Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:00-cv-00705-CFD Document 137-6 Filed 03/11/2005 Page 1 of 3

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1 UNITED STATES DISTRICT COURT
U ` 2 DISTRICT OF CONNECTICUT
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4 -—-—-———-—-— - ————-——····* · ·········*· X
D
5 In Re
6 PE CORPORATION
7 SECURITIES LITIGATION MASTER FILE NO.
J 8 3 : OOCV—705 (CFD)
9 -———--——--——-————----—--——-————--——— —X
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13 Videotaped deposition of Tony Lee White
U 14 taken in accordance with the Federal Rules of Civil
15 Procedure at the offices of Applera Corporation, 301
16 Merritt Seven, Norwalk, Connecticut, Before Holly M.
17 Murphy, a Licensed Shorthand Reporter and Notary
18 Public, in and for the State of Connecticut at 9130 AM
19 on October 20, 2004.
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21 I " I v` . ` _ 4 .
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24 _
25 ·i A

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Case 3 :00-cv-00705-CFD Docu ment 137-6 Filed 03/1 1/2005 Page 2 of 3
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I I A P P E A R AN C E S: I THE COURT REPORTER; To the attomeys from I ..
1 ON BEHAI-F OFTHE PI-AmTm;i 2 Simpson Thachcr, would you like to order a copy of __ _`
1 1 2 LEE A. WHSS, ESQESQ 3 today’s transcript? i
1 3 MILBERGWHSS 4 ' · MR. REGAN: Yes. And arough draft, a 1 -
1 ONE PENNSYLVANIA PLAZA 5 mm1. 1
. 4 NEWYORILNY 10119 6 1
l 5 oaawuormampm. I TONY LFE Y’“"*E . ·
I 6 mguglo l_ CHEPIGA; ESQ 8 Address 4726 Northside Dnve, Atlanta, Georgia, 1
WILLIAMM. REGAN, BQ. 9 having been duly swom, was deposed and testified as 1
T; 7 SIMPSON THACI-IER &.BAR‘II.EI'I` lg follows;
} 425 LEXINGTON AVENISIGES4 I I 1
1 g NEW YORK' NY *°°"' I2 nnuacr axAM1N.moN ;
1 10 13 BY MR. WEISS: 1
I U 14 Q. Good moming, Mr. White. I understand from
3 15 your counsel that you're a little under the weather.
T1 14 I6 I appreciate you still making yourself available. I
" 15 . 17 just want to make sure that you feel you‘re okay to go 1
I6 18 forward with the deposition today? —
{Z 19 A. iran nre.
19 20 Q. When did you first meet Craig Venter,
20 21 approximately?
Il 22 A. I'm not sure. It would have been at, I ’
22 23 think the first time I met him was at what’s called a I
M_ 24 GSat conference. It was probably in the '97, '98 time
25 ‘ 25 frame, something like that.
3 5 I g
? I STIPULATIONS . · 1 Q. WhendidPECorporatic·nfirstbegin A
2 2 discussing the idea of working with Dr. Venter? Was
3 IT IS HEREBY STIPULATED AND AGREED by and 3 it before or after you met him?
4 between counsel representing the parties that each 4 A. lt was after I met him.
5 party reserves the right to make specihc objections 5 Q. Who do you recall first raising the topic
6 at the trial of the case to each and every question 6 that maybe PE Corporation should work with Dr. Venter?
1 7 asked of and the answers given thereto by the 7 A. lt might have been Mike Hunkapiller. I
I 8 dqaonent, rrserving the right to move to strike out 8 think maybe that was my recollection. He was the I
9 where applicable, except as to such objections as are 9 first person to bring it up. I believe that's right.
10 direct to the fonn ofthe question. 10 Q. Did PE Corporation approach Dr. Venter
I I IT IS FURTHER STIPULATED AND AGREED by an 1I about working together or did Dr. Venter approach PE
I 2 between counsel reprcsmting the r·espective parties 12 Corporation?
13 that proof of the official authority ofthe 13 A. I believe we approached him; I -
`;> I4 Commissioner of Deeds before whom this deposition is 14 Q. Who participated in the decision making
‘ I5 taken is waived. 15 process regarding whether or no: to approach Dr.
I6 1T IS FURTHER STIPULATED AND AGREED by an I6 Venter? " ' ` _ · . I
17 between counsel representing the respective parties I7 A. Quite a few people. I couldn't giye an n
18 that the reading and signing ofthe deposition by the 18 exhaustive list. I was one of them. Mike Hunkapiller
l9 deponent is NOT WAIVED. _ 19 was one. I don't recall who else.
20 IT IS FURTHER STIPULATED AND AGREED by an 20 Q. What was discussed during those discussions
J 21 between counsel representing partiw that all defects, 21 regarding the possible benefits of working with Dr.
