Bionpharma Inc. v. Corerx, Inc.

Background

Bionpharma sought to depose Rajiv Khanna, an attorney who represented CORERX during CORERX’s negotiations of a settlement agreement with its sister company, Azurity Pharmaceuticals, Inc. CORERX sought to quash, or block, the subpoena.

Bionpharma represented that Khanna possessed relevant information about the settlement negotiations. It also stated that it had unsuccessfully tried to obtain that information from CORERX’s chief executive officer, Ajay Damani, during his deposition. At a conference, Bionpharma’s lawyer said the questioning would focus on Khanna’s conversations with Azurity’s representatives or counsel during the negotiations, and would not explore conversations between Khanna and Damani that could implicate attorney-client privilege.

Court’s analysis

The court noted that Khanna was not CORERX’s litigation counsel. Instead, he served as deal counsel during the settlement negotiations. The court stated that case law distinguishes attempts to depose an opposing party’s litigation counsel from attempts to depose other attorneys who are not litigation counsel.

CORERX also argued that Bionpharma issued the subpoena after fact discovery closed. The subpoena was dated January 30, 2023, before the February 3, 2023 discovery deadline, but it appeared facially defective because it provided less than one week’s notice for Khanna’s appearance. The court also noted delays caused by Bionpharma’s repeated unsuccessful attempts to serve Khanna.

Ruling

The court found that Bionpharma had shown good cause to reopen fact discovery for the limited purpose of deposing Khanna, who had relevant, non-privileged information about the settlement negotiations between CORERX and Azurity. The court therefore reopened fact discovery to permit Bionpharma to take Khanna’s deposition. The order does not separately state a disposition using the terms “granted” or “denied” for CORERX’s request to quash the subpoena.