UNIVERSITY OF HOUSTON SYSTEM
`UNIVERSITY OF HOUSTON
`
`coftece
`
`rCo
`
`Rut/i
`Shapiro
`Sr As slant General Counsel
`OJjice of the General Counsel
`2-70
`Telephone 832-
`Tax 713-743-9/79
`Encul
`
`rshajiJroih cdii
`
`September 29 2015
`
`VIA EMAIL jeff@intel
`
`igentpharrnal
`
`Iccom
`
`Jeff Gardner
`Intelligent Pharma LLC
`Suite 304
`134 Spring Street
`New Yoik New York 10012
`
`Re Texas Pu he Information Act Request dated cii received August 2/ 2015
`
`Dear Mr Gardner
`
`This Iettei
`
`request dated August 21 2015
`is in response to your Texas Public Information Act
`copy of \hich is enclosed
`copy of
`to the Texas Attorney General
`enclose
`redacted
`sent
`decision regarding whether certain information responsive to your request
`is within an
`requesting
`exception to public disclosure
`
`letter
`
`Please be advised that because third party proplietaly interests have been implicated
`by your
`tequest we have informed the interested third party that they have the ght
`to
`legal argument
`to present
`the public release of their information
`the Attorney Generals Office should they wish to prevent
`oIthe coi respondence between the University and the third party is enclosed
`
`copy
`
`in which
`
`Under the Texas Public Information Act the Office oFthe Attorney General has 45 working days
`decision regarding the University of houstons request to protect documents When
`to issue
`then we will comply with the
`response from the Office of the Attorney General
`our office receives
`l\ttorney Generals instructions regarding whether to provide you with responsive documents
`
`Should you have any questions please do not hesitate to contact me
`
`Enc
`
`Breckenridge Exhibit 1028
`Breckenridge v. Research Corporation Technologies, Inc.
`
`-1-
`
`

`
`UNIVERSITY OF HOUSTON SYSTEM
`UNiVERSITY OF HOUSTON
`
`Olfce oF the Genemi Counsel
`
`Rut/i
`S/i apiro
`Sr Assistant General Counsel
`Qffice ofihe General Counsel
`Telephone 832-842- 7O8cS
`Fax 7/3-743-9179
`Email rshapiroZuh eclii
`
`September 29 2015
`
`Via OverfljRhf courier
`The Honorable Ken Paxton
`Attorney General of Texas
`209
`14th Street 6th Floor
`Austin Texas 78701
`
`Re Public Info rrnaaon Act Request from Jeff Gardner intellectual Pharna dated
`August 21 2015 and clarfied September 15 2015
`
`Dear Attorney General Paxton
`
`The University of 1-louston the University requests an Attorney General opinion
`concerning whether certain information is subject
`to public disclosure under Chapter 552 of the
`Texas Government Code the Act On August 21 2015 the University
`received
`under the Act from Mr Gardner seeking
`
`request
`
`instances in which the following thesis referred to by call number Thesis
`copy of all
`540 987.L43 or 540 987.L43 or the title 2-substituted-2-acetamido-
`and anticonvulsant properties which was
`benzylacetamides
`synthesis spectroscopic
`completed in 1987 by Philippe Le Gall has been checked out of the University of
`Houstons collection The work iii question can be found in the University of 1-louston
`1852080S 11
`library at the following link http//library.uh.edu/recordb
`
`instances in which the following thesis referred to by call number Thesis
`copy of all
`540 995.C56 or 540 995.C56 or the title Synthesis chemistry and biological
`evaluation of medicinally relevant compounds which was completed in 1995 by Dacock
`Choi has been checked out of the University of Houstons collection The work in
`question can be found in the University of Houston library at the following link
`.edu/recordb24823 76--S
`
`http//library.uh
`
`copy of the request
`
`is enclosed as Exhibit
`
`Ezekiel
`
`Cullen Building
`
`4302 University1Drive Room 311
`Fw 713.743.9179
`832.842.0949
`
`Houston TX 77204-2028
`
`-2-
`
`

