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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` PATENT TRIAL AND APPEAL BOARD
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` FRESENIUS KABI USA LLC, )
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` ) Case No.
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` Petitioner, ) IPR2015-00223
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` ) (Patent 6,852,689
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` vs. ) B2)
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` )
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` CUBIST PHARMACEUTICALS, ) Case No.
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` INC., ) IPR2015-00227
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` ) (Patent 6,464,967
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` Patent Owner. ) B1)
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` ------------------------- )
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` November 24, 2015
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` 9:15 a.m.
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` Deposition of JAMES S. HALL, held at
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` the offices of Wilmer Cutler Pickering
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` Hale and Dorr LLP, 7 World Trade Center, New
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` York, New York, before Laurie A. Collins, a
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` Registered Professional Reporter and Notary
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` Public of the State of New York.
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`www.veritext.com
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`888-391-3376
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`Veritext Legal Solutions
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`Fresenius Kabi, Substitute Exhibit 1035
`IPR2015-00223
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`1 Hall
`2 in the room and everyone attending please
`3 voice identify themselves and the parties they
`4 represent.
`5 MR. HSU: John Hsu from Schiff Hardin
`6 representing Fresenius Kabi USA, LLC.
`7 MS. PIROZZOLO: Lisa Pirozzolo from
`8 WilmerHale for Cubist Pharmaceuticals and the
`9 witness.
`10 MS. NEELY: Stephanie Neely from
`11 WilmerHale for Cubist Pharmaceuticals and the
`12 witness.
`13 J A M E S S. H A L L ,
`14 called as a witness, having been duly sworn
`15 by the notary public, was examined and
`16 testified as follows:
`17 EXAMINATION BY
`18 MR. HSU:
`19 Q. Good morning, Mr. Hall.
`20 A. Good morning.
`21 Q. Have you ever been deposed before?
`22 A. Once before.
`23 Q. Okay. So you might know the procedure
`24 a little bit, but let me just explain it a little
`25 bit more for you.
`
` A P P E A R A N C E S:
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`1 2
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`3 4
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` SCHIFF HARDIN LLP
`5 Attorneys for Petitioner
`6 233 South Wacker Drive
`7 Suite 6600
`8 Chicago, Illinois 60606
`9 BY: JOHN K. HSU, Ph.D., ESQ.
`10 jhsu@schiffhardin.com
`11
`12 WILMER CUTLER PICKERING HALE AND DORR LLP
`13 Attorneys for Patent Owner
`14 60 State Street
`15 Boston, Massachusetts 02109
`16 BY: LISA J. PIROZZOLO, ESQ.
`17 lisa.pirozzolo@wilmerhale.com
`18 STEPHANIE NEELY, ESQ.
`19 stephanie.neely@wilmerhale.com
`20
`21 ALSO PRESENT:
`22 LISA JACOBS, ESQ. (Merck)
`23 JONATHAN POPHAM, Videographer
`24
`25
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`1 Hall
`2 Right now there's a court reporter
`3 that's going to take down your responses after I
`4 ask a question. If you could give a verbal
`5 response, that would be helpful. Okay? Do you
`6 understand that?
`7 A. Yes.
`8 Q. All right. Because she can't take both
`9 people down at the same time, if you could let me
`10 get my question out first before you answer, that
`11 would be helpful, and I will do my best to let you
`12 answer without interrupting. Do you understand
`13 that?
`14 A. Yes.
`15 Q. I'm going to be asking questions. If
`16 you don't hear a question that I ask, please tell
`17 me and I'll be happy to repeat it. Do you
`18 understand that?
`19 A. Yes.
`20 Q. And if you don't understand the
`21 question I ask, let me know and I'll see what you
`22 don't understand and I'll try to clarify it and
`23 we'll move on from there. Do you understand that?
`24 A. Yes.
`25 Q. So if you answer a question, is it fair
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`1 2
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` THE VIDEOGRAPHER: We're now on the
`3 record.
`4 Please note that the microphones are
`5 sensitive and may pick up whispering and
`6 private conversations.
`7 Please turn off all cell phones or
`8 place them away from the microphones, as they
`9 can interfere with the deposition audio.
`10 Recording will continue until all
`11 parties agree to go off the record.
