Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 1 of 26
`
`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.
`
`
`
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`LEAVE TO FILE GRANTED ON
`SEPTEMBER 2, 2021
`
`Case No. 1:18-cv-12029-ADB
`
`
`
`
`
`DEFENDANT ELI LILLY AND COMPANY’S OPPOSITION TO PLAINTIFFS’
`MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 37(B)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 2 of 26
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`SUMMARY ........................................................................................................................ 1
`
`FACTUAL BACKGROUND ............................................................................................. 2
`
`LEGAL STANDARD ......................................................................................................... 7
`
`ARGUMENT ...................................................................................................................... 8
`
`A.
`
`Lilly Did Not Violate the Court’s March 8, 2021 Order ........................................ 8
`
`1.
`
`2.
`
`Teva Made No Effort to Discover Lilly’s Actual Project Names or
`Code Names ................................................................................................ 8
`
`Teva Twists the Words of the Court’s Order .............................................. 9
`
`B.
`
`Lilly Complied with the Court’s March 8th Order in Good Faith ......................... 11
`
`1.
`
`2.
`
`Lilly Conducted Searches and Produced Documents Using Teva’s
`“Search Term 1” and “Search Term 2” ..................................................... 11
`
`The First Circuit’s Factor Test Favors Lilly ............................................. 12
`
`C.
`
`Teva’s Proposed Sanctions Are Unreasonable ..................................................... 16
`
`1.
`
`2.
`
`3.
`
`Terminal Sanctions Are Inappropriate on These Facts ............................. 16
`
`Teva Is Not Entitled to Sanctions Salvaging Its Patents, Which Are
`Invalid Under 35 U.S.C. § 112 ................................................................. 17
`
`Attorney’s Fees Are Neither Automatic Nor Appropriate ........................ 20
`
`V.
`
`CONCLUSION ................................................................................................................. 20
`
`i
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 3 of 26
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Federal Cases
`
`AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc.,
`759 F.3d 1285 (Fed. Cir. 2014)................................................................................................17
`
`Akzo Nobel Coatings, Inc. v. Dow Chem. Co.,
`811 F.3d 1334 (Fed. Cir. 2016)................................................................................................19
`
`Ariad Pharm., Inc. v. Eli Lilly & Co.,
`598 F.3d 1336 (Fed. Cir. 2010) (en banc)..........................................................................18, 19
`
`Craig v. Town of Hudson,
`No. 20-CV-11380-ADB, 2021 WL 1601578 (D. Mass. Apr. 23, 2021) .................................20
`
`Juno Therapeutics, Inc. v. Kite Pharma, Inc.,
`No. 20-1758, slip op. (Fed. Cir. Aug. 26, 2021) ......................................................................17
`
`Malloy v. WM Specialty Mortg.,
`512 F.3d 23 (1st Cir. 2008) ......................................................................................................17
`
`Nationwide Mut. Ins. Co. v. Spinal Imaging, Inc.,
`No. 2008-11073-DPW, 2012 WL 13049324 (D. Mass. Mar. 12, 2012) .................................16
`
`Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico,
`248 F.3d 29 (1st Cir. 2001) ........................................................................................................7
`
`Phinney v. Paulshock,
`181 F.R.D. 185 (D.N.H. 1998) ..................................................................................................7
`
`R.W. Int’l Corp. v. Welch Foods, Inc.,
`937 F.2d 11 (1st Cir. 1991) ............................................................................................7, 15, 16
`
`Remexcel Managerial Consultants, Inc. v. Arlequín,
`583 F.3d 45 (1st Cir. 2009) ........................................................................................................7
`
`State Farm Mut. Auto. Ins. Co. v. Lincow,
`No. 05-5368, 2008 WL 697252 (E.D. Pa. Mar. 10, 2008) ................................................16, 17
`
`Sullivan v. Dumont Aircraft Charter, LLC,
`364 F. Supp. 3d 63 (D. Mass. 2019) ..........................................................................................7
`
`Teva Pharms. Int’l GmbH v. Eli Lilly & Co.,
`Nos. 20-1747, -1748, -1750, slip op. (Fed. Cir. Aug. 16, 2021) ..........................................3, 17
`
`ii
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 4 of 26
`
`Teva Pharms. Int’l GmbH v. Eli Lilly & Co.,
`Nos. 20-1749, -1751, -1752, slip op. (Fed. Cir. Aug. 16, 2021) ................................................3
`
`Torres-Vargas v. Pereira,