`
`On September
`2015 the University submitted
`for clarification/narrowing
`request
`Mr Gardner Mr Gardner narrowed the request on September 15 2015 to permit
`spread sheet
`of the dates the requested Le Gall and Chol thesis was checked out The Universitys request for
`clarification and Mr Gardners response are attached as Exhibits
`and
`respectively
`
`to
`
`to Mr Gardners request
`The University believes information responsive
`is excepted
`from public disclosure by Texas Government Code
`552.103 litigation exception and
`552.104 and 110 competitive harm
`the responsive information is
`The University seeks an opinion to withhold that information based upon
`enclosed as ExhibIt
`the above cited provisions
`
`Factual Background Relating to Mr Gardners Request
`
`the University of Houston has already received from Mr
`is one of six that
`This request
`Gardner seeking information dating back to the 1980s regarding whether and to what extent
`certain treatises/dissertations may have been accessed or available Copies of the various public
`requests were attached as Exhibits to the Universitys prior two requests for
`information act
`opinions Mr Gardners public information act
`requests are remarkably similar in scoie to
`in Fall 2014 in underlying patent
`subpoenas issued upon the University
`
`litigation
`
`The Underlying Litigation
`
`Accord Healthcare Inc C.A No 13-1206
`The underlying litigation styled UCB Inc
`LPS Consolidated
`Del Stark
`involves the infringement and validity of
`patent
`covering the active ingredient of Vimpat
`highly effective and widely used drug for the
`treatment of epilepsy After years of experimentation and work Dr Harold Kohn invented this
`the University of Houston and
`patent application was filed that
`drug in his laboratoiy
`eventually led to U.S Reissue Patent No R.E38551
`the 551 Patent which is the subject of
`in November 2015
`the Delaware litigation The underlying litigation is scheduled for trial
`
`at
`
`actions brought by Plaintiffs UCB Inc UCB Biopharma SPRL Research Corporation
`Twelve separate
`Technologies and Harris FRC Corporation were consolidated into
`single case in Delaware The attached
`complaint
`Inc and Mylan Inc is an example
`against Mylan Pharmaceuticals
`
`-3-
`
`

`
`University during the litigation were produced
`Protective Order between the
`pursuant
`to
`parties to the litigation and specifically marked confidential as noted in Exhibit
`
`The Subpoenas Issued Upon the University
`
`Defendants
`
`University
`
`in the patent
`2014
`
`case
`
`first
`
`subnoenaed
`
`documents
`
`and testimony
`
`from the
`
`Third Party Interests
`
`The requested policy implicates third party interests and should be withheld to allow the
`interested third parties an opportunity to submit in writing to your office the reasons why the
`552.305 of the Texas Government Code the
`information should be withheld
`Pursuant
`to
`University notified the interested parties of this request
`for an attorney general decision and sent
`information is requested to them The
`to persons whose proprietary
`the notice statement
`interested parties were informed they are entitled to submit
`letter to your office within 10
`business days which provides why the information should be withheld
`copy of the notice is
`enclosed as Exhibit
`
`II
`
`Competitive Harm
`
`that
`
`if
`
`552.104
`
`Section 552.104 of the Texas Government Code excepts from disclosure information
`competitor or bidder The purpose of Section
`released would give advantage to
`interests when it
`the governments
`is involved in certain commercial
`is to protect
`governmental body may withhold information under Section 552.104a when it
`transactions
`interests and the possibilities of specific harm to those
`has specific commercial/marketplace
`interests from the release of the requested information Open Records Decision No 593 1991
`
`-4-
`
`

