In re BioMarin Pharmaceutical Inc. Securities Litigation

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 IN RE BIOMARIN PHARMACEUTICAL Case No. 3:20-cv-06719-WHO INC. SECURITIES LITIGATION [8] ORDER REGARDING DISCOVERY 9 DISPUTES 10 Re: Dkt. Nos. 124, 126, 127 [12] The parties filed a joint case management statement outlining several disputes. (“Joint [13] Statement”) [Dkt. No. 124]. The parties also filed a joint discovery letter brief (“Joint Letter”) [14] [Dkt. No. 126] and a motion to file that letter under seal1 [Dkt. No. 127]. Most of the parties’ [15] disputes were addressed at the hearing and in the subsequent Minute Order. [Dkt. No. 129]. This [16] Order addresses the remaining disputes. [17] First, plaintiffs confirmed at the hearing that they are able to address the questions that the [18] defendant outlined on page 2 of the Joint Letter, concerning the ranking and rebalancing of the [19] plaintiffs’ stocks during the relevant trading periods. Joint Letter 2:1-8; see also Joint Statement [20] 9:16-10:2; 20:22-21:10. Plaintiffs are ORDERED to now answer those questions (in a declaration [21] or other admissible form) and/or produce the responsive materials. [22] Second and relatedly, the parties contest the extent to which the plaintiffs have provided [23] access to the trading algorithm, spreadsheets, and database(s) used to make trading decisions. See [24] generally Joint Letter. Because plaintiffs say they used these materials to make buy and sell [25] decisions related to this case, BioMarin seeks access to the materials to address the reliance theory [27] 1 and the fraud on the market presumption. Joint Letter 1:4-3:15. Plaintiffs insist that they already 2 provided the relevant information and that the additional information sought is not relevant or 3 ascertainable, in part because they say it is “impossible” to reconstruct the entire dataset as it was 4 at the time the trades were made. Id. 3:17-5:26. The data, they say, relates to information about 5 hundreds of companies and is constantly changed and updated, so the information could be 6 inaccurate, and the request is burdensome and disproportionate to the needs of the case. Id. 7 To attempt their argument to defeat the fraud on the market presumption, BioMarin should 8 be able to understand the algorithm used by the plaintiffs to try to make “[a]ny showing” that price 9 was not the main factor in the decision to buy or sell. See Basic Inc. v. Levinson, 485 U.S. 224 , 10 248 (1988); see also GAMCO Invs., Inc. v. Vivendi, S.A., 927 F. Supp. 2d 88, 104 (S.D.N.Y. 11 2013), aff’d, 838 F.3d 214, 104 (2d Cir. 2016) (noting it is “exceedingly rare” to successfully 12 “rebut the presumption by showing that plaintiffs would have transacted in securities 13 notwithstanding any inflation in their market price caused by fraud”). Accordingly, the defendant 14 shall have the same access to the spreadsheets, databases, and algorithm that plaintiffs’ 30(b)(6) 15 witness, Stig Harder, used to support his understanding of the way the algorithm works, which he 16 discussed during his deposition. See Joint Letter 4:2-10; see also Opposition to Class 17 Certification, Ex. 3 (Harder Deposition). Plaintiffs note that they are unclear as to the logistics 18 required for BioMarin to access the evidence—mentioning as possible a visit to Copenhagen, 19 where the servers to access the databases are apparently located—and are adamant that the 20 databases will not have the information that BioMarin seeks. That may be so, but BioMarin 21 should have the opportunity to analyze the same information that the plaintiffs and Harder had to 22 decide for itself whether the information can be used to address the merits of its contentions.2 23 Accordingly, the plaintiffs are ORDERED to provide access to the algorithm, 24 spreadsheets, and underlying databases, to the extent available to Harder as described above. The 25 parties are ORDERED to meet and confer to determine how to best access the information on an [27] 2 As I noted at the hearing, the argument that BioMarin seeks to make once it reviews this 1 appropriate timeline. The parties shall address any resulting disputes in the joint case management 2 || statement to be filed seven days before the case management conference and hearing on April 12, 3 2023. 4 IT IS SO ORDERED. 5 Dated: February 15, 2023 [7] liam H. Orrick 8 United States District Judge [13] © [16] = 17 Z 18