June 2, 2015
`
`VIA EMAIL
`
`Mr. Ricardo Rodriguez
`Cooley LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`
`Shannon M. Bloodworth
`SBloodworth@perkinscoie.com
`D. +1.202.654.6204
`F. +1.202.654.9135
`
`
`
`
`Re: AstraZeneca AB, et al. v. Mylan Pharmaceuticals Inc., et al.,
`No. 3:13-cv-04022 (D.N.J.)
`
`Dear Ricardo:
`
`It has come to our attention through a posting on Docket Navigator that Pozen Inc. (“Pozen”),
`with you as counsel, filed with the Patent Trial and Appeal Board (the “Board”) at least some
`portions of the May 12, 2015 deposition of Dr. Arthur Kibbe (“the Kibbe transcript”) taken in
`AstraZeneca AB, et al. v. Mylan Pharmaceuticals Inc., et al., No. 3:13-cv-04022 (D.N.J.) (“the
`District Court litigation”) in violation of the Stipulated Discovery Confidentiality Order (ECF
`No. 39-1) (“the Order”) entered by the District Court. See IPR No. 2015-00802, Paper No. 13,
`Patent Owner’s Motion to File Under Seal Under 37 C.F.R. § 42.12 (June 1, 2015). In fact,
`Pozen’s motion expressly recognizes that the Kibbe transcript has been designated as Attorney
`Confidential under the Order. Id. at 2 (“Petitioner designated Dr. Kibbe’s deposition testimony
`(the ‘Kibbe deposition’) as “Attorney Confidential” under the protective order.”).
`
`Your actions in IPR No. 2015-00802 are unquestionably in violation of at least two provisions of
`the Order. ECF No. 39-1.
`
`First, the Order prohibits the use of any Protected Material for purposes beyond the scope of the
`District Court litigation. Section III states,
`
`Absent agreement by the Producing Party or an order to the contrary by this Court
`or another court of competent jurisdiction, Protected Material obtained by a
`Receiving Party from a Producing Party under the terms of this Order may be
`used and disclosed only for purposes of this action and any appeal thereof, and
`not for any other purpose, including, without limitation, any business or
`commercial purpose, patent prosecution, a basis for judicial or administrative
`action, or communication with any government agency including the FDA.
`
`ECF No. 39-1 at § III (emphasis added). Pozen’s use of the confidential Kibbe transcript for
`purposes of IPR 2015-00802 is in express violation of this provision.
`
`
`
`
`
`Dr. Reddy's Exh.1068
`
`

`
`Ricardo Rodriguez
`June 2, 2015
`Page 2
`
`Second, the Order provides that
`
`[a]ll deposition transcripts not previously designated shall be deemed to be and
`shall be treated as if designated Attorney Confidential for a period of up to
`thirty (30) days from receipt of the official transcript of the deposition by all
`parties to the deposition, during which time the transcript shall not be disclosed
`by a Non-Designating Party to a person other than those persons named or
`approved according to Section III.
`
`ECF No. 39-1 at § II(D) (emphasis added). Dr. Kibbe’s deposition was taken on May 12, 2015,
`less than 30 days ago, with the receipt of the official transcript coming even later. Yet, Pozen,
`the non-designating party, disclosed the Kibbe transcript to unapproved persons, specifically and
`at least the Board, yesterday.
`
`If you believe the Kibbe transcript has been improperly designated, you were obligated to meet
`and confer and, failing agreement there, to seek an order from the District Court. ECF No. 39-1
`at § XI. Mr. Pivovar’s email from yesterday morning (attached hereto) recognized the need to at
`least meet and confer on this issue, yet you nonetheless filed at least portions of the Kibbe
`transcript with the Board. It was not within your power as an attorney trusted under the Order
`with the highest level of confidentiality to unilaterally violate the Order, using discovery material
`designated Attorney Confidential in the District Court litigation in a third party’s IPR, regardless
`of personal views of the propriety of that designation, and you certainly were not permitted to do
`so within Section II(D)’s 30-day window.
`
`To remedy this violation, Mylan demands that Pozen by 5:00 p.m. today, June 2, 2015, email the
`Board (trials@uspto.gov) and have expunged from the record any documents containing material
`designated Attorney Confidential in the District Court litigation, including the Kibbe transcript
`and any materials referencing the Kibbe transcript. Absent your prompt agreement to remedy
`your breach of the Order, we reserve the right to seek relief from the District Court and to seek
`affirmative relief from the Board.
`
`Sincerely,
`
`
`
`
`Shannon M. Bloodworth
`
`cc:
`Counsel of record in IPR No. 2015-00802
`Counsel of record in Astrazeneca AB, et al. v. Mylan Pharmaceuticals Inc., et al., No.
`
`
`3:13-cv-04022 (D.N.J.)
`
`
`
`
`
`
`Dr. Reddy's Exh.1068
`
`

