Job No. 2289897
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` PATENT TRIAL AND APPEAL BOARD
`
` COALITION FOR AFFORDABLE )
`
` DRUGS IV LLC, )
`
` )
`
` Petitioner, ) Case Nos.
`
` ) IPR2015-01092
`
` vs. ) IPR2015-01096
`
` ) IPR2015-01102
`
` CELGENE CORPORATION, ) IPR2015-01103
`
` )
`
` Patent Owner. )
`
` ------------------------- )
`
` April 13, 2016
`
` 9:51 a.m.
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` Deposition of LOURDES M. FRAU, held at
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` the offices of Quinn Emanuel Urquhart &
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` Sullivan, LLP, 51 Madison Avenue, 22nd Floor,
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` New York, New York, before Laurie A. Collins,
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` a Registered Professional Reporter and Notary
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` Public of the State of New York.
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`Veritext Legal Solutions
`800-336-4000
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`Page 1
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`CFAD VI 1086 - 0001
`CFAD VI v. CELGENE
`IPR2015-01102
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` PATENT TRIAL AND APPEAL BOARD
`
` COALITION FOR AFFORDABLE )
`
` DRUGS IV LLC, )
`
` )
`
` Petitioner, ) Case Nos.
`
` ) IPR2015-01092
`
` vs. ) IPR2015-01096
`
` ) IPR2015-01102
`
` CELGENE CORPORATION, ) IPR2015-01103
`
` )
`
` Patent Owner. )
`
` ------------------------- )
`
` April 13, 2016
`
` 9:51 a.m.
`
` Deposition of LOURDES M. FRAU, held at
`
` the offices of Quinn Emanuel Urquhart &
`
` Sullivan, LLP, 51 Madison Avenue, 22nd Floor,
`
` New York, New York, before Laurie A. Collins,
`
` a Registered Professional Reporter and Notary
`
` Public of the State of New York.
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`Page 1
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`CFAD VI 1086 - 0001
`CFAD VI v. CELGENE
`IPR2015-01102
`
`
`
`Job No. 2289897
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`A P P E A R A N C E S :
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` S K I E R M O N T D E R B Y L L P
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` A t t o r n e y s f o r P e t i t i o n e r
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` 2 2 0 0 R o s s A v e n u e , S u i t e 4 8 0 0 W
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` D a l l a s , T e x a s 7 5 2 0 1
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` B Y : S A D A F R . A B D U L L A H , E S Q .
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` s a b d u l l a h @ s k i e r m o n t . c o m
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` P A V A R T H I K O T A , P h . D . , E S Q .
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` p k o t a @ s k i e r m o n t . c o m
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` Q U I N N E M A N U E L U R Q U H A R T & S U L L I V A N , L L P
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` A t t o r n e y s f o r P a t e n t O w n e r
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` 5 1 M a d i s o n A v e n u e , 2 2 n d F l o o r
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` N e w Y o r k , N e w Y o r k 1 0 0 1 0
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` B Y : E V A N G E L I N E S H I H , E S Q .
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` e v a n g e l i n e s h i h @ q u i n n e m a n u e l . c o m
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` F R A N K C . C A L V O S A , E S Q .
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` f r a n k c a l v o s a @ q u i n n e m a n u e l . c o m
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`CFAD VI 1086 - 0002
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`Job No. 2289897
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`A P P E A R A N C E S ( c o n t i n u e d ) :
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` J O N E S D A Y
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` 2 2 2 E a s t 4 1 s t S t r e e t
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` N e w Y o r k , N e w Y o r k 1 0 0 1 7 - 6 7 0 2
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` B Y : G A S P E R J . L a R O S A , E S Q .
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` g j l a r o s a @ j o n e s d a y . c o m
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`A L S O P R E S E N T :
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` P E T E R C O O P E R , V i d e o g r a p h e r
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`CFAD VI 1086 - 0003
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`Job No. 2289897
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` THE VIDEOGRAPHER: Good morning. We
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` are now on the record.
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` Please note that the microphones are
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` sensitive and may pick up whispering and
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` private conversations.
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` Please turn off all cell phones or
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` place them away from the microphones, as they
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` can interfere with the deposition audio.
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` Recording will continue until all 09:51:26
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` parties agree to go off the record.
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` My name is Pete Cooper, representing
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` Veritext. The date today is April 13th, 2016,
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` and the time is approximately 9:51 a.m.
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` This deposition is being held at Quinn 09:51:42
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` Emanuel, located at 51 Madison Avenue in New
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` York, New York.
