IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
`
`Plaintiff,
`
`
`
`v.
`
`
`BRISTOL-MYERS SQUIBB CO.,
`
`
`
`
`
`DAVID BERMAN
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`C.A. No. 11076-VCL
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`STIPULATION AND [PROPOSED] ORDER GOVERNING
`CASE SCHEDULE
`
`WHEREAS, on May 28, 2015, Plaintiff Bristol-Myers Squibb Co. (“BMS”)
`
`filed its Verified Complaint, Motion for Expedited Proceedings and Motion for
`
`Temporary Restraining Order against Defendant David Berman;
`
`WHEREAS, on June 2, 2015, the Court issued an Order granting BMS’
`
`Motion for a Temporary Restraining Order;
`
`WHEREAS, on June 2, 2015, the Court issued an Order granting BMS’
`
`Motion for Expedited Proceedings and scheduled a preliminary injunction hearing
`
`for July 7, 2015;
`
`WHEREAS, the Court’s June 2, 2015 Order granting BMS’ Motion for
`
`Expedited Proceedings further ordered counsel for the parties to submit a schedule
`
`governing discovery and briefing with respect to the preliminary junction hearing;
`
`RLF1 12093829v.2
`
`EFiled: Jun 05 2015 07:11PM EDT
`Transaction ID 57346093
`Case No. 11076-VCL
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`BRISTOL-MYERS SQUIBB CO.,
`
`
`
`
`
`DAVID BERMAN
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`C.A. No. 11076-VCL
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`STIPULATION AND [PROPOSED] ORDER GOVERNING
`CASE SCHEDULE
`
`WHEREAS, on May 28, 2015, Plaintiff Bristol-Myers Squibb Co. (“BMS”)
`
`filed its Verified Complaint, Motion for Expedited Proceedings and Motion for
`
`Temporary Restraining Order against Defendant David Berman;
`
`WHEREAS, on June 2, 2015, the Court issued an Order granting BMS’
`
`Motion for a Temporary Restraining Order;
`
`WHEREAS, on June 2, 2015, the Court issued an Order granting BMS’
`
`Motion for Expedited Proceedings and scheduled a preliminary injunction hearing
`
`for July 7, 2015;
`
`WHEREAS, the Court’s June 2, 2015 Order granting BMS’ Motion for
`
`Expedited Proceedings further ordered counsel for the parties to submit a schedule
`
`governing discovery and briefing with respect to the preliminary junction hearing;
`
`RLF1 12093829v.2
`
`EFiled: Jun 05 2015 07:11PM EDT
`Transaction ID 57346093
`Case No. 11076-VCL
`
`
`
`
`
`
`
`
`
`NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by
`
`and between the parties, through their undersigned counsel, subject to the approval
`
`of the Court, as follows:
`
`1.
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`On or before June 5, 2015, Berman shall file his answer to the
`
`Verified Complaint.
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`2.
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`Fact discovery shall proceed as follows:
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`requests
`(a) The parties shall serve all written discovery
`(interrogatories, requests for production of documents and requests for
`admissions) on the opposing party no later than June 5, 2015;
`
`(b) All written discovery requests directed to non-parties (requests
`for production of documents) shall be served no later than June 8,
`2015, at 5:00 p.m.;
`
`(c) The parties shall serve responses to all written discovery
`requests no later than June 12, 2015, at 5:00 p.m.;
`
`(d) Document production shall occur on a rolling basis, with the
`parties to substantially complete exchanging responsive documents no
`later than June 16, 2015; and
`
`(e) Depositions of fact witnesses shall be completed by June 24,
`2015.
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`3.
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`Expert discovery, if any, shall proceed as follows:
`
`
`
`
`
`(a) The parties shall identify any expert witness from whom they
`intend to submit an opening report/affidavit by June 12, 2015, and
`briefly describe such witness’ anticipated area(s) of testimony;
`
`(b) Any opening expert report/affidavit prepared on behalf of either
`party shall be served no later than June 19, 2015, at 5:00 p.m.;
`
`(c) The parties shall identify any expert witness from whom they
`intend to submit a rebuttal report/affidavit by June 19, 2015, and
`briefly describe such witness’ anticipated area(s) of testimony;
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`RLF1 12093829v.2
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`2
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`
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`(d) Any rebuttal expert report/affidavit shall be served no later than
`June 24, 2015, at 5:00 p.m. Any such rebuttal report shall be limited
`to the issues identified and discussed in the opening expert report, if
`any, submitted by the opposing party;
`
`(e) Depositions of expert witnesses shall be completed by June 26,
`2015; and
`
`(f) The parties shall inform one another whether any retained
`expert will testify live at the preliminary injunction hearing by June
`29, 2015.