`
`University
`will be lost or severely diminished
`information being produced
`
`The
`
`and the revenue stream
`result of the requested
`
`as
`
`As explained above releasing the dates when
`thesis was checked
`out of the
`each
`University library would cause the University competitive harm and therefore should be withheld
`from production under Texas Govt Code
`552.104 as well as Section 552.110
`Producing
`information
`could affect
`the Universitys
`
`is critical
`that
`this
`inc university irom compeutive interests namely
`information be withheld in order to protect
`interests currently seeking or seeking in the future
`pharmaceutical
`
`.t
`
`IV Documents Confidential by Law and under Litigation Exception
`
`from
`The University believes the information included in Exhibit
`is also excepted
`552.101 confidential under other law and
`public disclosure by Texas Government Code
`552.103 litigation exception as further explained below
`
`Sections 552.103
`
`Lititration Exception
`
`Texas Government Code 552.103 provides in relevant part
`
`Information is excepted from
`is information
`public disclosure if it
`.nature .to which the state or public subdivision
`relating to litigation of civil.
`party or to which an officer or employee of the state or political
`is or may be
`consequence of the persons office or employment is or may be
`subdivision as
`
`party
`
`governmental body or an officer
`Information relating to litigation involving
`or employee of governmental body is excepted from disclosure under
`only if the litigation is pending or reasonably anticipated on the
`subsection
`the requestor applies to the officer for public information for access to
`date that
`or duplication of information
`
`in order to establish the applicability of
`The University understands that
`552.103 it
`facts and documents
`must provide relevant
`litigation was pending or
`to demonstrate
`that
`reasonably anticipated on the date it received Mr Gardners request
`for information and
`the
`
`-5-
`
`

`
`requested information is reasonably related to that anticipated litigation See Universily of Texas
`Law School
`Texas Legal Foundation 958 S.W.2d 479 Tex App.-Austin 1997 no pet see
`also Open Records Decision No 551
`1990
`
`Prong One Litigation Was Pending or Reasonably Anticipated on the Date It Received
`Mr Gardners Request
`for Information
`
`As previously mentioned litigation is currently pending in Delaware to protect
`the validity
`of
`patent resulting from research performed at the University Given the subpoenas issued to
`the University the University also reasonably anticipates
`it may be called as
`witness at
`that
`common
`party to the litigation the University does have
`Although not
`trial
`technically
`interest with plaintiffs to protect the patent based upon its financial
`interest in royalties received
`from the patent
`
`Prone Two The Requested Information Is Reasonably Related to Anticipated
`Litigation
`
`As for the second prong the University must prove under 552.103 that the information
`The information requested by Mr Gardner is similar to the
`requested relates to the litigation
`The specific information
`information sought by defendants
`in its subpoenae to the University
`from disclosure relates to the availability of and the ability for those
`to be protected
`sought
`outside the University to access treatises and dissertations This information is crucial
`to the
`number of reasons
`litigation for
`
`Because
`related to the litigation the
`this intOrmation is directly
`552.103
`University has satisfied prong two of the litigation exception
`
`It should also be noted that the Texas Public Information Act expressly prohibits parties
`from using the Act
`the rules of discovery Although the
`to circumvent
`to court proceedings
`University does not know whether Mr Gardner or his company were retained by any of the
`defendants Mr Gardners request
`is directly related to the litigation and other potential
`in other forums or countries seeking to invalidate the patents Therefore Mr Gardners requests
`should be viewed as an attempt
`the discovery process Accordingly the University
`to circumvent
`asks that your office issue an open records letter ruling allowing the University to withhold the
`information responsive to Mr Gardners request based upon the litigation exception found in
`Texas Government Code
`552.101 confidential under other
`552.103
`litigation exception or
`law
`
`litigation
`
`Conclusion
`
`In short the University asks that your office issue an open records letter ruling allowing
`pursuant to Texas Govt Code
`the University to withhold the information included in Exhibit
`552.104 and 110 competitive harm
`552.103 litigation exception and
`
`-6-
`
`

`
`to section 552.301d of the Texas Government Code the requestor has been
`Pursuant
`notified and provided
`redacted copy of this request for an Attorney General opinion
`copy of
`the notice is enclosed as Exhibit
`
`Please feel
`
`free to contact me at 832 842-7088 should you require additional
`information to complete your analysis
`
`Ye
`
`truly yours
`
`Encs
`
`-7-
`
`