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` The caption of this case is the
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` Coalition for Affordable Drugs VI, LLC, versus
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` Celgene Corporation. This case is filed in 09:51:58
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` the United States Patent and Trademark Office
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` before the Patent Trial and Appeal Board, Case
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` Number IPR2015-01092. The name of the witness
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` is Dr. Lourdes M. Frau, M.D.
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` At this time the attorneys present in 09:52:19
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`CFAD VI 1086 - 0004
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`Job No. 2289897
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` Frau
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` the room will identify themselves and the
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` parties they represent.
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` MS. ABDULLAH: Sadaf Abdullah for the
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` Coalition for Affordable Drugs VI from the law 09:52:27
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` firm Skiermont Derby. With me is Parvathi
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` Kota, also from the same law firm.
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` MS. SHIH: Evangeline Shih from Quinn
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` Emanuel Urquhart & Sullivan representing the
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` witness and also Celgene. With me today is 09:52:43
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` Frank Calvosa, who is also with Quinn Emanuel;
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` and Gasper LaRosa from Jones Day, also
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` representing the witness and also representing
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` the patent owner.
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`L O U R D E S M. F R A U ,
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` called as a witness, having been duly sworn
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` by the notary public, was examined and
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` testified as follows:
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`EXAMINATION BY
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`MS. ABDULLAH: 09:53:06
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` Q. Would you please state your name and
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`business address for the record?
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` A. Lourdes M. Frau. Address is 11 Theresa
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`Drive, Lawrenceville, New Jersey.
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` Q. Have you been deposed before? 09:53:21
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`CFAD VI 1086 - 0005
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` Frau
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` A. Yes.
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` Q. How many times?
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` A. Twice.
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` Q. Were you testifying as an expert in 09:53:26
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`both of those depositions?
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` A. No.
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` Q. What was the subject matter of those
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`depositions?
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` A. My work at the pharmaceutical companies 09:53:43
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`involved.
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` Q. And which pharmaceutical companies were
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`those?
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` A. Aventis -- multiple, Aventis, now known
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`as sanofi-aventis. 09:53:58
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` Q. And what was the subject matter of your
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`testimony?
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` MS. SHIH: Objection to form. I
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` actually caution the witness not to reveal any
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` confidential information. 09:54:11
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` A. The subject matter was safety issues
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`and litigation with a company.
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` Q. Both of the depositions were related to
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`that general subject matter?
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` A. Yes. 09:54:31
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`CFAD VI 1086 - 0006
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` Q. Was there a particular drug product
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`involved?
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` MS. SHIH: Objection to form.
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` A. I am bound by confidentiality and 09:54:40
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`separation agreements with those companies not to
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`divulge information that is not public.
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` Q. Was the deposition -- or were these
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`depositions taken in a district court proceeding,
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`do you know? 09:54:59
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` MS. SHIH: Objection to form.
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` A. I don't remember.
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` Q. Was it a lawsuit between two parties?
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` MS. SHIH: Objection to form.
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` A. What do you mean by "two parties"? 09:55:21
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` Q. Was it your understanding that you were
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`testifying in a proceeding that involved two
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`opposing parties?
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` MS. SHIH: Same objection.
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` A. I'm going to say yes. 09:55:43
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` Q. Do you recall who the parties were?
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` A. I am bound by confidentiality and
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`contract separation contracts not to divulge the
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`information. That is not public at the moment.
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` Q. Are you saying that the names of the 09:56:07
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`CFAD VI 1086 - 0007
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`parties is nonpublic information for those
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`particular cases or case?
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` A. Neither the names nor the subject
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`matter is currently public. 09:56:23
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` Q. Have you testified at a trial before?
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` A. No.
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` Q. Have you offered expert opinions in any
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`litigation or proceeding?
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` A. Yes. 09:56:48
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` Q. Which one or which ones?
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` MS. SHIH: Again I would caution the
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` witness to the extent that any of this is
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` confidential.
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` A. I am bound by contract not to divulge 09:57:00
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`subject matter nor individuals with whom I worked.
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` Q. I believe you said before that the two
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`depositions in which you testified you were not
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`testifying as an expert. Did I hear that
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`correctly? 09:57:20
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` A. That's true.
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` Q. So to the extent there are any cases
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`where you offered expert opinions, those are
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`different from the cases we were talking about
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`before? 09:57:40
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`CFAD VI 1086 - 0008
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`Job No. 2289897
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` Frau
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` A. Clarify that again.
