From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Wednesday, May 28, 2014 11:27 AM
`To: Schmidt, Leslie M.; 'Hardman, Cynthia Lambert'; Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; 'Holland, Elizabeth'; De Vries, Mike W.; J.
`Mitchell Jones
`Subject: RE: IPR2014-00003: Protective Order
`
`Leslie,
`
`We are not asking AKBM to agree that these documents are relevant, and your
`continued demands that we justify their relevance is improper. We are simply asking
`AKBM to agree that this limited set of documents produced in the ITC as CBI (including
`some documents that were apparently marked CBI in error, which I have previously
`identified and repeatedly requested you confirm are public) can be accessed by
`persons qualified under this PO. AKBM will of course have the opportunity to make
`relevance or other objections to the evidence at a later time. There is no reason for
`the parties to engage on the relevance of the documents at this point, other than to
`delay resolution of the issue.
`
`Regarding the Sampalis transcripts, we obviously disagree with your characterizations.
`We have heard nothing about the Sampalis transcripts for weeks and have never
`received a request to use any specific portions of them, and yet now, AKBM and
`Enzymotec suddenly demand immediate agreement as to submission of three days’
`worth of testimony from the ITC case, the vast majority of which has no arguable
`relevance to these proceedings. This blatant attempt to further delay resolution
`regarding the documents Neptune identified weeks ago is unacceptable. Neptune has
`a pressing need to use these documents in depositions and in its Response. It is clear
`that AKBM is not willing to work with us in good faith to reach agreement on this issue
`and thus we will have to raise it on today’s Board call.
`
`Regards,
`Laura
`
`From: Schmidt, Leslie M. [mailto:leslie.schmidt@kirkland.com]
`Sent: Tuesday, May 27, 2014 7:52 PM
`To: Cunningham, Laura; 'Hardman, Cynthia Lambert'; Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; 'Holland, Elizabeth'; De Vries, Mike W.; J.
`Mitchell Jones
`Subject: RE: IPR2014-00003: Protective Order
`
`1
`
`AKBM 1112
`
`

`
`Laura,
`
`Although we asked you to identify any ITC documents you wanted to use in connection
`with the IPR on April 18, you did not do so until May 15. That was 7 business days ago,
`and you have not yet provided the information we asked for so that we could evaluate
`your request. We asked you to identify the information in the listed documents that
`Neptune contends is relevant to this proceeding and why you believed such
`information is relevant. Instead of providing that information, you only generically
`referred us back to your ITC “expert.” Please provide the requested information.
`Without such information on a document by document basis we cannot provide you
`your requested objections or agreement on a document by document basis.
`
`Also, we have not yet received any position from Neptune regarding AKBM’s request to
`use the Sampalis transcripts. Given the Board’s statements that deposition transcripts
`should be submitted in full we would seek to submit the entire transcripts under seal.
`As we discussed with you back in April, these transcripts are relevant at minimum
`because they contradict Neptune’s positions about heat including that Beaudoin’s
`heating steps would result in heat-induced hydrolysis and are inconsistent with
`obtaining an extract containing the claimed phospholipid. See, e.g., Sampalis Dep. Tr.
`at 102:6-107:22, 109:18-112:20; id. at 210:9-25, 214:11-216:10; id. at 299:15-302:17;
`id. at 361:5-14; id. at 502:16-507:8; id. at 744:5-745:18; id. at 807:11-809:15, 811:22-
`812:7; id. at 813:17-814:1. Indeed, Neptune already should have disclosed such
`transcripts to the Board as Neptune has a duty to disclose information inconsistent
`with positions it has taken in this proceeding.
`
`If you object to our submission of the Sampalis transcripts and refuse to submit those
`transcripts yourself, please let us know your basis for such objection and refusal.
`
`Best regards,
`Leslie
`
`From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Tuesday, May 27, 2014 5:47 PM
`To: Schmidt, Leslie M.; 'Hardman, Cynthia Lambert'; Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; 'Holland, Elizabeth'; De Vries, Mike W.
`Subject: RE: IPR2014-00003: Protective Order
`
`Leslie,
`
`It has now been nearly two weeks since we provided you a short list of ITC documents,
`and far longer since we began discussing this issue last month. We are still waiting for
`a response as to whether AKBM objects to persons qualified under the PO in this
`proceeding having access to the listed documents. Please provide your agreement or
`objections (and bases therefore) for each document by close of business tomorrow.
`Absent complete agreement, we request AKBM’s availability for a Board call to discuss
`this issue on Thursday and Friday, May 29/30.
`
`2
`
`