`
`4. Briefing on BMS’ application for a preliminary injunction shall occur
`
`as follows:
`
`(a) BMS shall file its opening brief and any supporting papers by
`June 26, 2015, at 11:59 p.m.;
`
`(b) Berman shall file his answering brief and any supporting papers
`by July 1, 2015, at 5:00 p.m.; and
`
`(c) BMS shall file its reply brief and any supporting papers by July
`3, 2015, at 11:59 p.m.
`
`
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`5. A hearing on BMS’ application for a preliminary injunction shall
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`commence on July 7, 2015 at 9:15 a.m. It is anticipated that each party will have
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`two hours to present live testimony and one hour for argument. The parties shall
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`simultaneously exchange initial lists of all fact witnesses from whom each intends
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`to submit testimony at the hearing by June 16, 2015, at 5:00 p.m. The parties shall
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`simultaneously exchange final witness lists (indicating whether such testimony will
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`be presented by live testimony, affidavit or deposition) by June 29, 2015, at 5:00
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`RLF1 12093829v.2
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`3
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`
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`p.m. The parties shall simultaneously exchange lists of exhibits they intend to use
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`at the preliminary injunction hearing by July 6, 2015 at 1:00 p.m.
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`6.
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`The parties agree
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`to meet and confer promptly
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`regarding
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`arrangements for any discovery to be taken from non-parties.
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`7.
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`Prior to production, the parties shall use their best efforts to de-
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`duplicate any electronic material collected
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`(including
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`identical material
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`transmitted between or among multiple custodians).
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`8. All documents produced shall be produced in electronic form, in
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`accordance with specifications agreed upon by the parties, to the extent applicable.
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`9.
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`The parties shall not be required to exchange privilege logs in advance
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`of the preliminary injunction hearing.
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`10. Depositions shall be taken on reasonable notice, and the parties shall
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`work together in good faith on the scheduling of depositions.
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`11. With regard to communications with expert witnesses, and draft
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`expert reports and disclosures, the parties will adhere to the practice that is
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`followed under Rules 26(b)(4)(B) and (C) of the Federal Rules of Civil Procedure,
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`such that (i) drafts of any expert report or disclosure required under this Order, or
`
`in response to other discovery served by the parties or ordered by the Court, are
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`considered protected work product, subject to the provisions of Court of Chancery
`
`Rule 26(b)(3), regardless of the form in which the draft is recorded, and (ii)
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`RLF1 12093829v.2
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`4
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`
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`communications between a party’s attorney and any expert witness who may
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`testify at trial (or hearing) are also considered protected work product, subject to
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`the provisions of Court of Chancery Rule 26(b)(3) (regardless of the form of the
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`communication) provided, however, that the exceptions set forth in Federal Rule
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`26(b)(4)(C) shall apply.
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`12. The parties may amend the dates set forth above in paragraphs 2 and
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`3 of this Order by written agreement, without Court approval. All other deadlines
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`may be amended only by order of the Court.
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`
`
`Dated: June 5, 2015
`
`
`
`OF COUNSEL:
`Samuel M. First
`Richard E. Miller
`JACOBS LAW GROUP
`2005 Market Street, Suite 1120
`Philadelphia, PA 19103
`(215) 569-9701
`
`
`
`
`
`PROCTOR HEYMAN ENERIO LLP
`
`
`/s/ Samuel T. Hirzel, II
`Kurt M. Heyman (#3054)
`Samuel T. Hirzel, II (#4415)
`300 Delaware Avenue, Suite 200
`Wilmington, DE 19801
`(302) 472-7300
`
`Attorneys for Defendant
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`RLF1 12093829v.2
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`5
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`RICHARDS, LAYTON & FINGER, P.A
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`
` /s/ Chad M. Shandler
`Gregory P. Williams (#2168)
`Chad M. Shandler (#3796)
`J. Scott Pritchard (#5654)
`Sarah A. Clark (#5872)
`One Rodney Square
`920 North King Street
`Wilmington, Delaware 19801
`(302) 651-7700
`
`Attorneys for Plaintiff
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`
`
`
`OF COUNSEL:
`
`KIRKLAND & ELLIS LLP
`Yosef J. Riemer
`Robert Gretch
`Eric S. Merin
`601 Lexington Avenue
`New York, New York 10022-4611
`(212) 446-4800
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`SO ORDERED THIS _____ day of ________________, 2015.
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`Vice Chancellor Laster
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`RLF1 12093829v.2
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`6
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