Genentech , Inc v. JHL Biotech, Inc. et alRESPONSEN.D. Cal.March 11, 2019 DEFS.’ RESPONSE TO TENTATIVE CASE MANAGEMENT SCHEDULE – 3:18-CV- 06582-WHA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DARIN W. SNYDER (S.B. #136003) dsnyder@omm.com MICHAEL F. TUBACH (S.B. #145955) mtubach@omm.com DAVID R. EBERHART (S.B. #195474) deberhart@omm.com O’MELVENY & MYERS LLP Two Embarcadero Center 28th Floor San Francisco, California 94111-3823 Telephone: +1 415 984 8700 Facsimile: +1 415 984 8701 Attorneys for Defendant JHL BIOTECH, INC. [Additional Counsel and Representations Listed on Signature Page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO GENENTECH, INC., Plaintiff, v. JHL BIOTECH, INC., XANTHE LAM, an individual, ALLEN LAM, an individual, JAMES QUACH, an individual, RACHO JORDANOV, an individual, ROSE LIN, an individual, JOHN CHAN, an individual, and DOES 1-50, Defendants. Case No. 3:18-cv-06582-WHA DEFENDANTS’ RESPONSE TO THE COURT’S TENTATIVE CASE MANAGEMENT SCHEDULE AND REQUEST FOR RESPONSES Courtroom: 12, 19th Floor Judge: Hon. William H. Alsup Case 3:18-cv-06582-WHA Document 133 Filed 03/11/19 Page 1 of 8 1 DEFS.’ RESPONSE TO TENTATIVE CASE MANAGEMENT SCHEDULE – 3:18-CV- 06582-WHA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION The Court’s tentative schedule is consistent with its stated desire at the hearing on February 19, 2019, to hold the trial in 2020 sufficiently in advance of the year-end holiday season. However, the schedule accomplishes this objective at the expense of the parties’ needs to prepare properly for trial in a case that is complex, of substantial import to (at least) defendants, and that will require extensive expert testimony. The Court’s tentative schedule does not permit sufficient time for discovery against, or by, the individual defendants, who are the key witnesses in the case. Nor does that schedule permit the parties’ experts sufficient time to respond to that fact discovery or prepare reports before dispositive motions are due. To allow the parties adequate time to prepare for trial, defendants respectfully request that the Court set a trial in January 2021 and otherwise modify the tentative scheduling order, as outlined more fully below and in Appendix A. II. ARGUMENT The Court’s trial schedule is impractical and unduly burdensome to the parties for two reasons. First, the Court’s tentative schedule does not give JHL Biotech, Inc. (“JHL”) (or Genentech) sufficient time to take discovery from the key witnesses in this case: Xanthe Lam, Allen Lam, John Chan, James Quach, Rose Lin, and Racho Jordanov (collectively, “Individual Defendants”). Nor will it allow the Individual Defendants enough time to take discovery. In the March 1, 2019 Omnibus Order on Motions to Dismiss, Motion for Provisional Relief, and Motions to Stay (ECF No. 129-1, “Omnibus Order”), the Court entered a partial stay as to the Individual Defendants, which allows the Individual Defendants to delay answering the Complaint and prohibits Genentech from deposing or serving document requests on the Individual Defendants. (Omnibus Order at 41.) The Order further prohibits the Individual Defendants from initiating depositions of or serving document production requests on any officer, director, employee, agent, supplier, or consultant of Genentech, but permits them to participate in depositions by others and receive documents produced by others. (Omnibus Order at 44.) Only after the conclusion of proceedings in United States v. Lam, et al., No. 18-cr-527 WHA (N.D. Case 3:18-cv-06582-WHA Document 133 Filed 03/11/19 Page 2 of 8 2 DEFS.’ RESPONSE TO TENTATIVE CASE MANAGEMENT SCHEDULE – 3:18-CV- 06582-WHA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.), will discovery of and by the Individual Defendants be permitted. The criminal trial is scheduled to begin on April 6, 2020 (id. at ECF No. 45) and could last until the end of April. In the roughly 11 weeks between the end of April and July 21, 2020 (when fact discovery is set to close under the Court’s tentative schedule): • JHL and Genentech must serve all of their discovery requests on the Individual Defendants, receive responses and any documents, resolve discovery disputes, and depose the six Individual Defendants; and • the Individual Defendants must answer the complaint; respond to requests for admissions, requests for production, and interrogatories; serve document requests on JHL, Genentech, and any third parties; and depose any witnesses who have not previously been deposed. Given the thirty days to respond to discovery, all parties will effectively have just over one month to complete discovery after being served with objections and responses. Allowing such a short time to complete discovery of the key witnesses in a case of this magnitude and significance to the parties is inadequate. Defendants therefore respectfully propose that the parties have four months after the anticipated conclusion of the criminal trial, rather than three months as contemplated under the Court’s tentative schedule, to complete non-expert discovery. See Appendix A. Second, the Court’s tentative schedule with respect to expert discovery is too aggressive in light of the complex issues that require expert testimony. As an initial matter, given that key discovery is scheduled to occur at the very end of the discovery period, requiring opening expert reports to be completed on the same day that fact discovery closes means that the parties’ experts will likely not have access to relevant information obtained in discovery in time to incorporate it into their reports. See Tentative Case Management Schedule and Request for Response at 2, ECF No. 131 (“Tentative Schedule”). While such a schedule may be workable in other cases—e.g., where the parties have ample time to depose key witnesses or require limited expert testimony— that is not the case here. Under the tentative schedule, the key witnesses will all be deposed at the very end of the discovery schedule, and those depositions will likely be critical to the factual Case 3:18-cv-06582-WHA Document 133 Filed 03/11/19 Page 3 of 8 3 DEFS.’ RESPONSE TO TENTATIVE CASE MANAGEMENT SCHEDULE – 3:18-CV- 06582-WHA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 development of the case. Imposing such a scramble on the end of discovery and expert reports is unfair to the parties given the magnitude of this case.1 In addition, the schedule for exchanging opening, opposition, and reply expert reports is extremely tight, given the complicated nature of this case and the number of issues on which expert testimony is expected. The brief history of this litigation demonstrates that complexity: in opposing Genentech’s motion for preliminary injunctive relief, JHL’s experts submitted declarations and exhibits totaling 4913 pages, and those declarations directly addressed less than half (28 of 66) of the alleged trade secret documents Genentech submitted. Genentech’s motion listed several hundred more documents that Genentech asserts are at issue. Every one of those documents must be evaluated with the same painstaking detail that the Court and counsel for JHL employed at the February 19, 2019 hearing for a portion of a single document. Allowing opposition experts only fourteen days to complete their reports and seven days for reply reports is simply not enough time in light of Genentech’s broad assertion of trade secrets. Finally, under the proposed schedule, the cut-off date for dispositive motions is August 13, 2020, just two days after reply expert reports are due and before expert discovery has closed. (Tentative Schedule at 4.) This schedule will not permit the parties adequately to prepare summary judgment motions, which would no doubt benefit from inclusion of all information obtained during expert discovery. Defendants respectfully request that the expert report deadlines be extended, and that the deadline for summary judgment briefing be extended until sufficiently after the close of all discovery. See Appendix A. To allow for the additional time for fact and expert discovery that defendants are requesting, defendants propose moving the trial date to January 27, 2021, and modifying other interim deadlines in line with that date. See id. Given that Genentech has already agreed that discovery as to the Individual Defendants cannot begin until after the criminal trial in April 2020, moving the trial date from November 2020 to January 2021 is reasonable. 