Case 1:23-cv-00089-TSK Document 122-3 Filed 03/04/24 Page 1 of 3 PageID #: 16068
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`Via Email
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`Steven R. Ruby, Esquire
`David R. Pogue, Esquire
`Carey Douglas Kessler & Ruby, PLLC
`P.O. Box 913
`Charleston, WV 25323
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`David I. Berl, et al.
`Williams & Connolly LLP
`680 Maine Avenue, SW
`Washington, DC 20024
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`Max C. Gottlieb
`mgottlieb@hfdrlaw.com
`P.O. Box 3983
`Charleston, WV 25339
`t: 681-265-3802
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`February 19, 2024
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`Elizabeth S. Weiswasser, et al.
`Weil Gotshal & Manges LLP
`767 5th Avenue
`New York, NY 10153
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`Andrew E. Goldsmith, et al.
`Kellogg, Hansen, Todd, Figel & Frederick,
`P.L.L.C
`1615 M Street, NW, Suite 400
`Washington, DC 20036
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`Re: Regeneron Pharmaceuticals, Inc. v. Celltrion Inc., Civil No. 1:23-cv-
`00089
`Good Faith Letter on Regeneron’s Amended Responses to First Set1
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`Dear Counsel:
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`We, on behalf of Celltrion Inc., write regarding Regeneron Pharmaceuticals, Inc.’s
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`Amended Objections and Responses to Celltrion Inc.’s First Set of Requests for the Production of
`Documents and Things to Regeneron (Nos. 1-32), which were sent on February 2, 2024
`(“Amended First Set Responses”),2 and the deficiencies in Regeneron’s document production to
`date. Pursuant to the Local Rules of Civil Procedure, this letter reflects our good faith effort to
`resolve more pressing concerns and issues, but we reserve the right to address other matters in
`due course of the litigation.
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`1 In addressing Regeneron’s deficiencies, Celltrion does not waive any objections or defenses,
`specifically objections and defenses based on the lack of personal jurisdiction and/or improper
`venue. See ECF No. 68.
`2 Defendants served the Amended First Set Responses after serving Regeneron Pharmaceuticals,
`Inc.’s Objections and Responses to Celltrion Inc.’s First Set of Requests for the Production of
`Documents and Things to Regeneron (Nos. 1-32) (“First Set Responses”). However, contrary to
`the common practice in this District, the Amended First Set Responses did not explain or indicate
`in what manner or to what degree the Amended First Set Responses differed from or
`supplemented the First Set Responses. We ask that you provide such explanation both with
`respect to the Amended First Set Responses and when further responding to discovery in this
`matter. Despite that divergent practice, we will address the Amended First Set Responses.
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`Case 1:23-cv-00089-TSK Document 122-3 Filed 03/04/24 Page 2 of 3 PageID #: 16069
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`Counsel for Regeneron Pharmaceuticals, Inc.
`February 19, 2024
`Page 2
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`First, it is now weeks after the Court-imposed deadline for Regeneron to complete its
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`document production (a deadline that Regeneron proposed to the Court). While we recognize
`that Regeneron has produced documents responsive to Celltrion’s requests, it appears that
`Regeneron’s production related to these PI proceedings is still vastly incomplete. And Regeneron
`has given no indication when it will complete its production. With one exception, Regeneron has
`responded to every request with the representation that it “will produce” certain documents and
`materials, but without any date certain by which it will complete its production.
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`For example, and most egregiously, based on our review of Regeneron’s production,
`Regeneron still has not produced all materials from the Mylan litigation, including expert reports
`and marked trial exhibits. Regeneron relies upon its alleged need to seek confirmation from
`Mylan that certain materials do not contain Mylan confidential information, but that does not
`justify its delay to produce documents that clearly were not prepared by Mylan or do not contain
`Mylan confidential information.
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`Given the currently compressed timeframe for the preliminary injunction proceedings
`that Regeneron sought from this Court, needlessly delaying the production of responsive
`documents that are clearly in Regeneron’s possession and have already been identified, collected,
`and reviewed is inexcusable, and highly prejudicial to Celltrion, particularly given Regeneron has
`made it clear it intends to heavily rely on the Mylan proceedings in its PI motion. No later than
`February 20, please complete Regeneron’s document production. At the same time, please
`delineate your efforts to reach agreement with Mylan with respect to documents containing Mylan
`confidential information, and your timeline for producing such documents. Celltrion reserves all
`rights to seek appropriate relief in view of Regeneron’s failure to comply with the scheduling
`order.
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`Second, nearly every, if not every, Regeneron response includes general, boilerplate
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`objections. In this District, such objections, without proper support, “do not satisfy the burden of”
`responding to discovery under the rules. Hager v. Graham, 267 F.R.D. 486, 498 (N.D.W. Va.
`2010). To say the least, they are “disfavored” in this District. Phoenix Drilling, Inc. v. E. Res., Inc.,
`No. 1:11CV08, 2012 WL 847277, at *3 (N.D.W. Va. Mar. 13, 2012). And there is no dispute that
`Regeneron relied on such disfavored “general objections” — indeed, it titled most of its objections
`“General Objections.” Please confirm that Regeneron has not withheld any documents solely on
`the basis of such objections.
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`Third, in most of Regeneron’s responses, it objects based on an assertion of privilege.
`However, Regeneron, in its “General Objections” asserts that it “will not produce any privilege
`logs at this time.” And it didn’t. That objection directly contradicts the Federal Rules of Civil
`Procedure and the Local Rules. See Fed. R. Civ. P. 26(b)(5); L.R.N.D.W. Va. 26.04(a). That
`information must be provided in writing at the time of the relevant response. See id. Regeneron’s
`deliberate refusal to comply with the clear dictates of the rules is plainly improper. Please comply
`with the rules.
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`In order to avoid the need for discovery motions concerning Regeneron’s insufficient
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`responses, please provide sufficient responses and production by no later than
`February 20, 2024. As you are aware, this matter is moving expeditiously, and it does not
`benefit your client, my client, or the Court to needlessly force us to file discovery motions to
`compel proper and sufficient responses to discovery.
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`Case 1:23-cv-00089-TSK Document 122-3 Filed 03/04/24 Page 3 of 3 PageID #: 16070
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`Counsel for Regeneron Pharmaceuticals, Inc.
`February 19, 2024
`Page 3
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`We reserve the right to further address or take appropriate action with respect to these
`and other inappropriate or insufficient responses by Regeneron, including others contained
`within the Amended First Set Responses that are not addressed herein.
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`I look forward to receiving your responses. As always, you are more than welcome to call
`me to discuss.
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`Sincerely,
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`/s/ Max C. Gottlieb
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`Max C. Gottlieb
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