 PUBLIC VERSION 
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable David P. Shaw
`Administrative Law Judge
`
`
`
`In the Matter of
`
`CERTAIN OMEGA-3 EXTRACTS FROM
`MARINE OR AQUATIC BIOMASS AND
`PRODUCTS CONTAINING THE SAME
`
`)
`)
`)
`)
`)
`)
`)
`)
`
`Investigation No. 337-TA-877
`
`
`
`THE AKER RESPONDENTS’ OPPOSITION TO COMPLAINANTS’ MOTION TO
`COMPEL THE AKER RESPONDENTS AND RELATED THIRD-PARTIES TO
`PRODUCE ALL RESPONSIVE DOCUMENTS AND TESTIMONY RELATED TO
`REEXAMINATION TESTING
`
`Complainants’ Motion to Compel1 against the Aker Respondents2 should be denied in its
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`entirety. Complainants’ Motion attempts to manufacture a discovery dispute where none should
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`exist and apparently was filed to deflect attention away from their own discovery deficiencies. It
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`seeks three things: (1) additional deposition time with a witness that the Aker Respondents have
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`already agreed to provide; (2) documents that the Aker Respondents do not have; and (3)
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`discovery from a third-party witness regarding whom Complainants never met-and-conferred
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`and who, in any event, does not have any relevant information. Thus, Complainants are
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`unnecessarily burdening the Administrative Law Judge with a motion to compel discovery that
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`Complainants have, are already getting, or that does not exist. Their motion should be denied.
`
`
`1 Complainants’ Corrected Motion to Compel the Aker Respondents and Related Third-Parties to Produce All
`Responsive Documents and Testimony Related to Reexamination Testing, filed Sept. 9, 2013, is referenced herein
`as the “Motion to Compel” or “Motion.”
`
` The Aker Respondents include Aker BioMarine AS, Aker BioMarine Antarctic AS, and Aker BioMarine Antarctic
`US. Inc.
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` 2
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` PUBLIC VERSION 
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` First, Complainants have no basis for moving to compel a second deposition of Aker’s
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`Chief Scientist, Dr. Nils Hoem. The privilege objections asserted by the Aker Respondents’
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`counsel during Dr. Hoem’s deposition were proper. Regardless, in the spirit of cooperation and
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`to avoid unnecessary motion practice, the Aker Respondents agreed—before Complainants filed
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`their Motion—to make Dr. Hoem available for further deposition. Complainants have provided
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`no support for their request that any additional time occur at the offices of Complainants’
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`counsel and at Respondents’ expense.
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`Second, the Aker Respondents have repeatedly and consistently affirmed that they have
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`produced all test data associated with the reexamination of the ’348 patent3 that is in their
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`possession, custody, and control. Complainants’ assertion that “Dr. Hoem’s testimony
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`established that Aker has further information it has failed to produce” (Mot. at 6) is incorrect.
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`Complainants insinuate—without actually arguing—that additional discovery may be in the
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`possession of unrelated third parties in Norway. But those third-party Norwegian individuals are
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`not in the Aker Respondents’ custody or control. Complainants’ own actions show this—they
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`previously informed the Aker Respondents they intended to go through formal international
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`discovery channels to obtain discovery from these very same parties and have forced
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`Respondents to go through formal international discovery channels to seek discovery from
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`similar parties. That Complainants ultimately chose not to undertake the same effort they forced
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`upon Respondents is not a basis for now compelling the Aker Respondents to try to obtain that
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`third-party discovery on Complainants’ behalf.
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`Finally, Complainants’ request for discovery from Dr. J. Mitchell Jones—the Aker
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`Respondents’ reexamination counsel—fails on both procedural and substantive grounds.
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`Procedurally, Complainants’ request should be denied because Complainants ignored Ground
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`3 The “’348 patent” refers to U.S. Patent No. 8,030,348, which is not asserted in this Investigation.