`431 F.3d 389 (1st Cir. 2005) ....................................................................................................17
`
`United States v. Pfizer, Inc.,
`188 F. Supp. 3d 122 (D. Mass. 2016) ......................................................................................17
`
`United States v. Pole No. 3172, Hopkinton,
`852 F.2d 636 (1st Cir. 1988) ....................................................................................................16
`
`Velazquez-Rivera v. Sea-Land Serv., Inc.,
`920 F.2d 1072 (1st Cir. 1990) ..................................................................................................16
`
`Young v. Gordon,
`330 F.3d 76 (1st Cir. 2003) ........................................................................................................7
`
`State Cases
`
`Roberts v. Worcester Redev. Auth.,
`53 Mass. App. Ct. 454 (2001) ..................................................................................................10
`
`Federal Statutes
`
`35 U.S.C. § 112 ........................................................................................................................17, 19
`
`Rules
`
`Fed. R. Civ. P. 37(b) ..................................................................................................................7, 20
`
`Fed. R. Civ. P. 37(b)(2)(B) ..............................................................................................................7
`
`Fed. R. Civ. P. 37(b)(2)(C) ............................................................................................................20
`
`Fed. R. Civ. P. 45 ...........................................................................................................................11
`
`iii
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 5 of 26
`
`I.
`
`SUMMARY
`
`This dispute centers on Teva’s unproven and implausible allegations that the Court’s
`
`March 8, 2021 Order for Lilly to search ESI using the term “galca*” requires Lilly to search all
`
`ESI using the generic terms
`
` or
`
` Those terms are not at all specific
`
`to galcanezumab, or even humanized CGRP antibodies, or even monoclonal CGRP antibodies—
`
`and are therefore entirely unsuited for use as “code or project names” intended to allow specific
`
`and confidential reference to a particular development project.
`
`Lilly’s codes for purposes of identifying the project—and searched in response to the Court
`
`Order—prove the point. They were the code names
`
` The terms
`
` and
`
` were
`
`not known project or code names for galcanezumab, and Lilly in good faith never believed it had
`
`been ordered to conduct a search for those generic terms. That a term both parties used like
`
`
`
` might show up colloquially in text to explain or introduce a topic within an otherwise
`
`code- or project-named project, just as “headache” might, does not turn such generic terms into
`
`code or project names. At the very worst, there is a bona fide dispute between the parties as to the
`
`scope of the Court’s Order, which does not justify the imposition of sanctions—at all—and
`
`certainly not the draconian, case-dispositive sanctions sought here by Teva.
`
`Teva’s sanctions motion thus fails, because Lilly has not violated any order of this Court.
`
`Indeed, Lilly has gone out of its way to comply. On March 8, 2021, the Court ordered Lilly “to
`
`perform a search using the phrase ‘galca,’ as described in Teva’s letter/request [ECF No. [99]].”
`
`Dkt. No. 104. Search Term 1, as stated in Teva’s letter, was:
`
`galca* OR gmab OR 2951742 OR L2951742 OR Y2951742 OR LY2951742 OR
`LLY2951742 OR LSN2951742 OR [any internal project of [sic] code names used
`by Lilly]
`
`1
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 6 of 26
`
`Dkt. No. 99 at 1. Lilly ran that search as ordered, producing thousands of responsive documents
`
`to that search term over the ensuing three months. Yet Teva continued to complain, focusing on
`
`quantity of documents rather than quality. At every turn, Lilly responded to Teva’s concerns. But
`
`after extensive correspondence, in late July, Teva injected a completely new dispute. Teva insisted
`
`that
`
` and
`
` were code names that Lilly used—despite evidence to the
`
`contrary—and therefore were binding parts of the Court’s Order. Teva is wrong on both counts.
`
`Teva’s motion should be denied in full, but at the very least, Teva’s draconian proposed sanctions
`
`are entirely disproportionate to the perceived wrong and should be rejected.
`
`II.
`
`FACTUAL BACKGROUND
`
`There is no need for Lilly to fully rehash the “facts” set forth in Teva’s motion, but it is
`
`necessary to set the record straight, where appropriate, in light of material omissions and multiple
`
`incorrect statements. Only one fact is critical to the resolution of this motion: The terms
`
`
`
` or
`
` were never known to be “internal project o[r] code names,” and for that
`
`reason, those terms are not within the scope of Search Term 1 and not within the scope of the
`
`Court’s March 8, 2021 Order. Without violation of a court order, there can be no sanctions. If there
`
`was a violation, it arose from an unsanctionable bona fide dispute over the scope of the Order.
