United States District Court, D. Delaware
GENENTECH, INC. and CITY OF HOPE, Plaintiffs,
AMGEN INC., Defendant. GENENTECH, INC. and CITY OF HOPE, Plaintiffs,
AMGEN INC., Defendant.
pending before the Court are Amgen's identical motions
for reargument. C.A. 17-1407 at D.I. 423; C.A. 18-924 at D.I.
has asserted claims of willful patent infringement based on
Amgen's biosimilar drug products for Avastin and
Herceptin. Amgen has responded with an
advice-of-counsel defense. The assertion of that defense,
with some exceptions, waives attorney-client privilege over
all communications "relating to the same subject
matter." See In re EchoStar Commc'ns
Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006) (quoting
Fort James Corp. v. Solo Cup Co., 412 F.3d 1340,
1349 (Fed. Cir. 2005)).
Based on Amgen's advice-of-counsel defense, Genentech
moved, on June 13, 2019, to compel discovery of privileged
communications that pre-date March 2019 and/or involve
in-house counsel. C.A. 17-1407 at D.I. 395; C.A 18-924 at
D.I. 254. On June 18, 2019, I held a discovery conference
and, on June 20, 2019, entered an order granting
Genentech's motions to compel for the reasons stated at
the discovery conference, except I denied the motions to the
extent they sought communications with "outside trial
counsel." C.A. 17-1407 at D.I. 407; C.A. 18-924 at D.I.
259. I also ordered Amgen to produce the relevant documents
(hereinafter, the "Privileged Documents") no later
than July 2, 2019. C.A. 17-1407 at D.I. 407; C.A. 18-924 at
Amgen has not yet produced the Privileged Documents. Instead,
on June 28, 2019, Amgen filed a motion for reargument
pursuant to D. Del. LR 7.1.5. C.A. 17-1407 at D.I. 423; C.A.
18-924 at D.I. 266.
motion for reargument is the "functional
equivalent" of a motion to alter or amend the judgment
under Fed.R.Civ.P. 59(e). Jones v. Pittsburgh Nat'l
Corp., 899 F.2d 1350, 1352 (3d Cir. 1990). A court
should exercise its discretion to alter or amend its judgment
only if the movant demonstrates one of the following: (1) a
change in the controlling law; (2) a need to correct a clear
error of law or fact or to prevent manifest injustice; or (3)
availability of new evidence not available when the judgment
was granted. Max's Seafood Cafe ex rel Lou-Ann, Inc.
v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
argues that reargument is necessary to prevent manifest
injustice, because I erred in applying the law to the facts
of this case. D.I. 423 at 3. The errors Amgen raises
generally repeat the same points Amgen advocated at the
discovery conference. Since I already fully considered and
addressed these arguments, they do not provide grounds to
grant Amgen's motions. See Butamax Advanced Biofuels
LLC v. Gevo Inc, 2015 WL 4919975, at *1 (D. Del. Aug.
18, 2015) (stating that a motion for reargument is "not
properly grounded on a request that a court rethink a
decision already made").
the time the motions for reargument were filed, I recognized
that I may have improvidently issued my rulings, because
willfulness would not be an issue unless and until Amgen
launched a biosimilar drug product. But before I could issue
an order granting Amgen's motion, Amgen launched both of
its biosimilar drug products. Based on this change in
circumstances, I find no basis to grant Amgen's motions.
August 20, 2019, Amgen represented to the Court that, if the
Court were to deny Amgen's motions for reargument, Amgen
would be prepared to produce the Privileged Documents
"within a few days." C.A. 17-1407, D.I. 481-1 at 3.
THEREFORE, it is hereby ORDERED that:
Amgen's Motions for Reargument (C.A. 17-1407 at D.I. 423;