FLH Successfully Overcomes Opponent's Assertion Of Privilege And Compels Production Of Testing Documents

Magistrate Judge Schneider of the District of New Jersey granted plaintiff Supernus's motion to compel thirty-three documents that defendant TWi claimed were inadvertently produced privileged documents. The documents at issue concern defendant's testing of the solubility of the active ingredient oxcarbazepine in the presence of certain excipients. The Court noted that "[a]ccording to plaintiff, the test results are important because they show that ingredient(s) in defendant's accused tablets enhance the solubility of oxcarbazepine, thereby proving infringement of that claim limitation." Defendant argued that the tests were conducted "in an attempt to replicate the testing done in the patents-in-suit," "have no application" to defendant's "technical ANDA submission to the FDA," and "relate to tests that were conducted by TWi at the direction of counsel for the purpose of obtaining legal advice and in anticipation of litigation." The Court rejected those arguments in a