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` Q. Let me ask it in a more general way.
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` What proceedings in a general way,
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`without revealing confidential information, did 09:58:00
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`you offer expert opinion in?
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` A. As an expert?
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` Q. Yes, as an expert.
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` A. As an external expert?
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` Q. Yes, expert in a litigation or IPR 09:58:14
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`proceeding, something along those lines.
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` A. Clarify that again.
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` Q. You are offering opinions as an expert
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`in this case; correct?
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` A. Correct. 09:58:35
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` Q. In the past have you offered opinions
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`as an expert in any other litigation or
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`proceeding?
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` A. Yes.
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` Q. What's the general subject matter of 09:58:45
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`those proceedings?
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` A. I have to be careful what I say because
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`I do not want to reveal confidential information
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`for which I'm bound by contract. Safety issues.
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` Q. Where did you work when you offered 09:59:31
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`CFAD VI 1086 - 0009
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`Job No. 2289897
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` Frau
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`those opinions?
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` MS. SHIH: Objection, form.
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` A. Could you be more specific there.
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` Q. Did you offer those opinions while you 09:59:48
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`were employed by a pharmaceutical company?
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` A. Again can you go back to which
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`opinions?
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` (Discussion off the record.)
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` Q. The opinion on safety issues that you 10:00:14
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`just mentioned.
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` A. Again can you be more specific there.
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`You're talking about two different sets, and so
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`tell me which ones.
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` Q. I'm talking about the set of 10:00:41
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`proceedings where you testified as an -- strike
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`that -- where you offered expert opinions.
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` A. There are two different settings I
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`mentioned, so I just need to be clear on which
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`ones you're talking about. 10:01:02
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` Q. I'll repeat my question.
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` I'm talking about the proceedings where
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`you offered expert opinions. And the question is
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`while you offered those opinions were you employed
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`by a pharmaceutical company. 10:01:21
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`CFAD VI 1086 - 0010
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`Job No. 2289897
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` Frau
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` MS. SHIH: Objection, form.
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` A. Yes.
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` Q. Which one?
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` A. I cannot divulge that information. 10:01:45
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` Q. So the proceedings in which you offered
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`opinions as an expert, those were also
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`confidential?
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` A. Yes.
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` Q. Were those proceedings with two 10:02:16
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`opposing parties as well, two or more?
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` A. Yes.
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` Q. And can you reveal the names of the
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`parties without violating confidentiality?
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` A. No. 10:03:06
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` Q. Have you ever either testified about or
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`offered expert opinions on subject matter related
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`to thalidomide prior to this proceeding?
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` MS. SHIH: Objection, form.
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` A. No. 10:03:37
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` Q. Have you ever either testified about or
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`offered expert opinions on subject matter related
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`to any teratogen prior to this proceeding?
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` MS. SHIH: Same objection.
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` A. No. 10:04:40
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`CFAD VI 1086 - 0011
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` Frau
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` Q. I'd like to take a step back and review
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`some guidelines for the deposition today. I am
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`going to be asking you questions throughout. If
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`you do not understand my question, please ask me 10:04:52
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`to repeat or rephrase. If you answer, I will
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`assume that you understood.
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` Is that fair?
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` A. Yes.
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` Q. Even though this is being videotaped, 10:05:01
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`I'll need you to give answers verbally, because
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`what we are saying is being transcribed.
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` Do you understand that?
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` A. Yes.
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` Q. If you need to take a break at any 10:05:08
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`time, let me know and we will break, as long as
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`there is not a question pending at that moment.
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` Do you understand that?
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` A. Yes.
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` Q. Please wait until I finish my question 10:05:19
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`before you answer, because that will also help the
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`court reporter.
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` Do you understand that?
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` A. Yes.
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` Q. Your counsel may object to some of my 10:05:27
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`CFAD VI 1086 - 0012
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`Job No. 2289897
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` Frau
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`questions. Unless she instructs you not to
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`answer, you must still answer the question to the
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`best of your ability.
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` Do you understand that? 10:05:36
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` A. Yes.
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` Q. Do you understand that you are
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`testifying today under oath?
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` A. Yes.
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` Q. Has there ever been a challenge to your 10:05:43
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`credentials as an expert in any proceeding?
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` A. No.
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` Q. What is your current employment?
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` A. I'm a self-employed consultant.
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` Q. Approximately what percentage of your 10:06:06
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`professional time right now do you spend on
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`litigation or proceeding-related work?
