Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 1 of 25
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`TEVA PHARMACEUTICALS
`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS
`USA, INC.,
`
`Plaintiffs,
`
`v.
`
`ELI LILLY AND COMPANY,
`Defendant.
`
`Civil Action No.
`1:18-cv-12029-ADB
`
`ORAL ARGUMENT
`REQUESTED
`
`REDACTED
`PUBLIC VERSION
`
`PLAINTIFFS’ TEVA PHARMACEUTICALS INTERNATIONAL GMBH
`AND TEVA PHARMACEUTICALS USA, INC. MEMORANDUM IN SUPPORT
`OF MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 37(B)
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 2 of 25
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ......................................................................................................................... 1 
`BACKGROUND ........................................................................................................................... 3 
`A.
`Procedural Posture of the Case .............................................................................. 3 
`B.
`The Parties’ Joint Stipulated Protocol Governing ESI .......................................... 4 
`C.
`The Court Ordered Lilly to Run Search Term 1 As Requested By Teva .............. 5 
`D.
`Lilly Overstated the Volume of Documents It Would Review, and Defied
`the Court’s Order ................................................................................................... 6 
`LEGAL STANDARD .................................................................................................................... 9 
`ARGUMENT ............................................................................................................................... 10 
`A.
`Lilly Defied the Court’s Order ............................................................................. 10 
`B.
`Meaningful Sanctions Are Warranted ................................................................. 12 
`C.
`Proposed Sanctions ............................................................................................. 19 
`CONCLUSION ............................................................................................................................ 20 
`
`ii
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 3 of 25
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Afreedi v. Bennett,
`517 F. Supp. 2d 521 (D. Mass. 2007) ......................................................................................10
`
`Kahn v. Sec’y of Health, Ed., & Welfare,
`53 F.R.D. 241 (D. Mass. 1971) ..................................................................................................9
`
`Laddawn, Inc. v. Bolduc,
`C.A. No. 4:17-11044-TSH, 2019 WL 7578401 (D. Mass. Sept. 6, 2019) ........................14, 16
`
`Malloy v. WM Specialty Mortg. LLC,
`512 F.3d 23 (1st Cir. 2008) ................................................................................................13, 14
`
`Nationwide Mut. Ins. Co. v. Spinal Imaging, Inc.,
`C.A. No. 2008-11073-DPW, 2012 WL 13049324 (D. Mass. Mar. 12, 2012) .........................12
`
`Sloane v. Thompson,
`128 F.R.D. 13 (D. Mass. 1989) ................................................................................................10
`
`State Farm Mut. Auto. Ins. Co. v. Lincow,
`No. C.A. No. 05-5368, 2008 WL 697252 (E.D. Pa. Mar. 10, 2008) .......................................13
`
`Torres–Vargas v. Pereira,
`431 F.3d 389 (1st Cir. 2005) ....................................................................................................13
`
`Traverse v. Gutierrez Co.,
`C.A. No. 18-10175-DJC, 2020 WL 9601828 (D. Mass. Apr. 13, 2020) ...................................9
`
`United States v. Pfizer, Inc.,
`188 F. Supp. 3d 122 (D. Mass. 2016) ............................................................................9, 10, 12
`
`Victor Stanley, Inc. v. Creative Pipe, Inc.,
`269 F.R.D. 497 (D. Md. 2010) .................................................................................................18
`
`Statutes
`
`35 U.S.C. § 112 ........................................................................................................................17, 19
`
`Other Authorities
`
`Fed. R. Civ. P. 30(b)(6)..................................................................................................................20
`
`Fed. R. Civ. P. 37 ...............................................................................................................1, 2, 9, 13
`
`iii
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 4 of 25
`
`Plaintiffs Teva Pharmaceuticals International GmbH and Teva Pharmaceuticals USA, Inc.
