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A Balm in Gilead – Proportionality Series, Part 2

Wednesday, November 22, 2017   (0 Comments)
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A Balm in Gilead – Proportionality Series, Part 2

A multi-part series reviewing decisions on proportionality in eDiscovery since the December 2015 amendments to the Federal Rules of Civil Procedure

by Matthew Verga, JD, Xact Data Discovery


In the first Part of this series, we reviewed the amendments made to Federal Rule of Civil Procedure 26(b)(1) in December 2015.  In this Part, we continue our discussion of proportionality in eDiscovery with a review of one of the first decisions applying the amended rule.


Gilead Sciences, Inc. v. Merck & Co., Inc.


In January 2016, just a few weeks after the amendments became effective, a court in California had the opportunity to apply the amended rule in Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF (N.D. Cal. Jan. 13, 2016).  This was a patent infringement case in which Merck alleged that Gilead was infringing “two of its patents to a certain kind of nucleoside analog.”  Gilead claimed that “it was the one to conceive and reduce to practice the inventions.” 


During the case’s extensive discovery process, Merck became interested in some tubes of compounds visible in a picture produced by an expert witness of Gilead’s.  During subsequent discovery about the pictured compounds, Gilead produced deposition testimony from the expert, laboratory notebooks from the chemist, and a letter from the expert’s source all showing that the pictured compounds were not the infringing compound being sought. 


Merck was not satisfied, however, and pressed on seeking “further production of further information about the tubes and their contents, including the tubes themselves.”

Read the full article here

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