Free Affidavit - District Court of Delaware - Delaware

Case 1 :05-mc-00240-KAJ Document 4 Filed 12/06/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
GENEVA PHARMACEUTICALS TECHNOLOGY ) SUBPOENA
CORP., ) IN A CIVIL CASE
Plaintiff, )
) Case No.: Misc.
-against- ) Case Pending: Southern
) District of New York
BARR LABORATORIES, INC., BRANTFORD )
CHEMICALS INC., BERNARD C. SHERMAN, ) Case No. 98 Civ. 861
APOTEX HOLDINGS, INC., APOTEX, INC., ) Case No. 99 Civ. 3687
and SHERMAN DELAWARE, INC., ) (Consolidated)
)
Defendants. )
) . I
APOTHECON, INC., )
Plaintiff, )
)
-against— )
)
BARR LABORATORIES, INC., BRANTFORD )
CHEMICALS INC., BERNARD C. SHERMAN, )
APOTEX HOLDINGS INC., APOTEX INC., )
and SHERMAN DELAWARE, INC., )
)
Defendants. )
AFFIDAVIT OF CARIE-MEGAN A. FLOOD PURSUANT TO LOCAL RULE 7.1.1
IN SUPPORT OF BRANTFORD CHEMICAL INC.’S MOTION TO COMPEL
E.I. DU PONT DE NEMOURS & COMPANY TO COMPLY WITH SUBPOENA
Carie-Megan A. Flood, being duly sworn, deposes and says:
1 I. I am a member of the State Bars of Illinois and Iowa. I am an associate
with Lord, Bissell & Brook LLP, attorneys of record for defendant Brantford Chemicals
Inc. ("Brantford”) in the case Geneva Pharmaceuticals Technology Corp. v. Barr
Laboratories, Inc., et al., Case No. 98 Civ. 861 (DLC), pending in the United States
District for the Southern District of New York (Cote, J .).

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2. I have personal knowledge of the facts set forth in this affidavit and would
competently testify to these facts under oath if called as a witness. I am personally
familiar with the pleadings, correspondence, and documents exchanged in this litigation.
I make this affidavit in connection with Brantford’s efforts to obtain responsive
documents from E.I. du Pont de Nemours & Company ("E.I. du Pont") pursuant to
Brantford’s September 6, 2005 subpoena. p
3. On September 6, 2005, Brantford issued a subpoena duces tecum to E.I. du
Pont to produce documents regarding its participation in the market for warfarin sodium
crystalline clathrate. Brantford’s subpoena to E.I. du Pont contains five (5) document
requests. A true and correct copy of the subpoena and its proof of service is attached
hereto as Exhibit l.
4. E.I. du Pont did not timely serve Brantford with any objections to the
subpoena, nor has E.I. du Pont produced any documents called for by the subpoena.
Over the course of the past several weeks, and in accordance with Federal Rule of Civil
Procedure 37, and District of Delaware Local Rule 7.l.l, I have engaged in several
telephone conferences and exchanged letters with Karla R. Murray, a paralegal in the
legal office of E.I. du Pont in an attempt to obtain E.I. du Pont’s compliance with
Brantford’s subpoena. See Exhibit 2, including October 25, 2005, October 27, 2005, and
November 14, 2005 letters from Carie-Megan Flood; and November 4, 2005 letter from
Karla R. Murray.
5. On October 25, 2005, myself and John F. Kloecker, an attorney at Lord,
Bissell & Brook LLP and counsel for Brantford, informed Ms. Murray, via telephone,
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that Brantford previously issued a subpoena to E.I. du Pont on September 17, 1999, and
issued a subpoena to DuPont Pharmaceuticals Company on August 31, 2000. We also
informed Ms. Murray that Brantford and DuPont Pharmaceuticals Company entered into
a letter agreement in order to resolve the 1999 and 2000 subpoenas. I also sent Ms.
Murray, via facsimile, copies of the 1999 and 2000 subpoenas and the prior letter
agreement between Brantford and DuPont Pharmaceuticals Company. See Exhibit 2,
October 25, 2005 letter from Carie—Megan Flood.
6. I received a letter from Ms. Murray, dated November 4, 2005, asserting
that the prior letter agreement between Brantford and DuPont Pharmaceuticals Company
precludes Brantford from obtaining discovery from E.I. du Pont with its current
subpoena. See Exhibit 2, November 4, 2005 letter from Karla R. Murray.
7. On November 14, 2005, I sent a letter to Ms. Murray advising her that the
prior letter agreement was specifically limited to DuPont Pharmaceuticals Company and
that the letter agreement does not preclude Brantford from issuing its current subpoena to
E.I. du Pont. See Exhibit 2, November 14, 2005 letter from Carie-Megan Flood. In
addition, I informed Ms. Murray that Judge Cote reopened discovery to allow the parties
to explore the current structure of the warfarin sodium market and that Brantford’s
subpoena only seeks updated information from the period of January 1, 2000 through the
present. Id.
8. Ms. Murray and E.I. du Pont’s legal office ignored my letter, and to date,
has ceased communicating with me regarding Brantford’s subpoena to E.I. du Pont.
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Case 1:05-mc-00240-KAJ Document 4 Filed 12/06/2005 Page 4 of 4
9. I declare under penalty of perjury that the foregoing is true and correct and
this affidavit was executed by me on this day in Chicago, Illinois.
By: VI! .- J L· p A bd
Carie-Megan A. Flood
SIGNED AND SWORN TO
before me this 5th day of December, 2005
otary Public
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