`
`(collectively, “Plaintiffs” or “Teva”) submit this memorandum in support of their concurrently-
`
`filed Motion for Sanctions Pursuant to Fed. R. Civ. P. 37(b). Sanctions are warranted because
`
`Defendant Eli Lilly and Company (“Lilly”) defied the Court’s March 8, 2021 Order requiring Lilly
`
`to perform a search for electronically stored information (“ESI”) as Teva requested. ECF No. 104.
`
`INTRODUCTION
`
`This is a patent case in which Teva alleges that Lilly’s product Emgality® infringes nine
`
`patents owned by Teva. The active ingredient in Emgality® is an antibody known as
`
`galcanezumab. That name, however, did not exist until April 22, 2016—long after Lilly began
`
`development of the product in 2007. Before April 2016, galcanezumab was known within Lilly
`
`by a number of code and project names such as “LY29551742” and
`
` Pursuant to the
`
`parties’ ESI Protocol, last year Teva proposed that Lilly use a search term to collect ESI that would
`
`capture documents regarding the development of galcanezumab: “Galca* OR gmab OR *2951742
`
`OR L2951742 OR Y2951742 OR LY2951742 OR LLY2951742 OR LSN2951742 OR [any
`
`internal project o[r] code names used by Lilly]” (emphasis added) (hereafter referred to as
`
`“Search Term 1”). At the time, Lilly had yet to produce any documents in the litigation so Teva
`
`did not know all the internal names for galcanezumab. For months, Lilly refused to run Search
`
`Term 1, claiming it to be unduly burdensome to do so. Teva eventually moved to compel Lilly to
`
`conduct the search in February 2021. ECF No. 99. By that time, Lilly had produced a small
`
`number of documents indicating that
`
` and
`
` were earlier project names
`
`for galcanezumab. In its letter to the Court seeking to compel Lilly to run Search Term 1, Teva
`
`specified that the bracketed phrase “[any internal project o[r] code names used by Lilly]” includes
`
`at least
`
` and
`
` Id. at 3, n.3. Thus, Teva’s letter to the Court requested
`
`1
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 5 of 25
`
`
`
`that Lilly run Search Term 1 with at least
`
` and
`
` as part of the search
`
`term.
`
`Lilly’s objection to Search Term 1 focused solely on the phrase “galca*,” which Lilly
`
`argued would capture irrelevant documents about Lilly’s drug product. ECF No. 103 at 2. Lilly
`
`represented to the Court and Teva that it “had already agreed to independently run each of the
`
`above terms, except for “galca*.” Id. (emphasis added). Lilly never objected to searching for
`
` and
`
` in briefing to the Court or in any correspondence with Teva.
`
`The Court rejected Lilly’s argument in an ECF Order dated March 8, 2021, and held that:
`
`Lilly is ordered to perform a search using the phrase ‘galca,’ as descried in Teva’s
`letter/request. [ECF No. [99]]. As Teva notes, this is not a product name
`(Emgality) but is the name of the active ingredient antibody in that product and is
`therefore highly relevant to this litigation despite the relative burden that
`running the search may impose on Lilly.
`
`
`ECF No. 104 (emphasis added).
`
`Lilly defied the Court’s Order to run the search “as described in Teva’s letter/request.”
`
`Without telling Teva or the Court, Lilly decided not to search for known project and code names
`
`for galcanezumab, including
`
` and
`
` as requested by Teva in its letter
`
`to the Court. Lilly withheld this fact from Teva until July 27, 2021, four months after the Court’s
`
`Order and less than one month before the close of fact discovery. Worse still, Lilly evaded
`
`questions from Teva on this issue for almost a month and obfuscated what searches it had done.
`
`Lilly’s actions have deprived Teva of highly relevant discovery regarding the research and
`
`development of Lilly’s accused galcanezumab antibody. Lilly’s defiance of the Court’s March 8,
`
`2021 Order and the resulting prejudice caused to Teva warrant the imposition of sanctions under
`
`Fed. R. Civ. P. 37(b).
`
`
`
`2
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 6 of 25
`
`
`
`A.