1 Because the experts likely will have insufficient time to digest and incorporate new critical facts into their reports, the parties will either have to just forego using these new facts or try to insert them into their reply expert reports. This will no doubt engender disputes about whether doing so comports with the Court’s restrictions on the proper scope of reply reports. Case 3:18-cv-06582-WHA Document 133 Filed 03/11/19 Page 4 of 8 4 DEFS.’ RESPONSE TO TENTATIVE CASE MANAGEMENT SCHEDULE – 3:18-CV- 06582-WHA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION Based on the foregoing, the defendants respectfully request that the Court modify the tentative scheduling order as described above and in Appendix A. Dated: March 11, 2019 DARIN W. SNYDER MICHAEL F. TUBACH DAVID R. EBERHART O’MELVENY & MYERS LLP By: /s/ Michael F. Tubach Michael F. Tubach Attorneys for Defendant JHL BIOTECH, INC. Edward W. Swanson, SBN 159859 ed@smllp.law Britt Evangelist, SBN 260457 britt@smllp.law SWANSON & McNAMARA LLP 300 Montgomery Street, Suite 1100 San Francisco, California 94104 Telephone: (415) 477-3800 Facsimile: (415) 477-9010 By: /s/ Edward W. Swanson Edward W. Swanson Attorneys for Defendant RACHO JORDANOV MILES EHRLICH (SBN 237954) miles@ramsey-ehrlich.com ISMAIL RAMSEY (SBN 189820) izzy@ramsey-ehrlich.com AMY E. CRAIG (SBN 269339) amy@ramsey-ehrlich.com KATHARINE KATES (SBN 155534) katharine@ramsey-ehrlich.com RAMSEY & EHRLICH LLP 803 Hearst Avenue Berkeley, CA 94710 (510) 548-3600 (Tel) (510) 291-3060 (Fax) By: /s/ Miles Ehrlich Miles Ehrlich Attorneys for Defendant ROSE LIN Case 3:18-cv-06582-WHA Document 133 Filed 03/11/19 Page 5 of 8 5 DEFS.’ RESPONSE TO TENTATIVE CASE MANAGEMENT SCHEDULE – 3:18-CV- 06582-WHA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVID H. SCHWARTZ (SBN 62693) NANCY CHUNG (SBN 225584) LAW OFFICES OF DAVID H. SCHWARTZ, INC. 423 Washington Street, Sixth Floor San Francisco, CA 94111 Tel: (415) 399-9301 Fax: (415) 399-9878 E-mail: dhs@lodhs.com; nchung@lodhs.com By: /s/ David H. Schwartz David H. Schwartz Attorneys for Defendants XANTHE LAM, ALLEN LAM BOERSCH SHAPIRO LLP Martha Boersch (State Bar No. 126569) Mboersch@boerschshapiro.com Lara Kollios (State Bar No. 235395) Lkollios@boerschshapiro.com 1611 Telegraph Ave., Ste. 806 Oakland, CA 94612 Telephone: (415) 500-6640 By: /s/ Martha Boersch Martha Boersch Attorneys for Defendant JAMES QUACH ROD DIVELBISS (SBN 102345) JRA LAW PARTNERS, LLP 450 Pacific Avenue, Suite 200 San Francisco, CA 94133 Phone: (415) 962-2882 Fax: (415) 788-6929 Email: rdivelbiss@jralp.com By: /s/ Rod Divelbiss Rod Divelbiss Attorneys for Defendant JOHN CHAN Case 3:18-cv-06582-WHA Document 133 Filed 03/11/19 Page 6 of 8 6 DEFS.’ RESPONSE TO TENTATIVE CASE MANAGEMENT SCHEDULE – 3:18-CV- 06582-WHA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIGNATURE ATTESTATION Pursuant to Civil Local Rule 5-1(i)(3), I attest that all other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s content and have authorized the filing. Dated: March 11, 2019 /s/ Michel F. Tubach Michael F. Tubach Case 3:18-cv-06582-WHA Document 133 Filed 03/11/19 Page 7 of 8 7 DEFS.’ RESPONSE TO TENTATIVE CASE MANAGEMENT SCHEDULE – 3:18-CV- 06582-WHA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX A Defendants propose that the Court enter the following schedule for this action: Event Court’s Tentative Deadline Defendants’ Proposed Deadline Initial Disclosures March 18, 2019 March 18, 2019 Leave to add new parties or to amend pleadings May 16, 2019 May 16, 2019 Non-expert discovery cut-off date July 21, 2020 August 24, 2020 Opening expert reports July 21, 2020 August 24, 2020 Opposition expert reports August 4, 2020 September 14, 2020 Reply expert reports August 11, 2020 September 28, 2020 Cut-off for expert discovery August 25, 2020 October 12, 2020 Last date to file dispositive motions August 13, 2020 October 26, 2020 Final pretrial conference October 28, 2020 January 15, 2021 Date jury trial commences November 9, 2020 January 27, 2021 Case 3:18-cv-06582-WHA Document 133 Filed 03/11/19 Page 8 of 8