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

% Case 3:00-cv-00705-CFD Document 137-5 Filed 03/11/2005 Page1 of 4
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J I 2 _ UNITED STATES DISTRICT COURT
3 DISTRICT OF CONNECTICUT _
4 ,
5 IN RE PE CORPORATION SECURITIES ) `
_ L1·1·1c;Am1oN )
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Master File No. 3:0OCV-705 (CFD) V 2
7 )
_ 8
9 Videotaped deposition of HAROLD VARMUS
10 held at 430 East 67th Street, New York, New
11 York, .on Wednesday, September 15, 2004,
g ` 12 commencing at 9:03 a.m. , before Peter Ledwith,
13 Legal Video Specialist, and James W. Johnson,
14 Registered Professional Reporter and a Notary
15 Public of the State of Newi York.
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SPHERION DEPOSITION SERVICES 1
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Case 3 :00-cv-00705-CFD Docu ment 137-5 Filed 03/1 1/2005 Page 2 of 4
§ 2 4 '
{ 1 _ - l Varmus
—. . 2 APPEARANCES: 2 THEVIDEOGKAPHER: Wearegoingonthe 4
{ 3 MILBERG WEISS BERSHAD & SCHULMAN LLP 3 record. The time is 9:03 a.m. ori {
{ 4 Attomeys for Plaintiffs 4 September 15, 2004. This is the videotaped r ‘· .,,.
{ 5 One Pennsylvania Plaza 5 deposition of Professor Harold Varmus in the
{ ‘ 6 New York, New York 10119 6 matter of In Re PE Corp. Securities
{ 7 BY: CARLOS F. RAMIREZ, ESQ. 7 · Litigation, under the jurisdiction ofthe
{ 8 8 District of Connecticut. · · {
$5 { 9 SIMPSON THACHER & BARTLETT LLP 9 This deposition is being held at the E
{ 10 Attorneys for Defendants 10 Rockefeller Research Lab, 430 East 67th {
{ 11 425 Lexington Avenue °’ ll Street, New York, New York. _My name is Peter {
{ 12 New York, New York 10017-3954 12 I‘rn the video The court {
{ 13 BY: WILLIAM M. REGAN, ESQ. 13 reporter is Jim Johnson. Weare from Spherion {
{ 14 LAURA D. MURPHY, ESQ. 14 Deposition Services. Its oftice is located at { -
_ 15 _ 15 545 Fihh Avenue, New York, New York. _
T I { _ 16 OFFICE OF THE GENERAL COUNSEL - REGION II 16 Mayl have an introduction from counsel, .
{ 17 26 Federal Plaza, Room 3908 . .:4 _l7 __please. _.W .· {
I 18 New York, New York 10278 `l8 MR. RAMIREZ: Carlos Ramirez, from the
{ 19 BY: JUDY C. WONG, ESQ. 19 law firm of Milberg Weiss Bershad & Schulman g
{ 20 Assistant Regional Counsel ` ‘ 20 LLP, for p1ainti&. " —
{ 21 21 MR. REGAN: William Regan, with Simpson
s { 22 ALSO PRESENT: 22 Thacber & Bartlett LLP, for all defendants. ’
23 Anna·Leach-Proffer 23 MS. MURPHY: Laura Murphy, Simpson .
{ 24 Andre Kachtcyc _ 24 Thacher & Bartlett, for all defendants.
{ 25 Peter Ledwith, Legal Video Specialist - 25 MS. WONG: And Judy Wong with the US
,._,. , 1
a 3 5 { . _
{ 1 1 Varmus V {
• 2 _ 2 Department of Health & Human Services, {
3 IT IS HEREBY STIPULATED AND AGREED by 3 representing Dr. Varmus.
{ 4 and between the attomeys for the respective 4 THE VIDEOGRAPHER: Will the court {
1 5 parties herein, that the tiling and sealing of 5 reporter please swear in the witness.
