Madras High Court
United States Of America vs Softgel Healthcare Private Limited on 28 January, 2025
Author: Abdul Quddhose
Bench: Abdul Quddhose
2025:MHC:241
O.P. (PT) Nos.5 and 6 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 20.01.2025
Pronounced on : 28.01.2025
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
O.P. (PT) Nos.5 and 6 of 2024
1. Pfizer Inc.
235 East 42nd Street,
New York, NY 10017,
United States of America,
Represented by its Constituted Attorney,
Mr.Pankaj Pahuja
2. FoldRx Pharmaceuticals, LLC,
Corporation Trust Center,
1209 Orange St.,
Wilmington, DE 19801,
United States of America,
Represented by its Constituted Attorney,
Mr.Pankaj Pahuja
3. PF PRISM IMB B.V.,
Rivium Westlaan 142, 2909 LD,
Capelle aan den IJssel,
The Netherlands,
Represented by its Constituted Attorney,
Mr.Pankaj Pahuja
4. Wyeth LLC,
Corporation Trust Center,
1209 Orange St.,
Wilmington, DE 19801,
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United States of America,
Represented by its Constituted Attorney,
Mr.Pankaj Pahuja .. Petitioners
In both O.Ps.
vs.
Softgel Healthcare Private Limited .. Respondent
In both O.Ps.
COMMON PRAYER: Common Joint petition filed under Order XXVI
Rule 19 to 22 and Sections 78 and 151 of C.P.C., 1908 for the following
reliefs:
i) An order appointing a Local Commissioner, preferably a senior
person having good knowledge in the field of Chemistry such as a retired
Professor or a District Judge for collection of evidence, documents (as
mentioned in Clause 11 and Schedule A to the Letters Rogatory) as well
as for obtaining and recording the testimony (as mentioned in Clause 10
and Schedule B to the Letters Rogatory) from the Respondent and its
authorized representatives whose details are given in Clause 9 of the
Letters Rogatory; and
ii) An order conferring 'Special Powers' on the aforesaid
Commissioner including the power to summon the person or persons
including corporations and/or their authorized representatives to produce
documents and things; the power to accept copies of the said documents
and things; the power to summon person or persons including
corporations and/or their authorized representatives, to administer oath to
them and to record their evidence; the power to allow the Petitioners' and
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the Respondent's respective Indian counsel the opportunity to examine or
cross-examine the aforesaid witnesses; the power to permit the
Petitioners' and the Respondent's respective foreign representatives to
attend and observe the examination of said person or persons including
corporations and/or their authorized representative; the power to record
the testimony of the said person or persons including corporations and/or
their authorized representative; the power to have the said recording
transcribed verbatim; and the power to provide, both the documents and
recording and the transcript to the Petitioners' and the Respondent's
respective representatives, their respective Indian Counsel, and
iii) An order setting up a Confidentiality Club consisting of the
persons stated in paragraph 12 and on the lines stated as stated in
paragraph 13 of the instant petitions; and
iv) An order to conduct the further proceedings before this Court
as well as before the Local Commissioner in camera with only the
members of the 'Confidentiality Club' being present; and
v) An order directing the officials of the Registry of this Court as
well as the Commissioner to keep all the documents and records
pertaining to these petitions or the matters arising therefrom including
the evidence collected by the Commissioner in a sealed cover and allow
access to the said documents only to the members of the aforesaid
Confidentiality Club; and
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vi) An order directing the said Commissioner to send the
evidence/documents collected and the testimony recorded to the United
States District Court for the District of Delaware in a sealed cover.
For Petitioners
In both O.Ps. : Mr.Sathish Parasaran
Senior Counsel
for Mr.Pravin Anand
For Respondent
In both O.Ps. : Mr.V. Raghavachari
Senior Counsel
for Dr.Mohan Devan
COMMON ORDER
These petitions have been filed before the Intellectual Property
Division (IPD) of this Court under Order XXVI Rules 19 - 22 read with
Sections 78 and 151 of C.P.C., seeking to execute the Letters Rogatory
dated 13.05.2024 issued by the United States District Court under the
Hague Convention, 1870, seeking judicial assistance from this Court
against the respondent. Letters Rogatory are formal requests from one
Court to another to obtain judicial assistance.
2. The petitioners in O.P. (PT) No.5 of 2024 claim that in the case
pending before the United States District Court at Delaware, they had
alleged, among other things, that the submission of Abbreviated New
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Drug Application (ANDA) No.218409 by CIPLA, which seeks approval
from the FDA to market a generic version of VYNDAMAX® ("CIPLA's
ANDA Product") before the expiration of the petitioners' "441 Patent",
constitutes an act of infringement with respect to the "441 Patent".
3. The petitioners in O.P. (PT) No.6 of 2024 claim that in the case
pending before the United States District Court at Delaware, they had
alleged, among other things, that the submission of Abbreviated New
Drug Application (ANDA) No.218205 by Zenara (now Hikma), which
seeks approval from the FDA to market a generic version of
VYNDAMAX® ("Zenara's ANDA Product") before the expiration of the
petitioners' "441 Patent", constitutes an act of infringement with respect
to the "441 Patent".
4. Since the directions sought for in both the petitions are similar
in nature, they are disposed of by a Common Order.
5. A patent dispute is pending adjudication before the United
States District Court between the petitioners and Zenara Pharma Pvt.
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Ltd. (hereinafter referred to as 'Zenara'), CIPLA and other Indian
pharmaceutical Companies viz., Aurobindo Pharma Limited and Dexcel
Pharma Technologies and Limited.