`12 My name is Jonathan Popham,
`13 representing Veritext. The date today is
`14 November 24th, 2015, and the time is
`15 approximately 9:15 a.m. This deposition is
`16 being held at WilmerHale, located at 7 World
`17 Trade Center, New York, New York.
`18 The caption of this case is Fresenius
`19 Kabi USA, LLC, versus Cubist Pharmaceuticals.
`20 This case is being held in the United States
`21 Patent and Trademark Office before the Patent
`22 Trial and Appeal Board, Case Numbers
`23 IPR2015--00223 and IPR2015--00227. The name
`24 of the witness is James Hall.
`25 At this time will the attorneys present
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`www.veritext.com
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`Veritext Legal Solutions
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`1 Hall
`2 that I'm going to -- I'm going to understand that
`3 you heard it and that you understood it. Is that
`4 fair?
`5 A. Yes.
`6 Q. All right. Any reasons today why you
`7 can't give full and truthful answers?
`8 A. No.
`9 Q. I want to talk about your background a
`10 little bit. Did you get an undergraduate degree?
`11 A. Yes.
`12 Q. Okay. Where did you get your
`13 undergraduate degree?
`14 A. Hamilton College.
`15 Q. Where is that?
`16 A. Clinton, New York.
`17 Q. And what was the degree in?
`18 A. Economics.
`19 Q. And did you go on to any post-
`20 undergraduate education?
`21 A. Post-undergraduate?
`22 Q. Yes. After your getting an
`23 undergraduate degree, did you get more schooling?
`24 A. Graduate school.
`25 Q. Okay. Where did you get a graduate
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`1 Hall
`2 history. After your undergraduate degree in 1989,
`3 did you start at a job?
`4 A. Yes.
`5 Q. Okay. What job did you start at?
`6 A. Worked at the Boston Company.
`7 Q. What is the Boston Company? What does
`8 that company do?
`9 A. It's a retail bank, an investment bank.
`10 Q. What years did you work there?
`11 A. From 1989 to 1992.
`12 Q. What was your title?
`13 A. Account specialist.
`14 Q. Generally what did your job duties
`15 entail?
`16 A. It was the operational management of
`17 pension fund accounting.
`18 Q. As part of your work at the Boston
`19 Company, did you work with anything dealing with
`20 pharmaceutical products?
`21 A. No.
`22 Q. After the Boston Company, did you move
`23 to another job?
`24 A. After the Boston Company, I went to
`25 graduate school at Duke University.
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`1 Hall
`2 school?
`3 A. MBA from Duke University.
`4 Q. When did you get your undergraduate
`5 degree from Hamilton College?
`6 A. Graduated in 1989.
`7 Q. When did you get your MBA from Duke?
`8 A. 1994.
`9 Q. And after getting an MBA from Duke,
`10 have you done any other educational training?
`11 A. No.
`12 Q. So no other degrees other than your
`13 undergraduate and your MBA from Duke; correct?
`14 A. That's correct.
`15 Q. I just want to make sure -- I just want
`16 to make sure the record is clear. You don't have
`17 a medical degree; is that correct?
`18 A. Correct.
`19 Q. Do you have any training -- do you have
`20 any medical training?
`21 A. No.
`22 Q. And you've never treated patients
`23 before; correct?
`24 A. No, correct.
`25 Q. I just want to go through your work
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`1 Hall
`2 Q. And so that was from '92 to '94?
`3 A. Correct.
`4 Q. And while you were at graduate school,
`5 were you working at a job?
`6 A. No.
`7 Q. After graduate school what job did you
`8 take then?
`9 A. So from graduate school I went to
`10 Merck & Co. and went into internal audit.
`11 Q. Generally what did your job duties
`12 entail in internal audit?
`13 A. General responsibility was reviewing
`14 operational controls across multiple divisions
`15 within Merck.
`16 Q. Okay. And that you started in 1994;
`17 correct?
`18 A. Correct.
`19 Q. Now, since 1994 to the present, have
`20 you always been working at Merck?
`21 A. Yes.
`22 Q. When you started in audit -- internal
`23 audit in 1994, what was your job title?
`24 A. Senior internal auditor.
`25 Q. Now, how long at Merck, from 1994 till
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`1 Hall
`2 when, did you hold that job as senior internal
`3 auditor?
`4 A. Approximately 1996.
`5 Q. Okay. In 1996 what changed?
`6 A. Then I went to a new job supporting
`7 Merck manufacturing from a financial controls
`8 standpoint.
