2/14/2008 Hearing Transcript

 82emedtctp

1 UNITED STATES DISTRICT COURT

1 SOUTHERN DISTRICT OF NEW YORK

2 --------------------------------------x

 2 MEDTECH PRODUCTS, INC.,

3

 3 Plaintiff,

4

 4 v. 07 Civ. 3302(KMK)(LMS)

5

 5

6 RANIR, LLC and CVS PHARMACY, INC.,

 6

7 Defendants.

 7 --------------------------------------x

8 MEDTECH PRODUCTS, INC.,

 8 Plaintiff,

9 v.

10 DENTEK ORAL CARE, INC.,

11 Defendant.

11 --------------------------------------x

12 MEDTECH PRODUCTS, INC.,

12 Plaintiff,

13 v.

14 POWER PRODUCTS, INC., d/b/a SPLINTEK,

15 Defendant.

15 --------------------------------------x

16

17

18 United States Courthouse

18 White Plains, N.Y.

19 February 14, 2008

19

20

21

22 Before:

22 THE HONORABLE LISA MARGARET SMITH,

23

23 Magistrate Judge

24

25 *Proceedings recorded via electronic recording device.

1

2/14/2008 Hearing Transcript

 82emedtctp

1 APPEARANCES

1

2

 2 ALSTON & BIRD, LLP

3 Attorneys for Medtech Products, Inc.

 3 KARL GEERCKEN

4

5

 5 BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.

6 Attorneys for Medtech Products, Inc.

 6 CLINTON P. SANKO

7 THOMAS O. HELTON

8

9 PROSKAUER ROSE

 9 Attorneys for DenTek Oral Care, Inc.

10 THEODORE KEVIN CHENG

10 ALAN FEDERBUSH

11

12

12 GREENBERG & FREEMAN

13 Attorneys for Defendants CVS Pharmacy, Inc./Raymond Duane

13 MICHAEL FREEMAN

14

15

16

17

18

19

20

21

22

23

24

25

2

2/14/2008 Hearing Transcript

1 THE DEPUTY CLERK: Your Honor, this is in the matter

2 of MedTech v. Ranir, et al. Messrs. Sanko, Helton, Geercken

3 for the plaintiff; Messers. Federbush, Cheng and Freeman for

4 the defense.

5 THE COURT: We've received a call from Mr. Fulco's

6 office that he's going to be delayed by at least another 25

7 minutes, and, particularly with the number of folks that are

8 already here, I'm not inclined to delay.

9 I would ask if somebody on the defense side would

10 agree to communicate with him to tell him what has occurred.

11 MR. CHENG: We will do that, your Honor.

12 THE COURT: Thank you, Mr. Cheng.

13 All right. I have received from Medtech's counsel a

14 communication dated January 4th; from the other counsel for

15 Medtech, a communication -- I think it's the other counsel --

16 dated January 17th; from counsel for DenTek a communication

17 dated January 22nd; from counsel for Kelly Kaplan, another

18 communication dated January 22nd; from counsel for Raymond

19 Duane and CVS Associates, a communication dated January 29th;

20 from counsel for DenTek, a communication dated February 2nd;

21 from counsel for plaintiff, a communication dated February 8th;

22 and, by fax, a communication from DenTek dated February 12th.

23 I hesitate to say this, but is there anything that

24 I've missed in those submissions? Anything that anybody's

25 aware of that I haven't gotten?

3

2/14/2008 Hearing Transcript

1 UNIDENTIFIED SPEAKER: I don't think so, your Honor.

2 UNIDENTIFIED SPEAKER: Nothing, your Honor.

3 UNIDENTIFIED SPEAKER: No, your Honor.

4 THE COURT: I reviewed these as they came in, and I

5 reviewed them again today.

6 I think I want to turn first to Mr. Freeman.

7 With regard to your clients, I know that you are

8 belatedly in the case, and I hope you're no longer playing

9 catch-up and that you've mostly caught up. Is it your wish to

10 submit a motion on your clients' behalf similar to what's

11 already been submitted?

12 MR. FREEMAN: Yes, your Honor, I would like to do

13 that. And I am in the process of preparing it right now. And

14 I believe that it will be incorporated by reference in any

15 arguments by the defendants so as to limit the burden on the

16 Court. And I would ask that I be given 'till the end of the

17 month, the 29th, if that's acceptable, to submit my papers.

18 THE COURT: All right. All right. So that's February

19 29th, Leap Year day. You don't get any anniversaries of that

20 for another four years, in case it's a day you want to

21 remember, going forward. To file your motion. And I'm going

22 to deal with the question of the response shortly.

23 All right. I'm faced with significant and disparate

24 submissions, and, quite frankly, I'm prepared to rule. And I

25 really hesitate to say this, but I guess I should give the

4

Case 7:07-cv-03302-KMK-LMS Document 163-4 Filed 07/07/2008 Page 1 of 2
2/14/2008 Hearing Transcript

1 I think earlier you mentioned that the motions to

2 dismiss would go forward. Are you also including in that

3 decision on May 16th, if necessary, a ruling on the protective

4 order motion that was filed?