6. The present petitions pertain to Zenara's ANDA Product, which
according to the petitioners, infringes their "441 Patent" issued by the
U.S. Patent Office for their TAFAMIDIS 61 mg capsules sold under the
brand name VYNDAMAX®, which are used for treatment of
TRANSTHYRETIN AMYLOID CARDIOMYOPATHY. According to
the petitioners, they believe that the respondent and its employees who
are associated with Zenara possesses information and documents relating
to Zenara ANDA product that are relevant for proving infringement of
441 Patent belonging to the petitioners.
7. In the Civil proceedings, pending before the United States
District Court at Delaware between the petitioners and Zenara, CIPLA
and other Indian pharmaceutical companies, the petitioners filed a
request for international judicial assistance (Letters Rogatory) as per
Hague Convention of 18.03.1970 for taking evidence abroad in Civil or
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Commercial matters to which both India and the Unites States are
signatories and to obtain evidence for the purpose of being used in the
Civil proceedings before the United States District Court for the District
of Delaware.
8. The United States District Court for the District of Delaware has
issued Letters Rogatory dated 13.05.2024 requesting this Court for
obtaining the deposition of documents from the respondent herein.
Subsequent to the issuance of Letters Rogatory, Zenara, one of the
defendants in the U.S. proceedings, raised confidentiality concerns
regarding certain portions of the Letters Rogatory and requested the
petitioners' counsel not to divulge the Letters Rogatory unless a
confidential club is formed.
9. According to the petitioners, to maintain the confidentiality,
they have filed a redacted version of the Letters Rogatory dated
13.05.2024 and the petitioners have requested this Court to grant leave
for them to place on record the full un-redacted version of the said
Letters Rogatory once this Court directs the formation of a
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confidentiality club as prayed for in these petitions. However, as seen
from the pleadings of the respondent filed before this Court, they have
raised the following defences to these petitions:
a) The respondent is a third party and in the absence of any
infringement claim made by the petitioner against the respondent, these
petitions are not maintainable;
b) The respondent being a non-party to the original litigation
pending before the United States District Court at Delaware, they cannot
be compelled to provide evidence beyond the boundaries as per the
Hague Convention;
c) The respondent is entitled to invoke article 11 (1) of the Hague
Convention to refuse participation, if the request conflicts with domestic
laws or sovereignty;
d) Article 39 of the Hague Convention explicitly safeguards
confidential data, which is the core of the respondent's pharmaceutical
research and development;
e) Compelling disclosure by the respondent under the current
circumstances would be contrary to India's obligation under the TRIPS
agreement:
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f) The Indian Patent Office has refused the petitioners' patent
application for the drug VYNDAMAX under Section 3 (d) of the Patents
Act, 1970, rejecting the application on the ground that it constitutes a
new form of a known substance. This decision negates the petitioners'
ability to enforce the patent rights within the territory of India;
g) The International Convention, such as Hague Evidence
Convention, cannot be invoked to override the domestic laws of India,
particularly when the petitioner is not asserting valid patent rights in
India. The Indian Patents Act, 1970 governs the enforceability of patent
rights within India and the Indian Patent Office's administration to reject
the petitioners' application renders any claim for this right is invalid;
h) The petitioners cannot make a fishing expedition in the guise of
evidence collection. The petitioners' requests are vague and violate the
principles of specificity and proportionality required under Article 23 of
the Hague Convention;
i) The respondent has legitimate source about the misuse of
sensitive information which unfairly benefit the petitioners in
circumventing the refusal of their patent application in India;
j) Forcing the respondent, a non-party to the U.S. litigation, to
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disclose sensitive research and development data, would cause
disproportionate hardship to its commercial interest and those of its
equitable collaborators;
k) The respondent states that any information, the petitioner is
seeking regarding Zenara and CIPLA, ought to have been first addressed
before the United States District Court at Delaware.
10. Heard Mr. Sathish Parasaran, learned senior counsel and
assisted by Mr.Pravin Anand, learned counsel for the petitioners and
Mr.V. Raghavachari, learned senior counsel appearing for Dr.Mohan
Devan, learned counsel for the respondent.
11. Both the learned senior counsels reiterated the respective
contentions of the respective parties as seen from their pleadings filed
before this Court. Both of them have referred to the relevant documents
and relevant clauses in the Hague Convention as well as the Letters
Rogatory issued by the United States District Court at Delaware in
support of their respective contentions.
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12. The learned senior counsel appearing for the petitioners in
support of the petitioners' contentions drew the attention of this Court to
the following authorities and submitted that in identical matters, the
Andhra Pradesh High Court, Bombay High Court and Delhi High Court
allowed similar reliefs for enforcement of Letters Rogatory issued by a
foreign Court:
a) Aventis Pharmaceuticals Inc. Vs. Dr. Reddy's Laboratories Inc.
reported in MANU/AP/0650/2008;
b) Pfizen Inc Vs. Unimark Remedies Limited reported in 2016
SCC Online Bom 8599;
c) Wooster products Inc., Vs. Magna Tek Inc. and Others reported
in MANU/DEL/0102/1988;
13. The learned senior counsel for the petitioners also drew the
attention of this Court to the House of Lords decision rendered in
Norwich Pharmacal Co. and Others Vs. Customs and Excise
Commissioners reported in Roskill LJ A.C. 133 and would submit that
where a person, albeit innocently and without incurring any personal
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liability, became involved in the tortious acts of others, he came under a
duty to assist the one injured by those acts by giving him full information
by way of discovery and disclosing the identity of the wrongdoers.
14. Learned senior counsel appearing for the petitioners also
submitted that only in cases where
a) The execution of the Letters Rogatory does not fall within the
powers of the Indian Courts; and
b) The Letters Rogatory issued will affect the sovereignty or
security of India,
the question of refusing to execute the Letters Rogatory issued by the
foreign Court will arise.
15. According to him, in the present case, there is no prohibition
for this Court to enforce the Letters Rogatory issued by the United States
District Court, Delaware against the respondent since there are no legal
restrictions. According to him, the Letters Rogatory issued by the United
States District Court is in complete compliance with the Hague
Convention 18.03.1970 to which both India and United States are
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signatories and India has also ratified it.
