Thursday, July 15, 2010

Is Merck Trying To "Deep Freeze" The CaféPharma Postings Material?

As promised, here is the bit from the plaintiffs' letter to Judge Cavanaugh demanding the remaining CafePharma post materials:

. . . .Request No. 21 – CaféPharma.

Defendants have not said that they will produce any documents relating to Café from outside the Class Period.

As detailed in the Complaints, CaféPharma is a website for pharmaceutical sales professionals to exchange information about pharmaceutical companies. Non-public results of the ENHANCE study results were posted anonymously on CaféPharma as early as March 2007, and these results were subsequently corroborated when the full study results were released in March 2008.

Judge Cavanaugh recognized in his opinion denying Defendants’ motion to strike that “[t]he CaféPharma postings. . . are relevant to the ultimate issue of scienter in that they purport to show the timing within which Defendants became aware of the ENHANCE study results.” Schering-Plough, D.I. 114, at 2. Pre-Class Period information about which employees were monitoring, posting on, or otherwise aware of the CaféPharma website before the Class Period is probative of who was accessing the postings during the Class Period. Similarly, documents that reference CaféPharma but were generated after the Class Period may be relevant if, for example, they relate to discussions or investigations about which individuals posted the ENHANCE results
on the CaféPharma website or viewed these results. See Upton, 1996 U.S. Dist. LEXIS 22978, at *11-12 (permitting discovery of post-class period documents that “relate back to the proposed class period”).

Plaintiffs respectfully request that the Court compel Defendants to produce the above categories of documents from outside the Class Period. . . .

As ever, more to come. Next one will be on Merck's refusal to turn over documents it already shared with press flaks, apparently on a non-confidential basis.

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