`
`A.
`
`Response to Teva’s “Procedural Posture of the Case”
`
`Teva declares that “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 Partes Review
`
`(‘IPR’) petitions” for the patents-in-suit. Dkt. No. 144 at 3. Teva omits that Lilly’s Motions to
`
`Dismiss were successful because Teva brought suit far too early. See C.A. No. 17-cv-12087, Dkt.
`
`Nos. 42-43; C.A. No. 18-cv-10242, Dkt. Nos. 23-24. Teva further omits that six of Lilly’s IPR
`
`petitions were successful, with both the USPTO Patent Trial and Appeal Board and the Federal
`
`2
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 7 of 26
`
`Circuit invalidating all of Teva’s asserted composition of matter claims.1 See Ex. 1,2 Teva Pharms.
`
`Int’l GmbH v. Eli Lilly & Co., Nos. 20-1747, -1748, -1750, slip op. (Fed. Cir., Aug. 16, 2021)
`
`(“Teva I”); Ex. 2, Teva Pharms. Int’l GmbH v. Eli Lilly & Co., Nos. 20-1749, -1751, -1752, slip
`
`op. (Fed. Cir., Aug. 16, 2021) (“Teva II”). And while Teva fended off a single obviousness
`
`challenge to each of Teva’s method of treatment patents in other IPRs, those challenges also
`
`streamlined this case, as Lilly has proposed to drop its prior art challenges that were or could have
`
`been raised in the IPRs. Ex. 3 at 1. Lilly’s IPR petitions therefore significantly streamlined this
`
`litigation and reduced the expenditure of resources by the parties and the Court.
`
`If any party has delayed proceedings in this case, it is Teva. In the present action, the third
`
`filed by Teva on this drug, the extended deadline for substantial completion of document
`
`production was May 28, 2021. Dkt. Nos. 113-114. But Teva produced nearly two million pages—
`
`almost 40% of its total production—after the deadline and in the middle of depositions. This
`
`number does not include thousands more documents from the inventors of the patents-in-suit and
`
`
`
`, which Teva also delayed in collecting and producing without
`
`notifying Lilly. Teva’s document production, particularly that relating to its damages case, remains
`
`woefully incomplete to this day. Ex. 4 at 2-5. In an effort to avoid burdening the Court with
`
`unnecessary motions, Lilly has continued to work with Teva to fill in gaps in Teva’s discovery.
`
`A theme throughout Teva’s motion is that Teva somehow knew that Lilly was engaging in
`
`sanctionable conduct because of a perceived imbalance in the size of the parties’ productions. This
`
`is a red herring. First, it is expected in a complex patent litigation that the patentee will produce
`
`1 Teva’s statement that “the PTAB upheld the validity of many of the challenged claims” in the
`IPRs is misleading. Dkt. No. 144 at 3. Every one of Teva’s sixty-six composition of matter
`claims that Lilly challenged was invalidated.
`2All exhibits referenced herein are attached to the concurrently-filed Declaration of Ryan P.
`O’Quinn in Support of Lilly’s Opposition to Plaintiffs’ Motion for Sanctions.
`
`3
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 8 of 26
`
`more pages than the accused infringer, including the full prosecution histories of each patent-in-
`
`suit, as well as voluminous R&D documents pertaining to conception and reduction to practice.
`
`Second, Teva’s burdensome production and discovery tactics account for much of the alleged
`
`“discrepancy” between the parties’ page count. As one example, Teva artificially inflated its
`
`document production by opting to produce any spreadsheet as a series of image files rather than as
`
`a native document, which would count as a single page. Analysis by Lilly suggests that as of mid-
`
`June, 2021, Teva had produced 2,809 spreadsheets totaling 743,203 pages. At the time, this
`
`accounted for 22% of Teva’s documents and 25% of Teva’s page count.3 Had Teva processed its
`
`spreadsheets as native files, as Lilly did, those documents would have totaled 2,794 pages.
`
`B.
