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`MADDOX 1r111 EDWARDS
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`1 900 K STREET NW - SUITE 725
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`WASHINGTON, DC 20006
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`(202) 830 - 0707
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`January 28, 2017
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`Hon. Paul A. Crotty
`United States District Judge
`Daniel Patrick Moynihan United States Courthouse
`500 Pearl Street, Room 735
`New York, NY 10007
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`Re:
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`Kowa Company, Ltd. et al. v. Amneal Pharmaceuticals LLC, et al. ,
`Case Nos. 14-cv-2758 (PAC); 14-cv-7934 (PAC); and 15-cv-3935 (PAC);
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`Your Honor:
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`We write in connection with our letter of January 27, 2017, because Plaintiffs since then
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`have continued to add Sawai documents to Dr. Byrn's list of intended exhibits, despite the facts
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`that (a) Dr. Byrn has never disclosed any opinions about these documents (Rule 26), (b) Amneal
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`and Apotex never saw these documents until trial, and (c) Plaintiffs have not offered any
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`evidentiary foundation for these exhibits. Dr. Byrn is not a rebuttal witness. He is Plaintiffs'
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`witness for their affirmative case of non-obviousness.
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`Ninety minutes ago this evening, Plaintiffs identified Sawai Exhibit 74, which would be
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`in addition to Sawai Exhibit l4B. Neither of these exhibits even appears on Sawai' s exhibit list
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`submitted with the Pre-Trial Order in this case. Evidently, they were added at an even later date.
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`Sawai Exhibit 148 is a document predominantly in Japanese, with no translation
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`provided. We are even now uncertain as to what Sawai Exibit 74 is, except it appears to relate to
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`some testing done by Sawai - and was the subject of some negotiations exclusively between
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`Plaintiffs and Sawai.
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`Case 1:14-cv-02758-PAC Document 135 Filed 01/28/17 Page 2 of 2
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`We have filed this letter within hours of Plaintiffs' latest addition, because we believe
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`these documents should be excluded for the same reasons PTX-735 should be excluded: namely,
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`failure to have timely identified these documents as the basis for any expert opinion by Dr. Byrn;
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`Arnneal and Apotex' s lack of access to these documents until trial; and lack (and impossibility
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`now that Sawai has been dismissed) of any foundation for the admission of these documents.
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`We hope that our prompt filing will allow Plaintiffs to address all such objectionable testimony
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`and documents in their letter due by the end of tomorrow.
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`We maintain that the delay of identification until trial as the basis of undisclosed expert
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`opinions, and absence of any supplemental report, make Amneal and Apotex's position even
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`more compelling than Plaintiffs' was with respect to DTX-1442, which the Court excluded.
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`Finally, Plaintiffs have suggested in conversation that Amneal and Apotex had access to
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`these documents by virtue of having been in a joint defense group with Sawai and all the other
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`generic challengers, with whom Amneal and Apotex compete. As you would expect, however,
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`the Joint Defense Agreement does not give any party rights to documents produced by others,
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`and does not give any party rights to attend the depositions of others. Amneal and Apotex would
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`be happy to provide a copy of the Joint Defense Agreement to the Court for in camera review, if
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`the Court wishes to confirm this fact. We also note that the protective order in each case
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`prohibits the use of one defendants' document against another without permission.
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`Respectfully submitted,
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`cc:
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`All counsel of record
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`Steven A. Maddox
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