Case 2:23-cv-01997-MCA-JSA Document 69 Filed 08/14/23 Page 1 of 8 PageID: 1654
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`Joseph D. Garrity, Esq.
`101 N.E. THIRD AVENUE, SUITE 1800
`FORT LAUDERDALE, FLORIDA 33301
` (954) 462-8000
`www.loriumlaw.com
`
`
`
`
`August 14, 2023
`
`VIA E-FILING
`Honorable Madeline Cox Arleo, U.S.D.J.
`Honorable Jessica S. Allen, U.S.M.J.
`U.S. District Court for the District of New Jersey
`Martin Luther King Jr. Building & U.S. Courthouse
`50 Walnut Street
`Newark, New Jersey 07102
`
`Re: Monib Zirvi, M.D., Ph.D. v. Illumina, Inc. et al.
`
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`Civil Action No.: 23-1997-MCA/JSA
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`Your Honor Judge Allen,
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`In response to the recent request by Illumina, Inc. ("Illumina") to stay discovery pending their
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`motion to dismiss (ECF No. 63), we represent the plaintiff, Dr. Zirvi, and wish to oppose the stay.
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`I. INTRODUCTION
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`As a first matter of business, Illumina’s letter continues a pattern of the Defendants
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`mischaracterizing attempts to resolve issues. In this case, counsel sent an e-mail on Saturday and filed
`its Motion on Monday. There was no good faith effort to communicate regarding the issues in their
`Motion.
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`Plaintiff vigorously opposes the Defendants’ latest request to unnecessarily delay litigating his
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`claims, which has been a pattern during each of the cases prior. In fact, Plaintiff has never received
`discovery from Defendant Illumina in any litigation.
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`The Zirvi v. Illumina case was filed with this court on April 8th, 2023. Illumina was served with
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`the complaint on April 21st, 2023. The undersigned agreed to an extension of time to respond to the
`Complaint to include up to and through September 19th, 2023. Illumina filed its Motion to Dismiss on
`August 2nd, 2023, pursuant to Rule 26(b). The response to the Motion to Dismiss is due on August 22nd,
`2023. Illumina filed its Motion to Stay Discovery on August 7th, 2023. No Discovery has been served in
`this matter. For the reasons stated herein, the Motion to Stay Discovery should be summarily denied.
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`On July 11th, 2023, this Court issued an Order regarding Rule 26 disclosures to take place on
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`October 12th, 2023. Pursuant to the Order, “At the Conference, the Court will address scheduling of all
`motions. No motions, other than a motion under Fed. R. Civ. P. 12, shall be filed without prior leave
`of Court.”
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`Case 2:23-cv-01997-MCA-JSA Document 69 Filed 08/14/23 Page 2 of 8 PageID: 1655
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`Illumina violated the Order in two very specific ways.
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`
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`First, Illumina made a Motion to Dismiss Plaintiff’s Complaint, and Motion to Strike. [D.E. 63-
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`1] Filed 08/02/23). The Motion to Strike is in violation of the July 11, 2023, Order. The Motion to Strike
`should not be heard where Illumina did not seek leave of Court prior to filing. Second, Illumina filed a
`Motion to Stay [D.E. 64] on August 7, 2023. The Motion to Stay should not be heard where Illumina did
`not seek leave of Court prior to filing.