`
`The Parties’ ESI Agreement and Ensuing Negotiations
`
`Some brief background on the ESI discovery process in this case is also warranted. In
`
`August 2020, the parties exchanged a list of search terms that they intended to use to collect their
`
`own responsive ESI. Ex. 5 at 3-4; Ex. 6 at 8. Where such terms seemed inadequate, the parties
`
`were allowed to propose at most 10 additional terms. This exercise was intended by the parties to
`
`create guideposts for conducting ESI discovery before the substantial completion deadline. It was
`
`not the intent of the parties to later modify the search terms, at whim, based on subsequent
`
`discovery. Ignoring the ESI Protocol virtually at the outset, in September 2020, Teva requested
`
`that Lilly collect ESI using a list of more than 100 additional search terms (Ex. 7) that far exceeded
`
`the limits of the ESI Protocol (Dkt. No. 57). In the months that followed, Lilly made good-faith
`
`efforts to narrow disputes concerning the search terms, offering compromise after compromise.
`
`See Ex. 8 at 1-2. While Teva repeatedly rejected Lilly’s proposals, the deadline for substantial
`
`3 As discussed above, Teva continued to produce large document volumes well into July in this
`case, despite substantial completion being in the month of May.
`
`4
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 9 of 26
`
`completion passed without Teva seeking the Court’s intervention. In fact, Teva delayed seeking
`
`resolution of the issue until February 18, 2021—six weeks before the close of fact discovery and
`
`more than two months after the December 4, 2020 deadline for substantial completion.
`
`Ignoring another compromise offered by Lilly earlier the same day, Teva filed its letter
`
`brief to the Court on “Search Terms” 1 and 2 on February 18, 2021. See Ex. 9; Dkt. No. 99. At no
`
`time prior to that letter was there any discussion or meet and confer between the parties regarding
`
`the purported “codenames”
`
` or
`
` which are not known internal
`
`project or code names. Rather, with respect to Term 1, the parties only discussed the dispute
`
`relating to running the search term “galca*”. After Teva’s filing, Lilly agreed to run Teva’s Search
`
`Term 2. Ex. 10 at 1. The Court issued its Order on March 8, 2021. Dkt. No. 104. The pertinent text
`
`of the Order was as follows, with language specific to the sanctions motion at bar highlighted:
`
`Following the Court’s Order, Lilly promptly began processing and producing documents
`
`that were responsive to Search Terms 1 and 2. Lilly eventually produced 14,470 documents
`
`responsive to Search Term 1 between March 31 and May 31, 2021. As part of Search Term 2, Lilly
`
`ran the even broader term “CGRP*” in conjunction with the names and email addresses of its
`
`document custodians. See Ex. 10; Dkt. No. 103. It was not until a series of meet and confers held
`
`on June 21-22, 2021—nearly three months after production began—that Teva raised any allegation
`
`5
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 10 of 26
`
`that Lilly’s document productions were somehow insufficient based on the generic terms
`
`
`
` and
`
` Teva has never identified what documents it expected this expanded
`
`iteration of Search Term 1 to uncover that Search Term 2 did not.
`
`Teva continued to move the goalposts regarding its grievances over the ensuing weeks. On
`
`July 28, 2021, Teva alleged for the first time that “Lilly ha[d] failed to search all internal project
`
`and code names used by Lilly for galcanezumab, including but not limited to
`
`
`
` Ex. 11 at 1. This was despite Teva having
`
`been repeatedly told that those terms were not codenames for Lilly’s R&D project. E.g., Ex. 12 at
`
`1. Finally, Teva’s position shifted again during a July 30, 2021 meet and confer, where it stated
`
`for the first time that it believed the Court’s Order specifically included and incorporated a footnote
`
`to a different portion of Teva’s letter request. See Ex. 13 at 2. Following this final call, Lilly asked
`
`Teva directly in an August 12, 2021 email to identify “specific documents or categories of
`
`documents it has not received” pertaining to the dispute. Ex. 14 at 1. Teva never responded.
`
`C.
