Theravectys SA v. Immune Design Corp.

                             COURT OF CHANCERY
                                   OF THE
                             STATE OF DELAWARE

                                                              417 SOUTH STATE STREET
 JOHN W. NOBLE                                               DOVER, DELAWARE 19901
VICE CHANCELLOR                                              TELEPHONE: (302) 739-4397
                                                             FACSIMILE: (302) 739-6179

                                 December 23, 2014



Jason C. Jowers, Esquire                      Todd Charles Schiltz, Esquire
Morris James LLP                              Drinker Biddle & Reath LLP
500 Delaware Avenue, Suite 1500               222 Delaware Avenue, Suite 1410
Wilmington, DE 19801                          Wilmington, DE 19801

      Re:    Theravectys SA v. Immune Design Corp.
             C.A. No. 9950-VCN
             Date Submitted: September 24, 2014

Dear Counsel:

      This letter opinion addresses Defendant Immune Design Corporation’s

(“IDC”) Motion to Compel (“Motion”) Plaintiff Theravectys SA (“TVS”) to

provide substantive and clear responses to certain discovery requests.1            The

underlying litigation involves TVS’s allegations of tortious interference,

misappropriation of trade secrets, and unfair competition against IDC. Both parties

are biotechnology companies that engaged Henogen SA (“Henogen”), a contract

manufacturing organization, to produce lentiviral vectors for use in clinical trials of

1
 TVS’s cross motion to compel IDC to identify its new lentiviral vector
manufacturer is moot because the identity of the manufacturer is now known.
Theravectys SA v. Immune Design Corp.
C.A. No. 9950-VCN
December 23, 2014
Page 2


vaccines in humans. Henogen’s vector production for IDC violated the exclusivity

clause of its prior contract with TVS. While Henogen no longer produces vectors

for IDC, IDC has contracted with a replacement manufacturer. TVS believes that

IDC continues to benefit from its wrongful access to its technology.

                                       ***

      Court of Chancery Rule 26(b)(1) allows “[p]arties [to] obtain discovery

regarding any matter, not privileged, which is relevant to the subject matter

involved in the pending action, whether it relates to the claim or defense of the

party seeking discovery or the claim or defense of any other party.”2          “The

standard for relevance under Court of Chancery Rule 26 is flexible and permits

broad discovery.”3 A party may seek discovery of information inadmissible at trial

if “reasonably calculated to lead to the discovery of admissible evidence.”4

      IDC seeks an order compelling TVS to supplement its responses to several

interrogatories and requests for production.



2
  Ct. Ch. R. 26(b)(1).
3
  In re John Q. Hammons Hotels Inc. S’holder Litig., 

, at *1 (Del.
Ch. Mar. 25, 2009).
4
  Ct. Ch. R. 26(b)(1).
Theravectys SA v. Immune Design Corp.
C.A. No. 9950-VCN
December 23, 2014
Page 3


A. Interrogatories

      IDC asked TVS to identify which trade secrets it believes were

misappropriated and to describe how such misappropriation allegedly occurred.

Since IDC filed the Motion, TVS supplemented its responses to sufficiently

describe its allegedly misappropriated trade secrets and the manner of

misappropriation to the best of its knowledge. There is no need to compel further

response regarding these issues.

      Next, IDC asked TVS to identify all of the business and investment

opportunities it allegedly lost as a result of IDC’s conduct. TVS maintains that it

has responded to IDC’s request to the best of its ability given the extent of its

current knowledge. The Court will not enter an order compelling interrogatory

responses outside the scope of a party’s knowledge.5         Therefore, no order

compelling further response is warranted.

      IDC also demanded that TVS elaborate on how IDC’s relationship with

Henogen allegedly allowed IDC to expedite its vaccine production and movement

through clinical trials. Again, however, TVS asserts that it has provided the most

5
 Cf. RG Barriers, Inc. v. Jelin, 

, at *1 (Del. Ch. July 1, 1996) (“I
will not enter an order requiring production of documents which do not exist.”).
Theravectys SA v. Immune Design Corp.
C.A. No. 9950-VCN
December 23, 2014
Page 4


complete responses it can based upon its current knowledge. No order requiring

further response is necessary.6

B. Requests for Production

      IDC requested that TVS produce (i) documents relating to the manufacture

and development of its lentiviral vector products and (ii) all documents regarding

Henogen. TVS argues that the responsive documents it has produced are sufficient

to show all aspects of its relevant manufacturing processes and relationship with

Henogen. However, IDC’s requests relate to issues that are central to TVS’s

claims. IDC has the right to examine these relevant documents to determine for

itself whether they provide utility. To the extent that it has not already done so,

TVS shall supplement its responses to IDC’s production requests numbered 2, 7, 8,

and 11.

      IDC also requested documents regarding TVS’s actual and potential

investors and business partners. While TVS produced responsive documents, it

limited its production of communications with potential investors to nonprivileged


6
  TVS’s assertions that it has responded to IDC’s interrogatories to the best of its
knowledge have a somewhat preclusive effect if TVS subsequently finds it is
strategically convenient to supplement.
Theravectys SA v. Immune Design Corp.
C.A. No. 9950-VCN
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communications on or after July 1, 2013. TVS set this cutoff date due to its belief

that third parties were unaware of IDC’s business relationship with Henogen until

summer 2013. Because IDC requested these documents to test the allegation that

its relationship with Henogen negatively affected TVS’s business, TVS asserts that

communications made before others were aware that IDC had contracted with

Henogen are irrelevant.

       However, IDC maintains that communications predating July 1, 2013, may

be relevant to its defense. For example, those documents might reveal reasons,

completely unconnected to IDC, why third parties did not invest in TVS. Given

the relevance that those documents may have to important and contested issues,

TVS shall supplement its responses to IDC’s document requests numbered 19 and

20.7


7
   TVS has redacted certain documents in order to abide by contractual
confidentiality agreements with third-party investors and partners. Confidentiality
agreements deserve a degree of respect and should not be avoided absent a
showing of necessity. However, TVS put its relationships with third parties at
issue in this case. TVS cannot hide behind its confidentiality agreements to shield
any relevant information. Nonetheless, TVS has represented that the only
information it has redacted relates to “communications that would reveal the
potential strategic partner’s confidential information in violation of a
confidentiality agreement.” TVS may continue to protect this information to the
Theravectys SA v. Immune Design Corp.
C.A. No. 9950-VCN
December 23, 2014
Page 6


      IDC’s Motion to Compel is thus denied in part and granted in part, in

accordance with the parameters described in this letter opinion.8

      IT IS SO ORDERED.

                                             Very truly yours,

                                             /s/ John W. Noble

JWN/cap
cc: Register in Chancery-K




extent that this is indeed the limit of its redactions, as the relevance that such
information may have for IDC’s defense is not apparent. Further, to the extent that
TVS continues to redact this information based on its confidentiality and
irrelevance, a preclusive effect analogous to that identified in note 6 may be
warranted.
8
  IDC also requested production relating to any actual or potential manufacturer of
lentiviral vectors for TVS other than Henogen. TVS since clarified that it has no
objection to this request.