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Smithkline Beecham Corp. v. Apotex Corp.

December 16, 2009

SMITHKLINE BEECHAM CORPORATION, ET AL.,
v.
APOTEX CORPORATION, ET AL.



The opinion of the court was delivered by: Michael M. Baylson, U.S.D.J.

MEMORANDUM RE: SEVERAL MOTIONS SEEKING RULE 30(b)(6) DEPOSITIONS (DOC. Nos. 409, 411, 423)

As the discovery deadline approached, both parties filed Motions Seeking Rule 30(b)(6) Depositions on a multitude of topics. This discovery technique is common in complex litigation with corporate parties and it is understandable why these notices were saved for the end of the discovery period. However, the Court finds that none of the asserted topics require additional discovery by means of a 30(b)(6) deposition, and the Court is inclined to deny these Motions.

A. Apotex's Motion to Compel Rule 30(b)(6) Testimony (Doc. No. 411)

On November 17, 2009, Apotex has filed a Motion to Compel Rule 30(b)(6) Testimony (Doc. No. 411) in which Apotex asserts that it should be entitled to take a number of 30(b)(6) depositions on various topics as to which Apotex asserts it has received incomplete or conflicting testimony from GSK witnesses and seeks to determine GSK's corporate position. The topics include testing, synthesis and possession of "Form Z" Paroxetine Hydrochloride, facts and investigation in GSK's possession before filing its counterclaim in early 2009, facts relating to GSK's listing of the '759 Patent at issue in the Orange Book.

Apotex relates that on September 11, 2009 it served a 30(b)(6) Notice of Deposition with forty topics, which it grouped into three categories. Apotex asserts that GSK has refused to produce a witness as to any of these topics. In its Memorandum in Support, Apotex asserts that GSK's witnesses have provided inconsistent factual testimony. However, the inconsistency may depend on the questions asked and the authority and knowledge of the witness -- inconsistency is not grounds for a 30(b)(6) deposition.

Apotex next asserts that it is entitled to testimony concerning GSK's facts and evidence before filing its counterclaim. This category will similarly be rejected because the counterclaim will be tested by upcoming motions for summary judgment and possibly at trial.

The third category relates for GSK's basis for listing the '759 Patent in the Orange Book, which Apotex asserts was part of GSK's overall anti-competitive strategy. Once again, this issue can be tested by summary judgment motions and trial.

GSK has opposed this motion, largely because it asserts that Apotex seeks legal contentions, which are not a proper subject matter of discovery. GSK also argues that Apotex's 30(b)(6) requests are repetitive of discovery already provided. As to the Orange Book, GSK asserts that it was required to list in the Orange Book any patent relating to the active ingredient in Paxil. Lastly, GSK asserts that Apotex has exceeded the time limit for its depositions.

B. GSK's Motion to Compel Apotex to Provide Testimony Pursuant to F. R. Civ. P. 30(b)(6) and Produce Related Documents (Doc. No. 409)

On November 17, 2009, SmithKline Beecham Corporation ("GSK") filed a Motion to Compel Apotex to Provide Testimony Pursuant to F. R. Civ. P. 30(b)(6) and Produce Related Documents(Doc. No. 409). In this Motion, GSK asserts that its topics, designated as Numbers 1-7 and 10-13, are grouped into three categories:

1. Addressing experiments that Apotex has conducted concerning the commercial process used to manufacture the product, which GSK alleges infringes on its patent.

2. Apotex's admissions regarding the equivalence of its allegedly infringing P. 119 Product with Form A.

3. Apotex's knowledge of GSK's patents relating to Form A in efforts to avoid infringement.

GSK also seeks to require Apotex to produce documents that related to these topics that have been improperly withheld from ...


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