`
`Teva Escalated to a Motion for Terminating Sanctions Without Conferring
`
`Teva never indicated to Lilly that it planned to file a sanctions motion, let alone one seeking
`
`dispositive sanctions. The closest Teva came to any sort of notice of this motion was in letter
`
`correspondence dated August 13, 2021, when counsel stated that “Teva intends to move the Court
`
`for appropriate relief in view of Lilly’s failure to comply with the Court’s March Order.” (Ex. 15
`
`at 2), and in email correspondence dated August 15, 2021, when Teva sought Lilly’s assent to a
`
`motion to seal pertaining to a “motion with the Court regarding Lilly’s failure to comply with the
`
`Court’s March 8 Order.” Ex. 16. Lilly assumed Teva planned to file a more specific motion to
`
`compel. Instead, Teva has filed this sanctions motion as a distraction—drawing away time and
`
`resources just as the parties are completing fact discovery and preparing expert reports. The true
`
`6
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 11 of 26
`
`nature of Teva’s planned filing was never provided before Teva ambushed Lilly with its motion
`
`on August 18, 2021, seeking not only unilateral relief based on a dispute over the meaning of the
`
`Order, but also a draconian set of sanctions out of all proportion to the perceived wrong.
`
`III.
`
`LEGAL STANDARD
`
`Fed. R. Civ. P. 37(b) “clearly requires two things as conditions precedent to engaging the
`
`gears of the rule’s sanction machinery: a court order must be in effect, and then must be violated,
`
`before the enumerated sanctions can be imposed.” R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.
`
`2d 11, 15 (1st Cir. 1991). Rule 37(b)(2)(B) therefore “contemplate[s] a threshold determination by
`
`the court that the offending party has failed to comply with a court order issued under Rule 37(a).”
`
`Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29,
`
`33 (1st Cir. 2001). “In general, the burden of proof is on the party seeking the sanction.” Phinney
`
`v. Paulshock, 181 F.R.D. 185, 197 (D.N.H. 1998).
`
`A district court’s choice of a sanction under Fed. R. Civ. P. 37(b), if any, depends on the
`
`“totality of events” and is made “on a case-by-case basis.” Young v. Gordon, 330 F.3d 76, 81 (1st
`
`Cir. 2003). Sanctions are generally “premature” when at least some relevant documents have been
`
`produced in response to a particular court order compelling discovery. See Sullivan v. Dumont
`
`Aircraft Charter, LLC, 364 F. Supp. 3d 63, 92 (D. Mass. 2019). “[U]nless the failure of discovery
`
`is absolute, or nearly so, Rule 37(b)(2) sanctions are unripe.” R.W. Int’l Corp., 937 F.2d at 17.
`
`Entry of default judgment or terminating sanctions is a “drastic” measure that “runs contrary to
`
`the goals of resolving cases on the merits and avoiding harsh or unfair results.” Remexcel
`
`Managerial Consultants, Inc. v. Arlequín, 583 F.3d 45, 51 (1st Cir. 2009).
`
`7
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 12 of 26
`
`IV.
`
`ARGUMENT
`
`A.
`
`Lilly Did Not Violate the Court’s March 8, 2021 Order
`
`Teva’s motion entirely depends on the premise that
`
` and
`
`
`
`were “known project and code names” for galcanezumab during its early development. Indeed,
`
`Teva refers to these as “known” code names no fewer than four times in its brief. See Dkt. No. 144
`
`at 1, 2, 7, 16. But those were not known internal code names that Lilly used. In response to the
`
`Court order, Lilly conducted ESI searches using multiple code names Lilly knew had been used,
`
`including
`
`See Ex. 12 at 1. But because Lilly did not use generic terms like
`
`
`
`
`
` as names for the project that led to galcanezumab, those terms
`
`were not part of the Court’s Order, and were not run on Lilly’s ESI. That Teva realized in late July
`
`that it wanted those terms run as an end-around the stipulated ESI protocol does not mean Lilly
`
`had been ordered to search for those terms in March.
`
`1.
`
`Teva Made No Effort to Discover Lilly’s Actual Project Names
`or Code Names
`
`Teva simply assumes that
`
` and
`
` must have been Lilly code
`
`names, with no basis for that assumption. Notably, Teva never served any written discovery asking
`
`Lilly what its internal code names were. When Teva did ask Lilly’s custodians what the code name
`
`for the project was at their depositions, the answer was consistent:
`
` While Teva alleges
`
`that Lilly custodian
`
` stated that
`
` was a code name for
`
`galcanezumab, this is an overstatement.
`
`
`
`
`
`
`
`
`
`8
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 13 of 26
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` was an internal project or code
`
`
`
`No witness testified that
`
`
`
`
`
` or
`
`name for galcanezumab. With good reason—they were not, and as previously noted, were entirely
`
`unsuited for use as confidential code names because they were overly generic.
