In re HIV Antitrust Litigation

Background

The court stated that it had entered final judgment on the reverse-payment and TAF claims. Plaintiffs moved for permission to file nine demonstratives used during the trial on the reverse-payment claims so the demonstratives could be included in the record available for the Ninth Circuit appeal. The demonstratives were used during the testimony of plaintiffs’ expert, Dr. McGuire, and defendants’ expert, Dr. Wu.

Parties’ Positions

Plaintiffs acknowledged that the demonstratives were not exhibits but argued that they should be available as aids to appellate review. They asserted that the Ninth Circuit might have difficulty understanding some testimony without them. Defendants argued that plaintiffs were effectively trying to convert the demonstratives into evidence, particularly because defendants contended that plaintiffs had not introduced sufficient supporting evidence on dispositive issues.

Court’s Analysis

The court reviewed Federal Rule of Appellate Procedure 10, which identifies the record on appeal as including the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries. The court also considered the Ninth Circuit’s rule describing the record as the official transcript and the district court clerk’s record.

The court recognized that demonstratives generally are not evidence and are not ordinarily included in the appellate record. It nevertheless concluded that including the limited demonstratives at issue was appropriate because they had been presented to the jury and helped explain testimony that was already part of the trial record. The court emphasized that plaintiffs were not asking to file every demonstrative used at trial and that the demonstratives would be available only as aids to understanding the record, not as independent sources of information or evidence.

Ruling

Judge Edward Chen granted plaintiffs’ motion. The order disposes of Docket No. 2155.

The court also addressed defendants’ request for the same relief. It ordered the parties to meet and confer, and required them to submit a stipulation by March 7, 2024, concerning the limited demonstratives defendants sought to file. Plaintiffs agreed that defendants should receive leave under the same guidelines: the demonstratives must be limited in number and useful to appellate review, such as by helping the appeals court understand a witness’s testimony.

The court additionally ordered the parties to meet and confer about an issue raised by Janssen: whether Janssen could file a motion concerning injunctive relief for the NGR/collaboration-agreement claims that had not yet been tried and, if so, what the briefing schedule should be.