`9 Q. When you say "from a financial controls
`10 standpoint," what do you mean?
`11 A. Helped track the cost of manufacturing
`12 products within the vaccine business.
`13 Q. And were you solely in the vaccine
`14 business area or did you work in other different
`15 products?
`16 A. No, just vaccines.
`17 Q. And what was your title? I don't think
`18 I asked this. What was your title at that point?
`19 A. Senior financial specialist.
`20 Q. Now, from 19 -- I'm sorry, how long
`21 were you in that job, senior financial specialist?
`22 From 1996 till when?
`23 A. To mid 1998.
`24 Q. Okay. And what changed?
`25 A. Then I became manager with the same
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`1 Hall
`2 for capital approvals.
`3 Q. Generally what did that entail?
`4 A. The review of capital requests made by
`5 manufacturing, the review of that and the writing
`6 of a business case for the capital request.
`7 Q. Now, as part of your job duty during
`8 that period, did you deal with antibacterial
`9 products?
`10 A. I don't recall.
`11 Q. Okay. From -- you were doing that job
`12 from 2001 till when?
`13 A. 2003.
`14 Q. What happened in 2003? How did your
`15 job duties change?
`16 A. Then I went into a new role as a
`17 financial controller of the Fosamax brand team.
`18 Q. And what type of drug is Fosamax?
`19 A. It's a bisphosphonate for osteoporosis.
`20 Q. I didn't catch the first part.
`21 A. A bisphosphonate.
`22 Q. That's a type of compound; right?
`23 A. Yes.
`24 Q. And that's for osteoporosis?
`25 A. Correct.
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`1 Hall
`2 accountability, just now people reporting to me.
`3 Q. Still in the vaccine product area;
`4 right?
`5 A. Correct.
`6 Q. All right. 1998 to how long until that
`7 changed?
`8 A. Still about the end of 1999.
`9 Q. Okay. And how did your duties change
`10 at the end of 1999?
`11 A. Then I went to work in a financial
`12 evaluation and analytics group, still supporting
`13 manufacturing.
`14 Q. Okay. Were you still dealing with just
`15 vaccine products or did that expand also?
`16 A. It expanded.
`17 Q. All right. What did it expand into?
`18 A. Various. Cardiovascular comes to mind.
`19 Q. Any antibacterial products?
`20 A. No.
`21 Q. So that started in 1999. From 1999
`22 till when were you in that role at Merck?
`23 A. Till 2001, approximately.
`24 Q. What changed? I'm sorry.
`25 A. Then I took over the capital planning
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`1 Hall
`2 Q. It's not an antibacterial; correct?
`3 A. Correct.
`4 Q. How long did your job duties, from 2003
`5 till when?
`6 A. That was from 2003 till 2005.
`7 Q. In 2005 how did your job duties change?
`8 A. Became the financial controller of a
`9 business unit within the U.S. market.
`10 Q. What business unit was that?
`11 A. Referred to as business unit 2.
`12 Q. What type of drugs did business unit 2
`13 cover?
`14 A. Examples are Singulair, Maxalt,
`15 Fosamax.
`16 Q. So was business unit 2 responsible for
`17 a certain drug portfolio at Merck?
`18 A. Correct.
`19 Q. Did any of those drugs include
`20 antibacterials?
`21 A. No.
`22 Q. And that job in business unit 2 went
`23 from 2005 till when?
`24 A. Till 2007.
`25 Q. And in 2007 what was your job duty?
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`1 Hall
`2 A. Then I became the financial controller
`3 of BU 3.
`4 Q. Is that -- sorry, I didn't want -- are
`5 you finished?
`6 A. (Nods head.)
`7 Q. Is that business unit 3?
`8 A. Yes. I also was the global controller
`9 for cardiovascular franchise.
`10 Q. When you say "cardiovascular
`11 franchise," are you talking about different
`12 cardiovascular drugs at Merck?
`13 A. Yes.
`14 Q. And as far as the business unit 3, what
`15 drugs did that cover?
`16 A. For diabetes, cardiovascular.
`17 Q. Any other?
`18 A. No.
`19 Q. So at this stage you were not involved
`20 with antibacterial drugs at Merck; correct?
`21 A. Correct.
`22 Q. Your role in that position was from
`23 2007 till when?
`24 A. 2008.