`
`Procedural Posture of the Case
`
`BACKGROUND
`
`This dispute regarding Lilly’s infringement of Teva’s patents has been ongoing for nearly
`
`four years. Teva initially filed complaints for patent infringement in this Court on October 24,
`
`2017 (Case No. 1:17-cv-12087-ADB) and February 6, 2018 (Case No. 1:18-cv-10242-ADB).
`
`Lilly has sought at every turn to delay resolution of this case with motion practice to dismiss,
`
`transfer, and stay the case, as well as by filing Inter Parties Review (“IPR”) petitions with the U.S.
`
`Patent and Trademark Office’s Patent Trial and Appeal Board (“PTAB”) challenging the validity
`
`of certain claims of each of the nine patents-in-suit. After the PTAB upheld the validity of many
`
`of the challenged claims, the litigation resumed on April 14, 2020. ECF Nos. 44, 45.1
`
`
`
`On May 15, 2021, the Court approved the parties’ joint schedule that set the close of fact
`
`discovery for March 31, 2021 and trial for December 2021. ECF Nos. 46, 47. The case schedule
`
`has since been amended twice to allow the parties to produce documents in response to the Court’s
`
`orders resolving discovery disputes between the parties, and to account for Lilly’s late service of
`
`third party subpoenas.2 ECF Nos. 113, 114, 128, 129. Under the current schedule, fact discovery
`
`closes on August 23, 2021, opening expert reports are due on September 16, 2021, and trial will
`
`be in March of 2022. The parties have completed twenty-three fact depositions to date, including
`
`the depositions of all of Lilly’s witnesses.3
`
`
`1 On August 16, 2021, the Federal Circuit upheld the PTAB’s decisions in each of the nine IPRs.
`2 When fact discovery was scheduled to end on June 30, 2021, Lilly served third party subpoenas
`on May 5, 2021 on five of the six the named inventors of the patents-in-suit seeking documents
`containing confidential information belonging to another third party—
` See, e.g., Ex. 1.
`Lilly was aware that
` would have to review any documents containing
` confidential
`information before they could be produced. This review necessitated a month long extension to
`the close of fact discovery.
`3 Teva took the depositions of four Lilly scientists who played key roles in the development of
`galcanezumab: Barrett Alan, Robert Benschop, Mark Chambers, and Ryan Darling.
`3
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 7 of 25
`
`
`
`B.
`
`The Parties’ Joint Stipulated Protocol Governing ESI
`
`The parties agreed to a Joint Stipulated Protocol Governing ESI (“ESI Protocol”). ECF
`
`No. 57. The ESI Protocol allowed each party to propose search terms to use in collecting its own
`
`ESI, and gave each party an opportunity to request up to ten additional search terms for the
`
`opposing party to use in collecting ESI. ECF No. 57, § 3(b). On August 14, 2020, the parties
`
`exchanged initial proposed search terms. Of the over 30 terms that Lilly proposed to use in
`
`collecting its own ESI, all but five dealt exclusively with Teva’s products, patents, or related inter
`
`partes review proceedings. Recognizing that Lilly’s search terms would not collect relevant
`
`documents about Lilly’s product, Teva proposed ten additional search terms that Lilly should use.
`
`Lilly objected to Teva’s initial proposed additional terms, and on October 30, 2020, in an effort to
`
`resolve the dispute, Teva proposed a revised Search Term 1: “Galca* OR gmab OR *2951742 OR
`
`L2951742 OR Y2951742 OR LY2951742 OR LLY2951742 OR LSN2951742 OR [any internal
`
`project o[r] code names used by Lilly].” (emphasis added). Ex. 2 at 3.4
`
`By February 2021, Lilly had produced substantially all of its documents using its own ESI
`
`search terms, and it was evident that those search terms were deficient. While Teva had produced
`
`in excess of 100,000 documents as of that date, Lilly’s document production totaled fewer than
`
`11,000 documents and contained numerous gaps in key information such as research and
`
`development. Ex. 3 at 2. For example, at that time, Lilly had only produced 729 total documents
`
`from the four key scientists who spearheaded Lilly’s early development of galcanezumab, and
`
`many of those documents were not even internal Lilly documents but were instead publications or
`
`litigation-related documents. Id. Lilly objected to “galca*” in Search Term 1 as allegedly
`
`overbroad, but did not object to other portions of Search Term 1 including the bracketed phrase
`
`
`4 All exhibits referenced herein are attached to the concurrently-filed Declaration of Elaine
`Herrmann Blais in Support of Plaintiffs’ Motion for Sanctions.