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`II. STANDARD
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`The standard for granting a Motion to Stay where there is a pending Motion to Dismiss in the
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`District Court in New Jersey was articulated in Skoorka v. Kean Univ., Civil Action No. 16-3842 (KM)
`(MAH), at *10 (D.N.J. Sep. 19, 2019), which stated:
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`Pursuant to Federal Rule of Civil Procedure 26(c), the Court may stay discovery
`pending determination of a motion to dismiss only when there is a showing of
`"good cause" by the party requesting the stay. Gerald Chamales Corp. v. Oki
`Data Americas, Inc., et al., 247 F.R.D. 453, 454 (D.N.J. Dec. 11,
`2007); Fed.R.Civ.P. 26(c)(1) (establishing that the court may issue a protective
`order with respect to discovery only for "good cause"). Further, a finding of "good
`cause" requires a balancing of the interests of the parties, the interest of the court,
`and the public interest in a just, speedy, and efficient adjudication of the
`claims. See In re Plastics Additives Antitrust Litig., Civ. No. 03-2038, 2004 WL
`2743591, at *5 (E.D. Pa. Nov. 29, 2004). It is also the court's responsibility to
`"keep its docket moving to provide litigants with a timely and effective resolution
`of their claims." See id. "Courts generally weigh a number of factors in
`determining whether to grant a stay including: (1) whether a stay would unduly
`prejudice or present clear tactical disadvantage to the non-moving party[,]; (2)
`whether denial of stay would create a clear case of hardship or inequity for the
`moving party; (3) whether a stay would simplify the issues and the trial of the
`case[,]; and (4) whether discovery is complete and/or a trial date has been
`set." Akishev v. Kapustin, 23 F. Supp. 3d 440, 446 (D.N.J. 2014) (internal
`quotation marks omitted).
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`Illumina’s reliance on the Third Circuit's position that Rule 12(b)(6) motions "should typically
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`be resolved before discovery begins" (*Ghaffari v. Wells Fargo Bank NA*, 621 F. App’x 121, 124 (3d
`Cir. 2015)) oversimplifies the matter. The decision to stay discovery should be based on the individual
`circumstances of each case, and not just the mere filing of a motion to dismiss. However, “motions to
`stay discovery are disfavored and a stay will not be granted absent a showing of good cause "because
`when discovery is delayed or prolonged it can create case management problems which impede the
`court's responsibility to expedite discovery and cause unnecessary litigation expenses and problems,"
`(emphasis added) (internal citations omitted) Walgreen Co., et al., v. Celgene Corporation, et al., Case
`2:22-cv-06440-ES-MAH D.E. 69 4/21/23).
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`Likewise, “Staying discovery during the pendency of a motion to dismiss is not the usual course.
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`Unless some compelling reason is presented, in the usual case discovery is not stayed as Defendant
`requests. See e.g., Commodity Futures Trading Commission v. Chilcott Portfolio Management, Inc., 713
`F.2d 1477, 1484 (10th Cir. 1983) (to obtain a stay, the movant must make out a clear case of hardship or
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`Case 2:23-cv-01997-MCA-JSA Document 69 Filed 08/14/23 Page 3 of 8 PageID: 1656
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`inequity in being required to go forward). Aside from the usual burdens of discovery present in every
`case, Defendant has not presented any reason to justify staying discovery." TSM Associates, LLC v.
`Tractor Supply Company, Case No. 08-CV-230-JHP-FHM (N.D. Okla. Jun. 11, 2008). Illumina does not
`make such a showing.
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`Conversely, staying discovery might unnecessarily delay the resolution of the issues. The
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`interests of justice favor a prompt and efficient resolution. By proceeding with discovery now, the parties
`can ensure that the any evidence is preserved.
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`III. ILLUMINA HAS NOT PRESENTED GOOD CAUSE
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`a. Illumina Fails to Carry Its Burden of Persuasion Regarding Good Cause.
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`As the moving party, Illumina must convince this Court that good cause exists to stay discovery.
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`See, Gerald Chamales Corp. v. Oki Data Americas, Inc., 247 F.R.D. 453, 455 (D.N.J. 2007) (“The Court
`also finds that defendants have not satisfied their burden of persuasion that " good cause" exists to issue
`a protective order. Defendants make broad contentions that plaintiffs will conduct " costly and time-
`consuming depositions" (see Reply Brief at 1) without any supporting evidence. See Cipollone v. Liggett
`Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986) ("[b]road allegations of harm, unsubstantiated by specific
`examples or articulated reasoning, do not satisfy the Rule 26(c) test”).”)
`
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`In this case, Illumina claims:
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`If a stay is not granted, Illumina will suffer the “burden, expense, and distraction
`to business that discovery ordinarily generates (and which is commonly
`recognized)” in connection with Plaintiff’s meritless claims. Actelion, 2013 WL
`5524078, at *4.
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`On their face, Plaintiff’s allegations indicate that discovery could be extensive
`and costly… Particularly because inventorship claims are analyzed on a “claim
`by claim” basis, the scope of potential discovery for these allegations could be
`vast….