`
`4c Op
`
`UNIVERSITY OF HOUSTON SYSTEM
`UNIVERSITY OF HOUSTON
`
`011
`
`Ga
`
`ou
`
`Rut/i
`
`Shapiro
`Sr Assistant General Counsel
`Of/Ice of/he General Counsel
`Telephone 832-842-7088
`Far 713-743-9 79
`Email shavirouh cdii
`
`August 31 2015
`
`VIA EMAIL jeffinte1ligentpharma11c.com
`Jeff Gardner
`Intelligent Pharma LLC
`Suite 304
`34 Spring Street
`New York New York
`0012
`
`Re Texas Public Information Act Request Dated July 30 2015
`
`Dear Mr Gardner
`
`The University of Houston University is in receipt of the above-referenced Public
`and received July 30 2015
`Information Act
`dated
`the
`In this correspondence
`request
`The University also seeks further clarification regarding
`and
`to Texas Government Code
`552.222b the Texas
`
`pursuant
`
`University responds to requests
`and
`the scope of requests
`Public Information Act
`
`been
`Our
`has
`advised
`no
`copy of your
`that
`request
`exist that are responsive to numbers
`of your request Therefore
`informationldocuments
`and
`the University is unable to provide you with any information as it relates to those items of your
`
`is attached
`
`office
`
`request
`
`Numbers
`
`and
`
`of your request seek the following
`
`copy of all UI-I Library Special Collections Access Records that
`lack identifiable dates
`that do not refer to
`copy of all Ui-I Library Special Collections Access Records
`for the time frame of January 1st 1988 through January 1st 1997
`specific call fi
`
`and thanks you for your prior attempts to narrow the scope of
`The University appreciates
`You have previously
`agreed to narrow the scope of request no
`to Special
`request
`your
`call number
`Collection forms without
`theses during the time
`request access
`that
`to scientific
`997 Despite our prior communications however
`1988 through January
`frame of January
`and
`the scope of requests number
`take more time and involve
`are still unclear and may in fact
`
`311
`
`Cu lea BuFd ng
`
`Houon TX 77204 2028
`
`832 8420949
`
`Fax 73 743 .9179
`
`-8-
`
`

`
`to no
`seeking such forms
`Specifically with respect
`than originally estimated
`greater cost
`would require extra time and special consideration to the titles of the documents actually being
`requested By way of example
`form from the
`include
`blank Special Collections request
`decade in question These forms have not changed significantly over the years except perhaps
`in formatting The term thesis is not specifically itemized in
`checklist on the form to easily
`ascertain whether
`the form is responsive
`In addition other than the title there is no way to
`easily and efficiently determine whether
`the requested item is scientific in nature Thus the
`determination of whether or not
`the access form contains the information you require would
`encompass further efforts and time that may not render clear results for you
`
`test
`
`With respect to item you have not previously clarified this request but in the interest of
`transparency and to let you know how the costs may vary from the original cost estimate
`have
`the forms responsive to request no
`done
`to estimate the time it would take to redact
`The
`for only redacting the forms responsive to request no
`is $45.00 2.5 hours at
`estimated cost
`.2 $7.50 Reviewing and scanning those items would
`$15$37.50 plus overhead at $37.50
`for request no
`involve approximately another 2.5 or so hours of work
`on its own
`The cost
`could be $90 meaning my original estimate at $163 may be higher than originally estimated and
`may rise close to your $500 threshold. As you may recall we had originally measured the
`forms request no
`number of
`forms
`The
`inches of each category of
`were
`undated
`inches high compared to the 52 inches of the documents we need to cull
`approximately
`through to respond to request
`
`to Sections 552.222b and 552.2615 of the Government Code the University is
`Pursuant
`providing you with an alternative less expensive method of obtaining some of the requested
`information An alternative method would be to clarify/narrow and limit requests numbers
`and
`to one or more of the categories listed on the form or to provide search terms that we can easily
`locate in the title section of the forms If you choose the alternative please contact me at 832
`842-7088
`
`of your request will be considered withdrawn if you do not
`and
`Requests numbered
`respond in writing within 61 days If you wish to narrow or clarify your request you may send
`your written clarification directly to me at
`the Office of the General Counsel University of
`Cullen Building Houston TX 77204 Attn Ruth
`Houston Office of the General Counsel 311
`Shapiro or email me at rshapiro@uh.edu
`
`look forward to your response Please do not hesitate to contact me with any questions
`
`Very truly yours
`
`.Sapiro
`
`Encs
`
`-9-
`
`