`
`
`Likewise, please provide AKBM’s response to the draft PO I circulated last Thursday. It
`seems we are close to reaching agreement on the draft PO, but given the upcoming
`depositions, if we do not reach an agreement quickly we will need to seek Board
`assistance on that issue as well.
`
`Regards,
`Laura
`
`From: Cunningham, Laura
`Sent: Thursday, May 22, 2014 12:38 PM
`To: Schmidt, Leslie M.; Hardman, Cynthia Lambert; Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; Holland, Elizabeth; De Vries, Mike W.
`Subject: RE: IPR2014-00003: Protective Order
`
`Leslie,
`
`Most if not all of the listed AKBM documents were relied up on by our expert in
`rebutting Respondents’ 103 arguments in the ITC case and are obviously equally
`relevant here. In addition, at least one document appears to have been improperly
`designated as CBI, and the Aker interrogatory response provides information that does
`not appear confidential. If AKBM objects to submission to the Board and/or disclosure
`to persons qualified under the PO for any of these documents, please state the reasons
`on a per-document basis as I requested so we can attempt to resolve the dispute
`without involving the Board.
`
`Regards,
`Laura
`
`From: Schmidt, Leslie M. [mailto:leslie.schmidt@kirkland.com]
`Sent: Monday, May 19, 2014 5:17 PM
`To: Cunningham, Laura; Hardman, Cynthia Lambert; Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; Holland, Elizabeth; De Vries, Mike W.
`Subject: RE: IPR2014-00003: Protective Order
`
`Dear Laura:
`
`We have reviewed the AKBM documents you identified below and many are highly
`confidential and do not appear relevant. Please identify the information in these
`documents that Neptune contends is relevant to this proceeding and why you believe
`such information is relevant. AKBM remains willing to work with Neptune on resolving
`this issue, but as you are aware, under the Board's order, information submitted even
`under a to-be-entered protective order could become public should the Board cite it in
`its decision. As a result, AKBM requests more detail regarding Neptune's alleged need
`to use this information.
`
`Best regards,
`
`3
`
`

`
`Leslie
`
`From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Thursday, May 15, 2014 10:11 AM
`To: Hardman, Cynthia Lambert; Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; Holland, Elizabeth; Abdelnour, Dennis J.;
`Schmidt, Leslie M.
`Subject: RE: IPR2014-00003: Protective Order
`
`Amanda and Cynthia,
`
`We proposed an exchange of lists of documents the parties may potentially want to
`use so that we could resolve all or most disputes now. But at least AKBM seems unable
`or unwilling to provide a list of any additional documents beyond the Sampalis
`transcripts already identified.
`
`So, in the interest of avoiding further delay, we will proceed on an ad hoc basis to seek
`agreement for documents as necessary throughout the proceeding. At this time,
`Neptune requests Aker’s consent for the following documents (or excerpts, as
`indicated) to be submitted to the Board and/or disclosed to persons qualified under
`the PO:
`•
`•
`•
`•
`•
`
`Aker document (CX-0803C)
`Aker document (CX-1215C)
`Aker document (CX-0659C)
`Aker document (CX-0633C)
`Aker whitepaper (CX-0662C) – this document was designated as CBI but
`appears public. Please confirm.
`Aker document (CX-0566C)
`Aker document (CX-1450C)
`Aker interrogatory response (CX-0024C, pages 1, 57-58, 124-26)
`Vage transcript designations (CX-1371C)
`
`And similarly, Neptune requests the same consent from Enzymotec as to:
`•
`Enzymotec interrogatory response (CX-0040C, pages 1, 14-15, 41-43)
`•
`Ben-Dror deposition transcript (pages 1-24, 33-37:22, 134:22-137:25)
`
`Please provide a response, including the bases for any objections, by close of business
`on May 19.
`
`Regards,
`Laura
`
`From: Hardman, Cynthia Lambert [mailto:CHardman@kenyon.com]
`Sent: Thursday, May 15, 2014 9:43 AM
`To: 'Hollis, Amanda'; Cunningham, Laura
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; Holland, Elizabeth; Abdelnour, Dennis J.;
`Schmidt, Leslie M.
`
`•
`•
`•
`•
`
`4
`
`