`2
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`Rule 5(e) and the meet-and-confer requirement regarding their request to compel discovery from
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` PUBLIC VERSION 
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`Dr. Jones. Substantively, Complainants have failed to demonstrate that Dr. Jones has any
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`information relevant to the issues in this Investigation. Complainants disingenuously attempt to
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`equate Complainants’ prosecution counsel for the Asserted Patents to Respondents’
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`reexamination counsel for a non-asserted patent. Respondents’ proper request for discovery
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`from prosecution counsel of the patents-in-suit (relevant to Respondents’ inequitable conduct
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`claims) is not analogous to Complainants’ improper request for discovery from re-examination
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`counsel of a related, unasserted patent. Complainants’ Motion should be denied.
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`I.
`
`The Aker Respondents Have Already Agreed to Produce Dr. Hoem for
`Additional Deposition Time.
`
`Complainants’ request for the further deposition of Dr. Hoem is moot because the Aker
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`Respondents have agreed to make him available for additional deposition time. The Aker
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`Respondents did so before Complainants filed their Motion, in an effort to avoid burdening the
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`ALJ with additional and unnecessary motion practice.4 Complainants nevertheless were intent
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`on filing a motion and did so. Complainants request that the deposition occur at their counsel’s
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`offices and at Respondents’ expense. But this request is baseless and contrary to Order No. 20.
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`As the ALJ will recall, Respondents moved to compel additional deposition time of
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`Complainants’ witnesses due to Complainants’ failure to produce hundreds of thousands of
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`pages of e-mail prior to the depositions of Complainants’ witnesses. The ALJ granted
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`Respondents’ requested depositions but did not order expenses or locations to be shifted.
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`Complainants offer no reason why the ALJ should make a contrary decision in response to their
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`request.
`
`
`4 Ex. B, E-mail from Hertko to Cunningham, dated Sept. 5, 2013 (“[I]n the spirit of cooperation and in the interest of
`avoiding unnecessary motion practice, the Aker Respondents are willing to make Dr. Hoem available for additional
`deposition time.”)
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`3
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` PUBLIC VERSION 
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`Moreover, contrary to Complainants’ assertions, Aker’s privilege instructions during Dr.
`
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` Complainants’ claim
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`Hoem’s initial deposition were proper.
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`that “Aker waived [privilege] by disclosing test results to the PTO” (Mot. at 7.) is based on a
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`flawed premise. The submission of test results to the Patent Office does not constitute a broad
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`“waiver” that applies to all privileged communications or details that relate to those tests.
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`Indeed, the one and only case to which Complainants cite—Board of Trustees v. Roche
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`Molecular Systems, 237 F.R.D. 618 (N.D. Cal. 2006)—is distinguishable in view of both the
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`type of information disclosed and the reason for disclosure. In Roche, the disclosures to the
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`Patent Office that triggered the waiver included “details of the legal advice” received from
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`counsel. Id. at 620. The district court also acknowledged that the plaintiff submitted privileged
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`information to the Patent Office “to correct its own failure to include two of the original co-
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`inventors” on the application for the parent of the asserted patents. Id. at 626. The Aker
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`Respondents’ disclosures to the Patent Office during the ‘348 patent reexamination, however,
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`differ significantly from those that triggered a waiver in Roche. The Aker Respondents did not
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`submit or disclose any information containing legal advice in any “test results” disclosed to the
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`Patent Office. And unlike the plaintiff in Roche, the Aker Respondents submitted information in
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`the reexamination of the ’348 patent to correct Neptune’s and Dr. Sampalis’s failure to properly
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`characterize the disclosure of the Beaudoin prior art references—not to supplement any
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`information submitted by, or to correct any mistakes made by, the Aker Respondents.
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`4
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`II.
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` PUBLIC VERSION 
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`The Aker Respondents Have Repeatedly Confirmed that There Are No
`Additional Documents or Test Data Regarding the ‘348 Reexamination in
`Their Possession, Custody, or Control.
`
`As the Aker Respondents have repeatedly and consistently confirmed, they have already
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`produced all test data regarding the reexamination of the ’348 patent that is in their possession,
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`custody, and control. To manufacture a dispute, Complainants mischaracterize the deposition
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`testimony of Dr. Hoem as well as Aker’s consistent representations that they do not possess or
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`control the discovery that Complainants seek. But the Aker Respondents have no additional
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`documents to produce, and their third-party expert—Dr. van Breemen—has already produced all
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`documents in his possession responsive to Complainants’ subpoena. Thus, this issue—like
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`Complainants’ request for additional deposition time with Dr. Hoem—is moot.