`
`
`
`
`
`
`
`
`
` Unlike Teva, Lilly—
`
`and its custodians—did know Lilly’s relevant code names, and searched those terms in accordance
`
`with the Court’s March 8th Order.
`
`2.
`
`Teva Twists the Words of the Court’s Order
`
`Teva’s contorted interpretation of the March 8th Order is misleading. There is no dispute
`
`that the Court ordered Lilly “to perform a search using the phrase ‘galca*’ as described in Teva’s
`9
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 14 of 26
`
`letter/request.” Dkt. No. 104. Teva, however, ignores the actual content of its letter. Teva’s
`
`“request” for relief is plainly set forth on the first page:
`
`Accordingly, Teva seeks an order compelling Lilly to use the following two
`search terms:
`
`Dkt. No. 99 at 1 (emphasis added). Teva now claims in its motion that its actual request for relief
`
`is instead found two pages deeper into the letter, where Teva summarized the history of the dispute
`
`between the parties and added a footnote wrongly implying that
`
` and
`
`
`
`were Lilly internal project code names. See Dkt. No. 144 at 10; Dkt. No. 99 at 3:
`
`Aside from the fact that courts do not look for important arguments in footnotes (see, e.g., Roberts
`
`v. Worcester Redev. Auth., 53 Mass. App. Ct. 454, 464 n.11 (2001) (“We are not required to
`
`address an argument raised in a footnote.”)), the footnote plainly refers to an earlier stage in the
`
`parties’ discussions because Term 1 as it appears on page 3 was superseded by later events. For
`
`example, it includes the term “*2951742.” Teva’s request to the Court, on page 1, does not. This
`
`is because Lilly informed Teva as early as November 13, 2020 that its ESI search tool could not
`
`accommodate the use of leading wildcard characters (e.g., *). Ex. 23 at 1 n.1. Nothing in the text
`
`10
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 15 of 26
`
`of page 3 or in any footnote is a “request” that the Court ordered Lilly to satisfy. The request on
`
`page 1 is the request the Court ordered Lilly to satisfy. Otherwise, the scope of the Order is
`
`indefinite, because the two versions of Term 1 conflict.
`
`If Teva wanted specific terms run in a search, it should have expressly included those terms
`
`in a request to the Court instead of the fluid placeholder “[any internal project o[r] code names
`
`used by Lilly]” that it now seeks to expand months after the Court has ruled. That dispute simply
`
`was not before the Court to consider. Teva cannot complain that the Court’s March 8th Order has
`
`been violated when it cannot consistently define the scope of that Order and the scope of that Order
`
`has been the subject of good faith dispute.
`
`B.
`
`Lilly Complied with the Court’s March 8th Order in Good Faith
`
`Teva resorts to frequent hyperbole in its sanctions motion, presumably to force its mistaken
`
`framing of the facts into the rubric of the case law. Unlike the sanctioned parties in Teva’s
`
`unrepresentative cases, however, Lilly has comported itself in good faith and has sought to
`
`cooperate in providing discovery. Sanctions are thus inappropriate.
`
`1.
`
`Lilly Conducted Searches and Produced Documents Using
`Teva’s “Search Term 1” and “Search Term 2”
`
`Lilly has been active in discovery in this case, as evidenced by the myriad letters, emails,
`
`and teleconferences between the parties. There were at least twenty communications on the issue
`
`currently at bar alone. Lilly has not, as Teva alleges, conducted “a pattern of deliberately
`
`obstructionist behavior” or “fail[ed] to meaningfully participate in discovery thus far.” Dkt. No.
`
`144 at 17, 18. Producing over 750,000 pages of documents, serving multiple Rule 45 subpoenas,
`
`taking and defending over twenty fact depositions, and exchanging hundreds of pages of timely
`
`written discovery responses is “meaningful” participation in discovery.
`
`11
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 16 of 26
`
`As soon as the Court issued its March 8th Order, Lilly began taking the necessary steps to
`
`comply and began producing documents on a rolling basis within three weeks of the Order. Teva
`
`argues that Lilly “misrepresented” its burden during briefing, but any alleged discrepancy is simply
`
`a natural byproduct of deduplication, review, and processing. In fact, the volume of documents
`
`produced responsive to the “galca*” search string reinforces Lilly’s reasons for objecting to the
`
`collection and review of such documents—the term appears in myriad documents that are not
`
`relevant or responsive in this litigation, including Lilly employee signature blocks (meaning every
`
`email those employees sent and received are hits), and voluminous foreign regulatory submissions
`
`and correspondence for Emgality and other Lilly products. Moreover, Lilly eventually produced
`
`14,470 documents to Teva that were responsive to Teva’s Search Term 1. This good faith
`
`compliance in a timely fashion belies Teva’s inflammatory claims of alleged malfeasance.