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`Illumina’s unsupported argument is that it will suffer “…burden, expense, and distraction to
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`business…” This argument has been tried without success recently before this Court in Walgreen Co., et
`al., 2:22-cv-06440 D.E. 69, fn. 4:
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`Defendants’ core argument is that the discovery would be time consuming,
`expensive, and, if their motions are granted, ultimately unnecessary. The Court
`appreciates that discovery in this case will be costly. But the Court is equipped to
`manage discovery in a manner consistent with Rule 26, and will ensure that the
`parties’ efforts are proportional, and that the cases proceed as efficiently as
`possible under the circumstances. Udeen, 378 F. Supp. 3d at 333; Coyle, 2009 WL
`1652399, at *4 (finding that the Magistrate Judge did not abuse his discretion in
`denying a stay pending a motion to dismiss, where the burden of discovery would
`heavily fall on defendants). In terms of scheduling, the Court is aware that Teva
`and Natco are relatively new to this litigation. Any perceived hardship can and
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`will be handled via their requests to modify the existing schedule, an allowance
`that is routinely permitted in complex litigation.
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`Illumina understands this Court is more than capable of handling discovery disputes as they arise.
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`Their request to stay discovery where none is pending is overtly premature.
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`Moreover, Illumina puts a lot of faith in Actelion to support their claim that the discovery in this
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`case “could be extensive” or “could be vast.” However, the Actelion holding is premised on,
`“[d]iscovery, particularly in antitrust cases, can be extremely expensive.” (Pls.’ Br. [Doc. No. 45-1], 2
`(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558-59 (2007) (recognizing the unusually high cost of
`discovery in antitrust cases)).). This is not an Anti-Trust case.
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`Even if the case were an anti-trust case, Judge Madeline Cox Arleo of this court, has previously
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`denied a motion to bifurcate and stay discovery in an anti-trust due the prejudice it would cause the non-
`moving party. (See Celgene Corporation v. Barr Laboratories, Inc. (Case 2:07-cv-00286-SDW-MCA
`Document 60)).
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`The only specifics given by Illumina regarding potential discovery -- not actual discovery -- is
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`the number of patents in this case. Yet, the patents and the file wrappers for all these patents are public
`record, in the possession of Plaintiff or obtainable from the USPTO. Listing the number of patents,
`inventors, or years that span the granting of the same is not evidence of undue burden. Plaintiff has not
`requested any of this information in a discovery request.
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`Plaintiff intends to request only the full invention disclosure forms for said patents from Illumina,
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`information which is not publicly available. Many of the 52 patents are continuations of only 9 key
`provisional patent applications identified as of this date. These are provisional application numbers
`60/135050, 60/135051, 60/135052, 60/135053, 60/135123, 60/180810, 10/177727, 09/779376 and
`09/940185. Plaintiff has copies of the file wrappers for these and will turn these over to Illumina during
`the discovery exchange prior to the 10/12/2023 initial scheduling conference. Even if Illumina claimed
`that it did not have electronic records of the 52 patents, the Plaintiff was able to download all 52 patents
`in PDF format from Google patents in under 2 hours. There is no validity to a claim that volumes of
`documents would have to be shifted through to comply with requests that have not been made yet.
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`b. Dr. Zirvi Would Suffer Undue Prejudice and a Clear Tactical Disadvantage.
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`While Illumina suggests a mere "temporary delay" would be the only prejudice Dr. Zirvi might
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`face, the potential stay would further prejudice him by hindering his timely pursuit of justice. Delaying
`a plaintiff's opportunity for redress can constitute prejudice sufficient to deny a motion to stay.” While
`this case does not require an overburdensome amount of documents from any one Defendant there are
`several Defendants from whom information most be gathered. Plaintiff expects there will be many battles
`of the discoverability of many of the documents. The overall discovery in the case from all parties will
`most likely require drawn out Court intervention. The process of serving the Defendants is clear proof
`that Defendants do not intend on making even the most mundane an easy task.
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`Again, this case involves multiple Defendants, multiple legal theories, and discovery that must
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`be conducted related to each. Indeed, even the Motion to dismiss does not dismiss the entire complaint.