`4
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 8 of 25
`
`
`
`referencing internal project or code names used by Lilly. See, e.g., Ex. 4 at 3 (Lilly agreeing to
`
`run the entirety of Search Term 1 except “galca*”).
`
`C.
`
`The Court Ordered Lilly to Run Search Term 1 As Requested By Teva
`
`Teva filed a letter with the Court (ECF No. 99) regarding Lilly’s refusal to run additional
`
`search terms, including Search Term 1, on February 18, 2021. Teva stated in its letter to the Court
`
`that “[t]he only dispute as to Search Term No. 1 is whether to include the name of the active
`
`ingredient in Lilly’s infringing Emgality® product,” and further compared the parties’ proposed
`
`searches:
`
`
`
`ECF No. 99 at 3. Footnote three in Teva’s letter specified that, based on Lilly’s documents, the
`
`code names in Search Term 1 “include at least
`
` and
`
`” Id. at 3 n.3.5
`
`Teva’s letter to the Court cited two presentations from Lilly’s production showing the use of both
`
`terms as code names. See Id. at Ex. B
`
`C
`
`.6
`
`; Id. at Ex.
`
`
`5 Teva’s inclusion of footnote 3 in the letter briefing was deliberate; Teva wanted to be crystal
`clear with Lilly that Search Term 1 should include those galcanezumab project code names.
`6 Lilly has produced additional documents since then, confirming that at least
` and
` are internal project or code names. See, e.g., Ex. 5
`
`; Ex. 6
`
`
`
`; Ex. 7
`
`
`
`
`
`5
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 9 of 25
`
`
`
`In Lilly’s response to the Court, it stated that it “had already agreed to independently run
`
`each of the above terms, except for “galca*.” ECF No. 103 at 2 (emphasis added). Thus, Lilly
`
`represented to Teva and to the Court that it had already agreed to run “[any internal project o[r]
`
`code names used by Lilly],” which Teva had clearly specified to include at least
`
` and
`
` ECF No. 99 at 3 n.3. With respect to “galca*,” Lilly further claimed that
`
`running the term “galca*” would require it to review “approximately 300,000 documents, likely
`
`encompassing millions of pages,” and that running all the terms Teva proposed would require the
`
`review of an additional “250,000 documents.” ECF No. 103 at 2–3 (emphasis in original). On
`
`March 8, 2021, the Court agreed with Teva that Search Term 1 sought information relating to
`
`Lilly’s accused galcanezumab antibody that was “highly relevant to this litigation,” and ordered
`
`Lilly “to perform a search using the phrase ‘galca,’ as described in Teva’s letter/request.” ECF
`
`No. 104 (emphasis added). The search described in Teva’s letter/request expressly stated that
`
` and
`
` were internal project code names included within Search
`
`Term 1. ECF No. 99 at 3 n.3 (reproduced above).7
`
`D.
`
`Lilly Overstated the Volume of Documents It Would Review, and Defied the
`Court’s Order
`
`The parties continued with discovery after the Court ordered Lilly to run Search Term 1.
`
`Lilly’s document production counts continued to be unusually low, particularly in view of the
`
`Ex. 8
`
`
`
`.
`7 Teva’s letter to the Court was not the only time that Teva made clear to Lilly that it considered
` and
` to be project code names for galcanezumab used by Lilly. For
`example, in Teva’s discovery requests to Lilly, Teva defined galcanezumab as including “all other
`current or former names or abbreviations for that molecule, including but not limited to . . .
