Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`TEVA PHARMACEUTICALS
`INTERNATIONAL GMBH and
`TEVA PHARMACEUTICALS USA, INC.,
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`Plaintiffs,
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`v.
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`ELI LILLY AND COMPANY,
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`Defendant.
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`FILED UNDER SEAL
`LEAVE TO FILE GRANTED
`9/18/2021 (ECF NO. 160)
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`) Case No. 1:18-cv-12029-ADB
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`DEFENDANT ELI LILLY AND COMPANY’S SUR-REPLY TO PLAINTIFFS’
`MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 37(B)
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 2 of 10
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`TABLE OF CONTENTS
`Introduction ......................................................................................................................... 1
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`The Requirement That Lilly Violated a Court Order Is Not Met ....................................... 1
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`A.
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`B.
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`The Court Ordered Lilly to Search “Code Names Used By Lilly” ............. 1
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`Teva Cannot Rewrite the Court’s Order, or the Underlying Facts ............. 2
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`1.
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`2.
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`“Teva’s Interpretation” of the Court’s Order Is Irrelevant ......................... 2
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`Teva’s Attempts to Muddy the Record Do Not Change That Lilly
`Acted in Good Faith .................................................................................... 3
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`I.
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`II.
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`III.
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`Teva’s Sanctions Analysis Is Contrary to Law and Fact .................................................... 4
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`A.
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`B.
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`Teva Has No Answer to Governing Case Law ........................................... 4
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`The Facts Do Not Warrant Any of Teva’s Proposed Sanctions ................. 4
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`IV.
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`Conclusion .......................................................................................................................... 5
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 3 of 10
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`Federal Cases
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`TABLE OF AUTHORITIES
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`Ins. Recovery Grp., Inc. v. Connolly,
`977 F. Supp. 2d 16 (D. Mass. 2013) ..........................................................................................2
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`Lawes v. CSA Architects and Eng’rs LLP,
`963 F.3d 72 (1st Cir. 2020) ........................................................................................................5
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`Pascale v. G.D. Searle & Co.,
`90 F.R.D. 55 (D.R.I. 1981) ........................................................................................................2
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`R.W. Int’l Corp. v. Welch Foods, Inc.,
`937 F.2d 11 (1st Cir. 1991) ........................................................................................................4
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`Syntel Sterling Best Shores Mauritius Ltd. v. TriZetto Grp.,
`328 F.R.D. 100 (S.D.N.Y. 2018) ...............................................................................................4
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`Federal Statutes
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`35 U.S.C. § 112 ................................................................................................................................4
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`Rules
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`Fed. R. Civ. P. 37(b) ....................................................................................................................1, 4
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 4 of 10
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`I.
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`Introduction
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`At best, Teva’s sanctions motion reflects a good faith dispute between the parties over the
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`scope of the Court’s March 8th Order. That dispute is not sanctionable. At worst, Teva’s
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`sanctions motion is an attempt to circumvent this Court and a Massachusetts jury by removing
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`causes of action from the case without ever addressing substance. Regardless, Teva’s reply (ECF
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`No. 161)—rife with vitriol and speculation—comes no closer than its opening brief to carrying
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`its heavy burden to prove that its requested Rule 37(b) sanctions are warranted. Instead, Teva’s
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`reply tries to muddy the waters while ignoring the case law in Lilly’s opposition (ECF No. 151)
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`that is solidly in Lilly’s favor. Teva’s motion should be denied.
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`II.
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`The Requirement That Lilly Violated a Court Order Is Not Met
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`Lilly believes that the March 8th Order was clear: “[P]erform a search using the phrase
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`“galca,” as described in Teva’s letter/request.” ECF No. 104. Lilly ran a search “as described in
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`Teva’s letter/request,” namely, Search Term 1 on page 1 of Teva’s letter, right below the phrase
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`“Teva seeks an order compelling Lilly to use the following two search terms[.]” ECF No. 99
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`(“Teva’s letter”) at 1. Search Term 1 required Lilly to search for “any internal project of [sic]
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`code names used by Lilly.” Id. The Court did not order Lilly to run a search containing the terms
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` which are not internal project or code names used by Lilly,
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`and Teva did not seek such an order in February 2021. That Teva sought to recast the March 8th
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`Order to manufacture the present dispute in late July, five months later, has no bearing on Lilly’s
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`compliance with the Court’s March 8th Order.
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`A.