`25 Q. And what was your job -- how did your
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`1 Hall
`2 Q. So how long? 2008 till what time?
`3 A. 2009.
`4 Q. In 2009 what was your job role at
`5 Merck?
`6 A. I assumed financial controller of
`7 emerging markets.
`8 Q. Generally what was your job
`9 responsibilities?
`10 A. Generally my responsibility was to
`11 bring together, postmerger with Schering-Plough, a
`12 consolidation of the business in emerging markets.
`13 Q. That was from 2009 till when?
`14 A. Mid 2010.
`15 Q. And as your role as financial
`16 controller of emerging markets, did you deal with
`17 antibacterial drugs that Merck had?
`18 A. Not directly.
`19 Q. Now, after 2010 what was your job at
`20 Merck?
`21 A. So 2010 I then assumed a role in the
`22 vaccine division, financial controller of the U.S.
`23 market for vaccines as well as a global financial
`24 controller for global vaccines.
`25 Q. As a financial controller, generally
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`1 Hall
`2 job duties switch in 2008?
`3 A. 2008 I assumed a role in the global
`4 reporting COE, center of excellence, supporting
`5 global human health.
`6 Q. Generally what did your job duties
`7 entail when you were in that position?
`8 A. Generally it was to consolidate global
`9 results of the global human health division as
`10 well as dictate planning process guidance.
`11 Q. Was there any particular drugs that you
`12 were dealing with as part of your job duties?
`13 A. Not directly.
`14 Q. Were you responsibility for any of
`15 Merck's antibacterial drugs in the role that you
`16 had in 2008?
`17 A. Not directly.
`18 Q. When you say "not directly," why is it
`19 "not directly"? Can you explain?
`20 A. The results of antibiotic products were
`21 consolidated into global human health results.
`22 Q. But as far as actually directly dealing
`23 with manufacturing or sales of antibacterials,
`24 that wasn't part of your job duties there?
`25 A. Correct.
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`1 Hall
`2 what's your job duties at Merck?
`3 A. So for the U.S. role it is basic
`4 controllership of the market and assurance of the
`5 integrity of the data of the profit-and-loss
`6 statement.
`7 Q. So you were overseeing the financial
`8 information, and you're checking the numbers? Is
`9 that sort of fair?
`10 A. Yes.
`11 Q. From 2010 -- oh, and as part of your
`12 duties did you deal with Merck's antibacterial
`13 drugs at all?
`14 A. No.
`15 Q. And that was from 2010 till when?
`16 A. Till June of 2015.
`17 Q. And June of 2015 how did your job
`18 duties change?
`19 A. To recently assume the financial
`20 controller of the U.S. market for pharmaceuticals.
`21 Q. Generally what do your job duties
`22 entail?
`23 A. Generally responsible for the
`24 controllership and the financials of the U.S.
`25 market and planning and reporting for the U.S.
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`1 Hall
`2 market.
`3 Q. Is that for all of Merck's drugs?
`4 A. For all the pharmaceutical drugs.
`5 Q. Does that include drugs that are
`6 marketed by Merck subsidiaries?
`7 A. Can you please explain?
`8 Q. Sure. Does Merck have different
`9 subsidiary pharmaceutical companies that they have
`10 ownership in? Are you aware of that?
`11 A. Not in the U.S.
`12 Q. Okay, not in the U.S.
`13 Well, let me -- I'll ask some different
`14 questions, and maybe it will make it more clear.
`15 So June 2015. Is that your job now at
`16 Merck?
`17 A. Yes.
`18 Q. And, again, I asked this for your
`19 previous job at Merck, but as controllership of
`20 financial markets of the U.S., generally what does
`21 that job entail?
`22 A. Generally entails the responsibility
`23 for the financial planning and reporting of the
`24 U.S. market business.
`25 Q. Now, I've gone through your history --
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`1 Hall
`2 Q. When was that?
`3 A. December of 2014.
`4 Q. Now -- and this goes back to my
`5 question before -- is Merck -- is Cubist a
`6 subsidiary of Merck, to your understanding?
`7 A. Not to my understanding.
`8 Q. Okay. What's your understanding?
`9 A. My understanding is Merck has Cubist
`10 in -- the product portfolio within Cubist falls
`11 within the U.S. market purview.
