1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE HIV ANTITRUST LITIGATION. Case No. 19-cv-02573-EMC
8 ORDER GRANTING PLAINTIFFS’ 9 MOTION TO FILE CERTAIN DEMONSTRATIVES 10 11 Docket No. 2155
12 13 14 The Court has entered a final judgment with respect to the reverse payment and TAF 15 claims. Now pending before the Court is Plaintiffs’1 motion for permission to file certain 16 demonstratives that were used during the trial on the reverse payment claims so that they will be 17 part of the record on appeal to the Ninth Circuit. The demonstratives at issue (nine total) are ones 18 used during the testimonies of Dr. McGuire (Plaintiffs’ expert) and Dr. Wu (Defendants’ expert). 19 Having considered the parties’ briefs and accompanying submissions, other evidence of record, 20 and the oral argument of counsel and other evidence of record, the Court hereby GRANTS 21 Plaintiffs’ motion. 22 Federal Rule of Appellate Procedure 10 provides that a district court has the authority to 23 address certain issues related to the record on appeal. See, e.g., Fed. R. App. P. 10(e)(1)(-2) 24 (providing that, “[i]f any difference arises about whether the record truly discloses what occurred 25 in the district court, the difference must be submitted to and settled by that court and the record 26 conformed accordingly”; further providing that, “[i]f anything material to either party is omitted 27 1 from or misstated in the record by error or accident, the omission or misstatement may be 2 corrected and a supplemental record may be certified and forwarded: . . . (B) by the district court 3 before or after the record has been forwarded”). 4 With respect to the composition of the record on appeal, Rule 10 states as follows:
5 (a) Composition of the Record on Appeal. The following items constitute the record on appeal: 6 (1) the original papers and exhibits filed in the district 7 court;
8 (2) the transcript of proceedings, if any; and
9 (3) a certified copy of the docket entries prepared by the district clerk. 10 11 Fed. R. App. P. 10(a). 12 Consistent with the above, Ninth Circuit Rule 10-2 provides:
13 Pursuant to FRAP 10(a), the complete record on appeal consists of:
14 (a) the official transcript of oral proceedings before the district court (“transcript”), if there is one; and 15 (b) the district court clerk’s record of original pleadings, exhibits 16 and other papers filed with the district court (“clerk’s record”). 17 18 9th Cir. 10-2. 19 Plaintiffs admit that the demonstratives at issue are not, e.g., exhibits but argue that they 20 should nevertheless be included as part of the record on appeal. Plaintiffs emphasize that they 21 simply want the demonstratives to be available as an aid for appellate review; otherwise, it would 22 be difficult for the Ninth Circuit to understand, for instance, some of the testimony of Dr. 23 McGuire. See, e.g., Reply at 2 (providing example where Dr. McGuire’s testimony was keyed to a 24 demonstrative, i.e., PDX16.32). 25 In response, Defendants argue that Plaintiffs are effectively trying to convert their 26 demonstratives into evidence – particularly because Plaintiffs “failed at trial to introduce evidence 27 (beyond fleeting expert testimony) in support of arguments on dispositive issues.” Opp’n at 3. 1 to introduce the demonstratives as exhibits under Federal Rule of Evidence 1006 which allows for 2 summaries. See Fed. R. Evid. 1006 (“The proponent may use a summary, chart, or calculation to 3 prove the content of voluminous writings, recordings, or photographs that cannot be conveniently 4 examined in court.”). . 5 Defendants’ position is not without any support. See, e.g., Corbett v. Beseler, 635 Fed. 6 Appx. 809, 815 (11th Cir. 2015) (noting that “Corbett's brief includes Attachments 2a and 2b, 7 which appear to be demonstrative exhibits summarizing trial Exhibits 69, 70, and 135” but 8 refusing to consider the attachments as “[i]t is well settled that the record on appeal is limited to 9 ‘(1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if 10 any; and (3) a certified copy of the docket entries prepared by the district clerk’”); Everlight Elecs. 11 Co. v. Nichia Corp., No. 12-cv-11758, 2015 U.S. Dist. LEXIS 192105, *3-4 (E.D. Mich. June 29, 12 2015) (stating that “the Court [is] hesitant to break new ground to allow the wholesale, unsolicited 13 filing of nearly 400 demonstratives[,] [p]articularly in light of the fact that [plaintiff] includes 14 demonstratives used during its opening and closing arguments, which contain pure attorney 15 argument”; adding that “[t]he Federal Rules of Appellate Procedure do not define the appellate 16 record to include demonstratives,” and “[d]emonstratives are not included as part of the appellate 17 record because it is undisputed that they are not evidence”). 18 Nevertheless, the Court finds inclusion of certain demonstratives is appropriate here given 19 the underlying purpose behind Rule 10. The Seventh Circuit has explained that the purpose of 20 Rule 10
