Free Affidavit - District Court of Connecticut - Connecticut

Case 3:02-cv-01573—IV|RK Document 236-9 Filed 04/20/2007 Page10f4
EXHIBIT 8

Case 3:02-cv-01573-IVIRK Document 236-9 Filed 04/20/2007 Page 2 of 4
I U.S. Department of Justice
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DJ NO. 46-14-751 O ‘3O7‘O 3 ‘
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September 5, 2006
Mr. Robert Salcido
Akin, Gump, Strauss, Hauer
& Feld LLP
1333 New Hampshire Ave. N.W.
Washington, DC 20036-1564
[email protected] '
Bruce R. Parker
Venable LLP
1800 Mercantile Bank & Tmst Bldg.
2 Hopkins Plaza
Baltimore, Md. 21201
[email protected]
Dear Messers. Parker and Salcido:
Your recent response to the Government’s Second Request for Production of documents,
which was provided two months after it was due, has raised several issues we wish to discuss.
First, with regard to the privilege log, weasked Robert after your response to our first
production request for a privilege log. In a December 19, 2005 memo, he attached the privilege,
log Thom Kossl provided to us during the investigation of the case prior to our intervention, and
wrote "I have not yet identified additional privileged documents. I will promptly supplement the
log when I do." We note that most ofthe documents on the privilege log you provided to us on
August 15, 2006 were created prior to our first request for production — some as long ago as 1997
and 1998. Most are responsive to our first request for production which was served on July 27,
2005 — more than a year ago. Why were these not included in a pnvilege log and provided to us
before the end of discovery? Had you provided this log in a timely manner, we would have been
able to explore through discovery whether, in fact, the documents were privileged. Further, since
you did not reply to the Governrnent’s second document production request until two months
after your response was due, you have waived any privilege applicable to the documents on the
log.

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In addition, the log itselfis not sufficiently descriptive. First, the privilege log does not
set forth the type of document, which is required by Local Rule 37(a). Second, since we were
unable to ask Dianon witnesses about these documents at their depositions, we need a more
complete description of the documents in order to determine whether in fact these documents are
privileged so that we will not have to ask the court to reopen discovery. For example, there is no
privilege claimed for the 10/23/05 document. In addition, there is not sufficient information to
determine whether the "Viability Study Using Flow Cytometry" is in fact work product or was a
pre—existing document, and if the latter, why it would be privileged. Similarly, it is not apparent
from the description why the documents relating to requisition forms and report forms would be
privileged. Please provide us with more descriptive information so that we can determine
whether the listed documents are indeed privileged.
The production itself also raises a number of issues. It appears from the document index
you provided that most of the documents are responsive to our first request (served in July of
2005), yet they are only now being produced — after the close of discovery. For example,
PP17945 and several other draft requisition forms are responsive to Request # 6 in the United
States’ first request for production. We do not believe they were produced in response to that
request. Another example is PP17859 which is responsive to both request #4 and 15, among
others, in the July 2005 request. Also, this document appears to be taken from a larger document
and is, therefore, produced out of context. PPI 7893 is a copy of a document already produced,
but with different marginal and handwritten notes from those that have been produced and is
responsive to request # 2 ofthe July 2005 request. PP 17915-16 is responsive to request # 14 in
the Govemment’s July 2005 request. PP 18266 is responsive to July 2005 request # 17, and also
appears to be a part ofa larger document. Had we had these documents before the close of
discovery we could have used them in depositions, submitted interrogatories to identify them or
included them in the 30(b)(6) deposition notice to obtain information about who created them
and why. Now, because you have not produced these documents until after the close of
discovery, we cannot do that.
Finally, your written responses to our second document production request, which was
served in May of 2006, are deficient. Your response to requests # 1 and 2 states that "to the
extent responsive documents exist, they have already been produced." We have been unable to
locate any documents which fit the description of documents described by Ms. Palmieri during
her deposition. Please identify by Bates number where in the production they may be found or
confirm that no such documents exist. Documents PP22629—PP22645, which relate to the
Hemepath Consensus Conference, and are responsive to request # 3, do not contain any
presentation materials, even though our request clearly asked for presentation materials and the
documents themselves reference presentation materials. When can we expect to receive these?
Also, our request asked for all "notes" related to the conference, but we only received one page
of notes. We assume more notes exist. Request # 3 also asks for documents concerning any
payments made to Dr. Braylan in relation to the conference, but those also do not seem to have
A been produced. To date no documents responsive to Request # 4 have been produced. When
will they be produced? They are already more than two months late. To date no documents
responsive to Requests # 7 and 8 have been produced. When will they be produced? Documents
responsive to Requests # 10 and 13 have not been produced on the grounds that they are not

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relevant. We believe they are relevant and should be produced. With regard to requests # ll and
12, we have been unable to identify any documents which tit the description of documents
described by Ms. Palmieri in her deposition. Please either identify them by Bates number or
coniinn that none exist.
We look forward to discussing these matters with you as soon as possible.
Sincerely,
A Patricia Davis i
Assistant Director
Commercial Litigation Branch
Civil Division
AUSA Rick Molot