Free Motion to Compel - District Court of Delaware - Delaware

Case 1:05-cv-00029-JJF Document 31-8 Filed 05/17/2005 Page1 0f4
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Case 1:05-cv-00029-JJF Document 31-8 Filed 05/17/2005 Page 2 of 4
WINSTON & STRAWN LLP
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WRITER'S DIRECT DIAL NUMBER
312-558-7058
I"I’li’lLII£[email protected]
May 13, 2005
BY FACSIMILE AND U.S. MAIL
Daniel M. Esrick, Esq.
Wrrmen Curran Prcxeruno HALE & Doon, LLP
60 State Street
Boston, MA 02109
Re: Cephalon, Inc., et al. v. Barr Laboratories @0. 05-29-JJFQ
Dear Dan:
I am writing to follow-up on our Rule 37 conference held via telephone this
morning. As I previously indicated, we are disappointed and frustrated that you are still unable
to provide us with a date certain when we can expect to receive any documents responsive to
Barr’s Rule 34 requests, despite the fact Barr served Plaintiffs with those requests back on March
24, 2005. As you are aware, Plaintiffs failure to comply with its discovery obligations is
severely prejudicial to Barr. Moreover, it is further hampering our efforts to proceed with oral
discovery pursuant to the Scheduling Order. Accordingly, we believe we have no alternative
other than to bring this matter to the Court’s attention.
We further discussed Plaintiffs’ decision to rely upon Rule 33(d) as their
responses to Interrogatories 3-7, 9 and l0, even though Plaintiffs have yet to produce the
documents that purportedly include the requested information. During our conference, you
agreed to supplement Plaintiffs’ responses with Bates ranges ajier the documents are eventually
produced. However, because you are unable at this time to provide us with a date certain when
we can expect to receive those documents, we maintain our position that reliance upon Rule
33(d) at this time is improper. Since you declined our request that Plaintiffs’ withdraw their
reliance upon Rule 33(d) and instead respond fully to Barr’s interrogatories, we will address this
matter with the Court as well.
Regarding Plaintiffs’ reiiisal to provide responses to Barr’s Interrogatories Nos. l
and 2 because such requests are "premature," you indicated this morning that Plaintiffs will
agree to provide us with responsive claim charts for those claims they intend to assert against
Barr, as well as the bases for their infringement allegations. You further indicated the soonest
you could provide us with this information is Friday, May 27th. In light of the Scheduling

Case 1:05-cv-00029-JJF Document 31-8 Filed 05/17/2005 Page 3 of 4
WINSTON & STRAWN LLP
Daniel M. Esrick, Esq.
May 13, 2005
Page 2
Order’s requirement that the parties advise the Court by June l whether there is a dispute
regarding claim construction, we find this deadline unacceptable. In the spirit of cooperation, we
proposed that Plaintiffs provide us with appropriate responses to lnterrogatories l and 2 by
Friday, May 20m. We even offered to provide you with Ba.rr’s proposed claim construction by
May 27m, even though Barr has not been served with any discovery requests for such
information. You rejected this proposal, but indicated you would check with your clients to
determine if the requested information could be provided sooner than May 27m. We await your
1‘€SpOI1S€.
Finally, you agreed not to limit the scope of your search regarding B3.IT’S Rule 34
Requests Nos. 33-45 and 65, as requested in my May l0°h letter.
Best regards,
umn P
%
Michael K. Nutter
cc: Frederick L. Cottrell HI, Esq.
George C. Lombardi
Bradley C. Graveline

Case 1:05-cv-00029-JJF Document 31-8 Filed 05/17/2005 Page 4 of 4
WINSTON & STRAWN LLP
Daniel M. Esrick, Esq.
May 13, 2005
Page 3
bcc: Brian N. Anderson
Brian Wanamaker
. Aaron Purser
Bob Millonig
Heidi Kraus
Ted Ebersole
Josy Ingersoll
CI-Il:1531627.1