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Medicinova Inc. v. Genzyme Corp.

United States District Court, S.D. California

June 29, 2017

MEDICINOVA INC., a Delaware corporation, Plaintiff,
v.
GENZYME CORPORATION, a Massachusetts corporation, Defendants.

          ORDER RE JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE (PLAINTIFF'S REQUESTS FOR ADMISSIONS AND REQUESTS FOR PRODUCTION OF DOCUMENTS); SECOND AMENDED SCHEDULING ORDER [DOC. NO. 45.]

          Hon. Karen S. Crawford, United States Magistrate Judge

         Before the Court is a Joint Motion for Determination of Discovery Dispute. [Doc. No. 45.] In the Joint Motion, plaintiff requests an order compelling defendant to provide further responses to Request for Admission Nos. 14, 15, 18, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, and 50 and Request for Production of Document Nos. 1 through 20. [Doc. No. 45, at pp. 1- 186.] For the reasons outlined below, the Court finds that plaintiff's request for an order compelling defendant to provide further discovery responses must be DENIED as untimely and for failure to make the required showing. However, the Court will briefly re-open discovery to allow plaintiff to serve up to five (5) narrowly tailored document requests.

         Background

         Plaintiff's First Amended Complaint includes causes of action against defendant for breach of contract and breach of the covenant of good faith and fair dealing. [Doc. No. 13, at p. 1.] Both of these causes of action are based on defendant's alleged breach of a written Assignment Agreement dated December 19, 2005 between defendant and Avigen, Inc. [Doc. No. 13, at pp. 1-6.] "On or about December 18, 2009, Avigen, Inc. merged with [plaintiff]. As a result, [plaintiff] assumed all rights under the Assignment Agreement" [Doc. No. 13, at p. 3.]

         Under the Assignment Agreement, plaintiff acquired "certain gene therapy intellectual property and gene therapy research and developmental programs." [Doc. No. 13, at p. 2.] In return, plaintiff is entitled to "certain milestone payments" based on the development of products that use the acquired intellectual property and technology. [Doc. No. 13, at p. 3.] "[A] milestone payment is due under the Assignment Agreement when the first patient is dosed or treated in a Phase I clinical study with a product that is covered by a claim of one of the Gene Therapy Patents issued in certain major markets, including the United States...." [Doc. No. 13, at p. 3.] Specifically at issue in the First Amended Complaint are: (1) an AAV vector technology, which provides "a mechanism for transferring genes into a targeted set of cells within a patient in order to potentially treat a variety of diseases" [Doc. No. 13, at p. 3]; and (2) the '237 Patent and other related patents. [Doc. No. 13, at pp. 3-4.] According to the First Amended Complaint, certain claims in the '237 patent cover the AAV vector technology. [Doc. No. 13, at pA]

         The First Amended Complaint alleges that defendant advised plaintiff in March 2014 that it "was currently conducting a Phase 1 clinical trial of a gene therapy product.. . named AAV-sFLT" and that all patients in the clinical trial "had already been dosed with AAV-sFLT." [Doc. No, 13, at p. 3.] However, defendant did not provide plaintiff "with any of the technical details of its AAV-sFLT technology" and failed to make the $1, 000, 000 milestone payment under the Assignment Agreement. [Doc. No. 13, at p. 4.]

         The First Amended Complaint also states as follows: "To date, [defendant] has never provided [plaintiff] with any of the underlying records or documentation concerning AAV-SFLT or its clinical trial, and [plaintiff] does not independently have access to such records and documentation. Until [plaintiff] obtains access to these records and documentation, [plaintiff] cannot fully assess whether any additional Gene Therapy Patents in the Assignment Agreement were breached by [defendant] during the AAV-sFLT clinical trial." [Doc. No. 13, at p. 4.]

         Discussion

         A. Timeliness.

         Defendant argues that plaintiff's request for an order compelling defendant to provide further responses to requests for admissions and requests production of documents should be denied, because the Joint Motion was not filed in a timely manner. [Doc. No. 45, at pp. 18-20.] As with the original Scheduling Order [Doc. No. 35], the Amended Scheduling Order in this case states as follows:

1. ... All discovery motions must be filed within 45 days of the service of an objection, answer, or response which become the subject of dispute, or the passage of a discovery due date without response or production, and only after counsel have met and conferred and have reached an impasse with regard to the particular issue.... In any case, the event giving rise to a discovery dispute is not the date on which counsel reach an impasse in meet and confer efforts. If the discovery dispute concerns written discovery requests, the parties shall submit a joint statement entitled, "Joint Motion for Determination of Discovery Dispute" with the Court. (For further information on resolving discovery disputes, see Judge Crawford's 'Chambers' Rules' which are accessible via the Court's website at www.casd.uscourts.gov.) A failure to comply in this regard will result in a waiver of a party's discovery issue. Absent an order of the Court, no stipulation continuing or altering this requirement will be recognized by the Court.
* * * *
15. The dates and times set forth herein will not be modified except for good cause showing.

[Doc. No. 43, at p. 2.]

         Federal Rule of Civil Procedure 16(b)(4) also states as follows: "A schedule may be modified only for good cause and with the ...


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