21 is to ensure that the record on appeal accurately reflects the proceedings in the trial court (thereby allowing us to review the 22 decision that the trial court made in light of the information that was actually before it), not to enable the losing party to add new material 23 to the record in order to collaterally attack the trial court's judgment. 24 United States v. Elizalde-Adame, 262 F.3d 637, 641 (7th Cir. 2001) (emphasis added). 25 The Third Circuit is in accord, stating that “[t]he basic purpose behind the rule is to prevent 26 parties from supplementing the record on appeal with items never presented to the district court.” 27 Waldorf v. Shuta, 142 F.3d 601, 620 (3d Cir. 1998) (emphasis added; holding that plaintiff’s 1 court and the jury saw them”); see also United States v. Burke, 781 F.2d 1234, 1245-46 (7th Cir. 2 1985) (allowing transcripts of tapes to be part of the record on appeal as the tapes themselves 3 “were admitted and played to the jury”; “[a]ppellate judges are entitled to see all the materials that 4 the district judge considered”). Compare Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 5 1127 n.5 (9th Cir. 2009) (holding that documents attached to proposed sur-reply were not part of 6 record on appeal; proposed sur-reply was never filed with the district court but rather was simply 7 lodged with the court, and plaintiff did “not appeal the rejection of her sur-reply by the district 8 court”). 9 Here, there is no dispute that the demonstratives at issue were presented to the jury, even if 10 the demonstratives were not admitted as exhibits and did not go into the jury room for the jury’s 11 deliberations.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE HIV ANTITRUST LITIGATION. Case No. 19-cv-02573-EMC
8 ORDER GRANTING PLAINTIFFS’ 9 MOTION TO FILE CERTAIN DEMONSTRATIVES 10 11 Docket No. 2155
12 13 14 The Court has entered a final judgment with respect to the reverse payment and TAF 15 claims. Now pending before the Court is Plaintiffs’1 motion for permission to file certain 16 demonstratives that were used during the trial on the reverse payment claims so that they will be 17 part of the record on appeal to the Ninth Circuit. The demonstratives at issue (nine total) are ones 18 used during the testimonies of Dr. McGuire (Plaintiffs’ expert) and Dr. Wu (Defendants’ expert). 19 Having considered the parties’ briefs and accompanying submissions, other evidence of record, 20 and the oral argument of counsel and other evidence of record, the Court hereby GRANTS 21 Plaintiffs’ motion. 22 Federal Rule of Appellate Procedure 10 provides that a district court has the authority to 23 address certain issues related to the record on appeal. See, e.g., Fed. R. App. P. 10(e)(1)(-2) 24 (providing that, “[i]f any difference arises about whether the record truly discloses what occurred 25 in the district court, the difference must be submitted to and settled by that court and the record 26 conformed accordingly”; further providing that, “[i]f anything material to either party is omitted 27 1 from or misstated in the record by error or accident, the omission or misstatement may be 2 corrected and a supplemental record may be certified and forwarded: . . . (B) by the district court 3 before or after the record has been forwarded”). 4 With respect to the composition of the record on appeal, Rule 10 states as follows:
5 (a) Composition of the Record on Appeal. The following items constitute the record on appeal: 6 (1) the original papers and exhibits filed in the district 7 court;
8 (2) the transcript of proceedings, if any; and
9 (3) a certified copy of the docket entries prepared by the district clerk. 10 11 Fed. R. App. P. 10(a). 12 Consistent with the above, Ninth Circuit Rule 10-2 provides:
13 Pursuant to FRAP 10(a), the complete record on appeal consists of:
14 (a) the official transcript of oral proceedings before the district court (“transcript”), if there is one; and 15 (b) the district court clerk’s record of original pleadings, exhibits 16 and other papers filed with the district court (“clerk’s record”). 17 18 9th Cir. 10-2. 19 Plaintiffs admit that the demonstratives at issue are not, e.g., exhibits but argue that they 20 should nevertheless be included as part of the record on appeal. Plaintiffs emphasize that they 21 simply want the demonstratives to be available as an aid for appellate review; otherwise, it would 22 be difficult for the Ninth Circuit to understand, for instance, some of the testimony of Dr. 23 McGuire. See, e.g., Reply at 2 (providing example where Dr. McGuire’s testimony was keyed to a 24 demonstrative, i.e., PDX16.32). 25 In response, Defendants argue that Plaintiffs are effectively trying to convert their 26 demonstratives into evidence – particularly because Plaintiffs “failed at trial to introduce evidence 27 (beyond fleeting expert testimony) in support of arguments on dispositive issues.” Opp’n at 3. 1 to introduce the demonstratives as exhibits under Federal Rule of Evidence 1006 which allows for 2 summaries. See Fed. R. Evid. 1006 (“The proponent may use a summary, chart, or calculation to 3 prove the content of voluminous writings, recordings, or photographs that cannot be conveniently 4 examined in court.”). . 5 Defendants’ position is not without any support. See, e.g., Corbett v. Beseler, 635 Fed. 6 Appx. 809, 815 (11th Cir. 2015) (noting that “Corbett's brief includes Attachments 2a and 2b, 7 which appear to be demonstrative exhibits summarizing trial Exhibits 69, 70, and 135” but 8 refusing to consider the attachments as “[i]t is well settled that the record on appeal is limited to 9 ‘(1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if 10 any; and (3) a certified copy of the docket entries prepared by the district clerk’”); Everlight Elecs. 