`
`Call Number
`
`__________
`
`STAFF USE
`
`__ oak
`_Map
`Unc
`_Raclrapq
`VOLUMES
`
`AUTHOR
`TLE
`
`NAME
`
`Iodays Liate
`
`USER INFORMA11ON
`
`___________________________
`
`STUDENT ______
`FACULTY/STAFF
`_____
`VISITOR _____
`SOCIAL SECURITY NUMBER _____
`-______
`PHONE NUMBER______________________
`If off-campus please bive your local address
`
`____________________________________________________
`
`-10-
`
`

`
`Op
`
`UNiVERSITY OF HOUSTON SYSTEM
`UNIVERSITY OF HOUSTON
`
`04cc of the 0ee Cone
`
`Ruth
`Shapiro
`Sr Assistant General ownel
`
`Office oJ the General Counsel
`Telephone 832-842-7088
`Fax 713-743-919
`E-mail
`
`rshaPxro@uh.edu
`
`August 27 2015
`
`VIA EMAIL
`
`ffidinte11igentpharma1lccom
`
`Jeff Gardner
`Intelligent Pharma LUC
`134 Spring Street
`Suite 304
`Nev York New York 10012
`
`Re Texac Public InformatIon Act Request dated and received August 14 2015
`
`Dear Mr Gardner
`
`request dated August 14 2015
`Ihis letter is in response to your Texas Public Information Act
`copy of Mr Lchners deposition transcript
`enclose
`redacted copy of
`to the
`seeking
`sent
`letter
`decision regarding whether
`Texas Attorney General
`the informahon responsive to your
`requesting
`request is within an exception to public disclosure
`
`by your
`
`Please be advised that because
`third party proprietary interests have been implicated
`have informed the interested third party that they have the right to present
`legal argument
`request
`the public release of their information
`the Attorney GeneraLs Office should they wish to prevent
`of the correspondence between the University and the third party is enclosed
`
`to
`
`copy
`
`Lnder the fexas Public Information Act the Office of the Attorney General has 45 working days
`decision regarding the University of houstons request
`to protect documents When
`in which to issue
`then we will comply with the
`our office receives
`response from the Office of the Attorney General
`Attorney Generals instructions regarding whether to provide you with responsive documents
`
`Should you have any questions please do not hesitate to contact me
`
`iSincerely
`
`Ruth
`
`Shapiro
`
`Enc
`
`311 ECLJIen Building
`
`Houston IX 77204 2028
`
`832842 0949
`
`Fax 73743 979
`
`-11-
`
`

`
`UNIVERSITY OF HOUSTON SYSTEM
`UNIVERSITY OF HOuSToN
`
`Office 01 iho General Consel
`
`Ruth
`Shapiro
`Sr ilssistani General Counsel
`Office of the General Counsel
`Telephone 832-842-7088
`Fax 713-743-9179
`Email rshapiro@uh.edu
`
`August 27 2015
`
`Via Overnight Corier
`
`The Honorable Ken Paxton
`Attorney General of Texas
`209
`Floor
`14th Street
`Austin Texas 78701
`
`Re Pub/k Jforniagjo Act Request from Jeff Gardner
`and received
`ligust 14 2015
`
`InkIkctual Pharina dated
`
`Dear Attorney General Paxton
`
`The University of Houston the University requests an Attorney General opinion
`to public disclosure under Chapter 552 of the
`concerning whether certain information is subject
`Texas Government Code the Act On August 14 2015 the University received
`request
`under the Act from Mr Gardner seeking
`taken of University
`copy of deposition transcript
`representative Dr John Lehner pursuant to
`subpoena in patent
`litigation currently pending in
`Delaware
`is enclosed as Exhibit
`copy of the request
`
`is excepted from public disclosure by
`The University believes the deposition transcript
`552.101 confidential under other law 552.103 litigation
`Texas Government Code
`552.104 and 110 competitive harm as further explained below
`exception and
`is enclosed as Exhibit
`the deposition transcript
`
`copy of
`
`Factual Background Relating to Mr Gardners Request
`
`that the University of Houston has already received from Mr
`is one of
`This request
`Gardner seeking information relating to the availability of certain treatises or dissertations within
`the University of Houston library dating back to the 1980s In each of these Mr Gardner has
`attempted to learn whether and to what extent certain treatises/dissertations may have been
`accessed or available Copies of the various public information act requests are attached as
`
`311
`
`Cullen Building
`
`F-lousion TX 77204.2028
`
`832.842.0949
`
`Fax 713.743.9179
`
`-12-
`
`

