APOTEX CORP v. HOSPIRA HEALTHCARE INDIA PRIVATE LIMITED (2023)

The following e-filed documents, listed by NYSCEF document number (Motion 021) 436, 437, 438, 439, 440, 441, 442, 453, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476 were read on this motion to/for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 022) 444, 445, 446, 447, 452, 454, 455, 456 were read on this motion to/for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 023) 448, 449, 450, 451, 457, 458, 459, 460 were read on this motion to/for DISCOVERY.

Upon the foregoing documents, the defendants’ motion to compel (Mot. Seq. No. 021) the plaintiff to produce Alex Glasenberg for a deposition must be granted. Pursuant to CPLR 3101(a), the defendants are entitled to full and complete discovery of all matter material and necessary to their defense from all parties to the case. That standard is to be interpreted liberally and require disclosure of any facts bearing on the controversy that will sharpen the issues in preparation for trial (Kapon v Koch, 23 NY3d 32, 38 [2014]).

This Court previously denied the defendants’ motion to compel Mr. Glasenberg's deposition without prejudice as premature and directed the defendants to renew its request if, after conducting additional discovery, it determined that Mr. Glasenberg's testimony remained critical and necessary (NYSCEF Doc. No. 380). Following further discovery, the defendants have determined that his deposition is critical and necessary because the other witnesses they have deposed have been unable to provide evidence sought about the 1827216 entity and its relationship with Apotex and Qilu. This information is critical to the defendants’ breach of contract counterclaim because it is alleged that the 1827216 entity was set up — by Mr. Glasenberg on Apotex's behalf - as a way for Apotex to work around its contractual obligation to use the defendants as its exclusive supplier of generic sterile injectables. Additionally, further discovery has uncovered that Mr. Glasenberg might have additional information concerning the accuracy of Apotex's financial statements and its failure to supply penalties. The defendants are entitled to Mr. Glasenberg's deposition because he has unique personal knowledge of these issues which are critical to the defendants’ defense and to its breach of contract counterclaim against the plaintiff.

The parties’ motions seeking permission to take two additional depositions (Mot. Seq. Nos. 022 and 023) must be granted. Good cause exists to permit the parties to take the additional depositions (22 NYCRR § 202.70 Rule 11-d[f]). Additionally, the parties previously agreed and stipulated to taking up to 16 depositions per side and the additional two depositions sought by the parties is within that limit (NYSCEF Doc. No. 447).

It is hereby ORDERED that the defendants’ motion to compel the plaintiffs to produce Mr. Glasenberg for a deposition is granted; and it is further

ORDERED that the plaintiffs must make Mr. Glasenberg available for a deposition on or before August 2, 2023; and it is further

ORDERED that the parties motions seeking permission to take two additional depositions is granted.

Andrew Borrok, J.