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`Contrary to Complainants’ assertions, nothing in Dr. Hoem’s cited testimony establishes
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`
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`the existence of any withheld documents.
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`5 Hoem Dep. Tr. at 168:6-19; 171:16-172:15; 173:16-22.
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`5
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` PUBLIC VERSION 
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`Complainants likewise incorrectly infer the existence of additional documents based on
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`Aker’s counsel’s statement that no non-privileged documents exist—inferring that this must
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`mean that privileged documents do exist. Aker’s counsel, however, expressly addressed this
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`improper inference—again before Complainants filed their Motion to Compel—by affirming that
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`no documents relating to the Aker reexamination testing exist within Aker’s possession, custody,
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`or control that have not already been produced.6
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`To the extent Complainants seek discovery from other parties, Complainants should have
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`sought such discovery through formal channels from the third parties that Complainants believe
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`actually possess it.7 During the discovery period, Complainants indicated that they intended “to
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`seek issuance of subpoenas to Bjorn Ole Haugsgjerd, Thomas Gunderson, Richard van Breemen,
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`and Ivan Storro” on June 27. (Ex. F, Sukenick e-mail to Hertko, dated June 27, 2013.) These
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`individuals are third parties who are not within the control of the Aker Respondents. Rushing v.
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`Time Warner, Inc., No. 3:05CV474-H, 2007 WL 2156363, at *4 (W.D.N.C. July 24, 2007).
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`Complainants served a subpoena on Dr. van Breemen (who resides in the United States), and he
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`has produced the requested documents. The other three third parties, however, reside in Norway,
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`6 The Aker Respondents have not “shifted [their] story.” (Mot. at 4) See, e.g., Ex. C, Hertko e-mail to Smith, dated
`Sept. 6, 2013 (“The Aker Respondents are not aware of any test data, measurements, etc. that were not submitted to
`the PTO and produced in this Investigation.”); Ex. D, Hertko e-mail to Smith, dated Sept. 5, 2013 (“Aker and their
`experts submitted all of their testing data to the Patent Office -- they did not pick and choose only a subset of data
`from a larger universe of data. . . .With respect to testing data, all such data -- i.e., the data submitted to the Patent
`Office -- has already been produced by the Aker Respondents.”); Ex. E, Hertko e-mail to Graves, dated Sept. 4,
`2013 (“No other testing data or ‘underlying’ data exists. . . . Aker has already produced all testing data in its
`possession, custody, and control -- namely, the data that was submitted to the Patent Office during the
`reexamination.”).
`
` Section I.D. of Complainants’ Motion to Compel suggests that Complainants’ attempts to obtain third-party
`discovery through the Aker Respondents are appropriate by stating that “Aker has sought and received analogous
`discovery regarding Complainants’ reexamination testing from Complainants, Complainants’ reexamination counsel
`Drs. J. Dean Farmer and Stephen Altieri, and Complainants’ reexamination expert Dr. Earl White.” Complainants,
`however, neglected to mention that Respondents went through the proper procedural channels to obtain third-
`party discovery by serving subpoenas on Drs. Farmer, Altieri, and White. Complainants, on the other hand, have
`never sought discovery through the proper procedural channels from Drs. Haugsgjerd, Gunderson, or Storro.
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`and Complainants never sought discovery from them—presumably to avoid the expense and
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` PUBLIC VERSION 
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`effort of doing so. Complainants thus made a strategic choice not to pursue that discovery. They
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`cannot now remedy their failure to do so by insinuating that the Aker Respondents are somehow
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`obligated to perform third-party discovery on Complainants’ behalf. Id.
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`This is especially the case where Complainants have forced Respondents to go through
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`formal domestic and international discovery procedures to obtain existing discovery from third
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`parties, including KGK Synergize (“KGK”), Centre de Recherche Industrielle du Quebec
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`(“CRIQ”), and Sherbrooke University—Complainants’ Canadian partners who developed the
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`data and samples underlying the Asserted Patents and the process for manufacturing
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`Complainants’ allegedly inventive product Neptune Krill Oil®, as well as Complainants’ expert
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`Dr. Earl White, who submitted declarations during the reexaminations. Respondents sought
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`voluntary discovery from KGK, CRIQ, and Sherbrooke University, but Complainants obstructed
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`that effort by not giving these parties consent to voluntarily produce relevant information. (Ex.