`
`ATTACHMENT
`
`Dr. Reddy's Exh.1068
`
`

`
`From:
`To:
`
`Cc:
`Subject:
`
`Date:
`
`Pivovar, Adam
`Louis Weinstein; Rodriguez, Ricardo; "smaddox@meiplaw.com"; "SPatel@Schiffhardin.com";
`"smaddox@meiplaw.com"; "jedwards@meiplaw.com"; Dmitry Shelhoff; Kenneth Crowell;
`"kconfoy@foxrothschild.com"; "Patel@schiffhardin.com"; "Gregory.Miller@rivkin.com"; "JHsu@schiffhardin.com";
`Jennifer Scarpati; "RFettweis@tresslerllp.com"; Jones, David E. (Perkins Coie); Bender, Tammy (Perkins Coie);
`Glazer, Melody K. (Perkins Coie); Blinka, Thomas; "shash@velaw.com"; "masampson@velaw.com";
`"sstout@velaw.com"; "skidd@velaw.com"; "jflaherty@mccarter.com"; "jshort@mccarter.com"
`z/Horizon-Vimovo; Gritton, Jeffrey
`RE: Vimovo 11-cv-04275 D.NJ and Consolidated Actions Designation of Kibbe Deposition Transcript Attorney
`Confidential
`Monday, June 01, 2015 9:22:05 AM
`
`Counsel for DRL:
`
`The Kibbe expert report was not designated with any level of confidentiality. Plaintiffs do not
`believe there is any DRL-designated “Attorney Confidential” information disclosed during the Kibbe
`deposition. Please advise when you are available for a meet-and-confer on Wednesday (6/3),
`Thursday (6/4), Friday (6/5), or next Monday (6/8) to hold a meet-and-confer regarding your
`designation of the entire Kibbe deposition transcript as “Attorney Confidential.”
`
`Counsel for Mylan, Lupin, and Actavis:
`
`Please confirm that you do not intend to join DRL’s assertion that the entire transcript of the Kibbe
`deposition should be maintained as Attorney Confidential. If you intend to join DRL’s blanket
`designation of the Kibbe deposition transcript as Attorney Confidential, please let us know and
`indicate when you are available for a meet-and-confer on the foregoing identified days.
`
`Regards,
`Adam
`
`Adam M. Pivovar, Ph.D.
`Cooley LLP
`1299 Pennsylvania Avenue, NW • Suite 700
`(enter from 12th and E Streets)
`Washington, DC 20004-2400
`Direct: (202) 842 7889 • Fax: (202) 842 7899 • Cell: (301) 518 9212
`Bio: www.cooley.com/apivovar • Practice: www.cooley.com/litigation
`
`From: Louis Weinstein [mailto:lweinstein@buddlarner.com]
`Sent: Friday, May 29, 2015 11:06 AM
`To: Rodriguez, Ricardo; 'smaddox@meiplaw.com'; 'SPatel@Schiffhardin.com'; Pivovar, Adam;
`'smaddox@meiplaw.com'; 'jedwards@meiplaw.com'; Dmitry Shelhoff; Kenneth Crowell;
`'kconfoy@foxrothschild.com'; 'Patel@schiffhardin.com'; 'Gregory.Miller@rivkin.com';
`'JHsu@schiffhardin.com'; Jennifer Scarpati; 'RFettweis@tresslerllp.com'; 'DEJones@perkinscoie.com';
`'Bendt@perkinscoie.com'; 'MGlazer@perkinscoie.com'; Blinka, Thomas; 'shash@velaw.com';
`'masampson@velaw.com'; 'sstout@velaw.com'; 'skidd@velaw.com'; 'jflaherty@mccarter.com';
`'jshort@mccarter.com'
`Cc: Louis Weinstein
`Subject: Vimovo 11-cv-04275 D.NJ and Consolidated Actions Designation of Kibbe Deposition
`Transcript Attorney Confidential
`
`Counsel:
`
`Please see the attached correspondence designating the Transcript of the Deposition of Arthur H.
`
`Dr. Reddy's Exh.1068
`
`

`
`Kibbe Attorney Confidential.
`
`Yours truly,
`
`Louis H. Weinstein
`For Alan H. Pollack
`
`
`THE INFORMATION CONTAINED IN THIS EMAIL COMMUNICATION IS
`INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE
`DESIGNATED RECIPIENT NAMED ABOVE. This message may be an Attorney-
`Client communication, and as such is privileged and confidential. If the reader of this
`message is not the intended recipient, you are hereby notified that you have received
`this communication in error, and that any review, dissemination, distribution, or
`copying of the message is strictly prohibited. If you have received this transmission in
`error, please destroy this transmission and notify us immediately by telephone and/or
`reply email.
`
`______________________________________________________________________
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`For more information please visit http://www.symanteccloud.com
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`
`This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any
`unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by
`reply email and destroy all copies of the original message. If you are the intended recipient, please be advised that the content of this
`message is subject to access, review and disclosure by the sender's Email System Administrator.
`
`Dr. Reddy's Exh.1068
`
`