16. The learned senior counsel appearing for the petitioners also
submitted that the respondent's allegation in its counter statement that the
documents, that are sought for from it, are already in the possession of
CIPLA, is wrong. He also drew the attention of this Court to the
respondent's counter statement and would submit that the respondent has
admitted to the fact that it is also in possession of the documents
pertaining to CIPLA's ANDA product. According to him, there became a
necessity for the petitioners to seek for Letters Rogatory from the United
States District Court, Delaware since CIPLA, one of the defendants in
the said litigation, did not furnish all the necessary documents and they
had suggested that they would obtain the same from the respondent.
Since CIPLA did not produce the documents, Letters Rogatory was
issued by the United States District Court.
17. On the other hand, learned senior counsel appearing for the
respondent in support of the respondent's objections, relied upon the
following authorities:
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a) A judgment of the Gujarat High Court in the case of Leighton
International Limited and Others Vs. Gavin John Hodge and Others
reported in 2014 SCC Online Guj 15738;
b) A decision of the Gujarat High Court in the case of Fenix
Diamonds LLC Vs. Carneige Institute of Washington reported in 2020
SCC Online Guj 1628.
18. Relying upon the aforesaid decisions, the learned senior
counsel appearing for the respondent would submit that this Court cannot
compel the respondent to produce the documents as it would amount to
causing serious prejudice to them as it will strip-off their protection,
privilege and confidentiality. He would also submit that the aforesaid
decisions have also made it clear that the production of documents
pursuant to the issuance of Letters Rogatory is limited to the parties to
the proceedings and a fishing expedition in the guise of evidence
collection cannot be permitted through the assistance of Indian Courts.
19. The learned senior counsel for the respondent reiterated the
contentions of the respondent as pleaded by them before this Court and
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would submit as follows:
a) Since the respondent is not a party before the United States
District Court, the present petitions are not maintainable;
b) The Hague Convention does not enable this Court to grant the
relief as sought for in these petitions against a third party;
c) The Hague Convention cannot be invoked to override the
domestic laws of India. Since the patent application filed by the
petitioners pertaining to a similar invention as claimed before the United
States District Court has been refused to be granted by the Indian patent
office, no relief can be granted by this Court as sought for by the
petitioners in these petitions.
20. According to the learned senior counsel for the respondent, if
these petitions are allowed, it would amount to overriding the Indian
domestic laws, governing the issuance of patent. The petitioners ought to
have exhausted all remedies before the United States District Court
before seeking international judicial assistance. Having not done so, they
cannot file these petitions before this Court and therefore, they are not
maintainable.
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21. Learned senior counsel for the respondent further contended
that the petitioners cannot make a fishing expedition in the guise of
evidence collection. The respondent has legitimate source about the
misuse of sensitive information, which could unfairly benefit the
petitioners in circumventing the rejection of the patent application of the
petitioners by the Indian Patent Office. By forcing the respondent, a non-
party to the US litigation, to disclose sensitive Research and
Development data would cause disproportionate harm to its commercial
interests and those of its global collaborators.
Discussion:
22. To pursue discovery from foreign entities, litigants often
request Letters Rogatory (or Letters of request for Judicial assistance)
from a foreign Court. In the instant case, the petitioners had sought
assistance for the issuance of Letters Rogatory against the respondent
from the United States District Court, Delaware and the same was also
granted. The petitioners claim that the documents sought for from the
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respondent before this Court are relevant for the purpose of proving the
petitioners' patent infringement claim before the United States District
Court in respect of Zenara ANDA product and CIPLA ANDA product
which according to the petitioners has violated the petitioner's "441
Patent".
23. The petitioners have also categorically confirmed through their
pleadings that they do not have any claim against the respondent and that
they have filed these petitions only for the purpose of assisting them in
proving their patent claim against Zenara and CIPLA, which are pending
adjudication before the United States District Court, Delaware. Letters
Rogatory dates back to early American Law, when courts of one state
would formally request the taking of evidence from any other state but
now Letters Rogatory are used to request judicial assistance in taking
evidence abroad. According to the petitioners, in respect of the
pharmaceutical drug, which is the subject matter of the patent litigation
before the United States District Court at Delaware, the respondent is
having information of the same, which will aid in proving the petitioners'
patent claim against Zenara ANDA product and CIPLA ANDA product
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before the United States District Court at Delaware.
24. It is not in dispute that in so far as India is concerned, the
respondent is having contractual relationship with Zenara and CIPLA,
pertaining to manufacture and sale of the special drug manufactured and
sold by Zenara and CIPLA. Zenara and CIPLA are the defendants in the
suit filed by the petitioners before the United States District Court at
Delaware.
25. The Hague Evidence Convention relied upon by the
petitioners, to which India is a signatory, facilitates access to evidence in
foreign jurisdiction, if certain jurisdiction based conditions are met.
Letters Rogatory is often the first step in the discovery of documents
from foreign jurisdiction.
26. Chapter I of the Hague Evidence Convention, 1970 deals with
Letter of Request. Article 3 states that a Letter of Request shall specify
the evidence sought for. Clause (d) of Article 3 states that Letter of
Request shall specify the evidence to be obtained or other judicial Act to
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be performed. Clause (g) of Article 3 states that a Letter of Request,
where appropriate, shall specify the documents or other property, real or
personal to be inspected.
27. Article 9 of the Hague Evidence Convention permits a judicial
authority that executes a Letter of Request to apply its own municipal
laws. In India the enabling power to execute the Letter of Request issued
by a foreign Court is under Order XXVI Rule 19 - 22 read with Section
78 of the C.P.C., 1908.
28. Order XXVI Rule 19 - 22 of C.P.C. as well as Section 78 of
the C.P.C. are extracted hereunder:
"19. Cases in which High Court may issue
commission to examine witness.—(1) If a High
Court is satisfied.—
(a) that a foreign court situated in a foreign country
wishes to obtain the evidence of a witness in any
proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of
the High Court’s appellate jurisdiction, it may,
subject to the provisions of rule 20, issue a
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commission for the examination of such witness.