`
` . . . or
`.’” See, e.g., Ex. 9 at 2. In response, Lilly never disputed that these
`were internal project names, instead lodging only general objections to all of Teva’s definitions
`contained in its written discovery. See, e.g., Ex. 10 at 7.
`
`
`
`
`
`
`6
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 10 of 25
`
`
`
`550,000 documents Lilly told the Court it would have to review during the parties dispute
`
`regarding Search Term 1. Teva requested on June 7, 2021 that Lilly confirm it was abiding by the
`
`Court’s order. See Ex. 11 at 2–4. Lilly then revealed that the numbers it provided to the Court
`
`were “approximation[s] based on data and analytics” rather than the results of a real search and
`
`that the actual volume of documents Lilly had to review was 125,000—less than a quarter of the
`
`burden it alleged it would endure when it was objecting to the search terms. See Ex. 12 at 3. Even
`
`accounting for this decreased review volume—which directly contradicted Lilly’s representations
`
`to the Court—Lilly’s productions included a staggeringly low number of documents about Lilly’s
`
`research and development of galcanezumab, documents that should have been collected, reviewed,
`
`and produced by Lilly running Search Term 1. Indeed, to date, Lilly has only produced a total of
`
`about 45,000 documents while Teva has produced over 167,000 documents.
`
`Deposition testimony from Lilly’s witnesses who played a significant role in Lilly’s anti-
`
`CGRP antibody development program confirmed that
`
` and
`
` were
`
`code names used within Lilly for galcanezumab.
`
`
`
`
`
`
`
`
`
` Fearing that Lilly’s low production volume was due to its failure to
`
`search using known code names for galcanezumab, on June 30, 2021, Teva again asked Lilly to
`
`confirm that it had complied with the Court’s March 2021 order. Teva specifically asked Lilly to
`
`confirm that its ESI search had used several code names, including
`
` and
`
`
`
` that Lilly’s scientists had identified during their depositions. See Ex. 16.
`
`
`
`7
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 11 of 25
`
`
`
`Lilly responded that it had collected documents using “the search terms agreed upon by the
`
`parties and those ordered by the Court, including the various iterations of the ‘code’ names
`
`identified in your June 30 email.”8 See Ex. 17 at 1 (emphasis added). Teva then pointedly asked
`
`Lilly to confirm that it ran all of the code names from Teva’s June 30th email. See Ex. 18 at 1–2.
`
`On July 27, 2021, four months after the Court’s Order and nearly a year after the search-term
`
`disagreement began, Lilly disclosed for the first time that it had not run Search Term 1 with the
`
`terms
`
` and
`
` asserting that those “are not internal project or code
`
`names used by Lilly to identify galcanezumab.” See Ex. 19 at 1.
`
`
`
`
`
` At the same time, Lilly alleged
`
`that it “would be unduly burdensome” to collect, review, and produce documents using the code
`
`names, confirming that Lilly is indeed withholding substantial numbers of relevant and responsive
`
`documents. Id. Teva requested that Lilly quantify this burden by disclosing the number of hits
`
`that these terms produce. Lilly has yet to respond to that request.
`
`On July 30, 2021, counsel for Teva and Lilly met and conferred regarding Lilly’s failure
`
`to comply with the Court’s March 2021 order. 10 Lilly maintained that
`
` and
`
`
`
` are not project code names for galcanezumab and disputed that the Court’s Order
`
`
`8 Lilly’s statement that its search included “the various iterations of the ‘code’ names” from the
`June 30th email was inaccurate. Had Teva taken Lilly at its word, instead of following up to re-
`confirm Lilly had used the specified code names, Teva would have never discovered that Lilly had
`not actually run the requested search.
`
`
`
`10 The meet and confer occurred at 1:00 P.M. Eastern Time and lasted approximately 30 minutes.
`Natasha Daughtrey and Eric Romeo attended on behalf of Teva, and Denise Main and Emily
`Gabranski attended on behalf of Lilly.