`
`2.
`
`The First Circuit’s Factor Test Favors Lilly
`
`Teva presents only a cursory analysis of the factor test that the First Circuit has set forth
`
`for courts to consider when deciding sanctions motions. As but one example, Teva’s motion lists
`
`“the existence of a prior warning from the court” as a factor to be considered in its “Legal
`
`Standard” section (see Dkt. No. 144 at 9-10), then omits any mention of the factor for the rest of
`
`the paper. The rationale for the omission is obvious. Because there has been no “prior warning”
`
`from the Court threatening Lilly with any sanctions, let alone terminating sanctions, that factor
`
`weighs fully in Lilly’s favor. A full analysis of the First Circuit factor test reveals a far different
`
`picture than the one-sided litany of grievances painted by Teva.
`
`a.
`
`Legitimacy of Lilly’s Excuse
`
`Lilly’s “excuse” in this case is more than “legitimate,” it is exculpatory. Lilly violated
`
`neither the letter nor the spirit of the Court’s Order, and therefore there should be no sanctions.
`
`Indeed, when ordered to search “any internal project or code names used by Lilly,” Lilly searched
`
`12
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 17 of 26
`
`every known internal project or code name that was used. Lilly’s custodian witnesses,
`
`
`
` were consistent that the “code name” for the CGRP project was
`
` See Exs. 17-19. Lilly additionally searched its ESI with the search terms
`
`
`
`code names for the project. Lilly applied the appropriate search terms and identified and promptly
`
` because those were other known
`
`produced more than 14,000 responsive documents to Teva.
`
`b.
`
`Severity of the Violation
`
`Teva claims that if Lilly had run the unbounded search Teva wanted, rather than the one
`
`the Court ordered, there would have been “numerous, highly relevant, and likely damaging”
`
`documents produced. Dkt. No. 144 at 12. Again, if Teva wanted a particular search string, it should
`
`have asked for it. Lilly sought to resolve the dispute without burdening the Court but Teva, instead
`
`of cooperating (or filing a motion to compel for specific terms it wanted run), filed its sanctions
`
`motion.
`
`c.
`
`Repetition of Violations
`
`Teva presents a parade of alleged horribles regarding Lilly’s alleged “repeated
`
`misrepresentations to both Teva and the Court regarding its ESI discovery.” But once again, this
`
`entire argument rests on Teva’s unilateral assumption that “Search Term 1 in Teva’s request
`
`included
`
` and
`
`” Dkt. No. 144 at 14. When Lilly told Teva on July 7,
`
`2021 that it had run the “various iterations of the ‘code’ names identified in [Teva’s] June 30
`
`email,” (Ex. 24 at 1) that was a true statement. Lilly ran the terms
`
` and
`
` and
`
` which were known code names that Lilly actually
`
`used in practice. Lilly did not run terms that were not known project or code names, including
`
`
`
`13
`
`
`
`
`
`
`

`

`Case 1:18-cv-12029-ADB Document 157 Filed 09/10/21 Page 18 of 26
`
`d.
`
`Deliberateness of the Misconduct
`
`Lilly committed no misconduct. If Lilly erred, it did so in a good faith belief regarding the
`
`scope of the Court’s Order. Teva’s analysis of this factor in its brief is misleading, as it insinuates
`
`there was a “direct request in Teva’s letter that Search Term 1 should include
`
` and
`
` Dkt. No. 144 at 15. As discussed above, this is untrue: Teva’s request was on
`
`page 1 of its letter, directly following a sentence that began “Teva seeks an order compelling Lilly
`
`to…”. As explained above, page 3 was a different section of the letter, discussing the history of
`
`the parties’ dispute and at most suggesting Teva’s incorrect belief, prior to depositions, that these
`
`were code names. See § IV.A.2, supra. This discrepancy between the different versions of Search
`
`Term 1 would make the Court’s Order far less “clear” than Teva insists.
`
`Teva wrongly complains that the fact that “Lilly waited so long to reveal its actions” is
`
`somehow “further evidence” of a deliberate sch