`
`Exhibit
`
`requests Mr Gardner limited to the
`In trying to clarify and narrow the first
`thesis and
`dissertation written by Daeock
`requests to information regarding the Philippe LeGall
`Choi which had been an issue in the underlying litigation described below He has also sent
`additional correspondence
`copy
`seeking additional explanations for the Universitys responses
`These requests and questions presented in Mr Gardners prior
`of which is attached as Exhibit
`are remarkably similar in scope to the subpoenas issued upon the
`correspondence Exhibit
`University in the underlying litigation
`
`The Underlying Litigation
`
`2014 Dr Lehners deposition was taken pursuant to subpoena in the
`On December
`Accord Healthcare Inc C.A No 13-1206 LPS Consolidated
`patent case styled UCB Inc
`Del Stark J.2 That case involves the infringement and validity of
`patent covering the
`active ingredient of Vimpat highly effective and widely used drug for the treatment of
`epilepsy After years of experimentation and work Dr Harold Kohn invented this drug in his
`laboratory at the University of Houston and
`patent application was filed that eventually led to
`U.S Reissue Patent No RE3855
`the 551 Patent which is the subject of the Delaware
`litigation Discovery in the consolidated Delaware patent cases began in February of 2014 and
`in November 2015
`has concluded The case is scheduled for trial
`
`The Subpoenas Issued Upon the University
`
`Defendants
`
`in the patent case first subpoenaed documents and testimony from the
`
`University
`
`The University was not in possession of information responsive to the first
`requests The remaining requests are
`to those
`still pending In that the University has sought clarification and/or provided cost estimates with respect
`
`requests
`
`actions brought by Plaintiffs UCB Inc UCB Biopharma SPRL Research
`Twelve separate
`Corporation
`Technologies and Harris FRC Corporation were consolidated into
`single case in Delaware The attached complaint
`Inc and Mylan Inc is an example
`against Mylan Pharmaceuticals
`
`-13-
`
`

`
`IL
`
`Third Party Interests
`
`should be withheld
`
`Pursuant
`
`to
`
`The deposition transcript requestor has not requested the exhibits and therefore those are
`not addressed here implicates third party interests and should be withheld to allow the interested
`in writing to your office the reasons why the information
`third parties an opportunity to submit
`552.305 of the Texas Government Code the University
`for an attorney general decision and sent the notice
`notified the interested parties of this request
`to persons whose proprietary information is requested to them The interested parties
`letter to your office within 10 business days which
`were informed they are entitled to submit
`provides why the information should be withheld
`copy of the notice is enclosed as Exhibit
`
`statement
`
`Ill
`
`Competitive Harm
`
`that
`
`if
`
`transactions
`
`Section 552.104 of the Texas Government Code excepts from disclosure information
`competitor or bidder The purpose of Section
`released would give advantage
`interests when it
`552.104 is to protect
`the governments
`is involved in certain commercial
`governmental body may withhold information under Section 552.104a when it
`interests and the possibilities of specific harm to those
`has specific commerciallmarketplace
`interests from the release of the requested information Open Recnrds Deisinn Nn cQ
`In this instance
`
`to
`
`-14-
`
`

