Case 1:24-cv-00053-TSK Document 20 Filed 07/03/24 Page 1 of 5 PageID #: 2754
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`CLARKSBURG DIVISION
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`IN RE: AFLIBERCEPT PATENT LITIGATION
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`THIS DOCUMENT RELATES TO
`ALL CASES
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`MDL No. 1-24-md-3103-TSK
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`DEFENDANT AMGEN INC.’S REPLY
`IN SUPPORT OF EXPEDITED MOTION REQUIRING FILING
`AND SERVING OF REDACTED VERSIONS OF SEALED FILINGS
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`Regeneron asserts that it “does not oppose entry of an order setting forth a process by which
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`parties to this MDL must provide redacted copies to each other and to the public.” This is exactly
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`what Amgen’s Proposed Order does. See ECF No. 164-2. Neither of Regeneron’s belatedly raised
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`reasons for opposing Amgen’s motion justify delaying implementation of the Proposed Order.
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`First, the timeframes set forth in Amgen’s Proposed Order are reasonable and necessary to
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`facilitate timely, equitable, and orderly access for all the parties in this MDL to judicial materials.
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`Producing redacted copies is not an onerous undertaking and is expected, if not required, in many
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`jurisdictions. Regeneron’s proposed alternative timeline is inflated and creates unnecessary delays
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`that will significantly impair the parties’ access to materials in these time sensitive proceedings.
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`Regeneron has systematically delayed production of redacted versions of documents made
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`available by the other MDL Defendants. For example, Regeneron was provided with a redacted
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`copy of Biocon’s Opposition Brief from its permanent injunction proceedings on March 29, 2024.
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`Ex. 1, at 1-2 (June 7, 2024 and June 10, 2024 email correspondence). Regeneron did not produce
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`this document to Amgen until over 2.5 months later, on June 14, 2024. Ex. 2 (June 14, 2024
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`Regeneron production letter). Regeneron has similarly delayed a week or more in producing
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`Case 1:24-cv-00053-TSK Document 20 Filed 07/03/24 Page 2 of 5 PageID #: 2755
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`redacted documents made available by the other MDL Defendants. Compare Ex. 3, at 1-2 (June
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`5, 2024 email confirming service of redacted documents on Regeneron), with Ex. 4 (June 12, 2024
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`Regeneron production letter). Most recently, after the other MDL Defendants provided redacted
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`documents to Regeneron on June 12, 2024, Regeneron represented to Amgen that it would produce
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`those documents “late tomorrow or early next week” (i.e., by early in the week of June 17, 2024).
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`Ex. 3, at 1 (June 12, 2024 email confirming service of redacted documents on Regeneron); Ex. 5,
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`at 2 (June 13, 2024 email correspondence). Regeneron failed to produce those documents until the
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`end of the next week, on June 21, 2024, and only after further prompting by Amgen. Ex. 5, at 1
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`(June 21, 2024 email correspondence); Ex. 6 (June 21, 2024 Regeneron production letter). Making
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`matters worse, these delays appear to be strategic. When it was in Regeneron’s interest to produce
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`a redacted document to Amgen, Regeneron produced it on the same day it was received from the
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`other MDL Defendant. Ex. 7 (June 27, 2024 email correspondence). When it was not in
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`Regeneron’s interest to produce a document to Amgen, Regeneron withheld it for months. Ex. 5,
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`at 1-2 (June 12, 2024 and June 13, 2024 email correspondence); Ex. 2 (June 14, 2024 Regeneron
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`production letter).
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`These delays are not innocuous. Given the expedited preliminary injunction proceedings,
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`delays of a week in obtaining access to documents that could affect issues in the MDL are highly
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`prejudicial and could deprive parties of a full and fair opportunity to litigate their cases effectively.
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`As matters stand, Regeneron is the only party in the MDL that has full access across all the actions.
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`A procedure is thus needed to ensure that access across the MDL is timely, equitable, and orderly.
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`Second, Regeneron’s request to expand the scope of Amgen’s Proposed Order to include
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`past pleadings and supporting materials should have no bearing on whether Amgen’s Proposed
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`Order is entered. Indeed, Regeneron does not object to the application of Amgen’s Proposed Order
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`Case 1:24-cv-00053-TSK Document 20 Filed 07/03/24 Page 3 of 5 PageID #: 2756
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`to documents filed or served on or after June 11, 2024. What Regeneron seeks is an expansion of
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`Amgen’s Proposed Order to encompass all sealed filings and deposition transcripts. Regeneron’s
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`proposal ignores a consensus reached by the MDL Defendants. ECF. No. 164-1 at 4. Regeneron’s
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`proposal piggybacks off Amgen’s and seeks to add relief to it. But Regeneron has had ample
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`opportunity to seek recourse from the Court regarding access issues and chose to say nothing until
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`now. Regeneron’s belated attempt to graft additional relief onto a Proposed Order to which Amgen
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`and the other MDL parties agreed should not affect the Court’s resolution of Amgen’s motion.
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`In view of the importance and time sensitivity around providing parties equal and orderly
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`access to judicial materials in this MDL, Amgen respectfully requests entry of its Proposed Order.
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`July 3, 2024
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`Respectfully submitted,
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`AMGEN INC.
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` /s/ John R. Labbe
`John R. Labbe (PHV)
`Kevin M. Flowers (PHV)
`Thomas Burns (PHV)
`MARSHALL, GERSTEIN & BORUN LLP
`233 South Wacker Drive
`6300 Willis Tower
`Chicago, IL 60606
`(312) 474-6300
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`Ashley Hardesty Odell [WVSB # 9380]
`ahardestyodell@bowlesrice.com
`Kaitlyn N. McKitrick [WVSB #12782]
`kmckitrick@bowlesrice.com
`BOWLES RICE LLP
`125 Granville Square
`Morgantown, West Virginia 26505
`(304) 285-2500 – Telephone
`(304) 285-2575 – Facsimile
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`Case 1:24-cv-00053-TSK Document 20 Filed 07/03/24 Page 4 of 5 PageID #: 2757
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`E. Anthony Figg (PHV)
`Joseph A. Hynds (PHV)
`Jennifer Nock (PHV)
`Brett A. Postal (PHV)
`ROTHWELL, FIGG, ERNST, & MANBECK, P.C.
`901 New York Avenue, NW
`Suite 900 East
`Washington, D.C. 20001
`(202) 783-6040
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`Wendy Whiteford (PHV)
`Eric Agovino (PHV)
`Chanson Chang (PHV)
`Pauline Pelletier (PHV)
`AMGEN INC.
`One Amgen Center Drive
`Thousand Oaks, CA 91320
`(805) 447-1000
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`Attorneys for Defendant Amgen Inc.
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`Case 1:24-cv-00053-TSK Document 20 Filed 07/03/24 Page 5 of 5 PageID #: 2758
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`CERTIFICATE OF SERVICE
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`I certify that on July 3, 2024, I caused a true and correct copy of the foregoing document
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`to be filed and served on all counsel of record via the Court’s ECF system.
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` /s/ John R. Labbe
`John R. Labbe
`Attorney for Defendant Amgen Inc.
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