(2) Evidence may be given of the matters specified
in clause (a), (b) and (c) of sub-rule (1)—
(a) by a certificate signed by the consular officer of
the foreign country of the highest rank in India and
transmitted to the High Court through the Central
Government, or
(b) by a letter of request issued by the foreign Court
and transmitted to the High Court through the
Central Government, or
(c) by a letter of request issued by the foreign court
and produced before the High Court by a party to
the proceeding.
20. Application for issue of commission.—The
High Court may issue a commission under rule 19—
(a) upon application by a party to the proceeding
before the foreign court, or
(b) upon an application by a law officer of the State
Government acting under instructions from the State
Government.
21. To whom commission may be issued.—A
commission under rule 19 may be issued to any
Court within the local limits of whose jurisdiction
the witness resides, or the witness resides within the
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local limits of [the ordinary original civil
jurisdiction of the High Court], to any person whom
the Court thinks fit to execute the commission.
22. Issue, execution and return of commissions,
land transmission of evidence to foreign Court.—
The provisions of rules 6, 15, [sub-rule (1) of rule
16A, 17, 18 and 18B] of this Order in so far as they
are applicable shall apply to the issue, execution
and return of such commissions, and when any such
commission has, been duly executed it shall be
returned, together with the evidence taken under it,
to the High Court, which shall forward it to the
Government General in Council along with the
letter of request for transmission to the foreign
court.] "
"78. Commissions issued by foreign Courts.—
Subject to such conditions and limitations as may be
prescribed the provisions as to the execution and
return of commissions for the examination of
witnesses shall apply to commissions issued by or at
the instance of—
(a) Courts situate in any part of India to which the
provisions of this Code do not extend; or
(b) Courts established or continued by the authority
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of the Central Government outside India; or
(c) Courts of any State or country outside India."
29. Article 23 provides that a contracting State may at the time of
signature, ratification or accession, declare that it will not execute a
Letter of Request issued for the purpose of obtaining pre-trial discovery
of documents as known in Common Law Countries. India in its
declaration has stated that "The Republic of India will not execute Letter
of Request issued in pursuance of Article 23 of the Convention for the
purpose of obtaining pre-trial discovery of documents, which requires a
person to produce any documents other than particular documents
specified in the Letter of Request, which are likely to be in his
possession, custody or power".
30. When evidence of a witness residing in India has to be taken in
a civil proceeding pending before a foreign court, a commission is issued
by the High Court to obtain evidence of a witness under Order XXVI
Rule 19 read with Section 78 of the Code of civil procedure, 1908. If the
ingredients of the said Rule 19 are fulfilled, the High Court will issue a
commission for the purpose of obtaining evidence/testimony of
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witnesses in accordance with the Letter of Request issued by the Foreign
Court.
31. The High Court will issue a commission under Order XXVI
Rule 19 of C.P.C. upon an application preferred by a party to the
proceedings before the Foreign Court. Under Rule 19, if the High Court
on perusal of the application finds that a foreign Court situated in a
foreign country wishes to obtain the evidence of a witness in any
proceeding before it, that the proceeding is of civil nature and the
witness is residing within the High Court's local jurisdiction, it must
issue a commission in furtherance of and to execute the Letter of
Request. The High Court will not go into the proprietary of the Letter of
Request or the questions of relevance or admissibility of evidence, which
is an exclusive prerogative of the Foreign Court which has issued the
Letter of Request.
32. After considering the relevant provisions of Code of Civil
Procedure, 1908 and the definition of 'Evidence' in the Indian Evidence
Act, 1872, it can be construed that the commission appointed by a High
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Court on request of a Foreign Court on the basis of a Letter of Request
issued by a Foreign Court under the Convention under Order XXVI Rule
19 read with Section 78 of the Code of Civil Procedure, 1908 would be
for obtaining both oral as well as documentary evidence.
33. The word evidence cannot be narrowly construed in isolation,
ignoring the meaning and definition of the term 'evidence' under the
Indian Evidence Act. Any other Interpretation that limits the evidence to
be obtained under Order XXVI Rule 19 is arbitrary and contrary to Order
XXVI Rule 19 of the Code of Civil Procedure, 1908. Such a narrow
construction of the term 'evidence' used in order XXVI Rule 19 of the
Code of Civil Procedure, 1908 defeats the very purpose of obtaining
evidence if the same cannot be backed by documentary evidence. There
is no provision in the Code of Civil Procedure, 1908 that would limit or
not permit documentary evidence to be obtained at the behest and request
of a Foreign Court under Order XXVI Rule 19 read with Section 78 of
the Code of Civil Procedure, 1908.
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34. There is an inherent contradiction within Order XXVI Rule 19
of the Code of Civil Procedure, 1908, which widens the scope of
evidence that can be obtained under the above-mentioned Rule. Rule 19
uses the phrase 'High Court may issue to examine witnesses' and 'wishes
to obtain evidence of a witness...'. When two interpretations are possible,
the more liberal interpretation which is in consonance with the Hague
Evidence Convention needs to be followed. Therefore, Rule 19, has to be
liberally construed and a High Court may issue a commission to obtain
both oral as well as documentary evidence.