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`G, Sukenick e-mail to Hertko, dated July 12, 2013.) Respondents therefore were forced to go
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`through formal channels in obtaining Letters Rogatory for this discovery. Despite Respondents’
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`attempts to obtain this relevant third-party discovery through the proper procedures—and despite
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`Complainants’ representation to the ALJ that they did not oppose Respondents’ requests for this
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`discovery—Complainants are now actively attempting to block this discovery in their home
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`venue of Canada. (See Respondents’ Motion for Leave to Supplement Their Motion for
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`Sanctions Against Complainants for the Violation of Order Nos. 12 and 20.) If true,
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`Complainants’ suggestion that discovery in the possession of Drs. Haugsgjerd, Gunderson, and
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`Storro is in the Aker Respondents’ possession would necessarily mean that discovery in the
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`possession of KGK, CRIQ, and Sherbrooke University is likewise in the possession of
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` PUBLIC VERSION 
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`Complainants, and thus should have been produced by Complainants months ago.
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`III.
`
`Complainants Failed to Meet-and-Confer Regarding the Discovery Sought
`from Dr. Jones and Failed to Demonstrate His Relevance to Any Issue in this
`Investigation.
`
`Complainants’ request to compel Dr. J. Mitchell Jones to provide documents and
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`deposition testimony should be denied on procedural grounds because Complainants failed to
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`meet-and-confer pursuant to the ALJ’s Ground Rules. Ground Rule 5(e) requires that “[a]ll
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`motions shall include a certification that the moving party has made reasonable, good-faith
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`efforts to contact and resolve the matter with the other parties at least two business days prior to
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`filing the motion, and shall state, if known, the position of the other parties on such motion.”
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`G.R. 5(e) (emphasis in original). Complainants provided Respondents with no advance notice
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`that they intended to move to compel discovery from Dr. Jones, and never met-and-conferred on
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`the topic. Complainants’ motion should thus be denied on this basis alone.
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`Moreover, Complainants have failed to demonstrate that any discovery from Dr. Jones is
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`relevant to any issue in this Investigation. “A party seeking to compel discovery has the initial
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`burden of showing that the requested [information is] relevant.” Certain Wind and Solar-
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`Powered Light Posts and Street Lamps, Inv. No. 337-TA-736, Order No. 8 at 2 (Apr. 13, 2011);
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`see also Certain Equipment for Communications Networks, Including Switches, Routers,
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`Gateways, Bridges, Wireless Access Points, Cable Modems, IP Phones, and Products
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`Containing Same, Inv. No. 337-TA-778, Order No. 24 at 4 (Feb. 17, 2012). Complainants have
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`made no such showing here. Complainants’ sole justification for seeking discovery from Dr.
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`Jones is based upon their mischaracterization of prosecution counsel for the Asserted Patents as
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`reexamination counsel for a non-asserted patent. Complainants assert that they “are entitled to
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`probe [Dr. Jones’] knowledge and privilege claims during a deposition, just as respondents did
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`with Complainants’ reexamination counsel.” (Mot. at 8.) The reference to “Complainants’
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` PUBLIC VERSION 
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`reexamination counsel,” however, is to Dr. Farmer—Complainants’ prosecuting attorney of the
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`Asserted Patents. Dr. Farmer has information that is highly relevant to this Investigation,
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`including at least Respondents inequitable conduct claims. The same does not hold true for Dr.
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`Jones, Respondents’ outside reexamination counsel, and Complainants have made no showing
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`to the contrary.
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`Conclusion
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`IV.
` For the foregoing reasons, the Aker Respondents respectfully request that the ALJ deny
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`Complainants’ Motion to Compel in its entirety.
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`Dated: September 18, 2013
`
`
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` PUBLIC VERSION 
`
`Respectfully submitted,
`
`/s/ Matthew J. Hertko
`Mark A. Pals, P.C.
`William E. Devitt, P.C.