`12 Q. Okay. Is it fair to say for your
`13 understanding drugs that Cubist markets, that's
`14 within Merck's U.S. purview; correct?
`15 A. Correct.
`16 Q. And as far as the corporate
`17 relationship, whether they're subsidiaries or
`18 whether there's some other entity relationship
`19 between Merck and Cubist, are you aware of
`20 anything like that?
`21 A. I'm not --
`22 MS. PIROZZOLO: Objection.
`23 A. I'm not familiar.
`24 Q. Now, in your different roles at Merck,
`25 were you involved with any aspect of the
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`1 Hall
`2 your job history at Merck since you started to
`3 present; correct?
`4 A. Correct.
`5 Q. Okay. I just want to confirm some
`6 things. I think I know what the answer is but...
`7 As your work at Merck and your job
`8 responsibilities or duties, have you ever been
`9 involved with the medical research of drugs at
`10 Merck?
`11 A. No.
`12 Q. As far as this IPR petition, you
`13 submitted a declaration for this IPR petition.
`14 Are you aware of that?
`15 A. Yes.
`16 Q. And the IPR petition involves a company
`17 named Cubist Pharmaceuticals. Are you aware of
`18 that?
`19 A. Yes.
`20 Q. Now, is it your understanding that
`21 Merck acquired Cubist Pharmaceuticals at some
`22 point?
`23 A. Yes.
`24 Q. Do you know when?
`25 A. Yes.
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`1 Hall
`2 acquisition of Cubist by Merck?
`3 A. No.
`4 Q. And for this IPR, you're aware that the
`5 drug at issue is Cubicin; is that right?
`6 A. Yes.
`7 Q. Before Merck acquired Cubist, did you
`8 have any involvement in the development of
`9 Cubicin?
`10 A. No.
`11 Q. Did you have any involvement whatsoever
`12 with Cubicin before Merck acquired Cubist?
`13 A. No.
`14 Q. Do you know whether Merck had a
`15 financial interest in Cubist before Merck acquired
`16 Cubist?
`17 A. No.
`18 Q. "No" meaning you don't know?
`19 A. I was not involved or aware.
`20 Q. Okay. So I just want to clarify the
`21 record.
`22 A. Sorry.
`23 Q. When you say "no," you mean you have no
`24 understanding or awareness of anything --
`25 A. Correct.
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`1 Hall
`2 Q. -- with respect to my question;
`3 correct?
`4 A. Correct.
`5 Q. Okay. And before Merck acquired
`6 Cubist, do you know whether Merck had any
`7 financial interest in the drug Cubicin?
`8 A. No.
`9 Q. "No" meaning you don't know; correct?
`10 A. I don't know.
`11 Q. So you're not aware of any licensing
`12 agreements Merck had with regard to Cubicin before
`13 they acquired Cubist; correct?
`14 A. Correct.
`15 Q. Or any royalties, for example; correct?
`16 You're not aware of that; correct?
`17 A. Correct.
`18 Q. Now, we discussed your different job
`19 duties at Merck since you started there in 1994 to
`20 the present. Has any one of those job duties
`21 involved your involvement in marketing a
`22 particular drug?
`23 A. Indirectly.
`24 Q. Okay. And what do you mean by
`25 "indirectly"?
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`1 Hall
`2 A. I'm aware of the marketing but no
`3 direct.
`4 Q. No direct involvement?
`5 A. No direct involvement in marketing.
`6 (Discussion off the record.)
`7 Q. What I'm going to hand you is a
`8 document that has the title declaration of
`9 James S. Hall on the front of it. It's been
`10 marked on the right-hand bottom as Cubist 2032 in
`11 Fresenius versus Cubist and has an IPR number.
`12 Do you have that in front of you?
`13 A. Yes.
`14 Q. I want you to take a look at it, but
`15 does this look familiar to you as the declaration
`16 that you submitted for the IPRs that are at issue?
`17 A. Yes.
`18 Q. Okay. The last page is page 3. I just
`19 want to confirm that's your signature; correct?
`20 A. Correct.
`21 Q. And you signed it on or about August
`22 12th, 2015; correct?
`23 A. Correct.
`24 Q. I want to talk to you about how you got
`25 the declaration together. So as far as drafting
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`1 Hall
`2 A. When I was supporting the Fosamax brand
`3 team as the financial controller, I was part of
`4 the brand team, meaning I was in marketing.