`
`
`
`8
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 12 of 25
`
`
`
`required Lilly to run those terms. Teva disagreed with Lilly on both of these points. Subsequent
`
`correspondence from Lilly confirmed that the parties were at an impasse. See, e.g., Ex. 20.
`
`LEGAL STANDARD
`
`Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), a court may impose sanctions if
`
`a party “fails to obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). Such
`
`sanctions may include: (i) directing that the matters embraced in the order or other designated facts
`
`be taken as established; (ii) prohibiting the disobedient party from supporting or opposing
`
`designated claims or defenses, or from introducing designated matters in evidence; (iii) striking
`
`pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed;
`
`(v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment
`
`against the disobedient party; or (vii) treating as contempt of court the failure to obey any order
`
`except an order to submit to a physical or mental examination. Id.
`
`
`
`Courts have broad discretion to order sanctions under Rule 37(b)(2) and “may consider the
`
`full record in exercising its discretion.” Kahn v. Sec’y of Health, Ed., & Welfare, 53 F.R.D. 241,
`
`244 (D. Mass. 1971). Under Rule 37(b)(2), sanctions are appropriate when (1) there is a court
`
`order in effect and (2) the party against whom sanctions are sought refuses to comply with the
`
`order. See Traverse v. Gutierrez Co., C.A. No. 18-10175-DJC, 2020 WL 9601828, at *5 (D. Mass.
`
`Apr. 13, 2020). In determining what sanction to impose, courts consider the totality of the
`
`circumstances and chose the sanction that is appropriate in relation “to the severity and
`
`circumstances of the violation.” United States v. Pfizer, Inc., 188 F. Supp. 3d 122, 136 (D. Mass.
`
`2016) (citing Young v. Gordon, 330 F.3d 76 (1st Cir. 2003)). Relevant factors include (i) the
`
`severity of the violation, (ii) the legitimacy of the party's excuse, (iii) repetition of violations,
`
`(iv) the deliberateness of the misconduct, (v) mitigating excuses, (vi) prejudice to the other side
`
`and to the operations of the court, (vii) the adequacy of lesser sanctions, and (viii) the existence of
`9
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 13 of 25
`
`
`
`a prior warning from the court. Id. (Citing Robson v. Hallenbeck, 81 F.3d 1, 2–3 (1st Cir. 1996)).
`
`However, “[d]isobedience of court orders, in and of itself, has been held to constitute extreme
`
`misconduct warranting dismissal as a discovery sanction.” Afreedi v. Bennett, 517 F. Supp. 2d
`
`521, 527 (D. Mass. 2007); see Sloane v. Thompson, 128 F.R.D. 13, 15 (D. Mass. 1989) (“Indicia
`
`of extreme misconduct [warranting dismissal] include disobedience of court order.”) (internal
`
`quotation omitted).
`
`A.
`
`Lilly Defied the Court’s Order
`
`ARGUMENT
`
`The record demonstrates that Lilly disobeyed the Court’s Order by failing “to perform a
`
`search using the phrase ‘galca,’ as described in Teva’s letter/request,” which specified that
`
`Search Term 1 included
`
` and
`
` as internal code names.
`
`The Court’s March 8, 2021 Order required Lilly “to perform a search using the phrase
`
`‘galca,’ as described in Teva's letter/request.” ECF No. 104 (emphasis added). Teva’s Search
`
`Term 1 from its letter is reproduced below:
`
`
`
`ECF No. 99 at 3. When Teva first proposed Search Term 1 to Lilly, Teva did not have the benefit
`
`of any discovery and used the bracketed term “any internal project o[r] code names used by Lilly”
`
`as a placeholder. But by February 2021, Lilly had produced documents indicating that the terms
`
` and
`
`
`
` were Lilly’s code names for galcanezumab. For example,
`10
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 14 of 25
`
`
`
`
`
`
`
`
`
`
`
`. Put another way, Lilly’s top migraine scientist acknowledged that
`
`“galcanezumab” and
`
` refer to the same molecule—the active ingredient in Emgality®.