`Amanda Hollis
`Matthew J. Hertko
`KIRKLAND & ELLIS LLP
`300 North LaSalle
`Chicago, Illinois 60654
`Telephone: (312) 862-2000
`Facsimile: (312) 862-2200
`
`William T. Vuk
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`Telephone: (212) 446-4800
`Facsimile: (212) 446-4900
`
`D. Sean Trainor
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`Telephone: (202) 879-5000
`Facsimile: (202) 879-5200
`
`Counsel for Respondents
`Aker BioMarine AS, Aker BioMarine Antarctic AS, and
`Aker BioMarine Antarctic US, Inc.
`
`
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable David P. Shaw
`Administrative Law Judge
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`
`Investigation No. 337-TA-877
`
`
`
`
`In the Matter of
`
`CERTAIN OMEGA-3 EXTRACTS FROM
`MARINE OR AQUATIC BIOMASS AND
`PRODUCTS CONTAINING THE SAME
`
`
`
`DECLARATION OF MATTHEW J. HERTKO JUSTIFYING THE CONFIDENTIAL
`TREATMENT OF THE AKER RESPONDENTS’ OPPOSITION TO COMPLAINANTS’
`MOTION TO COMPEL THE AKER RESPONDENTS AND RELATED THIRD-
`PARTIES TO PRODUCE ALL RESPONSIVE DOCUMENTS AND TESTIMONY
`RELATED TO REEXAMINATION TESTING
`
`
`
`
`
`
`
`
`
`I, Matthew J. Hertko, state as follows:
`
`1.
`
`I am an attorney at the law firm of Kirkland & Ellis LLP, counsel for Respondents
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`Aker BioMarine AS, Aker BioMarine Antarctic AS, Aker BioMarine Antarctic US, Inc.,
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`Olympic Seafood AS, Olympic Biotec Ltd., Avoca, Inc., Rimfrost USA, LLC, and Bioriginal
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`Food & Science Corp. in this Investigation. This declaration is based on facts currently available
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`to me.
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`
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`2.
`
`I submit this declaration pursuant to Order No. 2, requiring the filer of
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`confidential oppositions to motions to file declarations justifying the confidentiality of proposed
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`redactions.
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`
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`3.
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`I certify that material bracketed on pages 4 and 5 of The Aker Respondents’
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`Opposition to Complainants’ Motion to Compel the Aker Respondents and Related Third-Parties
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`to Produce All Responsive Documents and Testimony Related to Reexamination Testing (the
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`“Opposition”), as well as Exhibit A to the Opposition, contain confidential business information
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`subject to the protective order.
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`4.
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`The bracketed portion on pages 4 and 5 of the Opposition reflects testimony from
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`the deposition of Aker witness Dr. Nils Hoem that the Aker Respondents have designated as
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`containing confidential business information that is not publicly available.
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`
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`6.
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`Exhibit A to the Opposition is an excerpt from the deposition transcript for Aker
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`witness Dr. Nils Hoem. This transcript contains confidential business information not publicly
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`available, and reflects testimony that has been designated by the Aker Respondents as containing
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`confidential business information.
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`
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Executed this 18th day of September, 2013
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`/s/ Matthew J. Hertko
`Matthew J. Hertko
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`Certain Omega-3 Extracts From Marine or
`Aquatic Biomass and Products Containing the Same
`
`
`CERTIFICATE OF SERVICE
`
`Inv. 337-TA-877
`
`I, Alvaro R. Parrado, hereby certify that on this 18th day of September, 2013 copies of
`the foregoing document were served upon the following parties as indicated:
`
`Lisa R. Barton
`Acting Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, S.W., Room 112
`Washington, D.C. 20436
`The Honorable David P. Shaw
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, D.C. 20436
`Email: pyong.yoon@usitc.gov
`Vu Bui
`Investigative Attorney
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, D.C. 20436
`Email: vu.bui@usitc.gov
`
` Via First Class Mail
` Via Hand Delivery
` Via Overnight Courier
` Via Electronic Mail (EDIS)
`
` Via First Class Mail
` Via Hand Delivery
` Via Overnight Courier
` Via Electronic Mail
`
` Via First Class Mail
` Via Hand Delivery
` Via Overnight Courier
` Via Electronic Mail
`
`
`
`On Behalf of Complainants Neptune Technologies & Bioressources Inc.