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` A. Less than 10 percent.
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` Q. Are most of your clients pharmaceutical
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`companies? 10:06:29
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` A. Yes.
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` Q. When were you first contacted about
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`this IPR proceeding, or proceedings?
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` MS. SHIH: I just caution the witness
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` not to reveal any attorney-client privileged 10:06:39
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` communications. But you can give a time if
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` you recall.
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` A. Late December 2015.
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` Q. Who contacted you? 10:07:02
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` MS. SHIH: Again, same caution to the
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` witness, but you can give a name or names if
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` you recall.
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` A. IMS.
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` Q. What does that stand for, if you know? 10:07:18
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` A. MS stands for management systems.
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`Intelligent management systems?
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` Q. Why did they contact you?
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` MS. SHIH: Again I'll caution the
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` witness not to reveal any attorney-client 10:07:41
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` privileged communications. If you can answer
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` generally, then you may.
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` A. They had my name from a referral.
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` Q. Is that an expert search firm?
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` A. I'm not sure. 10:08:13
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` Q. What was the reason that they were
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`contacting you?
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` MS. SHIH: Again, I caution the witness
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` not to reveal any attorney-client privileged
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` communications. 10:08:26
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` A. They didn't say why but...
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` Q. Were there any attorneys involved
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`during that first contact?
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` A. No. 10:08:40
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` Q. What did they ask you to do?
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` MS. SHIH: Again I would caution the
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` witness not to reveal any attorney-client
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` privileged communications.
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` A. What did IMS ask me to do? 10:08:54
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` Q. Yes.
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` A. They asked me to send them my full CV.
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` Q. For what purpose?
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` MS. SHIH: Same caution.
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` A. For a potential job opportunity. 10:09:16
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` Q. How many conversations did you have
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`with IMS?
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` A. I don't remember the exact number.
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`More than two, less than five. I don't recall the
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`exact number. 10:09:43
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` Q. When was the first time you spoke with
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`counsel for patent owner?
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` MS. SHIH: Again the same caution to
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` the witness. But if you have a time that you
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` recall, you can give that. 10:10:01
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` A. I believe it was in January.
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` Q. Who did you speak with then?
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` MS. SHIH: Same caution. You may give
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` a name or names, to the extent that you 10:10:13
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` recall.
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` A. I believe the first time I spoke was
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`with Gasper.
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` Q. And were you asked to offer expert
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`opinions in these proceedings? 10:11:01
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` MS. SHIH: And I would again caution
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` the witness not to reveal any attorney-client
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` privileged communications, but you can answer
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` that "yes," "no," "I don't recall."
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` A. No. 10:11:13
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` Q. You were not asked to offer opinions in
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`these proceedings as an expert?
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` MS. SHIH: Again same caution: "yes,"
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` "no," or "I don't recall."
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` A. Can you be more specific there? Again, 10:11:25
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`that -- what did that -- I'm not clear by your
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`question.
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` Q. What's not clear about it?
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` A. Can you repeat the question?
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` Q. Yes. My question was were you asked to 10:11:35
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`offer expert opinions in these proceedings.
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` MS. SHIH: Same caution: "yes," "no,"
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` or "I don't recall."
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` A. No. 10:12:02
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` Q. Did this come a time where you were
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`asked to offer such opinions?
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` MS. SHIH: Same caution to the witness,
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` again: "yes," "no," or "I don't recall."
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` A. Do you mean sometime between January 10:12:22
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`and today?
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` Q. Yes.
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` A. Yes.
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` Q. And approximately when was that?
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` MS. SHIH: Again caution the witness 10:12:34
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` not to reveal communications, but you can give
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` a time frame if you recall, or a time, if you
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` recall.
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` A. Generally maybe January, early
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`February, January. 10:13:01
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` Q. And what types of opinions were you
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`asked to offer?
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` MS. SHIH: Objection to the extent that
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` that calls for attorney-client privileged
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` communications. I will instruct the witness 10:13:14
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` not to answer that. If you could rephrase.
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` MS. ABDULLAH: I'm just referring to
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` the general subject matter of the opinions.
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` MS. SHIH: Again, I think that's 10:13:29
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` objectionable.
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` MS. ABDULLAH: She's offered opinions
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` in this case. We're entitled to find out what
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` kinds of opinions she was asked to offer.