22 if any, as tothe notice ofthe taking ofthe 22 Venter?
23 deposition are waived. 23 A. The rational was that we wanted to have
24 Filing of the Notice of Deposition with the 24 someone who was accomplished in sequencing, you know,
25 original transcript is waived. 25 who knew how to nm a sequencrkig operation. That was
2 (Pages 2 to 5)
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Case 3 .00-cv-00705-CFD Document 137-6 Filed 03/1 1/2005 Page 3 of 3
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. I A. N0. 1 a sentence, I think it's the second to last complete
2 MR. WEISS: Lct's take a quick break here. · 2 sentence.
¤ 3 I don't think I have much left. 3 It says: Celera Genomics group's ability to
4 (Whereupon there was a brief recess in the 4 retain its existing customers and attract new
5 proceedings.) 5 customers is heavily dependent upon the completion of
. 6 BY MR. WEISS: 6 the sequencing and assembly ofthe human genome within
7 Q. With respect to the patenting issue we 7 the expected time frames.
8 discussed earlier and the difference of opinion 8 Was that an accurate statement at the time to
T, 9 between Mr. Millman and Dr. Venter, to yourknowledge 9 your knowledge?
10 did Celera have the ability to locate commercially 10 A. At the time?
11 useful genes at the time of the dispute between — not ll Q. Yes. -
12 dispute, but the different opinions voiced by - 12 A. Yes.
13 Dr. Venter and Mr. Millman? I3 Q. Why was Cel¢:ra's ability to retain its _ i
14 A. Based on my understanding of the 14 customers and attract new customers heavily dependent
_ 15 technology, I would think not. But I‘m really not 15 upon timely completion of the sequencing?
I6 qualified to answer that.- 16 A. Because our customers, we create an
17 MR. WEISS: Mark this as Exhibit I6. 17 expectation with our customers that that's whatwe
18 (Whereupon, Plaintiffs Exhibit No. 16 was 18 were going to do.
19 marked for identification.) 19 Q. Did you know at this point what expectation
20 BY MR. WEISS: 20 Celera's customer had for the completion of the
21 Q. For identification, Exhibit I6 bears Bates 21 sequencing and assembly ofthe gmome?
22 range CG000031 through 154. Before we get to the 22 A. I don't really recall, no.
i 23 prospectus, Mr. White, at the time ofthe two opinions 23 Q. Tum to the bottom of page 38 of the
24 voiced by Mr. Millman and Dr. Venter, did Celera have 24 prospectus which is 00068. If you could just take a
25 the ability to detemine the functionality of a 25 moment to read the paragraph that starts on that page
_ I I l I I3
( 1 particular gene? _ l and includes the top ol`the following page that
Z A. I don't think sb. ·I think that there were 2 begins: 'I`he»Celera Genomics group intends.
3 gene families that people had theories about, but 3 A. Okay.
4 we're pretty early in the technology at that point. 4 Q. That paragraph talks about integrating
5 Q. Did Celera have that capacity by the time 5 Celera's proprietary information with information from
6 of the secondary offering? ` 6 extemal sources. _
· 7 A. It's not like flipping a switch. It's an 7 What extemal sources were contemplated at
8 evolving science. So I would say by the time of the 8 this time?
9 secondary offering, it evolved a little bit. But no. 9 A. I believe they were external sources such
IO I don't think that's, you can't just look at I0 as other publicly available data bases lhte GenBank
1 I a gene and say, "Oh, I know what it does." Hell, you ll for example.
I2 still can't do that. 12 Q. lf you tum to page 40 of the prospectus,
13 Q. Starting on page eight ofthe prospectus I3 page 00070 and take a moment to read the paragraph
j 14 which is CG00038, there's a listing of risk factors in 14 regarding access to comprehensive genomic sequence
I5 connection with the offer. I5 infomation unavailable elsewhere?
16 A. Yes. I6 A. All right. ._ _ _ _
I7 Q. Did you play any role in the drafting of I7 Q. Was a component of Celera's business model · ·
18 those risk factors? 18 at this time providing Lts customers with access to
19 A. I reviewed the drafts. I didn't draft it. 19 comprehensive genomic sequence infomation unavailable
1, 20 Q. Do you recall making any specific ·· 20 elsewhere?
2I A. No. 21 A. Yes, I think sc.
22 Let me just finish. Any specific comments 22 Q. What type of genomic sequence infomation
23 regarding any specific risk factors? 23 would that be? .
24 A. N0. 24 A. The sequences: that we derived from our
25 Tum to the bottom of page eight. °I`het‘e's 25 sequencing efforts and the assembly of the genome that
29 (Pages 110 to II3)
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