`
`Subject: RE: IPR2014-00003: Protective Order
`
`All,
`
`Given Judge Green’s statement that any confidential information used in the
`PTAB’s final written decision will become public, Enzymotec is reluctant to
`agree to the below procedures without first knowing which of its confidential
`documents are at issue. Having Neptune’s list at this stage may help address
`their concerns.
`
`Cynthia
`
`Cynthia Lambert Hardman
`Kenyon & Kenyon LLP
`One Broadway | New York, NY 10004-1007
`212.908.6370 Phone | 212.425.5288 Fax
`chardman@kenyon.com | www kenyon.com
`
`______________________
`This message, including any attachments, may contain confidential, attorney-client privileged,
`attorney work product, or business confidential information, and is only for the use of the intended
`recipient(s). Any review, use or distribution by others is prohibited. If you are not the intended
`recipient, please contact the sender and delete all copies.
`
`From: Hollis, Amanda [mailto:ahollis@kirkland.com]
`Sent: Wednesday, May 14, 2014 12:14 PM
`To: Cunningham, Laura
`Cc: Altieri, Stephen; Jon Graves (jgraves@cooley.com); Wang, Jing; Holland, Elizabeth;
`Hardman, Cynthia Lambert; Abdelnour, Dennis J.; Schmidt, Leslie M.
`Subject: FW: IPR2014-00003: Protective Order
`
`Laura,
`
`We already identified for you on April 18 the confidential documents from the ITC
`proceedings that we currently wish to use (the Sampalis deposition transcripts). We
`asked your team on April 23 what particular AKBM confidential documents Neptune
`wanted to use, but have not yet heard back. We are happy to discuss those documents
`as soon as you identify them for us and we have a chance to review them.
`
`We agree that we may determine we want to use additional confidential documents as
`the proceedings progress, including after we see Neptune’s response brief, and we are
`happy to set up future meet and confers to identify and discuss those issues as they
`arise as you suggest.
`
`Regards,
`Amanda
`
`
`5
`
`

