS, depositions of Government witnesses could not be accomplished before the
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`close of fact discovery, notwithstanding Plaintiffs’ extensive efforts and diligence;
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`WHEREAS, despite ongoing negotiations with the Army and the Department of Justice,
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`Plaintiffs seek leave to depose witnesses from these agencies, to the extent such testimony is
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`authorized or compelled by the Court, to avoid burdening the Court with a second, and
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`potentially third, request;
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`WHEREAS, Plaintiffs conferred with Moderna, Inc. and ModernaTX, Inc.
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`(“Defendants”) regarding this request, and Defendants indicated that they do not oppose
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`Plaintiffs seeking leave to take the depositions of ASPR, CDC, the Army, and the Department of
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`Justice after the close of fact discovery if those depositions are completed on or before October
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`3
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`Case 1:22-cv-00252-MSG Document 400 Filed 08/23/24 Page 4 of 5 PageID #: 22557
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`25, 2024, but reserve all rights to oppose any motion to compel the depositions of the Army and
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`the Department of Justice; and
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`WHEREAS, Plaintiffs reserve the right to request additional extensions, should they be
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`necessary, and understands that Defendants reserve all rights to oppose such an extension.
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`NOW THEREFORE, Plaintiffs respectfully request that the Court grant Plaintiffs’
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`Motion to depose third-party Government witnesses from ASPR, CDC, the Army, and the
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`Department of Justice (to the extent such testimony is authorized or compelled by the Court) on
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`or before October 25, 2024.
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`Pursuant to D. Del. LR 16.4, counsel certifies that copies of this Motion have been sent to
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`/s/ Nathan R. Hoeschen
`John W. Shaw (No. 3362)
`Nathan R. Hoeschen (No. 6232)
`SHAW KELLER LLP
`I.M. Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 298-0700
`jshaw@shawkeller.com
`nhoeschen@shawkeller.com
`Attorneys for Plaintiffs
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`their clients.
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`OF COUNSEL:
`David I. Berl
`Adam D. Harber
`Thomas S. Fletcher
`Shaun P. Mahaffy
`Jihad J. Komis
`Anthony H. Sheh
`Andrew L. Hoffman
`Matthew W. Lachman
`Ricardo Leyva
`Falicia Elenberg
`Kathryn Larkin
`WILLIAMS & CONNOLLY LLP
`680 Maine Avenue S.W.
`Washington, DC 20024
`(202) 434-5000
`Attorneys for Plaintiff Genevant
`Sciences GmbH
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`4
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`Case 1:22-cv-00252-MSG Document 400 Filed 08/23/24 Page 5 of 5 PageID #: 22558
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`Daralyn J. Durie
`Adam R. Brausa
`Eric C. Wiener
`Annie A. Lee
`Shaelyn K. Dawson
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105-2482
`(415) 268-6080
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`Kira A. Davis
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard
`Los Angeles, CA 90017-3543
`(213) 892-5200
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`David N. Tan
`MORRISON & FOERSTER LLP
`2100 L Street, NW, Suite 900
`Washington, DC 20037
`(202) 887-1500
`Attorneys for Plaintiff Arbutus
`Biopharma Corporation
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`Dated: August 23, 2024
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`5
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