The opinion of the court was delivered by: Thomas F. Hogan, United States District Judge.
DISCOVERY ORDER SIGNED BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TO BE PRESENTED ON APPLICATION
TO THE COURTS OF APPEAL IN ITALY
The United States District Court for the District of Columbia presents its compliments to the Italian Courts of Appeal, and requests international judicial assistance to obtain evidence to be used in a civil proceeding before this court in the above-captioned matter. Trial of this matter will occur in Washington, District of Columbia, United States of America.
The Plaintiffs in this matter make claims under the U.S. Antitrust laws. Plaintiffs allege that an agreement between Mylan Laboratories and Profarmaco constituted an unlawful restraint of trade. Specifically, plaintiffs claim that Mylan Laboratories entered into an exclusive licensing agreement with Profarmaco in order to obtain complete control over the Profarmaco-manufactured supply of the active pharmaceutical ingredient of two drugs, lorazepam and clorazepate. Plaintiffs assert that Mylan intended to, and did, completely control Profarmaco's supply of these two active pharmaceutical ingredients, thus allowing Mylan to raise the prices on these two drugs.
Mylan seeks to secure specific documentary evidence in the possession of an Italian company, C.F.M. Co. Farmaceutica Milanese, SpA ("C.F.M. Farmaceutica Milanese"), as well as testimony from an individual employed by that company. As set forth below, documents produced in this litigation to date provide evidence that a competitor of Mylan's located in the United States procured Profarmaco-manufactured active pharmaceutical ingredient for lorazepam during the period that the agreements were in effect. The documents indicate that the competitor obtained this active pharmaceutical ingredient by engaging the services of, inter alia, C.F.M. Farmaceutica Milanese. The evidence sought by Mylan may be necessary for use at trial to prove or disprove certain allegations made by the plaintiffs against Mylan in this litigation.
This Court therefore has issued the following order for the production of documents and the taking of testimony pursuant to the United States Federal Rules of Civil Procedure. It is the Court's understanding that Mylan will present this order on application to the appropriate Court of Appeal in Italy, which will then determine whether to render this Court's order effective in the location where the evidence is to be collected.
WHEREAS, this Court has reviewed Defendant Mylan's Motion for An Order Authorizing the Taking of Evidence In Italy; and
WHEREAS, Plaintiffs assert that Mylan intended to, and did, execute exclusive agreements with Profarmaco in order to completely control Profarmaco's supply of lorazepam and clorazepate active pharmaceutical ingredients in the United States, thus allowing Mylan to raise the prices on these two drugs; and
WHEREAS, document exchange in the United States has led to the discovery of certain documents that indicate that Purepac, a drug manufacturer in the United States, ordered and received some quantity of Profarmaco-manufactured lorazepam active pharmaceutical ingredient during the time that the agreements between Profarmao and Mylan were in place by engaging the services of, inter alia, an Italian company, C.F.M. Faramaceutica Milanese; and
WHEREAS, the Court finds that Mylan seeks testimony and documents from C.F.M. Co. Farmaceutica Milanese, S.p.A. ("C.F.M. Faramaceutica Milanese") that are discoverable under U.S. law;
It is hereby ORDERED, as follows:
1. Upon the Order of an Italian Court of Appeal, C.F.M. Faramaceutica Milanese shall be compelled to produce for inspection and photocopying, within 30 days of the Order by the Italian Court:
(a) All documents, including communications, whether
in handwritten, printed, or electronic form,
relating to transactions or proposed transactions
between C.F.M. Farmaceutica Milanese and
Profarmaco S.r.l., A.S.A.P. Logistics Ltd. (doing
business as Randy International), Masai
Corporation, Faulding, Inc., Farmachem SA
Machineries & Marketing or Purepac
Pharmacuetical Company relating to lorazepam,
clorazepate, or the active pharmaceutical
ingredient for lorazepam or clorazepate between 1
January 1997 and 31 December 1999;
(b) All documents, including communications, whether
in handwritten, printed or electronic form,
relating to shipments or proposed shipments of
lorazepam, clorazepate or the active
pharmaceutical ingredient for lorazepam or
clorazepate that were sent or intended to be sent
to any company in the United States between 1
January 1997 and 31 December 1999.
2. Upon the Order of an Italian Court of Appeal, C.F.M. Faramaceutica Milanese shall be compelled to produce for deposition the following witness:
Mr. Claudio Rebuzzini
Managing Director and Vice President
C.F.M. Farmaceutica Milanese
Via Ludovico Di Breme 33
Milano, MI 20156
The deposition will occur at the time ...