5 THE COURT: If necessary, yes.

6 MR. CHENG: Thank you, your Honor.

7 MR. HELTON: Mr. Cheng did remind me of a matter, your

8 Honor, and that is we had asked -- we had filed with the Court

9 and asked that the Court decide our motion to strike certain

10 exhibits from the motion to dismiss, and I assume that the

11 Court will decide that along with the motion to dismiss.

12 THE COURT: Yes.

13 MR. HELTON: Thank you, your Honor.

14 THE COURT: So let me go back to Mr. Sanko.

15 So, setting aside the issue of any contention

16 interrogatories directed to the trade secret claims, are there

17 outstanding interrogatories that have been served by anyone on

18 the intellectual property claims?

19 MR. SANKO: My understanding is that there are none,

20 your Honor.

21 THE COURT: Okay. So what we need to do is get the

22 documents exchanged and then set a date for service of

23 interrogatories relating to the intellectual property claims so

24 that we can move forward.

25 MR. HELTON: Set a date that will be set after the

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2/14/2008 Hearing Transcript

1 documents are produced, your Honor?

2 THE COURT: Well, I would like to do it now so that we

3 could continue to move forward as the Court is considering the

4 motion. I know that there's going to be a lot of documents and

5 it's going to take a lot of time to digest those, but I would

6 hope that --

7 MR. HELTON: I would ask that the Court do that. I

8 wasn't suggesting that it not be set; I was just asking for

9 information.

10 THE COURT: I'm looking to April 25th to exchange

11 interrogatories directed to the intellectual property claims.

12 That gives you just under four weeks of having the documents in

13 hand.

14 MR. SANKO: Your Honor, this is Clinton Sanko.

15 Both parties are already past the contention

16 interrogatory date and already served them and answered them,

17 so I would take it that any additional interrogatories would

18 just be supplemental interrogatories.

19 THE COURT: Yes, that's fine.

20 MR. SANKO: Okay.

21 THE COURT: And then we will see you before the

22 answers would be due, but the 30 days would be May 27th. That

23 happens to be the Tuesday after Memorial Day weekend, and

24 that's really cruel, so how about May 30th for response. I

25 have children, so I'm concerned about making sure that people's

18

2/14/2008 Hearing Transcript

1 family lives be alright.

2 MR. HELTON: It's greatly appreciated, your Honor.

3 THE COURT: Responses due May 30.

4 Okay. Is there anything else that I need to address

5 at this point?

6 MR. HELTON: Would you give us some direction on one

7 other issue, your Honor. There's something that has happened

8 here, and I just want to know how to deal with it.

9 We have -- or Alston & Bird has written ten letters to

10 you, Proskauer Rose has written six, and Salon, Marrow, Dyckman

11 has written four times, and only two letters have been copied

12 to Judge Karas, and those were both by Proskauer. And there

13 doesn't seem to be any real pattern to it. They did submit to

14 Judge Karas their motion to dismiss, and then one of their

15 recent -- maybe it was the 22 letter, the January 22 letter,

16 went to Judge Karas.

17 I don't -- I haven't been able to find anything in the

18 local rules that says what is and is not permissible, but I

19 don't really want to send Judge Karas a letter, but I have this

20 horrible and uneasy feeling to think that he's getting a

21 document from my opponent, especially when he has before him

22 the claim construction issue now, and, you know, I can't help

23 but feel that, gosh, he might read that, and it might have a

24 negative impact on my case.

25 So I don't really care whether we send letters to

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2/14/2008 Hearing Transcript

1 Judge Karas or not. Whatever's proper. But I just think it

2 ought to be the same for everybody.

3 MR. CHENG: Theo Cheng for defendant DenTek.

4 Just in my own defense, I will say that there is some

5 consistency when I copy Judge Karas and when I do not. It's

6 merely out of courtesy and only when the letters have been

7 requested by the Court under an order. For example, I did not

8 copy him on the February 12th letter because that was just a

9 responsive letter to Medtech's letter. That's always been my

10 practice. He is the District Judge assigned to this case, and

11 when something's transpired in the proceedings that has an

12 order by the Court, that's when I copy him. But I'm happy to

13 copy him. I'm happy not to copy him. It really doesn't matter

14 to me. I was just being courteous.

15 THE COURT: I will tell you that, generally, when I

16 get copies of things and I don't know why they're being copied

17 to me, I don't even read them. I don't know what Judge Karas

18 does. But I know that he gets more of these things than I do,

19 and if he tried to read everything, he would never go home.

20 I think, for these purposes, until there's a matter

21 that is directly before him, it's the better course not to copy

22 him on matters that are before me. And then if there is a need

23 to go to him to appeal a ruling or otherwise, we can provide

24 him with a full set of either my copies or something from

25 counsel. I think it's probably better not to paper him to

20

Case 7:07-cv-03302-KMK-LMS Document 163-4 Filed 07/07/2008 Page 2 of 2