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NORBROOK LABORATORIES LIMITED v. G.C. HANFORD MFG. CO.

April 24, 2003

NORBROOK LABORATORIES LIMITED, PLAINTIFF,
v.
G.C. HANFORD MANUFACTURING COMPANY DOING BUSINESS AS HANFORD PHARMACEUTICALS, DEFENDANTS.



The opinion of the court was delivered by: Howard G. Munson, Senior U.S. District Judge

MEMORANDUM — DECISION AND ORDER

The parties, having commenced expedited discovery on March 21, 2003, have reached an impasse regarding certain discovery issues and request the court's intervention to clarify and/or resolve these discovery disputes. Plaintiff maintains that defendant has failed to meaningfully respond to two of its interrogatories while defendant maintains that plaintiff has failed to properly identify the trade secret at issue in this case. In addition, the parties disagree as to whether defendant's co-counsel, Joseph Heath, as defendant's Corporate Secretary and member of its Board of Directors, should have access to plaintiff's documents and information that plaintiff's counsel have designated as: "Confidential/Attorneys' Eyes Only." The court addresses these issues seriatim.

BACKGROUND

On February 7, 2003, plaintiff, Norbrook Laboratories Limited ("Norbrook") filed a complaint against defendant, G.C. Hanford Manufacturing Company, doing business as Hanford Pharmaceuticals ("Hanford"). Norbrook is a corporation organized under the laws of Northern Ireland, with its principal place of business located at Station Works, Newry BT35 6JP, County Down, Northern Ireland. Established in 1969, Norbrook researches, develops, markets, and distributes its own line of veterinary pharmaceuticals to over 110 countries, including the United States. See Dkt. No. 1, Compl. at ¶¶ 1 and 2. Hanford is a corporation organized under the laws of the State of New York, with its principal place of business located at 304 Oneida Street, Syracuse, New York 13216. Established in 1846, Hanford is a pharmaceutical contract manufacturer specializing in injectable cephalosporins, penicillins and penicillin derivatives, including penicillin suspensions for veterinary use. See Dkt. No. 1, Compl. at ¶ 3 and http://www.gchanford.com/index1.html. The parties directly compete in the United States market for injectable veterinary penicillin products See id. at ¶ 4.

In its complaint, Norbrook alleges that Hanford misappropriated its trade secrets and confidential information, specifically the Norbrook Process, to gain an unfair and unearned competitive advantage over it and ultimately to eliminate Norbrook as a competitor in the United States. In addition, Norbrook alleges claims for tortious interference with contract, aiding and abetting breach of fiduciary duty, and unjust enrichment. See Dkt. No. 1, Compl. at ¶¶ 37-67. Norbrook has also recently moved for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 enjoining Hanford from, inter alia, manufacturing, marketing, selling, advertising for sale or in any other way dealing in injectable antibiotics comprising the suspension of penicillin G procaine ("PGP") where the product is manufactured using any part of Norbrook's Process or confidential information. See Dkt. No. 36, Mot. for Prelim. Inj.

The process at issue involves a suspension of PGP in a liquid solution. PGP is used in veterinary applications most commonly with livestock and farm animals. PGP does not occur naturally. The United States Food and Drug Administration ("FDA") has approved only two methods by which to manufacture PGP. The conventional method entails combining water and excipients, such as buffering agents and preservatives with a costly sterile dry powder form of PGP, most often purchased by the manufacturer from a third party. Hanford has relied upon the conventional method in its production of PGP. The Norbrook Process differs from the conventional method in that it does not utilize the dry powder form of PGP; rather, it directly converts relatively inexpensive penicillin G potassium and procaine hydrochloride without ever having to dry the PGP. See Dkt. No. 1, Compl. at ¶¶ 8-17. The Norbrook Process was developed, refined, and made production-ready by former Norbrook employee Phillip Quinn. See Pl.'s Letter of April 10, 2003, to the Ct. Recently, Hanford consulted with Quinn and has since sought the FDA's approval to amend its PGP production process. See Dkt. No. 1, Compl. at (E.D.N.Y. 2002) ¶¶ 25 and 34. The speculation surrounding Hanford's proposed amendment has given rise to the instant litigation.

DISCUSSION

I. Norbrook's Disputed Interrogatories to Hanford

A. Interrogatory Number 8

In Interrogatory Number 8, Norbrook asked that "[i]f Hanford has obtained advice of counsel, whether oral or written, concerning the hiring, consulting or otherwise discussing pharmaceutical manufacturing processes (including but not limited to the Norbrook Process) with any Norbrook Employee, state from whom, about whom and when this advice was provided and in what form." Pl.'s First Set of Interrogs. Hanford refused to respond to the interrogatory objecting that it sought information protected from disclosure by privilege. See Def.'s Resp. to Pl.'s First Set of Interrogs. Norbrook's counsel attempted to clarify the interrogatory by explaining that it did not seek the disclosure of any actual advice provided, but merely whether Hanford sought legal advice and from whom. Hanford's counsel then dismissed the interrogatory as irrelevant. See Pl.'s Letter of April 10, 2003, to the Ct. The court, however, finds as relevant the question of whether Hanford sought legal advice in its hiring of Quinn, for it bears upon Hanford's defense that it was not aware that Quinn was bound by prior confidentiality agreements that he signed with Norbrook, agreements which prohibit the disclosure of the Norbrook process. Therefore, the court orders Hanford to respond to Norbrook's Interrogatory Number 8.

B. Interrogatory Number 19

Interrogatory Number 19 states: "[d]oes Hanford contend that no Norbrook Employee ever gave it any information that went into or was used in connection with Hanford's Amended Process. If Hanford's answer is `no,' state who gave Hanford such information and describe in reasonable detail the information that the Norbrook Employee provided." Pl.'s First Set of Interrogs. Hanford objected to the interrogatory as vague, ambiguous and irrelevant but responded, without having waived its objections, that "[n]o Norbrook Employee gave Hanford any proprietary information." (emphasis added). Norbrook was not satisfied with Hanford's qualified response and reminded Hanford's counsel that the interrogatory was addressed not merely to "proprietary" information, but rather to any information that Quinn had given Hanford regarding the manufacturing process at issue. See Pl.'s Letter of April 10, 2003, to the Ct. Norbrook's counsel is correct in arguing that Hanford cannot refashion Norbrook's interrogatory such that it requires only a limited and qualified answer. The court orders Hanford to provide Norbrook with any information that Norbrook employees (as defined in the Interrogatories) gave Hanford regarding its amended PGP production process.

II. Hanford's Disputed Interrogatory to Norbrook-Interrogatory Number 2

In its second Interrogatory, Hanford requested that Norbrook identify, by number, each step of Hanford's manufacturing instructions (H000585-H000602) reflecting Hanford's alleged misappropriation of one or more of its trade secrets. For each identified step, Hanford requested that Norbrook describe the trade secrets at issue and identify the earliest document that evidences Norbrook's possession of each such trade secret. See Def.'s First Set of Interrogs. Without waiving its ...


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