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`The Court Ordered Lilly to Search “Code Names Used By Lilly”
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`There is no dispute that Lilly promptly produced more than 14,000 documents responsive
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`to “Search Term 1” that the Court ordered. Lilly ran thirteen code names for the project that later
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`led to galcanezumab, comprising “galca*,” the seven terms expressly listed in the search string
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 5 of 10
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`from Teva’s letter, and five additional project or code names not identified by
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` Teva’s reply again insists that other code names
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`were “used by Lilly” and thus Lilly was bound by the Court’s Order to run those names. But this
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`self-serving and unsupported speculation is inconsistent with the deposition testimony elicited by
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`Teva. Indeed, Lilly’s scientists repeatedly testified what the project code name actually was:
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` See ECF No. 151 at 9. Generic terms like “drug,” “CGRP,” “antibody,” or even
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` that might appear as nouns in some text relating to the project are not specific
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`to the project and were entirely unsuited for use as a confidential code name. Acknowledging the
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`possibility of “colloquial” use of such terms does not convert those words into project or code
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`names. In the face of this clear testimony, Teva alternately claims that Lilly “agreed” to run the
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`disputed
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` and
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` terms (Lilly did not), that Lilly “did not object” to
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`running them (again, false), or that Lilly has “waived” arguments against imposing sanctions
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`because it should have known Teva’s position “in February.” Lilly could not have waived in
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`February an argument Teva did not raise until July 30, 2021.
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`B.
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`Teva Cannot Rewrite the Court’s Order, or the Underlying Facts
`1.
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`“Teva’s Interpretation” of the Court’s Order Is Irrelevant
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`Teva’s briefs rest on the premise that Teva can redefine the scope of a Court order. But if
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`there is ambiguity in the scope of the order Teva secured, that ambiguity should be construed
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`against Teva, not Lilly. See, e.g., Ins. Recovery Grp., Inc. v. Connolly, 977 F. Supp. 2d 16, 26 (D.
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`Mass. 2013) (“Courts have found unjust the imposition of sanctions on the basis of the violation
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`of a discovery order that is subject to more than one reasonable interpretation.”) (citing Pascale
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`v. G.D. Searle & Co., 90 F.R.D. 55, 59 (D.R.I. 1981)). If Teva wanted the specific terms
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` to be run in a search term ordered by the Court, all it had to do was
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`expressly list them in the requested search string, as Teva did with eight other names for Lilly’s
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 6 of 10
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`antibody project. ECF No. 99 at 1. Lilly would have run those terms, if ordered. In the absence
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`of that clarity, Teva’s reply simply states ipse dixit that “there cannot be any meaningful dispute”
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`that the Court’s March 8th Order adopted and incorporated the entirety of Teva’s February 18th
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`six-page letter request—and accordingly, “Teva’s interpretation” and “Teva’s position” govern
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`Lilly’s compliance with the Order.1 But the briefing on this issue makes clear that there is a
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`meaningful dispute with Teva and Lilly having diametrically opposite interpretations.
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`2.
`Teva’s Attempts to Muddy the Record Do Not Change That Lilly
` Acted in Good Faith
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`Teva’s reply is replete with overheated rhetoric seemingly calculated to justify an
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`unearned summary judgment victory. At various times, Teva wrongly accuses Lilly of
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`“resort[ing] to indefensible falsehoods,” “continued use of deception,” and a “willingness to
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`misrepresent the facts.” ECF No. 161 at 5-6. As previously explained, that is simply not the
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`case—Lilly believed it was complying with the Court’s March 8th Order. ECF No. 151 at 11-16.
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`Lilly’s confirmation that it ran the iterations of the ‘code’ names identified in Teva’s June 30
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`email, which Teva references in its reply (ECF No. 161 at 5), supports that Lilly did not
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`understand
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` to be a code name or a term ordered by the Court.
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`Teva claims in its reply that it “explicitly stated its intent to bring a sanctions motion and
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`the parties discussed that issue at length.” ECF No. 161 at 5; ECF No. 162 at ¶¶3-4. Teva claims
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`Lilly ratified this by noting in a post-conference email that Teva stated that it “could” seek
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`sanctions. But Teva did not “state its intent” to bring a sanctions motion on July 30th. Gabranski
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`Decl. at ¶¶2-4. Moreover, the parties could not have been at an impasse justifying this motion on
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`1 Even the footnote in Teva’s letter brief now relied on by Teva only stated that certain
`documents “indicate” that
` were project names used by Lilly.
`ECF No. 99 at 3 n.3. Subsequent deposition testimony confirmed that they were not. See ECF
`No. 151 at 9.
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 7 of 10
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`July 30th, as that was the first time that Teva argued that Lilly had violated the Court’s Order by
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`not running
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` as search terms. Indeed, as Teva’s motion
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`states, the parties continued to discuss the issue in various emails between August 5-16, 2021.
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`None of those emails, however, stated that Teva was filing a Rule 37(b) sanctions motion, even
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`the August 15, 2021 email seeking Lilly’s assent to Teva’s motion to seal for the same motion.
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`ECF Nos. 152-14 to 152-16. While two Teva attorneys have now sworn to the Court that Teva
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`adequately advised Lilly of this motion, the facts instead support Lilly’s contrary perception.
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`III. Teva’s Sanctions Analysis Is Contrary to Law and Fact
`A.
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`Teva Has No Answer to Governing Case Law
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`Teva’s reply fails to address the array of governing case law from the First Circuit and
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`this District cited in Lilly’s Opposition. Those factors, which favor Lilly, cannot be ignored. And
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`the First Circuit is clear that when a party is accused of violating a court order on the scope of
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`document production, the proper sanction is an order to produce documents, not to end the case
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`or important issues in it. R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 17 (1st Cir. 1991).
