Judge Robinson denies motion to compel production of call notes of plaintiffs’ sales force.

Judge Sue L. Robinson recently denied a motion to compel the plaintiffs to produce call notes made by their sales force personnel in connection with marketing efforts.  Forest Laboratories, Inc., et al. v. Apotex Corp., et al., Civ. No. 13-1602-SLR (D. Del. Jan. 23, 2015).  Judge Robinson explained that “3.5 million pages of documents already [had been] produced by plaintiffs in this litigation,[] including thousands of documents related to plaintiffs’ marketing and advertising to doctors . . . .”  Id. at 1.  The defendants were seeking to avoid liability for indirect infringement by showing that the accused products had a substantial non-infringing use, which they expected to be uncovered in the sales force’s call notes.  But Judge Robinson found it “unlikely that, after 3.5 million pages of documents, a substantial non-infringing use (as opposed to speculation about a possible use) would be unearthed through the informal, personal reflections of individual sales personnel.”  Id. at 2 (emphasis in original).

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