_ { 6 thewithindepositionbewaived. , 6 HAROLD_ VARMUS, calledasa {
A 7 ITIS FURTHER S'1'IPULATED AND AGREED that 7 witness, having been Host duly swom by a {
, 8 all objections, except as to the form of the 8 Notary Public, was examined and testified {
{ 9 question, shall be reserved to the time ofthe 9 under oath as follows: {
{ I0 trial. 10 MS. WONG: 'I`his is .Iudy#Wong, Assistant {
{ ll rr is 1=u1tmEa STIPULATED AND AGREED that 1 1 Regional Counsel ofthe United States {
{ U l2 the within dqaosition may be sworn to and 12 0fHealth and Human Services.
yy g 13 signed before any ofticcr authorized to . 13 Again, I'm Dri. Varmus, who is
{ 14 administer an oath with the same force and 14 testifying is an ex-employee ofthe department {
j 15 effect as if signed and swom to before the _ ` 15 pursuant to the regulations at 45 CFR Part II,
{ 16 Court. .. 16 also known as the department's 2E regulations. i
17 - oOo - ` 17 Pursuant to those regulations, the
{ ra 18 department has agreed to allow Dr. Varmus {
I9 19 testimony, provided that the deposition be {
.1 20 20 limited to Dr. Varmus' personal knowledge of
Zi 21 negotiations between Celera and The Human {
22 22 Genome Project pertaining to the collaboration {
23 23 or potential collaboration on completing the
24 24 map ofthe human genome.
25 · 25 MR. RAIVHREZ: Great:.
2 (Pages 2 to 5) ‘··~
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1 Vamtus 1 Varrnus I
2 Q. Do you recall whether you knew what type 2 shotgun method of sequencing the human genome?
i 3 of sequencing method he was using at that time? 3 A. Of course.
4 A. I do recall that, because I did have at 4 MR. REGAN: Objection to the form.
5 least one interaction with him with Mike 5 A. He, he had been adv -· he had been
6 Hunkapiller, who was involved in developing the new 6 advocating that method for some time, because he
7 Perkin Elmer machines that were going to accelerate 7 used that method for sequencing bacterial genomes
8 and did accelerate -- and this is a very important 8 and others. 5
3* 9 development-- did accelerate the, the pace at _ 9 Q. What was your opinion as to the efficacy )
I0 which sequencing could be done. 10 of that method?
I1 Q. Mike Hunkapiller, was he -- how did you ll MIL REGAN: Objection to the fonn.
12 know him? 12 MS. WONG: I don't see the relevance of
I3 A. I knew him when he worked with Lee Hood I3 that, actually, to the htunan —·
14 a long time ago in Califomia, and 1 didn't have to 14 MR. RAMIREZ: I think this is all going
A 15 know him for that occasion to occur, but, as it 15 to lead up to the collaboration talks, audl
’ 16 happens, we had met in the past. 16 think if you'll allow me a little more time I
17 Q. He was a scientist as well? 17 think you'll see the relevance of it.
18 A. He's an, I believe he would call himself 18 MS. WONG: Your personal opinions,
19 an engineer, but he'd worked with Lee Hood many 19 that's --
20 years at Cal Tech. 20 MR. RAMIREZ: We want your personal
21 Q. And who is Lee Hood, just briefly? 21 opinion.
_. 22 A. Lee Hood is currently a professor in 22 A. Sure, and I, I can -- I saw the benefits
23 Seattle, but is, Lee Hood is a very well known 23 of sequencing simple genomes that way. 1 was
24 molecular biologist who 1've known since the 1970s. 24 dubious about whether whole genome sequencing can
25 Q. Where would you have met Dr. Venter and 25 be used to assemble the sequences of a genome that
._ 19 21 F
1 Varmus 1 Varmus {
2 Mike Hunkapiller when you discussed the 2 was not just as large as the human genome, but that
3 conversations you justtestitied to? 3 had as many repeated sequences, because repeated
4 MR. REGAN: Objection to the form. 4 sequences pose a serious problem in trying to
5 A. Yes, 1 don't know how relevant this is 5 assemble a, the products of the whole genome
6 to the discussion, but certainly at least one 6 shotgun sequencing without doing careful cloning
I 7 occasion was at the NIH, in my office at the NIH. 7 and mapping. -
8 Q. And this is where you would have 8 Q. Did you ever discuss your opinion on the
9 discussed with, you would have had a conversation 9 method that Dr. Venter wss using with Dr. Venter?
10 with Mike 1—Iunkapi1ler and Dr. Venter? 10 A. Not in great depth. I suspect that we
1 1 A. Right. 1 I had some, we may have had some conversation about
12 Q. Do you recall a timeframe? 12 it, but, but 1 can't recall it directly.
-1 13 A. At about the time that there was a 13 Q. Did there ever come a time during mid to
14 public announcement of Celera's formation and 14 late ‘99 when you became involved in discussions
15 interest in the human genome, and I don't, l can't 15 with other members of The Human Genome Project }
16 tell you exactly what the date was. 16 regarding a possible collaboration with
17 Q. Would this have been close to when 17 Dr. Venter’s company Celera?
18 certain conversations began between the public 18 A. Yes.
19 effort, The Human Genome Project, and Celera, or 19 MR. REGAN: Objection to the form.