35. The Andhra Pradesh High Court, the Bombay High Court and
the Delhi High Court have rightly allowed similar reliefs for enforcement
of Letters Rogatory issued by a foreign Court. However, with due respect
to the Gujarat High Court, this Court is of the considered view that the
view taken by the Gujarat High Court in the case of Leighton
International Limited and Others Vs. Gavin John Hodge and Others
reported in 2014 SCC Online Guj 15738 and in the case of Fenix
Diamonds LLC Vs. Carneige Institute of Washington reported in 2020
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SCC Online Guj 1628 that only oral evidence is permissible, is not a
correct view. Both oral and documentary evidence can be procured from
the Indian party, provided the evidence sought for is not in violation of
the Hague Evidence Convention. The only objection raised by India as a
signatory to the Hague Evidence Convention under Article 23 of the said
convention is that they will not execute Letter of Request issued in
pursuance of Article 23 of the Convention for the purpose of obtaining
pre-trial discovery of documents, only in cases where the documents are
not specified. In the case on hand, documents have been specified in the
Letters Rogatory issued by the United States District Court at Delaware,
though the respondent may contend that they are vague. Whether the
documents disclosed are specific and procurable or not, can be
ascertained only after a Commissioner is appointed by this Court who is
empowered to seek for clarification from both the parties if the need
arises for the purpose of ascertaining the specificity of the documents.
Such an objection with regard to vagueness cannot be raised by the
respondent at this premature stage that too when documents have been
disclosed in these petitions, which were also considered by the United
States District Court at Delaware before granting Letters Rogatory as per
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the Hague Evidence Convention as requested by the petitioners.
36. The U.S. Supreme Court in its decision rendered in
Aerospatiale case (Societe Nationale Industrielle Aerospatiale Vs.
United States District Court for the Southern District of Lowa reported in
482 U.S. 522 (1987), also relied upon by the learned senior counsel for
the respondent has made it clear that the foreign Courts should scrutinize
request for issuance of Letters Rogatory on a case to case basis to
determine whether they satisfy international comity (i.e., there is no
violation of courtesy to the foreign valuation).
37. As seen from the Hague Evidence Convention, good cause for
denying the request of the Courts in the Country where the main
litigation is being pursued may exist where the disruption to international
comity outweighs the value of the requested information in furthering
justice. But, it has been made clear in the aforesaid decision of the US
Supreme Court which has followed Hague Evidence Convention that
where requests for international discovery properly balances
consideration of comity, Letters Rogatory is a valuable tool for seeking
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collection of evidence.
38. Analysing international comity requires Courts to weigh the
relevant Costs and benefits that pursuing discovery will bestow on each
party.
39. The U.S. Supreme Court in Aerospatiale case referred to supra,
presented five factors that Courts can consider to weigh the international
comity considerations:
a) The importance to the litigation of the documents or other
information requested;
b) The degree of specificity of the request;
c) Whether the information originated in the United States;
d) The availability of alternative means of securing the
information; and
e) The extent to which non-compliance with the request would
undermine important interests of the United States, or compliance with
the request would undermine important interests of the State where the
information is located.
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40. In the case on hand, a categorical plea has been taken by the
petitioners that the respondent is having all the information pertaining to
the documents sought for through the Letters Rogatory issued by the
United States District Court at Delaware. Admittedly, Zenara and
CIPLA, the defendants in the patent litigation pending before the United
States District Court at Delaware are Indian entities. A categorical
assertion has also been made by the petitioners that the documents
disclosed in the Letters Rogatory issued by the United States District
Court at Delaware are available only with the respondent. The learned
senior counsel for the respondent during the course of the submissions
made a submission that the documents listed out in the Letters Rogatory
are vague and unless there is specificity, the question of allowing these
petitions does not arise. On the other hand, the learned senior counsel for
the petitioners would submit that there is no vagueness in the listed
documents and if at all a clarification is required, once a Court
Commissioner is appointed by this Court, he can seek for clarification.
Therefore, at this stage, the objections raised by the respondent in respect
of their claim, that there is no specificity in the documents disclosed in
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the Letters Rogatory is not maintainable. The petitioners have also taken
a categorical plea that the only source for them to inspect the documents
disclosed in the Letters Rogatory is only through the respondent. The
said statement has also not been disproved by the respondent through any
documentary evidence to prove their contention that there are other
sources available to the petitioner through whom the documents listed
out in the Letters Rogatory can be accessed.
41. No iota of evidence has also been placed by the respondent to
prove that the petitioners can source the documents in the United States
itself and that there is no necessity to seek for production of documents
by the respondent which is an Indian entity with the assistance of Indian
Courts.
42. The petitioners have also categorically pleaded that the Indian
National Security interest will not be undermined if the prayer sought for
in these petitions are granted. The respondent has also not submitted any
iota of evidence that the production of documents by the respondent will
be detrimental to the national security interest of India.
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43. The petitioners have also categorically pleaded that they do not
have any claim against the respondent and the only limited relief they are
seeking before this Court is to seek for the evidence sought for in these
petitions, which according to the petitioners, are available only with the
respondent.
44. Article 12 of the Hague Convention, which has been relied
upon by both the senior counsels provides for limited grounds when
execution of Letters Rogatory issued by a foreign Court can be refused
by the state of execution and the state of execution in the present case is
India and they are
a) In the state of execution, the execution of the Letter of request
does not fall within the functions of the judiciary or;
b) The state addressed considers that its sovereignty or security
would be prejudiced thereby.
45. The request of the petitioners does not fall under any of the
above mentioned categories stipulated under Article 12 of the Hague
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Evidence Convention. Hence, there is no prohibition for this Court to
allow these petitions filed under Order XXVI Rule 16 to 22 read with
Sections 75 to 78 and 151 of C.P.C.. The Letters Rogatory issued by the
United States District Court at Delaware in favour of the petitioners are
also in complete compliance with the Hague Convention dated
18.03.1970, to which both India and United States are signatories and
India has also ratified it in the year 2007 itself.
46. The petitioners' patent litigation before the United States
District Court at Delaware involves entities in India with whom the
respondent is having a contractual relationship. The petitioners
categorically claim that they have been unable to access the sought for
documents in United States of America and only due to the same, they
are constrained to seek for international judicial assistance through the
issuance of Letters Rogatory by the United States District Court at
Delaware. The aid rendered by one nation to judicial or quasi-judicial
proceeding in another Country's Tribunal / Courts is called international
judicial assistance.