`and Acasti Pharma Inc.
`
`Stephen R. Smith
`Jonathan G. Graves
`Cooley LLP
`One Freedom Square - Reston Town Center
`11951 Freedom Drive
`Reston, VA 20190
`Telephone: (703) 456-8000
`Facsimile: (703) 456-8100
`Email: Neptune-ITC@cooley.com
`
` Via First Class Mail
` Via Hand Delivery
` Via Overnight Courier
` Via Electronic Mail
`
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`On Behalf of Respondents Enzymotec Limited and Enzymotec USA, Inc.
`
`Elizabeth J. Holland
`Cynthia Lambert Hardman
`Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004
`Telephone: (212) 908-6370
`Facsimile: (212) 425-5288
`Email: NeptuneActionEnzymotec@kenyon.com
`Marcia H. Sundeen
`Kenyon & Kenyon LLP
`1500 K Street, N.W.
`Washington, D.C. 20005
`Telephone: (202) 220-4201
`Facsimile: (202) 220-4201
`Email: NeptuneActionEnzymotec@kenyon.com
`
` Via First Class Mail
` Via Hand Delivery
` Via Overnight Courier
` Via Electronic Mail
`
` Via First Class Mail
` Via Hand Delivery
` Via Overnight Courier
` Via Electronic Mail
`
`
`
` /s/Alvaro R. Parrado
` Alvaro R. Parrado
` Legal Assistant
` Kirkland & Ellis LLP
` 601 Lexington Avenue
` New York, NY 10022
`Email: alvaro.parrado@kirkland.com
` Tel: 212-909-3407
`
`
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`EXHIBIT A
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`EXHIBIT A
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`EXHIBIT B
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`EXHIBIT B
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`Hertko, Matthew J.
`
`From:
`Sent:
`To:
`
`Cc:
`Subject:
`
`Hertko, Matthew J.
`Thursday, September 05, 2013 1:48 PM
`Cunningham, Laura; #Neptune-aker-itc; NeptuneActionEnzymotec@kenyon.com;
`HBITC@hbiplaw.com
`vu.bui@usitc.gov; z/Neptune-ITC
`RE: 337-TA-877: Respondents' Email Productions
`
`Laura:
`
`The Aker Respondents stand by their assertions of privilege during Dr. Hoem’s deposition, and the timing of
`his e-mail production is -- as you know -- a result of the timing of Complainants’ July 29 requests. That said, in
`the spirit of cooperation and in the interest of avoiding unnecessary motion practice, the Aker Respondents
`are willing to make Dr. Hoem available for additional deposition time. As you are aware, the ALJ has ordered
`additional deposition time with Complainants’ e-mail custodians. Once we receive and have had a chance to
`review Complainants’ e-mails, we can discuss with you scheduling logistics for the various additional
`depositions.
`
`On the topic of e-mails, we note that Complainants have to date produced only approximately 600 e-mails
`from one custodian (Pierre St. Jean), and a small subset of e-mails from Dr. Sampalis. Complainants’ failure to
`produce all responsive e-mails by yesterday is a violation of Order No. 20, and continues to cause Respondents
`prejudice -- particularly in view of the rapidly approaching deadlines. Accordingly, Respondents intend to
`request that the ALJ, as an additional sanction in their motion for sanctions, preclude Complainants from
`relying on any e-mail that they produce after September 4.
`
`Finally, as a follow-up to your e-mail below and the voicemail you left me this afternoon, Order No. 20
`requires Respondents to pay for 50% of the costs (i.e., vendor/processing costs) associated with Complainants’
`e-mail production. The Order does not obligate Respondents to pay any portion of Complainants’ fees (such
`as fees for attorney or paralegal time associated with reviewing or producing the e-mails). Please give me a
`call if you would like to discuss further.
`
`
`
`Best regards,
`Matt
`
`
`
`Matthew J. Hertko
`KIRKLAND & ELLIS LLP
`300 N. LaSalle St.