> 20 would it have been prior to that? 20 Q. And when do you recall you became
21 A. Oh, no, before. 21 involved?
22 MR. REGAN: Objection to the form. 22 A. Sometime —- and mcse are, these are
23 A. lt would be sometime prior to that. 23 dates that 1 am prompted to remember by some of the
24 Q. Were you aware that Dr. Venter was using 24 material that we prepared for, in response to the
25 what was called or referred to or known as the 25 subpoena -— sometime in the middle of November.
6 (Pages 18 to 21)
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I Varmus I Varmus
; 2 effort" 2 Q. Why were you anxious that you needed to_·
3 What were your reasons for believing 3 receive clarity on those two points?
4 that, or for not wanting to acknowledge that, 4 MR. REGAN: Objection to the form.
5 Celera could put the human genome sequence together 5 A. I would say I‘m -— "anxious” could be
6 without the public effort? 6 interpreted in two ways.
7 MR. REGAN: Objection to the form. 7 I think I was eager that we become clear
2} 8 A. Well, as I mentioned before, I had my 8 about those issues, because-if we were to have a
’ 9 doubts about whether the assembly of a shotgun 9 conversation we'd like to know that, I think we'd
I0 sequencing effort would allow correct assembly I0 want to enter that conversation, as you would any
I I without using the public sequence, which, of I I negotiation, with a clear understanding of what a
I2 course, was deposited in public databases, so it I2 collaboration would, how that would benefit The
I3 was readily available to Celera. I3 Human Genome Project and what would be the reason
I4 Q, What were the differences in the method I4 that we as a group would consider sufficient to
aq I5 used by Celera and that being used by The Human I5 terminate the discussions.
I6 Genome Project? The layman's brief version. I6 Q. At this time, do you recall if it was
I7 A. Well, the major difference was that I 7 your belief that only Celera really stood to gain
l8 Celera was sequencing randomly, just grabbing I8 from a collaboration and not The Human Genome
I9 pieces of DNA out of the entire genome and 19 Project?
20 sequencing them in the hopes that by sequencing 20 MR. REGAN: Objection to the form of the
2l enough that they would be able to assemble the 2l question.
‘ 22 whole sequence by looking at overlapping sequences, 22 A. I don't understand the question.
23 whereas The Human Genome Project had begun with an 23 Q. Was it your belief at this time that the
24 extensive effort to map the genome, to isolate 24 only side which really stocd to gain from a
25 pieces of large pieces ofthe genome and sequencing 25 potential collaboration was Celera and not The
43 45
I Vannus I Varmus
2 them in their entirety and assembling the sequence 2 Human Genome Project?
3 based on a scaffold of an intellectual scaffold, 3 A. No.
4 if you will, of] of sequence that had already been 4 MR. REGAN: Objection to the form ofthe
5 mapped to chromosomes and -- with clones being 5 question.
7 6 mapped in relation to each other. 6 A. Both sides would have something to gain,
7 Now, that infonnation, of course, was in 7 just solely on, just restricting our attention to
8 public databases and was accessible to 8 the public relations issues. Both sides were
9 investigators anywhere, private or public sector. 9 certainly suffering from the way in which the
I0 Q. Did you ever change your opinion that in I0 pursuit of the genome was: being portrayed in the
I l fact they couIdn't put their sequence together I I press.
I2 without the public effort? I2 Q. If we can go down to the next e-mail, it
~ I3 MR. REGAN: Objection to the form. I3 appears to be an e—mail from Eric Lander to Francis
I4 A. It's still an arguable issue, and it's 14 Collins, and to you as well, and it starts out,
I5 been argued in scientific journals right up tmtil I5 "Dear Francis and Harold."
I6 last year. I6 If you could go to the third paragraph,
I7 Q. But you haven't changed your opinion? I7 it starts out with the sentence, ”lt would be good
I8 MR. REGAN: Objection to the form. I8 for us to discuss these notes soon and then to have
I9 A. I remain skeptical. I9 me circulate them to Celera before our call on
" 20 Q. It says, the next paragraph starts out, 20 Saturday.”
21 "After our talk last night I am especially anxious 21 Do you recall what notes Eric Lander was
22 that today we achieve clarity on two points: The 22 referring to in this particular sentence?
23 reasons the collaboration would be in our interests 23 MR. REGAN: Objection to the form.
24 and the reasons we would have to reject it." 24 A. Well, I would assume -— all right, I
25 A. Mm hmm. 25 ean't -- I can't be sure, but I would assume that
I2 (Pages 42 to 45)
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