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`Teva’s reply does not mention, let alone analyze, any of the cases Lilly presented. Even Teva’s
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`out-of-circuit Syntel case argues against Teva’s overreach. The New York district court found
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`that defendant’s proposed sanctions of “findings of fact, preclusion, or adverse inferences” were
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`“not commensurate with the failure to comply.” Syntel Sterling Best Shores Mauritius Ltd. v.
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`TriZetto Grp., 328 F.R.D. 100, 123 (S.D.N.Y. 2018). The court further found that the sanctions
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`sought were not “congruous with the misconduct at issue.” Id. The facts here are even more
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`stark. Lilly has produced over 14,000 documents directly responsive to Search Term 1.
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`B.
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`The Facts Do Not Warrant Any of Teva’s Proposed Sanctions
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`Teva argues that precluding Lilly from arguing its 35 U.S.C. ¶ 112 and doctrine of
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`equivalents defenses is warranted because the understanding of “Lilly’s scientists” “could have a
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 8 of 10
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`significant bearing” on both issues. ECF No. 161 at 9-10. But Teva deposed each of those
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`scientists for a full day on the record, has thousands of documents from those scientists’ files,
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`and presumably will present expert testimony on those issues. That some other theoretical
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`document “could” exist that might contradict others is a fishing expedition, not a reason for
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`terminating sanctions. Teva also assumes, without evidence, that Lilly is withholding documents
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`that hit on the terms
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` because they “likely are” “highly
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`relevant.” Id. at 9. But this is pure conjecture and plainly false. Lilly did not, as Teva contends,
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`base its decision regarding
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` on a desire to withhold “highly
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`responsive” or conceal “unfavorable” documents. To the contrary, and consistent with Lilly’s
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`position, Lilly did not run these searches before or in response to the Court’s March 8th Order
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`because it did not understand the Order to require that. Gabranski Decl. at ¶¶5-7. Throughout this
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`litigation, Lilly has engaged in good faith negotiations on discovery with Teva—producing
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`additional documents at Teva’s request from Lilly custodians
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` as well as from non-custodial sources. In the context of this recent dispute on the
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`terms
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` Lilly was trying to do the same, and queried Teva for
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`“specific documents or categories of documents it has not received.” ECF No. 151-14 at 1. But
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`Teva ignored this query and instead responded with a sanctions motion.
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`Teva should not be permitted to sidestep major weaknesses in its case through unjust
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`imposition of unwarranted sanctions. Instead, Lilly respectfully requests that the Court honor and
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`enforce the First Circuit’s “strong policy favoring the disposition of cases on the merits,” and
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`allow Lilly to present its defenses unencumbered by Teva’s attempted circumvention. Lawes v.
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`CSA Architects and Eng’rs LLP, 963 F.3d 72, 91 (1st Cir. 2020) (quotation omitted).
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`IV. Conclusion
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`For the reasons above and of record, Teva’s motion should be denied.
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 9 of 10
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`Dated: September 23, 2021
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`William B. Raich
`Danielle A. Duszczyszyn
`Denise Main
`Pier D. DeRoo
`Daniel F. Roland
`Matthew Luneack
`Yoonjin Lee
`Amana Abdulwakeel
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`William.Raich@finnegan.com
`Danielle.Duszczyszyn@finnegan.com
`Denise.Main@finnegan.com
`Pier.DeRoo@finnegan.com
`Daniel.Roland@finnegan.com
`Matthew.Luneack@finnegan.com
`Yoonjin.Lee@finnegan.com
`Amana.Abdulwakeel@finnegan.com
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` /s/ Andrea L. Martin
`Andrea L. Martin (BBO 666117)
`BURNS & LEVINSON LLP
`125 High Street
`Boston, MA 02110-1624
`(617) 345-3000
`amartin@burnslev.com
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`Charles E. Lipsey
`Ryan O’Quinn
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`1875 Explorer Street
`Suite 800
`Reston, VA 20190-6023
`Charles.Lipsey@finnegan.com
`Oquinnr@finnegan.com
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`Emily R. Gabranski (BBO 694417)
`Marta Garcia Daneshvar
`Lulu Wang (BBO 704042)
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`2 Seaport Lane
`Boston, MA 02210-2001
`Emily.Gabranski@finnegan.com
`Marta.Garcia@finnegan.com
`Lulu.Wang@finnegan.com
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`Attorneys for Defendant
`Eli Lilly and Company
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`Case 1:18-cv-12029-ADB Document 172 Filed 10/04/21 Page 10 of 10
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`CERTIFICATE OF SERVICE
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`I, Andrea L. Martin, hereby certify that on September 23, 2021, a copy of the foregoing
`document was served on all outside counsel of record via email.
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`/s/ Andrea L. Martin
`Andrea L. Martin
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