CALDERWOOD & HARKNESS LLP Attorneys at Law
1 Federal Street, 35th Floor Boston, Massachusetts 02110
Telephone: (617) 548-7200 Facsimile: (617) 548-7201 www.calderwoodharkness.com
Hannah Brinkley Direct Dial: (617) 548-7244
Email: hbrinkley@calderwoodharkness.com
January 10, 2022
Via Email and First-Class Mail
Alicia Fontaine, Esq. Hargrove, Sinclair & Polk LLP 200 Ashbury Asset Advisors, Suite 1800 Boston, Massachusetts 02109
Re: Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC Docket No. 2184-CV-01537-BLS Superior Court of Massachusetts, Business Litigation Session, Suffolk County
Subject: Request for Stipulation Regarding Authenticity and Admissibility of January 12, 2018 Email from Steven Kapoor to Donald R. Farnham
Dear Ms. Fontaine:
I write on behalf of our client, Penterra Pharmaceuticals Corp. ("Penterra"), the plaintiff in the above-captioned matter. As you know, this firm (Matter No. 1018-00007) represents Penterra in this declaratory-judgment action pending before the Honorable Diane L. Costigan in the Business Litigation Session of the Suffolk County Superior Court. With fact discovery having closed on January 14, 2022, and with the parties now approaching the summary judgment phase of this litigation, I am writing to request that your client, Vantage Medical Distribution, LLC ("Vantage"), stipulate to the authenticity and admissibility of a specific document that is central to both parties' claims and defenses. The purpose of this proposed stipulation is straightforward: to streamline the summary judgment record and to avoid unnecessary authentication disputes regarding a document whose genuineness is not, and has never been, in question.
We believe that the stipulation described below will serve the interests of both parties by promoting efficiency, reducing costs, and enabling each side to present its substantive arguments to the Court without the procedural burden of authenticating a document that both sides have already produced in discovery and that both the author and recipient have identified under oath as authentic. We trust that Vantage will agree that the cooperative resolution of this discrete procedural matter is in keeping with the spirit of the Court's directives at the Initial Case Management Conference and consistent with the obligations of counsel under the Massachusetts Rules of Civil Procedure.
I. Identification of the Document at Issue
The document that is the subject of this request is an email dated January 12, 2018, sent from Steven Kapoor, who at all relevant times served as Vice President of Commercial Operations at Penterra Pharmaceuticals Corp., to Donald R. Farnham, who at all relevant times served as Managing Member and Chief Executive Officer of Vantage Medical Distribution, LLC (hereinafter referred to as the "Kapoor Email").
The Kapoor Email was produced in discovery by both parties during the course of fact discovery in this action. Specifically:
• Penterra produced a copy of the Kapoor Email bearing Bates numbers PPC-00001247 through PPC-00001248 as part of its initial document production served on August 16, 2021.
• Vantage produced a copy of the same email bearing Bates numbers VMD-00003512 through VMD-00003513 as part of its initial document production served on September 3, 2021.
A side-by-side comparison of the two productions confirms that they are substantively identical in all respects. Both copies reflect the same sender, recipient, date, timestamp, subject line, and body text, and neither copy bears any indication of alteration, redaction, or modification.
For the convenience of your review, the full text of the body of the Kapoor Email is as follows:
"Don — good catching up yesterday. We're definitely open to exploring expansion into NY/NJ/PA once your New England footprint is fully ramped. Let's circle back mid-year and see where things stand."