`
`The Court held that Lilly must search for documents that use “the name of the active ingredient
`
`antibody in that product [which are] highly relevant to this litig tion despite the relative burden
`
`that running the search may impose on Lilly.” ECF No. 104 (emphasis added). The Court ordered
`
`Lilly to run Search Term 1, which Teva’s request specified should include
`
` and
`
`
`
` as project code names for galcanezumab, because of their relevance to the litigation.
`
`Lilly now claims that “[t]he Court did not ‘order Lilly to run the entirety of Teva’s proposed
`
`additional ESI search term no. 1’” and that “there was no dispute before the Court regarding
`
`Lilly’s use of internal project or code names to collect ESI.” Ex. 19 at 1; see also Ex. 20 at 2. This
`
`argument fails for two reasons. First, Teva was clear in its letter to the Court (ECF No. 99) that
`
`its request to have the Court order Lilly to run Search Term 1 included “internal project or code
`
`names” and even provided two specific examples of those code names in its letter. Teva did not
`
`ask the Court to order Lilly only to run the word “galca*” in isolation – it was part of Search
`
`Term 1. Therefore, the Court’s order to run the search “as described in Teva’s letter/request”
`
`required Lilly to run the search accordingly. Lilly was not free to disregard the rest of Search
`
`Term 1. Second, and perhaps even more egregious, Lilly’s interpretation of the order contradicts
`
`the representations it made to the Court that it had “agreed to independently run each of the above
`
`terms, except for “‘galca*.’” ECF No. 103 at 2.
`
`
`
`11
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 15 of 25
`
`
`
`The Court’s order was clear that Lilly was to run Teva’s Search Term 1 as requested in
`
`Teva’s letter to the Court. Lilly’s failure to run Search Term 1 with
`
` and
`
`
`
` as part of the search term was a violation of that order.
`
`B. Meaningful Sanctions Are Warranted
`
`Cumulatively, Lilly’s disregard for this Court’s order, its misrepresentations to the Court
`
`and Teva, and its concealment of its improper behavior warrant meaningful sanctions. See
`
`Nationwide Mut. Ins. Co. v. Spinal Imaging, Inc., C.A. No. 2008-11073-DPW, 2012 WL
`
`13049324, at *1 (D. Mass. Mar. 12, 2012) (“Cumulatively, the defendants and their counsel have
`
`simply disregarded the Court’s Orders and misrepresented facts to the Court to such a degree that
`
`a sanction limited to just ordering the payments of fees is not sufficient.”); Pfizer, Inc., 188 F.
`
`Supp. 3d at 136. Specifically, Lilly’s violation of the Court’s March 8 order: (i) is severe; (ii) lacks
`
`a legitimate and/or mitigating excuse; (iii) represents a pattern of repeated misrepresentations;
`
`(iv) was made deliberately; (v) has caused substantial prejudice to Teva and the operations of the
`
`Court; and (vi) cannot be adequately remedied by lesser sanctions.
`
`The Severity of the Violation. Lilly’s violation of the Court’s March 8, 2021 order is
`
`severe, both in execution and effect. The Court’s order plainly required to Lilly to run Search
`
`Term 1 “as described in Teva’s letter/request,” which unambiguously referenced the
`
`galcanezumab project names
`
` and
`
` ECF Nos. 99, 104. Lilly
`
`directly violated this order by excluding the aforementioned project names from its ESI search and
`
`hiding this fact from both Teva and the Court for months. Lilly’s recent statements and the
`
`documents Lilly has produced that use these project names indicate that the additional documents
`
`that would have been collected if Lilly had followed the Court’s order would have been numerous,
`
`highly relevant, and likely damaging to Lilly’s case. To make matters worse, Lilly concealed its
`
`failure to comply with the Court’s order until the end of the fact discovery period, precluding Teva
`12
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 16 of 25
`
`
`
`from obtaining the requested documents before relevant witnesses were deposed or before the
`
`close of fact discovery. In short, Lilly has deprived Teva of highly relevant discovery and has
`
`done so in such a way that would inflict further prejudice should Teva persist in seeking that
`
`discovery. This misconduct is consistent with all the hallmarks of a severe violation. Malloy v.