`
`
`
`June 8, 2015
`
`VIA EMAIL
`
`Mr. Ricardo Rodriguez
`Cooley LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`
`Shannon M. Bloodworth
`SBloodworth@perkinscoie.com
`D. +1.202.654.6204
`F. +1.202.654.9135
`
`
`
`
`Re: AstraZeneca AB, et al. v. Mylan Pharmaceuticals Inc., et al.,
`No. 3:13-cv-04022 (D.N.J.)
`
`Dear Ricardo:
`
`I am writing in furtherance of my letter dated June 2, 2015, which explained my serious concerns
`about Pozen’s filing with the Patent Trial and Appeal Board (the “Board”) confidential
`information derived from the May 12, 2015 deposition of Dr. Arthur Kibbe (“the Kibbe
`transcript”) taken in AstraZeneca AB, et al. v. Mylan Pharmaceuticals Inc., et al., No. 3:13-cv-
`04022 (D.N.J.) (“the District Court litigation”) in violation of the Stipulated Discovery
`Confidentiality Order (ECF No. 39-1) (“the Order”) entered by the District Court. See IPR No.
`2015-00802, Paper No. 13, Patent Owner’s Motion to File Under Seal Under 37 C.F.R. § 42.12
`(June 1, 2015). In Pozen’s motion to seal filed with the PTAB, Pozen stated that it was filing the
`motion under seal because it contained information designated as confidential in the District
`Court litigation.
`
`The next day, Pozen consulted with the IPR Petitioner, DRL, to find out if Patent Owner’s
`Motion for Discovery From Petitioner and Request to Submit Testimonial Evidence (Paper 14)
`(“motion for discovery”) could be shared with Mylan. Once eventually provided, the motion for
`discovery demonstrates that Pozen improperly disclosed the content of Kibbe’s testimony and
`relied on his deposition testimony in filing its motion for discovery. Specifically, Pozen stated in
`its motion for discovery that:
`
`During deposition by Horizon Pharmaceuticals, Inc. and Pozen Inc. (collectively,
`“Patent Owner”), Dr. Kibbe provided testimony raising substantial questions
`regarding whether the opinions set forth in the Kibbe Declaration in support of the
`Petition were jointly funded and jointly controlled by all of the codefendants to
`the litigation. Dr. Kibbe’s deposition testimony confirms the dispositive facts
`surrounding Petitioner’s failure to properly include the unnamed co-defendants as
`real-parties-in-interest to the Petition.
`
`Motion for discovery at 2-3. Filing the motion based on Dr. Kibbe’s testimony and stating that
`Dr. Kibbe’s testimony “confirms the dispositive facts” is a disclosure of that testimony and an
`
`
`
`
`
`Dr. Reddy's Exh.1068
`
`

`
`Ricardo Rodriguez
`June 8, 2015
`Page 2
`
`impermissible use of that testimony under at least Section III of the Order. Mylan maintains its
`position that Pozen’s use of Dr. Kibbe’s testimony in its motion for discovery is in express
`violation of the Order.
`
`Even more troubling than the facts here is Pozen’s cavalier handling of information it was
`required to treat with the highest level of confidentiality under the Order. Pozen never requested
`Mylan’s permission to use, in a third party’s IPR, information required to be treated as and
`designated as Attorney Confidential, despite having ample opportunity to do so. Mylan has since
`learned that Pozen participated in a conference call with the Board on May 28, 2015, to seek
`permission to file a motion for discovery based on the Kibbe transcript. Pozen thereby
`demonstrated that it had more than sufficient time to seek permission from the non-DRL parties
`to the District Court litigation, or otherwise seek appropriate relief, before unilaterally
`determining that Dr. Kibbe’s testimony could serve as the basis for Pozen’s motion for
`discovery. Mylan expects you to exercise the utmost of care with confidential information
`provided to you as a person admitted under the highest level of protection of the Order, which
`plainly did not occur here.
`
`With Pozen having chosen not to remedy its violation of the Order, we reserve the right to bring
`this matter to the attention of Magistrate Judge Arpert at the June 15 status conference.
`
`Sincerely,
`
`
`
`Shannon M. Bloodworth
`
`cc:
`Counsel of record in IPR No. 2015-00802
`Counsel of record in AstraZeneca AB, et al. v. Mylan Pharmaceuticals Inc., et al., No.
`
`
`3:13-cv-04022 (D.N.J.)
`
`
`
`
`
`
`Dr. Reddy's Exh.1068