As the parties are well aware, the Kapoor Email is central to both sides' positions in this case. Penterra contends that the Kapoor Email expressed, at most, a general willingness to negotiate a potential future expansion of the parties' distribution relationship, and that it did not constitute "prior written consent" as that term is used in Section 2.3 of the Exclusive Distribution Agreement dated July 1, 2017 (the "EDA"), nor did it effect an amendment to the geographic territory described in Exhibit A to the EDA as would be required under the amendment provisions of Section 13.1. Vantage, as we understand it, has taken the opposite position — asserting that the Kapoor Email constituted or evidenced consent to Vantage's expansion of its distribution activities into the New York, New Jersey, and Pennsylvania markets, and that Penterra is bound by the representations contained therein. These competing interpretations will, of course, be fully briefed in the context of dispositive motion practice. This stipulation request concerns only the threshold procedural question of authenticity and admissibility — not the substantive import of the document.
II. Deposition Testimony Confirming Authenticity
The authenticity of the Kapoor Email has already been confirmed by sworn testimony of both the author and the recipient during their respective depositions.
At his deposition taken on October 18, 2021, Donald R. Farnham — Vantage's Managing Member and CEO — confirmed that he received the Kapoor Email on or about January 12, 2018. When presented with the copies produced by both Penterra (PPC-00001247–00001248) and Vantage (VMD-00003512–00003513), Mr. Farnham identified each as an authentic and accurate copy of the email he received from Mr. Kapoor. Mr. Farnham further testified that he had no reason to believe that either produced copy had been altered, modified, or tampered with in any way.
Similarly, at his deposition taken on November 2, 2021, Steven Kapoor — Penterra's Vice President of Commercial Operations — confirmed that he authored and sent the Kapoor Email on January 12, 2018. When shown the produced copies, Mr. Kapoor identified them as true and correct copies of the email he sent to Mr. Farnham on that date. Mr. Kapoor's testimony was entirely consistent with Mr. Farnham's testimony regarding the content and circumstances surrounding the email, including the fact that the email was sent following a telephone conversation between the two men on January 11, 2018.
In short, there is no dispute between the parties as to the Kapoor Email's existence, authorship, transmission, receipt, or content. Both witnesses have testified consistently and without equivocation on each of these points. Under these circumstances, requiring either party to prepare and file a separate authentication affidavit or to designate deposition testimony solely for the purpose of establishing the genuineness of this document would be an unnecessary expenditure of the parties' resources and the Court's time.
III. Proposed Terms of the Stipulation
In light of the foregoing, Calderwood & Harkness LLP, on behalf of Penterra, proposes that the parties enter into a written stipulation providing as follows:
1. Authenticity. The Kapoor Email (bearing Bates numbers PPC-00001247 through PPC-00001248, and VMD-00003512 through VMD-00003513, respectively) is an authentic document — specifically, it is a true and correct copy of an email sent on January 12, 2018, by Steven Kapoor, Vice President of Commercial Operations at Penterra Pharmaceuticals Corp., to Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage Medical Distribution, LLC. The parties agree that the document is what it purports to be within the meaning of Mass. G. Evid. § 901.
2. Admissibility. The Kapoor Email is admissible in evidence in connection with any motion for summary judgment or other dispositive motion practice filed in this action, without the need for a sponsoring witness affidavit or deposition designation solely for the purpose of authentication. Either party may cite to, attach, or otherwise reference the Kapoor Email in its summary judgment filings — including memoranda of law, statements of undisputed material facts, and appendices — without further foundation solely as to authenticity.
3. No Waiver of Substantive Arguments. The stipulation shall not constitute, and shall not be construed as, an agreement by either party as to the legal significance, meaning, interpretation, or probative value of the Kapoor Email. Each party expressly reserves the right to argue its own interpretation of the Kapoor Email and to contend that the email is or is not relevant, material, or dispositive with respect to any claim, counterclaim, defense, or affirmative defense in this action. The stipulation is limited solely to the questions of authenticity and admissibility as described above.
4. Format and Use in Rule 9A Filings. The parties agree that the stipulation may be referenced and relied upon in the parties' respective statements of undisputed material facts filed pursuant to Superior Court Rule 9A(b)(5), and that the stipulated facts regarding authenticity may be included as undisputed facts in each party's Rule 9A(b)(5) statement without objection from the opposing party solely on the basis of authentication.
