Last week in Eagle Pharmaceuticals, Inc. v. Apotex Inc., C.A. No. 24-64-JLH (D. Del.), the Court partially granted a motion to compel production of sales documents in a patent case.
The plaintiff moved to compel production of communications between the defendant's "sales force":
The Court should order Apotex to produce communications among its sales force regarding the sale, marketing, pricing, and promotion of Apotex’s NDA product. Eagle’s RFP No. 57 seeks: “All communications between Your sales force, sales personnel, or marketing personnel that refer or relate to the sale, marketing, pricing, and/or promotion of Your NDA [New Drug Application] Product, including but not limited to by way of any group chat, texts, text chains, or chat function.”
D.I. 154.
The defendant responded that it "does not employ a 'sales force'" for the relevant products:
Apotex, as a generic pharmaceutical company, does not employ a “sales force” for its bendamustine products.
D.I. 220.
Already, this seems a bit odd. That sentence suggests that the defendant does not employ a sales force because it is a "generic pharmaceutical company," but then qualifies it that it doesn't employ such a force for this specific product.
It's hard to tell exactly how plaintiff responded, because the information is redacted, but it appears that it cited various e-mails suggesting communications with a sales force. It also suggested that the defendant may use a "third party" sales force:
Apotex’s argument that its ESI search was sufficient is based on the incorrect premise that it “does not employ a ‘sales force’ for its bendamustine products.” . . . Apotex’s own documents confirm that it has a sales team and communicates with them. [Partial redactions] Further, regardless of whether Apotex uses a third party “sales force” company for its sales, Eagle is nonetheless entitled to discovery of communications between the internal sales teams . . . and any third-party salesforce.
D.I. 166.
From the letter briefs, it looks like the defendant may use a third party sales force, and may have been putting an awful lot of weight on the word "employ." Defendant may have been using it strictly to mean "employees," and ignoring that it has other meanings, like "we employ a third-party sales team to handle our sales communications."
The Court seemed to agree that something was up. It called out the defendant's "word games" in partially granting the motion to compel:
(a) Apotex told Plaintiff that it does not “employ a sales force” for its bendamustine products; (b) Plaintiff then pointed the Court to Apotex documents, wherein Apotex was discussing its “[s]ales [t]eam” for these very products; and (c) yet in its briefing, Apotex obscured, by simply re-stating to the Court that it “does not employ a sales force” for the products—without addressing the documents Plaintiff pointed to, or explaining why those documents don’t show that, one way or another, Apotex works with some number of people who sell the drug on its behalf (i.e., its “sales team”). . . . ; and (4) With there being no question that the sought-after sales-related ESI is relevant, with it appearing that little such material has been produced, and with Apotex seeming like it is playing word games regarding its sales-related efforts, the Court agrees that some further discovery should be permitted.
D.I. 220. The Court also noted, seemingly sua sponte, that the defendant had identified only 7 ESI custodians, which is fewer than the 10 custodians required by the Court's Default Standard:
[I]t appears this dispute boils down to whether the seven ESI custodians that Apotex has currently identified are sufficient, pursuant to the Default Standard, to ensure that Apotex has responsibly and proportionately searched for and produced relevant ESI regarding the sales/marketing/pricing/promotion-related (“sales-related”) matters referenced above. . . . The Court agrees that Plaintiff has sufficiently demonstrated that Apotex should be required to identify at least one additional custodian (and perhaps more) who would likely have relevant sales-related ESI documents in his/her possession. In part that is because Apotex has currently identified fewer custodians than the presumptive 10 that are referenced in the Default Standard. See Default Standard at ¶ 3(a).
Id. Ultimately, the Court ordered the plaintiff to identify one or more additional custodians regarding these sales documents, and ordered the parties to file a letter within a week to brief whether searching the additional custodian(s) would be unduly burdensome.
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