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Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc.

United States District Court, D. Massachusetts

August 3, 2016

FERRING PHARMACEUTICALS INC., Plaintiff,
v.
BRAINTREE LABORATORIES, INC., Defendant.

          Ferring Pharmaceuticals Inc., Plaintiff, represented by Alissa A. Digman, Olson & Cepuritis, Ltd., pro hac vice, Arne M. Olson, Olson & Cepuritis, Ltd., Brian R. Michalek, Olson & Cepuritis, Ltd., pro hac vice, Matthew DePreter, Olson & Cerpuritis, Ltd., pro hac vice, Christine Vargas Colmey, Nixon & Peabody, LLP & Joseph J. Leghorn, Nixon Peabody, LLP.

          Braintree Laboratories, Inc., Defendant, represented by Barry S. Pollack, Pollock Solomon Duffy LLP, Joshua L. Solomon, Pollock Solomon Duffy LLP, Eric M. Sommers, Pollack, Solomon and Duffy, LLP & Phillip Rakhunov, Pollack Solomon Duffy LLP.

          Braintree Laboratories, Inc., Counter Claimant, represented by Barry S. Pollack, Pollock Solomon Duffy LLP, Joshua L. Solomon, Pollock Solomon Duffy LLP, Eric M. Sommers, Pollack, Solomon and Duffy, LLP & Phillip Rakhunov, Pollack Solomon Duffy LLP.

          Ferring Pharmaceuticals Inc., Counter Defendant, represented by Alissa A. Digman, Olson & Cepuritis, Ltd., pro hac vice, Arne M. Olson, Olson & Cepuritis, Ltd., Matthew DePreter, Olson & Cerpuritis, Ltd., pro hac vice, Christine Vargas Colmey, Nixon & Peabody, LLP & Joseph J. Leghorn, Nixon Peabody, LLP.

          Braintree Laboratories, Inc., Counter Claimant, represented by Barry S. Pollack, Pollock Solomon Duffy LLP, Joshua L. Solomon, Pollock Solomon Duffy LLP, Eric M. Sommers, Pollack, Solomon and Duffy, LLP & Phillip Rakhunov, Pollack Solomon Duffy LLP.

          Ferring Pharmaceuticals Inc., Counter Defendant, represented by Alissa A. Digman, Olson & Cepuritis, Ltd., pro hac vice, Arne M. Olson, Olson & Cepuritis, Ltd., Matthew DePreter, Olson & Cerpuritis, Ltd., pro hac vice, Christine Vargas Colmey, Nixon & Peabody, LLP & Joseph J. Leghorn, Nixon Peabody, LLP.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON, District Judge.

         This case arises out of a dispute between pharmaceutical companies that promote and offer for sale competing bowel preparation drugs which are administered prior to colonoscopies. Plaintiff Ferring Pharmaceuticals Inc. ("Ferring") promotes and offers for sale a treatment under the name Prepopik. Defendant Braintree Laboratories, Inc. ("Braintree") promotes and offers for sale a treatment under the name Suprep.

         Pending before the Court is Ferring's appeal of, and objections to, certain rulings of Magistrate Judge Marianne B. Bowler at a motion hearing before her. For the reasons that follow, this Court will overrule the objections, deny the appeal and affirm the magistrate judge's rulings.

         I. Background

         The early background and procedural history of this case are set forth in this Court's prior Memorandum & Order addressing Ferring's motion to dismiss Braintree's amended counterclaim and Braintree's first motion for summary judgment (Docket No. 95).

         In August, 2015, this Court entered an order requiring the completion of all discovery and depositions by February 29, 2016. In its order, the Court notified the parties that it would not further extend the discovery deadlines because the case "ha[d] been unduly delayed and [wa]s bogged down in mid-discovery nearly 2 years after it was filed".

         On April 25, 2016, Magistrate Judge Bowler convened a motion hearing during which she allowed, in part, and denied, in part, Braintree's motion seeking, inter alia, to enforce a subpoena issued against third-party Concentric Partners, LLC ("Concentric"). Concentric is the advertising agency retained by Ferring to develop advertisements for Prepopik.

         At the hearing, Magistrate Judge Bowler heard oral argument from both parties on the extent to which Ferring's attorney-client privilege protected the e-mail communications sent or received by Concentric representatives. She allowed the motion "to the limited extent that [Ferring] has failed to meet its burden [in showing] that a privilege exists and applies", directed the prompt production of all responsive documents and specified that Concentric ...


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