We have endeavored to draft these proposed terms in a manner that is balanced and that protects the substantive rights of both parties. We are, of course, open to discussing any modifications or additional language that Vantage's counsel may wish to propose, provided that the core purpose of the stipulation — eliminating the need for duplicative authentication procedures — is preserved.
IV. Benefits of the Stipulation
We respectfully submit that the proposed stipulation will benefit both parties and the Court in several important respects:
• Streamlining the Summary Judgment Record. The stipulation will simplify the evidentiary record before the Court by establishing, without the need for additional affidavits or deposition designations, that the Kapoor Email is authentic and admissible. This will allow both parties to focus their summary judgment submissions on the substantive legal and factual issues in dispute rather than on threshold authentication questions.
• Eliminating Unnecessary and Duplicative Submissions. Without the stipulation, each party would likely need to prepare and file a separate affidavit or designate portions of the Kapoor and Farnham deposition transcripts solely to authenticate a document whose genuineness has never been contested. The stipulation will eliminate this redundancy and reduce the volume of materials that the Court must review.
• Reducing Costs and Promoting Judicial Economy. The stipulation is consistent with the Court's directives at the Initial Case Management Conference held on June 18, 2021, during which Judge Costigan emphasized the importance of the parties' cooperation in managing discovery and pretrial proceedings efficiently. Agreeing to this stipulation would be a concrete step toward fulfilling the spirit of those directives and would reduce costs for both sides.
• Facilitating Timely Briefing. Penterra anticipates filing its motion for summary judgment in early to mid-February 2022, in accordance with the scheduling order entered by the Court. Early resolution of this stipulation will facilitate timely and orderly briefing by both parties and will avoid the need for last-minute authentication disputes that could delay the summary judgment schedule.
V. Proposed Next Steps and Timeline
In order to ensure that this matter is resolved in advance of the anticipated summary judgment briefing schedule, we respectfully propose the following timeline:
• We request that Vantage's counsel confirm its agreement in principle to the proposed stipulation by no later than January 17, 2022. A brief email response to that effect will suffice at this stage.
• If Vantage is agreeable, Calderwood & Harkness will promptly prepare a formal draft stipulation for review and signature by Hargrove, Sinclair & Polk LLP on behalf of Vantage. We anticipate that the draft can be circulated within two business days of receiving your confirmation of agreement in principle, and we would expect that the stipulation can be finalized and executed well in advance of Penterra's anticipated summary judgment filing.
• If Vantage declines the proposed stipulation, Penterra expressly reserves all rights to authenticate the Kapoor Email through affidavits, deposition testimony, certified records, or any other admissible evidence at summary judgment and at any subsequent stage of this proceeding.
Should you or Mr. Rourke have any questions regarding this request, or should you wish to propose any modifications to the terms of the stipulation, I would be happy to discuss the matter by telephone at your convenience. I can be reached directly at (617) 548-7244, and I am generally available between 9:00 a.m. and 6:00 p.m. on weekdays. Alternatively, please feel free to respond by email to hbrinkley@calderwoodharkness.com.
Thank you for your prompt attention to this request. We hope and expect that the parties can resolve this procedural matter cooperatively, as we believe it is in the best interest of both sides to do so. As noted above, a copy of this letter is being provided to Kenneth M. Rourke, Esq., as lead partner for Vantage in this matter.
We look forward to hearing from you.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Hannah Brinkley 1 Federal Street, 35th Floor Boston, Massachusetts 02110 Direct: (617) 548-7244
Email: hbrinkley@calderwoodharkness.com
cc: Kenneth M. Rourke, Esq., Hargrove, Sinclair & Polk LLP (via email) cc: Linda Osei, Esq., Calderwood & Harkness LLP (via email) cc: Jennifer Chao, Esq., General Counsel, Penterra Pharmaceuticals Corp. (via email)