`
`WM Specialty Mortg. LLC, 512 F.3d 23, 26 (1st Cir. 2008) (affirming ruling that months-overdue
`
`discovery responses constituted a severe violation of Rule 37(b) because the offending party had
`
`violated a court order); see also Torres–Vargas v. Pereira, 431 F.3d 389, 393 (1st Cir. 2005) (“[A]
`
`party's disregard of a court order is a paradigmatic example of extreme misconduct.”).
`
`The Legitimacy of Lilly’s Excuse / Mitigating Excuses. There is no legitimate or
`
`mitigating excuse for Lilly’s strategic decision to not run (or disclose that it was not running) the
`
`project names for galcanezumab. Lilly has admitted that it is withholding documents responsive
`
`to Search Term 1, complaining that searching and producing documents that hit on the terms
`
` and
`
`and iterations thereof “would be unduly burdensome.” See
`
`Ex. 19 at 1–2. Lilly already made and lost that same argument during the ESI search dispute. The
`
`Court ruled that “the name of the active ingredient antibody in [Emgality] . . . is therefore highly
`
`relevant to this litigation despite the relative burden that running the search may impose on Lilly.”
`
`ECF No. 104. Lilly’s current excuse that it would be unduly burdensome to run a search for other
`
`names for “galca*” is not legitimate when the Court already rejected that same argument for
`
`“galca*.”
`
`
`
`
`
` If Lilly disagreed with the Court’s ruling that Lilly had to run
`
`Search Term 1 as reflected in Teva’s letter, “the proper course of action for Defendant[] was to
`
`seek modification of the Court's prior orders, not simply to disobey them.” State Farm Mut. Auto.
`
`
`
`13
`
`

`

`Case 1:18-cv-12029-ADB Document 149 Filed 08/26/21 Page 17 of 25
`
`
`
`Ins. Co. v. Lincow, No. C.A. No. 05-5368, 2008 WL 697252, at *5 (E.D. Pa. Mar. 10, 2008); cf.
`
`Malloy, 512 F.3d at 27 (citing litigant’s failure to proffer “legitimate excuse” for noncompliance
`
`with discovery order as justifying dismissal sanction despite prejudice to opposing party
`
`“appear[ing] relatively slight.”).
`
`Repeated Misconduct. Lilly has made repeated misrepresentations to both Teva and the
`
`Court regarding its ESI discovery. As discussed above, Lilly represented to Teva and the Court
`
`that it would run the entirety of Search Term 1 with the exception of “galca*.” See, e.g., Ex. 4 at
`
`3; ECF No. 103 at 2. Search Term 1 in Teva’s request included
`
` and
`
`
`
`, but Lilly never ran these as part of Search Term 1. Lilly’s letter to the Court during
`
`the ESI search term dispute overstated the burden that would be imposed on Lilly if it had to run
`
`Teva’s ESI search terms. Lilly told the Court it would have to review over 550,000 documents,
`
`but later revealed that the inflated figure was only an “approximation based on data and analytics”
`
`rather than the results of a real search. See ECF No. 103 at 2–3; Ex. 12 at 3. Finally, Lilly was
`
`not forthcoming when Teva asked Lilly to confirm it had complied with the Court’s March 2021
`
`order. In a June 30, 2021 email, Teva specifically asked Lilly to confirm that its ESI search had
`
`used several code names including
`
` and
`
` Lilly replied that it had
`
`“searched all relevant custodial and non-custodial sources using the search terms agreed upon by
`
`the parties and those ordered by the Court, including the various iterations of the ‘code’ names
`
`identified in [Teva’s] June 30 email.” Ex. 17 at 1 (emphasis added). But this was wrong. Lilly
`
`later