`The issues involved in the Motion to Dismiss are very fact specific wherein Illumina has asked the Court
`to determine if two lawsuits, based on different legal theories, different facts, and having different parties.
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`Case 2:23-cv-01997-MCA-JSA Document 69 Filed 08/14/23 Page 5 of 8 PageID: 1658
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`The presence of overlapping facts has no bearing on whether the current claims are claims that were or
`could have been brought in a previous litigation, an argument that will be more fully explained in
`response to the Motion to Dismiss file by Illumina. What is obvious, even from a cursory review of
`Illumina’s Motion to Dismiss is that there are a multitude of factual issues Illumina asks the Court to
`determine without giving the Plaintiff the benefit of any discovery.
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`In Stark v. Univ. of S. Miss., CIVIL ACTION NO. 2:13cv31-KS-MTP (S.D. Miss. Apr. 3, 2014),
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`the Court denied a Motion to Stay holding, "…The grant of the Motion to Dismiss as…will not dispose
`of the Plaintiff's…claims against the other Defendants." The same is true in this case. The stay would
`however impede discovery against non-moving Defendants. Moreover, Illumina would not avoid
`discovery requests from the Plaintiff even if it were not a party to the litigation where the company was
`in possession of discovery that would be relevant to the remaining claims in the case.
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`The principal of refusing a Stay where parts of a case remain has been recognized by other courts.
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`"Motions to stay discovery may be granted pursuant to Rule 26(c), Fed.R.Civ.P., and the moving party
`bears the burden of showing good cause and reasonableness…As a result, a request to stay all discovery
`pending resolution of a motion is rarely appropriate where resolution of the motion will not dispose
`of the entire case." Feldman v. Flood, 176 F.R.D. 651 (M.D. Fla. 1997).
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`Stays have been found to be at odds with the Plaintiff’s right to have the matter resolved
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`expeditiously. "The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of
`discovery when a potentially dispositive motion is pending. Skellerup Indus. Ltd. v. City of L.A., 163
`F.R.D. 598, 600-01 (C.D.Cal.1995) (stating that if the Federal Rules contemplated a motion to dismiss
`under Rule 12(b)(6) would stay discovery, the Rules would contain such a provision, and finding
`that a stay of discovery is directly at odds with the need for expeditious resolution of litigation)."
`Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597 (D. Nev. 2011)
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`
`
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`Other harms that might befall Dr. Zirvi during a stay of discovery include:
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`
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` Evidence Preservation: There’s a risk that evidence might be lost, destroyed, or degraded over
`time. Electronic data, for example, might be overwritten or deleted.
`Increased Legal Fees: Protracted litigation often means higher legal fees and costs. If the case
`doesn’t get dismissed, the plaintiff might have to spend more on legal fees because of the stay.
` Loss of Leverage: The motion to stay might be perceived as a tactic to wear out the plaintiff or
`diminish their resolve, potentially forcing a less favorable settlement.
` Case Backlog: If the court grants the motion to stay discovery but later denies the motion to
`dismiss, the case will be further down the court’s docket, causing more delays.
` Uncertainty and Emotional Toll: For the individual plaintiff, ongoing litigation can be
`emotionally taxing. The uncertainty and delay may add to the stress and emotional strain.
` Financial Strain: Dr. Zirvi, as Illumina is aware, has expended significant time and financial
`resources in Zirvi v Flatley in SDNY, the appeal to the 2nd Circuit, a writ of Certiorari and
`accompanying amicus brief, numerous FOIA requests and the case Zirvi v US NIH, et al., an
`application to intervene in Illumina v EU Commission in Europe (Illumina v Commission, Case
`T-709/22) and finally this litigation. Granting this motion to stay discovery would prejudice Dr.
`Zirvi and exacerbate his financial situation.
` Missed Deadlines: The stay might lead to complications or missed deadlines, especially if the
`scheduling conference establishes timelines that conflict with the stayed discovery.
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`
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`Inequitable Advantage: The defendant company may continue its internal investigations and
`preparations, potentially giving them an advantage over the plaintiff who is barred from
`conducting formal discovery.
`Inference of Merit: Parties or the public might wrongly infer that the plaintiff’s claims lack merit
`based on the motion to stay discovery, even though it’s a procedural move.
