Berlin, et al v. PE Corp, et alMOTION to Expedite proceedingsD. Conn.October 12, 2004UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT —————————————————–––––––– IN RE: PE CORPORATION SECURITIES LITIGATION : : : : Master File No. 3:00CV-705 (CFD) OCTOBER 12, 2004 —————————————————–––––––– PLAINTIFFS’ MOTION FOR EXPEDITED PROCEEDINGS Plaintiffs David Berlin and Vinh Vuong move for an Order, in the form attached hereto as Exhibit A, directing an expedited briefing schedule on their motion to compel the testimony of Dr. Francis Collins and setting a date for a hearing on their motion. The grounds for this motion are as follows: 1. As alleged in the Complaint,1 on December 29, 1999, defendant Tony White, Chairman of the Board of Directors, President and Chief Executive Officer of defendant PE Corporation, representatives of senior management of Celera Genomics Group and senior members of the public Human Genome Project (the “HGP”), who were led by Dr. Francis Collins,2 held a meeting to discuss a potential collaboration concerning the sequencing the human genome map. Plaintiffs have alleged that the meeting, which turned disastrous for Celera, should have been disclosed in a Registration Statement and Prospectus filed in connection with a follow-on offering of Celera common stock on February 29, 2000, pursuant to Section 11 of the Securities Act of 1933. 2. On July 6, 2004, plaintiffs served Dr. Francis Collins with a Rule 45 subpoena seeking testimony concerning his knowledge of the December 29 meeting and the negotiations 1 “Complaint” means the First Amended Consolidated Class Action complaint dated August 20, 2001. 2 The HGP is a worldwide coordinated effort to sequence the human genome sponsored by governments and non-profit organizations in the United States, England, Japan and France, among other nations. Case 3:00-cv-00705-CFD Document 111 Filed 10/12/2004 Page 1 of 5 2 leading up to the meeting. On July 9, 2004, plaintiffs were informed by Paul J. Robertson, an attorney with the Department of Health and Human Services (the “DHHS”), that because Dr. Collins was a DHHS employee, he could only comply with plaintiffs’ subpoena if he was permitted to do so by the head of that agency. Accordingly, on July 15, 2004, plaintiffs made a request to the Director of the DHHS, pursuant to 45 CFR § 2, to take Dr. Collins’ deposition. As required by the relevant federal regulation, in their request, plaintiffs informed the government of the nature of the testimony they sought from Dr. Collins, why the testimony sought was unavailable through any other means and why it was in the government’s interest to allow Dr. Collins to testify. 3. On August 16, 2004, the DHHS denied plaintiffs’ request to depose Dr. Collins. On August 20, 2004, plaintiffs requested that the DHHS reconsider its denial of plaintiffs’ request to depose Dr. Collins because the testimony sought from Dr. Collins could not be obtained from any other source. The reconsideration request was supported by the deposition testimony of Dr. Robert Waterston, another HGP participant in the negotiations with Celera, whose testimony showed that Dr. Collins was the most knowledgeable person on the HGP side of the talks. 4. On September 29, 2004, plaintiffs received a letter from the DHHS denying plaintiffs’ request for reconsideration. 5. Plaintiffs have made numerous good faith attempts to obtain discoverable evidence from Dr. Collins to no avail. Indeed over the last three months, plaintiffs have (i) properly served Dr. Collins with a subpoena and have complied with the federal regulations for obtaining discovery from a DHHS employee; (ii) amply established why Dr. Collins is the most knowledgeable person on the HGP side of the December 29 meeting, and the negotiations leading up to the meeting; and (iii) shown why his testimony cannot be obtained through any Case 3:00-cv-00705-CFD Document 111 Filed 10/12/2004 Page 2 of 5 3 other means. In addition, in response to the government’s concerns that Dr. Collins should limit the amount of time he spends on non-official business, plaintiffs offered to limit the scope and duration of his deposition. Nevertheless, the government has refused to permit Dr. Collins to provide testimony. 6. The current fact discovery cut-off is October 20, 2004.3 The existing discovery schedule provides for expert discovery beginning on December 6, 2004 and ending by, at the latest, May 6, 2005, and the filing of dispositive motions within 45 days after the close of expert discovery. 7. Plaintiffs request an expedited briefing schedule in order to avoid any disruption to the current discovery schedule. If Dr. Collins’ deposition can be scheduled quickly, there will be no need to alter the existing schedule. 8. Based on the foregoing, plaintiffs’ motion for an expedited briefing schedule should be granted. HURWITZ, SAGARIN & SLOSSBERG, LLC By:_______________________________ David A. Slossberg (CT13116) Brian C. Fournier (CT16272) 147 N. Broad Street, P.O. Box 112 Milford, Connecticut 06460 (203) 877-8000 Liaison Counsel for Lead Plaintiffs 3 In their motion to compel Dr. Collins’ testimony, plaintiffs seek an extension of the discovery schedule for the limited purpose of taking Dr. Collins’ deposition. Case 3:00-cv-00705-CFD Document 111 Filed 10/12/2004 Page 3 of 5 4 MILBERG WEISS BERSHAD & SCHULMAN LLP Sanford P. Dumain (CT08138) Lee A. Weiss (CT21345) Carlos F. Ramirez (CT25340) One Pennsylvania Plaza New York, NY 10119 (212) 594-5300 Plaintiffs’ Lead Counsel Case 3:00-cv-00705-CFD Document 111 Filed 10/12/2004 Page 4 of 5 CERTIFICATION This is to certify that a copy of the foregoing Motion for Expedited Proceedings was served by facsimile and Federal Express on October 12, 2004, to the following: Paul J. Robertson Senior Attorney, NIH Office of the General Counsel Department of Health and Human Services Public Health Division 31 Center Drive, Room 2B-50 Bethesda, Maryland 20892 Counsel for Dr. Francis Collins Michael J. Chepiga, Esq. Robert A. Bourque, Esq. William M. Regan, Esq. Laura D. Murphy, Esq. Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Counsel for Defendants Stanley A. Twardy, Jr., Esq. Thomas D. Goldberg, Esq. Terence J. Gallagher, Esq. Day, Berry & Howard LLP One Canterbury Green Stamford, CT 06901 Counsel for Defendants ____________________________ Brian C. Fournier Case 3:00-cv-00705-CFD Document 111 Filed 10/12/2004 Page 5 of 5
