United States District Court, Southern District of New York
January 14, 2003
GENEVA PHARMACEUTICALS TECHNOLOGY CORP., (AS SUCCESSOR IN INTEREST TO INVAMED, INC.), PLAINTIFF
BARR LABORATORIES, INC., BRANTFORD CHEMICALS INC., BERNARD C. SHERMAN, APOTEX HOLDINGS INC., APOTEX INC. AND SHERMAN DELAWARE, INC., DEFENDANTS
The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Defendant Brantford Chemicals, Inc. ("Brantford") has moved for a Rule 37.2 conference to address outstanding discovery issues. For the following reasons, that request is denied, but discovery is ordered as detailed below.
Brantford moved by letter dated November 8, 2002. Plaintiff Geneva Pharmaceuticals Technology Corp. ("Geneva") responded by letter dated December 9, 2002. Brantford replied on December 16, 2002. The motion was considered submitted based on these papers on January 2, 2003.
Brantford sought guidance with regard to five general areas: (1) stipulations addressing facts or documents from two non-parties; (2) discovery regarding loans or advances regarding a supposed relationship between Geneva's predecessor, Invamed, Inc. ("Invamed") and another corporation, Banyan Chemicals Ltd.; (3) production of written agreements between Invamed and third parties for the supply of active pharmaceutical ingredients for the period 1992-98; (4) production of documents regarding Invamed's communications with API suppliers in 1997 concerning production requirements and ordering; and (5) production of any judgment-sharing agreement between Invamed and Apothecon.
Geneva represented that it has attempted to comply with the first flour requests. Brantford contests that Geneva has not so complied except for the first request. Therefore, requests (2) through (5) shall be discussed.
Loans or Advances from Invamed or Shareholders to Banyan
Geneva claims that it has produced all responsive documents. Brantford requests, in response to this assertion, that the Court order a Geneva employee to submit a sworn statement that Invamed's accounting and banking records have been searched and that there are not documents related to loans and advances from Invamed or its shareholders to Banyan. As the request is reasonable, Geneva shall do so within five (5) days of the issuance of this opinion.
Invamed's Written Supply Agreements
Geneva stated that it would produce these documents "within the next few days." Brantford had not received the documents at the time of writing the December 16, 2002, letter. To the extent that the documents have not been produced, they are ordered to be produced within five (5) days of the issuance of this opinion.
Invamed's Communications with API Suppliers
Geneva stated that it would produce schedules or logs maintained by Invamed reflecting lead times for ordering API. Brantford responded that such production would be insufficient, and seeks a larger production, of all "documents relating to Invamed's communications with API suppliers concerning purchases of API in 1997." The request is too broad, even though it is limited to communications within one year.
If Geneva has not yet produced the logs and schedules, it should do so within five (5) days of the issuance of this opinion. After reviewing those logs and schedules, Brantford may within fifteen days (15) after the issuance of this opinion request documents relating to Invamed's communications with particular API suppliers based on its review of the logs and schedules. Geneva then must produce that correspondence within 30 (thirty) days of the issuance of this opinion.
Judgment - Sharing Agreement
Brantford argues that judgment-sharing agreements are discoverable, Manual for Complex Litig.3d § 23.23 at 181 (2002) (discussing sharing agreements between defendants), and that such agreements are relevant to the potential bias of Apothecon employees who may be called as witnesses at the trial of the remaining claims regarding Invamed. Id.; see also Brocklesby v. United States, 767 F.2d 1288, 1292-93, n. 2 & 3 (9th Cir. 1985) (affirming district court's decision to permit admission of indemnity agreement).
Geneva responds that Brantford first requested such documents after the close of discovery, and that it refused at that time to produce any such documents because of the timing and because any such documents lacked relevance and were privileged. Further, it argues that any such agreements are not relevant because the fact that an employer may benefit economically does not suggest that employees have a financial stake in the outcome and, in any case, there are no longer any Apothecon employees because the business was sold to Geneva.
In its reply letter, Brantford addressed these arguments and raised a new one. First, it argues that "Apothecon employees" is a short-hand phrase that refers to persons who worked in the Bristol-Myers Squibb ("Bristol-Myers") Apothecon division, and that some or all of those persons were employees of Bristol-Myers. Further, Brantford argues that the Bristol-Myers employees suffer from the same potential bias as Apothecon employees would. This is persuasive.
In addition, Brantford alleges that the judgment-sharing agreement may be void as against public policy because it may prevent Geneva from individually resolving the dispute. E.g., In re San Juan duPont Plaza Hotel Fire Litig., 1993 U.S. Dist. LEXIS 14191, at *1011 (D. P.R. Sept. 14, 1993). This charge certainly requires that Geneva at the very least submit any such judgment-sharing agreement in camera. In light of the other interest highlighted above, Geneva shall produce any judgment sharing agreements to Brantford within five (5) days of the issuance of this opinion.
For the foregoing reasons, discovery is ordered as described above. The deadlines outlined above are subject to further modification at the request of the parties, however.
It is so ordered.
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