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47. The issuance of Letters Rogatory are designed to remedy the
problems faced to procure testimony from an absent or a non-resident
witness and the said testimony is essential for proving the case of the
party seeking for issuance of Letters Rogatory. The Letters Rogatory are
the medium in effect, whereby one Country can through it's own Courts
and the methods of Court proceedings peculiar thereto and entirely
within the latter's control to assist the administration of justice in the
former Country: such request being made and usually granted by reasons
of comity existing between nations in ordinary peaceful time. India and
United States of America, being signatories to the Hague Convention,
1970, which provides for international judicial assistance and there being
no prohibition as per the said convention for this Court to accede to the
Letters Rogatory issued by the United States District Court at Delaware
in favour of the petitioners, necessarily this Court will have to allow
these petitions as prayed for by the petitioners.
48. The International Comity of Courts, which has strengthened
through the Hague Convention, 1970, mandates this Court to allow these
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petitions as prayed for by the petitioners.
49. The petitioners have been unable to procure the evidence as
sought for in these petitions from the defendants in the litigation pending
before the United States District Court at Delaware. A categorical
assertion has also been made to that effect in the pleadings of the
petitioners. No contra evidence has also been produced by the
respondent to prove that the petitioners can source the evidence in
United States of America itself. Admittedly, the respondent is also
having a contractual relationship in India with Zenara in respect of
Zenara's ANDA Product. Therefore, issuance of Letters Rogatory is
virtually the only effective procedure available to the petitioners for
procuring the evidence as sought for in these petitions.
50. The petitioners have satisfied, through its pleadings and
supporting documents, the following:
a) The importance of the documents / evidence sought for from the
respondent to the litigation pending before the United States District
Court at Delaware;
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b) The details of the documents which have been sought for by the
petitioners are disclosed, though the respondent claims that they are
vague. However, this Court is of the considered view that specificity can
be ascertained only when a Commissioner is appointed by this Court and
if the need arises, he / she seeks for a clarification with regard to the
specificity;
c) Both India and Unites States of America are signatories to the
Hague Convention, 1970 and they are bound by the said convention.
Unless and until the request does not fall within the powers of this Court
or the Indian state considers that its sovereignty or security would be
prejudiced if the Letters Rogatory issued by the United States District
Court at Delaware is acceded to, the question of not granting the reliefs
prayed for in these petitions does not arise. Admittedly, the request of the
petitioners does not fall under any of the aforementioned prohibitions;
d) Admittedly, as seen from the pleadings and the evidence placed
on record, it is also confirmed from the Letters Rogatory issued by the
United States District Court at Delaware that there is no availability of
alternative means of securing the information as sought for in these
petitions by the petitioners except to approach this Court.
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51. Eventhough the respondent alleges that the documents sought
for by the petitioners are already in possession of CIPLA, the said
statement is not supported by any evidence. In paragraph No.8 of the
counter statement filed by the respondent before this Court, they have
stated that they are in possession of the documents pertaining to CIPLA
ANDA product, which is the subject matter of patent litigation before the
United States District Court at Delaware. The fact that no evidence has
been placed on record to prove that the documents sought for by the
petitioners are already in possession of CIPLA and the fact that in
paragraph No.8 of the counter statement filed by the respondent before
this Court, the respondent has stated that they are in possession of the
documents pertaining to CIPLA ANDA product, which is the subject
matter of patent litigation before the United States District Court at
Delaware makes this Court to infer that the documents sought for by the
petitioners through the Letters Rogatory issued by the United States
District Court at Delaware are only in the possession of the respondent,
which is an Indian entity.
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52. The confidentiality of the information sought for by the
petitioners from the respondent is fully protected since the United States
District Court, Delaware, in the Letters Rogatory order dated 13.05.2024
has made it clear that each party is bound by the terms of the stipulated
protective order. The protective order has categorically stated that any
confidential information produced by the respondent will be used for the
purpose of the U.S. litigation only and will not be publicly disclosed. To
ensure confidentiality of documents / testimonies, the petitioners in their
petitions have themselves sought for the formation of a confidentiality
club. Therefore, once the confidentiality club is formed, all the members
of the said club will be required to sign an undertaking, which forms part
of the protective order passed by the United States District Court,
Delaware along with the Letters Rogatory order dated 13.05.2024.
53. Article 39 of the TRIPS agreement does not prohibit disclosure
of confidential information, if it is sought for by a Court of law. The
Courts in India would not go behind the letter of request upon an
enquiry, as the jurisdiction for the issuance of letter of request has to be
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accepted and executed owing to reciprocity between two sovereign
countries.
54. The International Comity of Courts is a principle that requires
Courts to consider the interest of other jurisdictions when making legal
decisions. It involves balancing the competing interest of the public and
private and take into account any conflicts between the public policies of
the domestic and foreign countries. Since the Letters Rogatory issued by
the United States District Court, Delaware is not in conflict with the
municipal law of India and the implementation of the Letters Rogatory
aids in adherence to international treaties, which in the instant case is the
Hague Evidence Convention to which India is a signatory, necessarily
the relief sought for in these petitions has to be granted by this Court in
the interest of International Comity of Courts. Though the respondent
may contend that the petitions lack specificity with regard to the
particulars of the documents, the question of raising such an objection at
this stage is too premature and if at all such an objection can be raised, it
can be raised only after a Court commissioner is appointed as sought for
by the petitioners in these petitions. The Court commissioner on his/her
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appointment can seek for clarification from the petitioners or through
any other source with regard to the specificity of the documents in case
there is no clarity and the respondent can also assist the Court
commissioner to decide as to whether the particulars of the documents
sought for by the petitioners are procurable or not.
