Wednesday, June 29, 2016

Merck Vs. Gilead: What Use Should Be Made Of Hague Convention (French) Depositions, In Delaware Federal Patent Spats?

When one litigates high-stakes matters in several courts around the globe, simultaneously -- about one core set of dispositive issues (here a patent fight, on a pro-drug that ultimately became sofosbuvir, the central active ingredient in Gilead's Hep C wonder cures Sovaldi and Harvoni) -- it often happens that there emerges a whole host of "derivative" disputes, among the parties, about what use may be made of items adduced (testimony and documents, primarily) under the rubric of other countries' civil legal systems.

This is one of those times.

Recall that Idenix is the proxy for Merck, here (as Merck acquired Idenix) -- and recall that the issue of which company actually first had the original idea to "invent" sofosbuvir is now (at least according to the very able US District Court Judge Beth Labson-Freeman, in the Northern District of California) probably NOT Merck (since she has effectively ruled that a Merck employee may have usurped a Gilead subsequent acquitision target's teaching in the area). So, if Gilead can keep any additional unfortunate evidence out of the pending Delaware case, it has a pretty good shot at a win here, as well. That explains why Gilead is trying to keep the French scientists' opinions corraled under US rules. But the Hague Convention contemplates very different ideas -- making this an argument eminently worth watching. Here is a bit from Merck's latest letter:

. . . .In effect, Gilead desires to use the provision at issue to turn the court in France into a conference room in the U.S. and turn the depositions into ones that are governed solely by U.S. laws. That is directly contrary to the legal basis by which these depositions have been sought and ordered, i.e. that they be held in a French court. There are rules in France regarding discovery of its citizens, including the French Blocking Statute. It is Idenix’s understanding that one of the roles of the French Judge will be to ensure that the rights of French citizens are respected and that its laws are properly followed. Gilead’s proposal would preclude that and strips the French Court of its power to preside over the deposition, and essentially turn the French Judge into a "potted plant." Gilead provides no reason or basis to tie the French Court’s hands in this manner. . . .

The proposal is also directly harmful to Idenix, given the breadth of Gilead’s proposed provision — seeking to prohibit all rulings on evidence and testimony. Idenix would be prohibited from seeking any guidance or ruling from the Court since the depositions relate solely to evidence and testimony. In the event that the French judge asks the parties to weigh in on any issue that may arise during the depositions, such as to provide their respective positions as to whether certain testimony or examination is appropriate under French law, Idenix would be precluded from answering in any way that would suggest that it is seeking a ruling as to whether such evidence/testimony is appropriate under French law. In effect, the French court would be deprived of its ability to hear from both parties and to manage its affairs in accordance with French laws. . . .

So -- we shall see. Do have sweet, safe and overly ripe watermelon-drenched holidays, one and all. Smiling ear to ear, as I'll be grabbing my West Coast dwelling young man, tomorrow evening, from the airport -- sweet, indeed!

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