`5 Q. Setting aside Fosamax, did you have any
`6 involvement with the marketing of any Merck drug
`7 in the duties that you had at Merck?
`8 A. No.
`9 Q. Now when it comes to Fosamax, when you
`10 say you were part of the brand team, meaning
`11 marketing, how were you involved with marketing
`12 with respect to Fosamax?
`13 A. So this was a developmental position
`14 for financial professionals to come into
`15 marketing. Essentially I participated in brand
`16 team meetings, strategy meetings.
`17 Q. Did you make any decisions as far as
`18 how to market Fosamax?
`19 A. No.
`20 Q. I'm pretty sure I know the answer to
`21 this. Before Merck acquired Cubist, did you have
`22 any involvement in the marketing of Cubicin?
`23 A. No.
`24 Q. After Merck acquired Cubist, have you
`25 had any involvement in the marketing of Cubicin?
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`1 Hall
`2 the declaration, how did you start? What was the
`3 first thing that you did?
`4 MS. PIROZZOLO: I'm just going to
`5 caution you not to reveal privileged
`6 communications. But you can describe
`7 generally.
`8 A. An attorney provided a draft.
`9 Q. Just to follow up, your attorney --
`10 what she indicated -- let me just -- I'm sure she
`11 explained this, but let me explain a little
`12 better -- more.
`13 There's something called privilege.
`14 It's a communication between you and your
`15 attorneys. I'm not asking for that. I don't want
`16 to know what you talked about with your attorneys.
`17 I'm not -- so whenever I ask that question, I'm
`18 not asking that information, and that's why she's
`19 objecting. Please don't give it to me. All
`20 right?
`21 Okay. So you said -- let me try to
`22 break it down a little bit more.
`23 For your declaration were you contacted
`24 by anyone to start the process of getting a
`25 declaration together?
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`1 Hall
`2 A. Yes.
`3 Q. Okay. Who?
`4 A. Emily. I don't remember her last name.
`5 Q. Whelan?
`6 A. Yes, I believe so. I can't confirm. I
`7 just know it's Emily.
`8 Q. Attorney at WilmerHale?
`9 A. Yeah.
`10 Q. When was that, about?
`11 A. August.
`12 Q. August of this year?
`13 A. Correct.
`14 Q. And you signed it August of this year
`15 too, also?
`16 A. Correct.
`17 Q. So it was August sometime before the
`18 12th; correct?
`19 A. August, July. I don't recollect the
`20 exact timing.
`21 Q. Sometime in that time frame?
`22 A. Yes.
`23 Q. During the process of getting your
`24 declaration together, did you speak to anyone
`25 other than Emily?
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`1 Hall
`2 A. There was another draft.
`3 Q. Was there any additional drafts other
`4 than the two drafts that we're talking about?
`5 A. I don't believe so.
`6 Q. Now, to get together the information
`7 that's in your declaration, did you talk to anyone
`8 at Merck?
`9 A. Yes.
`10 Q. Okay. Who did you talk to?
`11 A. One of my direct reports.
`12 Q. One of your direct reports? Who is
`13 that?
`14 A. Phil Rinnander.
`15 Q. Could you spell the last name?
`16 A. R-I-N-N-A-N-D-E-R.
`17 Q. And what's Phil Rinnander's job title?
`18 A. Director, financial planning.
`19 Q. Does he report to you as part of his
`20 job title -- as part of his job responsibilities?
`21 A. Yes.
`22 Q. Are you his direct supervisor?
`23 A. Yes.
`24 Q. Why did you speak with Phil Rinnander
`25 to get together the information that's in your
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`Page 27
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`Page 29
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`1 Hall
`2 A. No.
`3 Q. Now, as far as getting the document
`4 together, I believe you said a draft was given to
`5 you. Did you receive a draft of your declaration
`6 from attorneys?
`7 A. Yes.
`8 Q. Emily specifically?
`9 A. I believe so.
`10 Q. Okay. Somebody, Emily, maybe another
`11 attorney, but that's your best understanding?
`12 A. Correct.
`13 Q. As far as getting it together -- again,
`14 I'm not asking you about the conversations that
`15 you actually had, but did you give her information
`16 so that she could put together the information in
`17 your declaration?
`18 A. Correct.
`19 Q. Now, as far as you receiving a draft,
`20 were there subsequent drafts of your declaration?