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` MS. SHIH: Well, you can ask her 10:13:37
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` questions about the declarations then. But
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` now you're asking about what could potentially
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` cover privileged communications. I don't
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` think we can parse that out with the way the
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` question is being asked. 10:13:49
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` MS. ABDULLAH: Well, I disagree with
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` that, but I will ask a different question.
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` MS. SHIH: Thank you.
`
` Q. Did you write a declaration or
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`declarations in these proceedings? 10:13:59
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` A. Yes.
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` Q. Did you personally write them?
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` MS. SHIH: Objection to form.
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` A. I wrote some sections.
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` Q. Who else wrote sections of your 10:14:23
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`declarations?
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` MS. SHIH: Objection to the form and
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` lacks foundation.
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` A. Could you rephrase that, which 10:14:48
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`sections?
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` Q. You testified, I wrote some sections.
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`My question is who wrote other sections.
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` MS. SHIH: Same objections.
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` A. I worked collaborative with counsel on 10:15:18
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`writing.
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` Q. So you wrote some sections, and counsel
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`wrote other sections?
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` MS. SHIH: Objection, lacks foundation.
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` A. Not exactly. 10:15:39
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` Q. Then please explain to me what process
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`you used to write the declarations.
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` A. You want a full explanation of the
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`entire process or a general process -- a general
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`explanation? 10:16:05
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` MS. SHIH: I caution the witness not to
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` reveal attorney-client privileged
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` communications, but you can give a general --
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` well, if you want to get a clarification, but
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` you can give a general process. 10:16:14
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` A. Okay. I formulated opinions. It was
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`put in legal format. There was rewriting and
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`editing done and more rewriting and more editing
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`done until the final document was put in place -- 10:16:40
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`prepared.
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` Q. Aside from counsel did you consult with
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`anyone else while you were writing the
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`declarations?
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` A. No. 10:17:01
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` Q. Do you have any employees or staff that
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`assisted you?
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` A. No.
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` Q. Approximately how many hours did you
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`spend writing the declarations? 10:17:11
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` A. Oh, boy.
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` Can you clarify "writing" for me?
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` Q. All right. We can make it more
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`general.
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` How many hours, approximately, did you 10:18:22
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`spend formulating your opinions and writing the
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`declarations?
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` A. I'm going to say 20.
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` Q. Are you being paid for your time --
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` A. Yes. 10:18:47
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` Q. -- today?
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` How much?
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` A. On the average about 520 an hour.
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` Q. You say "average." What are the 10:18:52
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`different components of that average?
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` A. I charge less for just reviewing
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`documents; I charge more for deposition time.
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` Q. What about the writing of declarations?
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` A. It's somewhere in the middle. 10:19:19
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` Q. Can you give me those different rates?
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` A. 350 for reviewing documents, 500 for
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`report preparation, and 600 for deposition.
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` Q. So the 20 hours that you mentioned
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`before, that was for reviewing documents and 10:19:40
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`writing the declarations? Is that fair?
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` MS. SHIH: Objection, lacks foundation.
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` A. Can you be more specific there again?
`
` Q. Let me ask it this way: To you
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`mentioned there's three different rates that you 10:20:13
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`charge depending on the task; right?
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` A. Right.
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` Q. Do you recall approximately how many
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`hours you spent reviewing documents for these
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`proceedings? 10:20:26
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` A. At this time I don't recall exactly.
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` Q. And do you recall approximately how
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`many hours you spent reviewing -- strike that.
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` Do you recall how many hours you spent 10:20:40
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`writing the declarations?
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` A. At this time I don't recall exactly.
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` Q. Were those two different tasks included
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`in your estimate of 20 hours that you gave a few
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`minutes ago? 10:20:56
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` MS. SHIH: Objection to form.
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` A. Can you be more specific as to the
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`timing, whether -- more specific concerning the
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`preparation or the writing? What was your
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`question again? 10:21:22
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` Q. I'm just trying to figure out what you
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`included in those 20 hours that you estimated.
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` A. Review, writing, editing.
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` Q. How much time did you spend preparing
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`for the deposition today? 10:22:01
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` A. I would have to go back to my records.
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` Q. What did you do to prepare for the
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`deposition?
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` MS. SHIH: I would just caution the
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` witness not to reveal any attorney-client 10:22:14
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` privileged communications, but you can answer
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` that generally.
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` A. I reviewed documents and discussed
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`those documents. 10:22:31
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` Q. Who did you discuss them with?
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` MS. SHIH: I just caution the witness
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` not to reveal any attorney-client privileged
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` communications, but if you have names, you can
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` provide them. 10:22:57
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` A. Do you want specific names?