` Strategic Disruption: The plaintiff’s attorneys might have developed a specific strategy or
`timeline for presenting their case, and the motion to stay can disrupt this.
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`c. A Stay Does Not Simplify the Issues Before the Court.
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`Illumina contends that all claims are barred by res judicata due to a previous lawsuit in the SDNY.
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`However, this assertion neglects the nuanced understanding of res judicata. The principle prevents
`litigation of all issues that were, or could have been, raised in a prior action. However, if the claims in
`the current suit are based on different facts or transactions or arise from different events or new
`information or conduct, res judicata may not apply. It is overly simplistic to assert that because one claim
`was litigated previously, all potential claims from Dr. Zirvi are precluded.
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`Illumina contends that the inventorship claim should fail because of laches. However, in a strange
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`twist of fate, co-defendant Akin Gump authored an article titled, “Supreme Court Eliminates the Laches
`Defense in Patent Cases” around the time all Defendants were actively conspiring to keep Dr. Zirvi from
`having his day in court. The article stated:
`
`
`On March 21, 2017, in a 7-1 decision delivered by Justice Alito, the Supreme
`Court in SCA Hygiene Products AB v. First Quality Baby Products LLC1 held
`that laches is no longer an available defense to patent infringement damages, even
`if a patentee “lies in wait” for more than six years before bringing suit. The
`decision follows the Court’s recent opinion in Petrella v. Metro-Goldwyn-Mayer
`that similarly eliminated the laches defense in copyright infringement cases.
`Following its reasoning in Petrella, the Supreme Court again reasoned that
`Congress’ statutory time limit on damages under Section 286 of the Patent Act1
`pre-empts the Judiciary from imposing its own time requirement (i.e., laches) on
`a case-by-case basis.
`
`
`****
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`Case Impact
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`The Supreme Court’s opinion all but eliminates a laches defense for damages in
`patent infringement cases. As Justice Breyer described in his dissent, “there
`remains a gap to fill” in the Patent Act because the statute “permits a patentee to
`sue at any time after an infringement takes place,” which has, “for more than a
`century,” been filled by laches doctrine. Now, patentees might be able to “lie in
`the weeds” as companies (or even a whole industry) adopt certain technologies,
`only to find that, after years of investment and development, the technology is now
`patented—a scenario amici asserted is “far from uncommon.” Because of the
`patentees’ purposeful delay, those companies may be subject to even greater
`
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`1 SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods. LLC, No. 15-927, slip op., (U.S. Mar. 21, 2017).
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`potential damages, less leverage in negotiating settlements and significant harm to
`their businesses.
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`The majority suggests that equitable estoppel may alleviate some of these
`concerns. However, this doctrine requires a heavier burden of proof (i.e., that the
`patent owner misled the defendant to induce infringement, and the defendant relied
`on the misleading act). This could be difficult when a patent owner merely waits,
`taking no outwardly apparent action. The utility of equitable estoppel to address
`the concerns with SCA Hygiene’s holding is uncertain. As Justice Breyer puts it,
`although he hopes that equitable estoppel “fills the gap” left by laches, he would
`rather the Supreme Court be “cautious before adopting changes that disrupt the
`settled expectations of the inventing community.”
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`The same logic applies to actions based on 35 USC 256, to add an inventor. However, even if
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`laches is found to apply, courts have recognized various excuses for any delay, including poverty as a
`mitigating factor, illness, reissue of the patent, war, and other litigation. (See, e.g., Vaupel
`Textilmaschinen KG v. Meccanica Euro Italia SPA, 944 F.2d 870 (Fed. Cir. 1991).) In this case the other
`litigation would include the other litigation of Zirvi v. Flatley and potentially even the Cornell v. Illumina
`lawsuit. One example of a patent case in which the statute of limitations was tolled is Zenith Radio Corp.
`v. Hazeltine Research, Inc. In this case, the Supreme Court held that the statute of limitations had been
`tolled by a government suit, even though Zenith was not involved in that suit and Hazeltine was not
`named as a defendant co-conspirator. The same is true in this case that other litigation tolled litigation
`by Dr. Zirvi dating back to at least 2010.
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`d.