55. In the decisions of the Gujarat High Court, relied upon by the
learned senior counsel for the respondent, referred to supra, they were
decisions when the Court Commissioners were already appointed by the
Gujarat High Court pursuant to a Letters Rogatory issued by a foreign
Court. In the case on hand, the Court Commissioner is yet to be
appointed and in these petitions, the petitioners seek for appointment of a
Court Commissioner to execute the Letters Rogatory issued by the
United States District Court, Delaware. Therefore, the Gujarat High
Court's decision has no bearing to the facts of the instant case.
56. The decisions of the Delhi High Court, Andhra Pradesh High
Court and Bombay High Court relied upon by the learned senior counsel
for the petitioners have elaborately discussed the powers of an Indian
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Court with regard to the execution of Letters Rogatory issued by a
foreign Court and they have consistently held that unless the Letters
Rogatory violates the Indian domestic law, the question of refusing to
grant an order for execution of the Letters Rogatory by the Indian Courts
does not arise. In the case on hand, as observed earlier, there is no
violation of the Indian Laws if these petitions are allowed as prayed for.
57. The confidentiality of the documents to be produced by the
respondent is also fully protected by the formation of a confidentiality
club as agreed to by the petitioners before the United States District
Court, Delaware, which has also been incorporated in the Letters
Rogatory order dated 13.05.2024.
58. These petitions have been filed only for the limited extent of
executing the Letters Rogatory issued by the United States District Court
at Delaware. The rejection of patent applications of the petitioners by the
Indian Patent Office has no relevance for adjudicating these petitions.
These petitions are not in contravention to Indian Laws and they are
being entertained by this Court only in accordance with the Hague
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Evidence Convention and by adhering to the International Comity of
Courts.
59. For the foregoing reasons, it is just and necessary for this
Court to issue the following directions:
a) A 'confidentiality club' as prayed for in these petitions will have
to be set up by this Court on the following lines:
(i) An agreement signed between the parties to the proceedings as
well as the party from whom evidence and testimony is sought to be
collected to the effect that the (a) pleadings, (b) the Letters Rogatory
along with all annexures and (c) the information, documents, evidence,
samples, etc. that may be collected pursuant to executing the Letters
Rogatory be only seen by a limited number of people on each side. All of
these people are bound by confidentiality undertakings in relation to the
information/documents stipulated hereinabove.
(ii) The hearings in the instant matter before this Hon'ble Court as
well as before the Local Commissioner who may be appointed are
conducted in camera only with the members of the Confidentiality Club
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being present.
(iii) Directing the Learned Registrar General of this Court as well
as the Local Commissioner to keep the original Letters Rogatory, all
other documents, transcripts of deposition etc. pertaining to the instant
case in sealed covers and allow access to the confidential documents
only to the members of the Confidentiality Club identified above.
(iv) That the Registrar General of this Court as well as the Local
Commissioner be empowered to de-seal the documents for inspection by
members of the Confidentiality Club in his presence, on a formal request
being made by either party to the Registrar General or Local
Commissioner with simultaneous intimation to the other members of the
Confidentiality Club who have the option to remain present for such
inspection. The documents shall be resealed thereafter by the Registrar
General or the Local Commissioner as the case may be."
60. The learned counsel for the Petitioners on instructions
suggested the following names to be part of the Confidentiality Club:
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A. Petitioners' representatives:
1. Michele Winneker
2. Jeffrey Rennecker
B. Petitioners' foreign counsels:
1. Thomas H.L. Selby
2. Stanley E. Fisher
3. Seth R. Bowers
4. Andrew L. Hoffman
5. Rhochelle Krawetz
6. Max C. Accardi
7. Megan E. Dellinger
8. Ayelet Evrony
C. Petitioners' foreign experts:
1. Adam Matzger
2. Shellie Rigby-Singleton
3. Martyn Davies
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D. Petitioners' local counsels:
1. Mr. Pravin Anand
2. Ms. Tusha Malhotra
3. Mr. K. Prem Chandar
4. Mr. N.C. Vishal
5. Ms. Tanvi Bhatnagar
E. Respondent's foreign counsels:
1. Neal C. Belgam
2. Daniel A. Taylor
3. Louis H. Weinstein
4. Frank Rodriguez
5. Amlan Ray
6. Joshua I. Miller
F. Respondent's local counsels: Names to be provided by the
respondent to the local Commissioner appointed by this Court and on
furnishing the names, the local Commissioner appointed by this Court
shall include them also as members of the Confidentiality Club.
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If the parties wish to nominate more members to the confidentiality club,
the same may either be done by mutual consent or by way of an
application to either this Court or the appointed Local Commissioner.
61. Once the confidentiality club is in place, the Petitioners can
place the original in a sealed cover before this Court and also share a
copy of the complete version of the Letters Rogatory dated May 13, 2024
with all the members of the Confidentiality Club.
62. The Petitioners made the following prayers in paragraph 24 of
the respective petitions:
(i) an order appointing a Local Commissioner, preferably a senior
person having good knowledge in the field of Chemistry such as a retired
Professor or a District Judge for collection of evidence, documents (as
mentioned in Clause 11 and Schedule A to the Letters Rogatory) as well
as for obtaining and recording the testimony (as mentioned in Clause 10
and Schedule B to the Letters Rogatory) from the Respondent and its
authorized representatives whose details are given in Clause 9 of the
Letters Rogatory; and
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(ii) an order conferring 'Special Powers' on the aforesaid
Commissioner including the power to summon the person or persons
including corporations and/or their authorized representatives to produce
documents and things; the power to accept copies of the said documents
and things; the power to summon person or persons including
corporations and/or their authorized representatives, to administer oath to
them and to record their evidence; the power to allow the Petitioners' and
the Respondent's respective Indian counsel the opportunity to examine or
cross-examine the aforesaid witnesses; the power to permit the
Petitioners' and the Respondent's respective foreign representatives to
attend and observe the examination of said person or persons including
corporations and/or their authorized representative; the power to record
the testimony of the said person or persons including corporations and/or
their authorized representative; the power to have the said recording
transcribed verbatim; and the power to provide, both the documents and
recording and the transcript to the Petitioners' and the Respondent's
respective representatives, their respective Indian Counsel, and
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(iii) an order setting up a Confidentiality Club on the lines stated
in paragraph 13 of the petitions; and
(iv) an order to conduct the further proceedings before this Court
as well as before the Local Commissioner "in camera" with only the
members of the 'Confidentiality Club' being present; and
(v) an order directing the officials of the Registry of this Court as
well as the Commissioner to keep all the documents and records
pertaining to this petition or the matters arising therefrom including the
evidence collected by the Commissioner in a sealed cover and allow
access to the said documents only to the members of the aforesaid
Confidentiality Club; and
(vi) an order directing the said Commissioner to send the
evidence/documents collected and the testimony recorded to the United
States District Court for the District of Delaware in a sealed cover; and
(vii) such further Order(s) as this Court deems fit and proper in the
circumstances of the case may also be passed."