11 Co. v. Nichia Corp., No. 12-cv-11758, 2015 U.S. Dist. LEXIS 192105, *3-4 (E.D. Mich. June 29, 12 2015) (stating that “the Court [is] hesitant to break new ground to allow the wholesale, unsolicited 13 filing of nearly 400 demonstratives[,] [p]articularly in light of the fact that [plaintiff] includes 14 demonstratives used during its opening and closing arguments, which contain pure attorney 15 argument”; adding that “[t]he Federal Rules of Appellate Procedure do not define the appellate 16 record to include demonstratives,” and “[d]emonstratives are not included as part of the appellate 17 record because it is undisputed that they are not evidence”). 18 Nevertheless, the Court finds inclusion of certain demonstratives is appropriate here given 19 the underlying purpose behind Rule 10. The Seventh Circuit has explained that the purpose of 20 Rule 10
21 is to ensure that the record on appeal accurately reflects the proceedings in the trial court (thereby allowing us to review the 22 decision that the trial court made in light of the information that was actually before it), not to enable the losing party to add new material 23 to the record in order to collaterally attack the trial court's judgment. 24 United States v. Elizalde-Adame, 262 F.3d 637, 641 (7th Cir. 2001) (emphasis added). 25 The Third Circuit is in accord, stating that “[t]he basic purpose behind the rule is to prevent 26 parties from supplementing the record on appeal with items never presented to the district court.” 27 Waldorf v. Shuta, 142 F.3d 601, 620 (3d Cir. 1998) (emphasis added; holding that plaintiff’s 1 court and the jury saw them”); see also United States v. Burke, 781 F.2d 1234, 1245-46 (7th Cir. 2 1985) (allowing transcripts of tapes to be part of the record on appeal as the tapes themselves 3 “were admitted and played to the jury”; “[a]ppellate judges are entitled to see all the materials that 4 the district judge considered”). Compare Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 5 1127 n.5 (9th Cir. 2009) (holding that documents attached to proposed sur-reply were not part of 6 record on appeal; proposed sur-reply was never filed with the district court but rather was simply 7 lodged with the court, and plaintiff did “not appeal the rejection of her sur-reply by the district 8 court”). 9 Here, there is no dispute that the demonstratives at issue were presented to the jury, even if 10 the demonstratives were not admitted as exhibits and did not go into the jury room for the jury’s 11 deliberations. Furthermore, Plaintiffs have not asked for permission to file all demonstratives used 12 during the trial. Rather, Plaintiffs have asked for permission to file a limited number of 13 demonstratives for inclusion into the record available for the Court of Appeal’s review because, 14 without the demonstratives, the testimonies of witnesses would be difficult for the appellate court 15 to fully understand. See, e.g., Tr. (Vol. 9) at 1636 (testimony of Dr. McGuire) (describing 16 demonstrative as a “timeline that shows, in this case, the number of monthly prescriptions that you 17 see on the left of Truvada over the period of January ’18 to January ‘22” and “there are several 18 segments of this that I want to talk about separately”); Tr. (Vol. 9) at 1637-38 (testimony of Dr. 19 McGuire) (describing a purple line shown on the demonstrative: “[W]hat you see [from the purple 20 line] is that the total usage of Truvada is going up after generic entry”). 21 The Court acknowledges that, if Plaintiffs were arguing for the demonstratives to be given 22 to the jury during deliberations, that might be a different matter. But that is not the case. 23 Plaintiffs are simply asking for the demonstratives to be filed to aid appellate review. It is difficult 24 to see how Defendants would be prejudiced because the Ninth Circuit, of course, will be aware 25 that the demonstrative is simply an aid, and not evidence; in other words, the appellate court will 26 not be misled into looking at the demonstratives as an independent source of information, but 27 simply as an aid to understand the record testimony. 1 record the demonstratives at issue. 2 To the extent Defendants now ask the Court for permission to file demonstratives into the 3 record themselves (i.e., to be given the same relief afforded Plaintiffs), the Court orders the parties 4 || to meet and confer. Plaintiffs have agreed that Defendants should be given leave so long as they 5 adhere to the Court’s guidelines expressed herein: to wit, that the demonstratives will be limited in 6 || number and to those which will aid appellate review by, e.g., helping the appellate court to 7 || understand a witness’s testimony. By March 7, 2024, the parties shall submit a stipulation 8 || regarding the demonstratives that Defendants seek leave to file into the record.” 9 This order disposes of Docket No. 2155. 10 11 IT IS SO ORDERED. 12
13 || Dated: March 1, 2024
15 2 EDW. - CHEN a 16 United States District Judge
= 17
Z 18 19 20 21 22 23 24 25 26 07 > The Court also ordered the parties to meet and confer on the issue raised by Janssen — i.e., whether Janssen can file a motion addressing injunctive relief with respect to the 28 NGR/collaboration agreement claims that have not yet been tried and, if so, what the briefing schedule should be.