`21 A. Maybe one.
`22 Q. To the best of your recollection, there
`23 might have been another draft after the first
`24 draft, but you just don't specifically recall;
`25 correct?
`
`1 Hall
`2 declaration?
`3 A. I asked for him to help pull together
`4 information regarding sales.
`5 Q. And information regarding sales of
`6 Cubicin; correct?
`7 A. Correct.
`8 Q. And what he get you?
`9 A. Please repeat that.
`10 Q. Sorry. What did he get you? What
`11 information did he get you?
`12 A. He pulled net revenue information.
`13 Q. Net revenue information for Cubicin.
`14 Was it of a particular territory or what?
`15 A. For U.S.
`16 Q. And what years were those?
`17 A. Specifically 2006 to 2013.
`18 Q. And did he get you that information?
`19 A. Yes.
`20 Q. If you look at paragraph 4 of your
`21 declaration, you cite some numbers there -- do you
`22 see that? -- sales numbers?
`23 A. Yes.
`24 Q. And you have dates -- you have years of
`25 2013, 2012, and 2011. Do you see that?
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`1 Hall
`2 A. Yes.
`3 Q. Any reason why you didn't include the
`4 previous years that you had sales information for?
`5 A. This was per the 10-K.
`6 Q. Do I understand correctly the 10-K that
`7 you cite inside your declaration, those are the
`8 years the 10-K had; correct?
`9 A. Correct.
`10 Q. Again, the question actually was a
`11 little different. Was there a reason why you
`12 didn't include the other years' information that
`13 you received from Phil Rinnander?
`14 MS. PIROZZOLO: Objection.
`15 A. No particular reason.
`16 Q. Okay. Other than Phil Rinnander, did
`17 you speak with anyone else at Merck to help you
`18 get together -- help give you information that you
`19 wanted to get for your declaration?
`20 A. No.
`21 Q. Just to close the loop, you didn't
`22 speak with anyone at Cubist to help you get
`23 information for your declaration; correct?
`24 A. Correct.
`25 Q. Let me ask you about some of the
`
`1 Hall
`2 In paragraph 4 on page 2, you cite the
`3 10-K from Cubist. Do you see that?
`4 A. Yes.
`5 Q. Okay. Before you got together your
`6 information for your declaration, were you aware
`7 of the information that was in the Cubist 2014
`8 10-K?
`9 A. No.
`10 Q. Did Phil Rinnander give you the Cubist
`11 2014 10-K?
`12 A. No.
`13 Q. Without revealing any privileged
`14 information, can you tell me where you got the
`15 10-K -- Cubist 2014 10-K?
`16 MS. PIROZZOLO: Objection.
`17 If you can answer.
`18 A. I can't.
`19 Q. All right. And then in paragraph 3 it
`20 discusses a Cubicin label. It kind of goes on to
`21 page 2. It straddles page 2. Do you see that?
`22 A. Yes.
`23 Q. Now, before you got together your
`24 information for your declaration, were you aware
`25 of what the Cubicin label said?
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`1 Hall
`2 documents that you cite inside your declaration.
`3 So I'm looking at paragraph 2 of your declaration.
`4 Do you have it in front of you?
`5 A. Yes.
`6 Q. You have a reference, "arbeit," down at
`7 the bottom of that paragraph. Do you see that?
`8 A. Yes.
`9 Q. Before you started the process of
`10 getting your declaration together, were you aware
`11 of that reference?
`12 A. No.
`13 Q. And again, not revealing any kind of
`14 discussions you had with attorneys, how did you
`15 become aware of that reference?
`16 MS. PIROZZOLO: Objection.
`17 If you can answer that without
`18 revealing attorney-client privileged
`19 communications, go ahead. But I think it
`20 might call for privileged communications.
`21 MR. HSU: Okay.
`22 Q. No, I mean, if you can, you can; if you
`23 can't, just say you can't.
`24 A. I can't.
`25 Q. All right.
`
`1 Hall
`2 A. Yes.
`3 Q. You did. How did you know that?
`4 A. Just I'm aware -- because of working
`5 with marketing, I'm aware of the label that
`6 marketing and sales uses.
`7 Q. Is that for all the drugs at Merck that
`8 you handle?
`9 A. For many drugs, yes.
`10 Q. And Cubicin was one of those drugs?
`11 A. Yes.
`12 Q. Before