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`Discovery has not yet Begun and no Trial Date Exists.
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`The Court should not stay discovery where discovery has yet to begin. This is especially true where
`discovery could support pending claims or identify even additional claims between the parties.
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`IV. CONCLUSION
`
`
`Illumina’s modus operandi is to use all means possible to delay cases where the facts are not to
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`their favor. In the original Cornell v. Illumina case (1:10-cv-00433-LPS), filed in May 2010, Defendant
`Illumina filed counterclaims in August 2010, but when those claimed were dismissed in Oct. 2010,
`Illumina amended its answer to include an affirmative defense that plaintiffs’ claims are barred, as
`Illumina already had signed a covenant not to sue with PE Applied Biosystems / Life-Technologies (now
`ThermoFisher) in 2004. Illumina still argued to stay full discovery for multiple years in the Cornell v.
`Illumina case. Only, when Judge Thynge ruled that Cornell was not a signatory to the 2004 Illumina -PE
`Applied Biosystems (now ThermoFisher) covenant not to sue, the Cornell v. Illumina case could proceed
`again in June 2013 and then Deposition did not occur until July 2015 when Dr. Zirvi was deposed.
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`In hindsight and upon belief, it is not until after the June 2013 ruling that Defendants Illumina
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`and ThermoFisher of the current case began their secret collaboration to develop the joint “Ampliseq for
`Illumina” product, which was only officially announced by Illumina’s CEO in January of 2018. Upon
`information and belief, this secret collaboration was during the entire time ThermoFisher and Defendant
`Lawyers were advising Dr. Zirvi on legal issues under the pretense that their interests were aligned. The
`Cornell v. Illumina litigation would end in secret agreements between Illumina and ThermoFisher related
`to Dr. Zirvi’s claims in this lawsuit that he has never seen. However, Dr. Zirvi did receive some nominal
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`compensation believed to be related to the secret agreements. These secret agreements are an important
`part of the conspiracy claim that should be before the Court before any dispositive motion is heard.
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`Additional facts supporting Dr. Zirvi’s belief would come through the FOIA requests and the
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`case Zirvi v US NIH, et al. where Illumina and ThermoFisher would work together again to deny access
`to documents providing proof collusion as per the claims brought herein. Those documents where
`ultimately provided in 2021.
`
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`At least one Court has recognized that the movant must make a "strong showing" of good
`cause. Skellerup Industries, LTD v. City of Los Angeles, 163 FRD 598 (C.D. Calif. 1995). In this case,
`the Court stated in relevant part as follows:
`
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`“A party seeking a stay of discovery carries a heavy burden of making a "strong
`showing" why discovery should be denied. Blankenship v. Hearst Corp., 519 F.2d
`418, 429 (9 Cir. 1975). The moving party must show a particular and specific need
`for the protective order, as opposed to making stereotyped or conclusory
`statements.
`
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`In this case, defendant City has not made a "strong showing"; rather,
`defendant City merely urges that compliance with plaintiff's discovery request
`should be stayed pending the District Judge's ruling on its motion to dismiss.
`Defendant City has done no more than to argue in conclusory fashion that its
`motion to dismiss will succeed. This "idle speculation" does not satisfy Rule
`26(c)'s good cause requirements. Such general arguments could be said to
`apply to any reasonably large civil litigation. If this court were to adopt
`defendants' reasoning, it would undercut the Federal Rules' liberal discovery
`provisions…Had the Federal Rules contemplated that a motion to dismiss
`under Fed.R.Civ.P. 12(b)(6) would stay discovery, the Rules would contain a
`provision for that effect. In fact, such a notion is directly at odds with the need
`for expeditious resolution of litigation." Id. at 600-01 (citations omitted).
`
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`In conclusion, while we understand Illumina's concerns, Illumina’s concerns appear to be nothing
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`more than a tempest in a tea pot. Conversely, we firmly believe that the interests of justice and the
`potential prejudice weigh heavily in Dr. Zirvi’s favor. Dr. Zirvi does not consent to the proposed stay,
`and we respectfully request that the court allow discovery to proceed as scheduled.
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`Respectfully,
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`Sincerely,
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`Joseph D. Garrity, Esq.
`For The Firm
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