`
`umversny
`will be lost or severely diminished
`information being produced
`
`The
`
`and the revenue stream
`result of the requested
`
`as
`
`As explained above releasing the deposition transcript would cause the University
`competitive harm and therefore should be withheld from production under Texas Govt Code
`552.110
`552.104
`as well as Section
`Producing the deposition transcript could affect
`
`the
`
`Universitys
`
`interest in the patent
`
`critical
`
`that
`
`this information be withheld in order
`
`to protect
`
`the University
`
`from competitive
`
`interests namely pharmaceutical
`
`interests currently seeking or seeking in the future to
`
`it
`
`ifi
`
`Documents Confidential by Law and under Litigation Exception
`
`The University believes information responsive to Mr Gardners request
`is also excepted
`from public disclosure by Texas Government Code
`552.101 confidential under other law and
`552.103 litigation exception as further explained below
`copy of the information the
`University believes is excepted from disclosure is enclosed as Exhibit
`
`Sections 552.103
`
`Litigation Exception
`
`Texas Government Code 552.1O3 provides in relevant part
`
`Information is excepted from
`is information
`public disclosure if it
`relating to litigation of civil.
`.nature. .to which the state or public subdivision
`party or to which an officer or employee of the state or
`is or may be
`political
`consequence of the persons office or employment is or may be
`subdivision as
`
`party
`
`governmental body or an officer
`Information relating to litigation involving
`or employee of governmental body is excepted from disclosure under
`only if the litigation is pending or reasonably anticipated on the
`subsection
`date that the requestor applies to the officer for public information for access to
`or duplication of information
`
`The University understands
`that in order to establish the applicability of
`552.103 it
`must provide relevant
`facts and documents
`litigation was pending or
`to demonstrate that
`received Mr Gardners request
`reasonably anticipated on the date it
`for information and
`the
`requested information is reasonably related to that anticipated litigation See University of Texas
`
`-15-
`
`

`
`Law School
`Texas Legal Foundation 958 S.W.2d 479 Tex App.-Austin 1997 no pet see
`also Open Records Decision No 551
`1990
`
`Prong One Litigation Was Pendini or Reasonably Anticipated on the Date It Received
`Mr Gardners Request
`for Information
`
`As previously mentioned litigation is currently pending in Delaware to protect the validity
`patent resulting from research performed at the University
`
`of
`
`Prong Two The Requested Information Is Reasonably Related to Anticipated
`Litigation
`
`As for the second prong the University must prove under 552.103 that the information
`The information requested by Mr Gardner is similar to the
`requested relates to the litigation
`The specific information
`in its subpoenae to the University
`information sought by defendants
`from disclosure relates to the availability of and the ability for those
`to be protected
`treatises and dissertations This information is crucial
`
`sought
`
`outside the University to access
`number of reasons
`
`litigation for
`
`to the
`
`is directly
`University has satisfied prong two of the litigation exception
`
`lSecause this intormation
`
`552.103
`
`related to the litigation the
`
`It should also be noted that the Texas Public Information Act expressly prohibits parties
`the rules of discovery
`from using the Act
`Although the
`to circumvent
`to court proceedings
`University does not know whether Mr Gardner or his company were retained by any of the
`defendants Mr Gardners request
`is directly related to the litigation and other potential
`in other forums or countries seeking to invalidate the patents Therefore Mr Gardners requests
`should be viewed as an attempt
`the discovery process Accordingly the University
`to circumvent
`asks that your office issue an open records letter ruling allowing the University to withhold the
`information responsive to Mr Gardners request based upon the litigation exception found in
`Texas Government Code
`552.101 confidential under other
`552.103
`litigation exception or
`law
`
`litigation
`
`Conclusion
`
`In short the University asks that your office issue an open records letter ruling allowing
`responsive to Mr Gardners
`the University to withhold the deposition transcript Exhibit
`
`-16-
`
`

`
`to Texas Govt Code
`request pursuant
`litigation exception
`
`552.101 confidential by other
`
`law and 552.103
`
`Pursuant
`
`to section 552.30 1d of the Texas Government Code the requestor has been
`redacted copy of this request for an Attorney General opinion
`notified and provided
`copy of
`the notice is enclosed as Exhibit
`
`If you require any additional
`contact me at 832 842-7088
`
`information in order to complete your analysis please
`
`Very truly yours
`
`Ruth
`
`Shapiro
`
`Enc
`
`-17-