`Chicago, IL 60654
`Office: (312) 862-7028
`Cell: (847) 204-9402
`matthew.hertko@kirkland.com
`
`From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Wednesday, September 04, 2013 4:47 PM
`To: Hertko, Matthew J.; #Neptune-aker-itc; NeptuneActionEnzymotec@kenyon.com; HBITC@hbiplaw.com
`
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`Cc: vu.bui@usitc.gov; z/Neptune-ITC
`Subject: RE: 337-TA-877: Respondents' Email Productions
`
`Matt:
`
`
`Thank you for providing these partial bates ranges. These indicate that at least Aker did not produce all email for
`particular custodians before that custodian’s deposition. Aker produced over 1/3 of the email for Dr. Hoem on August
`13, the same day he was deposed in Oslo. The rest of his email was produced only 1-2 days before his deposition, when
`the Aker Oslo depositions were already underway. As you know, Dr. Hoem is a key witness given his position at Aker
`and involvement in the reexamination testing, among other things. Accordingly, consistent with our prior
`correspondence, Complainants will seek to re-depose Dr. Hoem based on his email production (in addition to his
`knowledge regarding the reexamination testing). If Aker has changed its position and is willing to re-produce Dr. Hoem
`for another deposition please let us know, otherwise we will seek relief from the ALJ.
`
`
`This finding regarding the timing of Dr. Hoem’s email production further underscores the need for Aker and
`Olympic/Rimfrost to provide the complete bates ranges of their email productions, and we again request that they do
`so.
`
`
`Best regards,
`Laura
`
`
`From: Hertko, Matthew J. [mailto:mhertko@kirkland.com]
`Sent: Tuesday, September 03, 2013 6:01 PM
`To: Cunningham, Laura; #Neptune-aker-itc; NeptuneActionEnzymotec@kenyon.com; HBITC@hbiplaw.com
`Cc: vu.bui@usitc.gov; z/Neptune-ITC
`Subject: RE: 337-TA-877: Respondents' Email Productions
`
`
`Laura:
`
`
`The Aker and Olympic/Rimfrost respondents have collectively produced over 66,000 pages of e-mails, and
`have completed their productions for each of the custodians from whom Complainants have requested e-
`mails. In the spirit of cooperation, exemplary ranges of e-mail productions include AKER877ITC00764831-
`800185 and OLYMSEA877ITC00219628-233240.
`
`
`Best regards,
`Matt
`
`
`
`Matthew J. Hertko
`KIRKLAND & ELLIS LLP
`300 N. LaSalle St.
`Chicago, IL 60654
`Office: (312) 862-7028
`Cell: (847) 204-9402
`matthew.hertko@kirkland.com
`
`
`From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Sunday, September 01, 2013 10:33 AM
`To: #Neptune-aker-itc; NeptuneActionEnzymotec@kenyon.com; HBITC@hbiplaw.com
`Cc: vu.bui@usitc.gov; z/Neptune-ITC
`Subject: 337-TA-877: Respondents' Email Productions
`
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`Respondents’ counsel:
`
`
`We were surprised to see the statement in Respondents’ Opposition to Complainants’ Motion for Reconsideration of
`Order No. 20 that Respondents have completed their email productions, given the small volume of email we have been
`able to locate in Respondents’ productions.
`
`
`Enzymotec appears to have produced at most a few hundred emails.
`
`
`The Aker Respondents appear to have produced only a few thousand emails, and to have produced almost no email for
`certain custodians, such as Dr. Hoem. The Olympic/Rimfrost Respondents’ email production also appears quite small,
`less than a few thousand emails.
`
`
`Please provide the bates ranges of your client’s email production immediately so we can assess the claims in
`Respondents’ Opposition that Respondents’ email productions are complete, and that the Aker and Olympic/Rimfrost
`Respondents produced all email for particular custodians prior to that custodian’s deposition.
`
`
`Best regards,
`Laura
`
`
`Laura J. Cunningham
`Cooley LLP • One Freedom Square • Reston Town Center
`11951 Freedom Drive • Reston, VA 20190-5656
`Direct: (703) 456-8091• Fax: (703) 456-8100
`Email: lcunningham@cooley.com • www.cooley.com
`
`
`
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`communication (including any attachment) is not intended or written by us to be used, and cannot be used, (i) by any taxpayer for the purpose of avoiding tax
`penalties under the Internal Revenue Code or (ii) for promoting, marketing or recommending to another party any transaction or matter addressed herein.
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`Neptu