`
` Q. Sure.
`
` A. The attorneys in this room and
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`Mr. Anders Nelson.
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` Q. Did you meet with them to prepare? 10:23:14
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` MS. SHIH: I instruct the witness to
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` answer that "yes" or "no."
`
` A. Yes.
`
` Q. When did you meet with them?
`
` MS. SHIH: Just a caution just to give 10:23:23
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` a time, please, or -- well, give a date or a
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` time, to the extent you recall.
`
` A. I don't recall the exact dates.
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` Q. How many days or how many hours, let's
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`say? Days or hours, how many days or hours did 10:23:39
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`you meet with them?
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` MS. SHIH: Just a number there, if you
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` recall.
`
` A. I don't recall specifically. I would 10:23:47
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`have to have my tally sheet in front of me.
`
` Q. Did you meet with them more than a day?
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` MS. SHIH: "Yes" or "no" or "I don't
`
` recall."
`
` A. First can you tell me by "a day" do you 10:23:58
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`mean 24 hours or do you mean some hours here, some
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`hours there?
`
` Q. Let's say did you meet with them on
`
`more than one date.
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` MS. SHIH: Again, instruct you to 10:24:13
`
` answer that "yes" or "no" or "I don't recall."
`
` A. Yes.
`
` Q. Do you remember how many?
`
` MS. SHIH: Again, "yes" or "no."
`
` A. I don't recall exactly. 10:24:31
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` Q. Did you meet with them more than -- on
`
`more than two occasions to prepare for your
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`deposition?
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` MS. SHIH: And, again, you can answer
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` that "yes" or "no" or "I don't recall." 10:24:44
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` A. Yes.
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` Q. Did you meet with them on more than
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`three occasions to prepare for your deposition?
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` MS. SHIH: Again, just give a "yes," 10:24:56
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` "no," or "I don't recall."
`
` A. You're asking me to go back in my
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`schedule for the past three months so...
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` Q. Well, if it helps, I'm asking
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`specifically to prepare for this deposition. 10:25:17
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` MS. SHIH: Same instructions.
`
` A. Without my schedule in front of me,
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`yes.
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` Q. Did you meet with them on more than
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`five occasions to prepare for this deposition? 10:25:55
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` MS. SHIH: Same instructions: a "yes,"
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` "no," or "I don't recall."
`
` A. I don't recall exactly.
`
` Q. Do you recall the approximate number of
`
`hours you spent preparing for this deposition? 10:27:03
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` MS. SHIH: Again, a yes, no -- "yes" or
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` "no."
`
` A. No.
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` Q. Was it more than ten hours?
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` MS. SHIH: Again, a "yes" or "no" or "I 10:27:20
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` don't recall."
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` A. Yes.
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` Q. Was it more than 20 hours?
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` MS. SHIH: Same instruction: "yes," 10:27:31
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` "no," or "I don't recall."
`
` A. I don't recall exactly.
`
` Q. You don't recall whether it was more
`
`than 20 hours?
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` MS. SHIH: Same instruction: "yes," 10:27:58
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` "no," or "I don't recall."
`
` A. If you can be specific what you mean by
`
`"preparing for this deposition."
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` MS. SHIH: Again, a "yes," "no," or "I
`
` don't recall." 10:28:26
`
` A. I don't recall exactly.
`
` Q. So your testimony, just so that I have
`
`this clear, is that you spent more than 10 hours
`
`but you can't say whether you spent more than 20?
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` MS. SHIH: Again, a "yes," "no" -- 10:28:37
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` sorry, a "yes" or "no."
`
` A. Can I have the question again? What am
`
`I supposed to be answering "yes" or "no" to? I'm
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`trying to do numbers in my head.
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` Q. Is it your testimony that you spent 10:29:26
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`more than 10 hours preparing for this deposition
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`but you can't say whether you spent more than 20?
`
` A. I may have spent more than 20.
`
` Q. But you can't say for sure? 10:29:41
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` A. I can't -- I can't go -- without my
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`schedule in front of me, I can't really say the
`
`exact number. It may have been, but without my
`
`schedule I can't.
`
` Q. Have you previously been retained for 10:29:57
`
`consulting work by Celgene?
`
` A. No.
`
` Q. All right. So throughout this
`
`deposition today, I am going to be introducing
`
`some exhibits. Many of them are premarked in 10:30:34
`
`these proceedings, and I am going to say on the
`
`record the ex
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