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63. As the present matter may require a certain level of technical
expertise in the Commissioner himself, the Petitioners have sought for
appointment of a person well versed in the field to be appointed as the
local commissioner.
64. For the foregoing reasons, these petitions are allowed and the
following directions are issued by this Court:
a) Within a period of 2 weeks from the date of receipt of a copy of
this order, the Respondent is directed to designate the person(s) who
shall depose and give testimony regarding the subjects identified in
Schedule B to the Request for International Judicial Assistance (Letters
Rogatory) dated May 13, 2024;
b) Ms.Vindhya S.Mani, having wide experience in the subject
matter, and having office at No.6, 5th floor, M/s.Lakshmi Kumaran and
Sridharan Attorneys, Chennai House, Esplanade Road, Chennai - 108,
Mobile No.83769 51693 is appointed as a local Commissioner for
collecting evidence, including documentary evidence as mentioned in
Schedule A to the Letters Rogatory, and also for obtaining and recording
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the testimony and depositions from the person(s) designated by the
Respondent as mentioned in Schedule B to the Letters Rogatory.
Ms.Vindhya S.Mani is required to adhere to the terms of the protective
order dated December 15, 2023;
c) Ms.Vindhya S.Mani, the appointed Commissioner is conferred
with "Special Powers' including the power to -
i. Summon a person to produce documents and things as per
Schedule A to the Letters Rogatory, which shall be done as per the
schedule set by the appointed Commissioner and should be at least three
weeks prior to the commencement of the testimony;
ii. Accept copies of the said documents and things, and provide the
same to the members of the confidentiality club from the Petitioner's
side;
iii. Set the schedule for the collection of the testimony of the
Respondent's witness on a day-to-day basis;
iv. Decide to collect evidence based on the digitized files of the
court record and as collected from the Court;
v. Summon a person, to administer oath to her/him and to record
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his/her evidence.
vi. Allow the Petitioners' and Respondent's respective Indian
counsel the opportunity to examine or cross-examine the aforesaid
person;
vii. To record the objections, if any, of the parties and conclude,
without delay, the testimony of the witness nominated by the
Respondent. To not stall the testimony of the witness, once started, for
technical grounds and reasons. It is clarified, that the questions, as asked
should be recorded along with the answers given;
viii. Permit the Petitioners' and Respondent's respective foreign
representatives to attend and observe the examination of the said person;
ix. Video record the testimony of the said person;
x. Have the said recording transcribed verbatim;
xi. Provide both the documents and recording and the transcript to
the Petitioners and Respondents respective representatives and their
Indian Counsels;
d) A 'Confidentiality Club' is set-up by this Court consisting of the
persons stated in Paragraph 60 above and on the terms set out in
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paragraph 13 of the petition; and
e) All proceedings before Ms.Vindhya S.Mani will be in camera
with only the members of the 'Confidentiality Club' being present; and
f) The Registrar (Original Side), Madras High Court, is directed to
keep all documents and records pertaining to these petitions or the
matters arising therefrom, including the evidence collected by
Ms.Vindhya S.Mani under seal. They shall allow access to those
documents only to the members of the Confidentiality Club.
g) The venue of collecting evidence and recording testimony of the
respondent shall be at the Arbitration Centre, Madras High Court and the
Cost of Arbitration Centre as well as the secretarial expenses shall be
borne by the petitioners;
h) Ms.Vindhya S.Mani, to conduct proceedings as per the above
terms and send the evidence/ documents collected and the testimony
recorded to the Registrar General of this Court who would then forward
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it to the United States District Court for the District of Delaware in a
sealed cover.
i) Ms.Vindhya S.Mani shall be paid an initial remuneration of
Rs.2,00,000/- and the same shall be paid by the petitioners within a
period of one week from the date of receipt of a copy of this order. The
Commissioner is also permitted to seek additional remuneration once the
work is completed.
28.01.2025
Index: Yes/ No
Speaking order / Non speaking order
Neutral citation : Yes
ab
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ABDUL QUDDHOSE, J.
After pronouncement of the order at 10.30 a.m., a mention was
made by the learned counsel for the respondent at 12.30 p.m. informing
this Court that the local commissioner appointed by this Court has
appeared for one of the parties in a connected matter and therefore, the
name of the local commissioner will have to be changed. This Court
suggested the name of Mr.Adarsh Ramanujam as local commissioner in
the place of Ms.Vindhya S.Mani, which was agreeable to both the
counsels. Accordingly, Mr.Adarsh Ramanujam, having office at No.6,
Ground Floor, Ram's Flat, 2nd Main Road, Gandhi Nagar, Adyar,
Chennai - 600 020, Mobile No.99999 84703, is appointed as local
Commissioner. The replaced commissioner shall adhere to the same
directions given by this Court in the preceding paragraphs.
28.01.2025
ab
Note: Office is directed to issue order copy by today itself.
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ABDUL QUDDHOSE, J.
ab
pre-delivery order in O.P. (PT) Nos.5 and 6 of 2024
28.01.2025
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