`
`Amanda Hollis | Kirkland & Ellis LLP
`300 North LaSalle | Chicago, IL 60654
`312-862-2011 | amanda.hollis@kirkland.com
`
`
`From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Tuesday, May 13, 2014 5:28 PM
`To: Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; z/IPR2014-00003; Holland, Elizabeth;
`Hardman, Cynthia Lambert; De Vries, Mike W.; Schmidt, Leslie M.; J. Mitchell Jones
`Subject: RE: IPR2014-00003: Protective Order
`
`Amanda,
`
`Before we respond to your line edits on the PO, we’d like to address your suggestion
`regarding treatment of the ITC documents. The purpose of a general agreement
`covering the ITC trial exhibits was to avoid having to negotiate access/submission of
`individual documents piecemeal throughout this proceeding. However, we are willing
`to work with you on negotiating the use of individual documents provided it can be
`done in an efficient manner that does not prejudice Neptune’s ability to utilize relevant
`documents at its upcoming depositions.
`
`Accordingly, we propose that the parties set dates for exchange of lists of confidential
`documents from the ITC case that they may submit and disclose to persons qualified
`under the PO in this proceeding. The parties would then promptly discuss any
`objections to the listed documents and reach agreement or seek Board involvement as
`necessary. Given the upcoming depositions, the initial list exchange would need to
`occur no later than May 16, and a meet and confer on the lists no later than May 20.
`
`We recognize that Petitioners may identify additional ITC documents they wish to use
`in this proceeding after Neptune files its Response on June 17. Likewise, Neptune may
`identify additional relevant ITC documents after seeing Petitioners’ Reply. Therefore,
`we could set additional dates for list exchanges/meet and confers shortly after the due
`dates for Neptune’s Response and Petitioners’ Reply.
`
`Please let us know if this approach is agreeable to AKBM by close of business
`tomorrow. I’m also happy to discuss this issue by phone. If this approach is not
`acceptable, please provide your availability for a Board call to discuss the
`confidentiality issues on Thursday or Friday of this week.
`
`Elizabeth and Cynthia,
`
`As I discussed with Cynthia today, we believe Enzymotec should participate in these
`discussions so we can reach a resolution on the ITC document confidentiality issues
`that is acceptable to Enzymotec. We’d appreciate your feedback on the approach
`outlined above.
`
`
`6
`
`

`
`Thanks,
`Laura
`
`
`
`From: Hollis, Amanda [mailto:ahollis@kirkland.com]
`Sent: Sunday, May 11, 2014 8:25 PM
`To: Cunningham, Laura
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; z/IPR2014-00003; Holland, Elizabeth;
`Hardman, Cynthia Lambert; De Vries, Mike W.; Schmidt, Leslie M.; J. Mitchell Jones
`Subject: RE: IPR2014-00003: Protective Order
`
`Laura,
`
`Attached are our edits to your proposed Protective Order. We do not think a provision
`allowing counsel access to all confidential ITC trial exhibits is necessary, especially
`considering that there were many issues and documents in the ITC case that are not
`relevant to the IPR. Instead we propose that if the parties wish to use confidential
`documents from the ITC case they attempt to work out an agreement as to those
`specific documents.
`
`Regards,
`Amanda
`
`Amanda Hollis | Kirkland & Ellis LLP
`300 North LaSalle | Chicago, IL 60654
`312-862-2011 | amanda.hollis@kirkland.com
`
`
`From: Cunningham, Laura [mailto:lcunningham@cooley.com]
`Sent: Thursday, May 08, 2014 8:36 AM
`To: Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; z/IPR2014-00003; Holland, Elizabeth;
`Hardman, Cynthia Lambert; De Vries, Mike W.; Schmidt, Leslie M.; J. Mitchell Jones
`Subject: RE: IPR2014-00003: Protective Order
`
`Amanda,
`
`Please let us know when you expect to be able to provide AKBM’s position on the
`proposed protective order. We need to get this in place as soon as possible, and of
`course, before depositions begin.
`
`Regards,
`Laura
`
`_____________________________________________
`From: Cunningham, Laura
`Sent: Monday, May 05, 2014 10:24 AM
`To: Hollis, Amanda
`Cc: Altieri, Stephen; Graves, Jon; Wang, Jing; z/IPR2014-00003; Holland, Elizabeth;
`Hardman, Cynthia Lambert; De Vries, Mike W.; Schmidt, Leslie M.; J. Mitchell Jones
`
`7
`
`

`
`Subject: IPR2014-00003: Protective Order
`
`
`
`Amanda,
`
`Further to the parties’ discussions, attached is our proposed draft protective order.
`Please let us know if this is agreeable to AKBM as soon as possible.
`
`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
`
`<< File: Doc#106559479_v2_IPR2014-00003 - Protective Order.DOCX >>
`
`________________________________
`
`
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`9
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`The information contained in this communication is confidential, may be attorney-client
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`10