1018-00007 · Penterra Pharmaceuticals Corp · Discovery

first-rfp-to-vantage.docx DOCUMENT Litigation

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COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BUSINESS LITIGATION SESSION SUFFOLK COUNTY

Docket No. 2184-CV-01537-BLS

PLAINTIFF PENTERRA PHARMACEUTICALS CORP.'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT VANTAGE MEDICAL DISTRIBUTION, LLC

Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "Plaintiff"), by and through its attorneys, Calderwood & Harkness LLP, pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure, hereby requests that Defendant Vantage Medical Distribution, LLC ("Vantage" or "Defendant") produce the documents and things described below for inspection and copying at the offices of Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, MA 02110, within thirty (30) days of service of this Request, or at such other time and place as the parties may mutually agree upon in writing. This Request is served on August 9, 2021.

In answering these Requests, Defendant is reminded of its obligations under the Massachusetts Rules of Civil Procedure, the Massachusetts Superior Court Standing Order on discovery, and all applicable orders of the Business Litigation Session of this Court, including the obligation to make a diligent search of all sources likely to contain responsive documents and to produce all non-privileged responsive documents in a timely and complete manner.

DEFINITIONS

As used herein, the following terms shall have the meanings set forth below. These definitions are intended to supplement, and not limit, the definitions and rules of construction set forth in the Massachusetts Rules of Civil Procedure.

A. "Agreement" or "EDA" means the Exclusive Distribution Agreement dated July 1, 2017, by and between Penterra Pharmaceuticals Corp. (in its capacity as "Supplier") and Vantage Medical Distribution, LLC (in its capacity as "Distributor"), including all Exhibits thereto (including but not limited to Exhibit A — Territory Definition, Exhibit B — Product Specifications, and Exhibit C — Pricing Schedule), and any purported amendments, modifications, supplements, side letters, or addenda thereto, whether executed by one or both parties, and regardless of whether Penterra contends such instruments are valid, enforceable, or binding.

B. "Products" means Oncalaris® (pegvisomant-axel), in 20 mg and 40 mg vial dosage forms, and Renuvesta® (cilosporin-beta), in 5 mg capsule dosage form, as those products are identified and defined in the Agreement, and shall include all lots, batches, and units of such products, regardless of National Drug Code (NDC) number or packaging configuration.

C. "Territory" means the geographic region defined in Exhibit A to the Agreement, specifically the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the "New England States"), including all counties, municipalities, and jurisdictions located within those six states.

D. "Tri-State Area" means the states of New York, New Jersey, and Pennsylvania, including all counties, municipalities, and jurisdictions located within those three states.

E. "Kapoor Email" means the email communication dated January 12, 2018, sent by Steven Kapoor, Vice President of Commercial Operations at Penterra, to Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage, and any and all reply emails, forwarded copies, attachments, and related email chains or threads, whether sent or received before or after January 12, 2018, that form part of the same email thread or conversation.

F. "Relevant Period" means the period commencing on July 1, 2017 (the effective date of the Agreement) and continuing through and including the date of Vantage's response to this Request, unless a different time period is specifically identified in an individual Request below.

G. "Document" or "Documents" as used herein, shall be given the broadest interpretation permissible under Rule 34 of the Massachusetts Rules of Civil Procedure and shall include, without limitation, all writings, drawings, graphs, charts, photographs, recordings, electronically stored information (including but not limited to emails, text messages, SMS messages, instant messages, messages sent or received through messaging platforms such as Meridian Solutions, Northgate Data Systems, or Meridian Services Inc., database entries, spreadsheets, presentations, metadata, and system logs), and any other data or data compilations — whether stored in paper, electronic, magnetic, optical, or any other medium — from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. The term "Document" also includes all drafts, non-identical copies, and versions of any document that differ in any respect from the original or from any other copy, including copies bearing annotations, highlighting, marginalia, or other markings not present on the original.

H. "Communication" or "Communications" means any exchange of information, whether oral or written, whether formal or informal, including but not limited to letters, emails, text messages, instant messages, memoranda, meeting notes, telephone call records and logs, voicemail recordings and transcripts, video conference recordings, presentations, reports, and any other form of correspondence, dialogue, or information exchange between or among two or more persons, regardless of the medium or method by which such exchange occurred.

I. "You," "Your," or "Vantage" means Vantage Medical Distribution, LLC, and its current and former members, managers, officers, directors, employees, agents, representatives, attorneys, accountants (including but not limited to Cranmer, Hodges & Associates, P.C.), consultants, advisors, subsidiaries, affiliates, and any other persons or entities acting or purporting to act on its behalf at any time during the Relevant Period.

J. "Penterra" means Penterra Pharmaceuticals Corp. and its current and former officers, directors, employees, agents, and representatives, including but not limited to Dr. Marcus Lindholm (Chief Executive Officer), Jennifer Chao (Senior Vice President, General Counsel), Steven Kapoor (Vice President, Commercial Operations), and Rachel Mendez (Director, Distribution Strategy), as well as any other individual who acted in a representative capacity on behalf of Penterra at any time during the Relevant Period.

K. "Relating to" or "Concerning" means referring to, describing, evidencing, constituting, reflecting, mentioning, pertaining to, connected with, commenting on, responsive to, setting forth, analyzing, summarizing, memorializing, or being in any way logically or factually relevant to the subject matter in question.

L. "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, estate, governmental entity, agency, or instrumentality, or any other legal entity, however organized or constituted.

INSTRUCTIONS

The following Instructions apply to each and every Request set forth below. To the extent any Instruction conflicts with a specific direction contained in an individual Request, the specific direction shall control.

Instruction 1: Scope and Time Period. Unless otherwise specified in a particular Request, each Request covers the entire Relevant Period, as defined above (i.e., July 1, 2017 through the date of production). Where a Request specifies a narrower or different time period, that specified time period shall govern with respect to that Request only.

Instruction 2: Responsive Documents in Possession, Custody, or Control. Defendant shall produce all responsive Documents and things that are in its possession, custody, or control, regardless of where such Documents are physically located. This obligation extends to Documents held by Defendant's agents, attorneys (to the extent not privileged), accountants (including but not limited to Cranmer, Hodges & Associates, P.C.), consultants, advisors, and any other persons or entities acting on Defendant's behalf. If responsive Documents are in the possession of a third party over whom Defendant has a legal right to obtain such Documents, or who would provide them upon request, Defendant shall obtain and produce such Documents.

Instruction 3: Document Identification and Privilege Log. If any Document is withheld, in whole or in part, on the basis of any claim of privilege, work product protection, or any other ground, Defendant shall identify each such Document on a privilege log with sufficient detail as required under Massachusetts law and applicable orders of this Court. The privilege log shall include, at a minimum, the following information for each withheld Document: (a) the date of the Document; (b) the author(s) or sender(s) of the Document; (c) the recipient(s) and any persons copied on the Document; (d) a description of the subject matter of the Document sufficient to assess the claim of privilege without revealing the privileged content; and (e) the specific legal basis for the privilege or protection asserted. If a Document is produced in redacted form, the privilege log shall identify the specific portions redacted and the basis for each redaction.

Instruction 4: Form of Production. Documents shall be produced as they are kept in the usual course of business, or organized and labeled to correspond to each category in this Request. Electronically stored information ("ESI") shall be produced in its native format, including all associated metadata. If production in native format is not practicable for any particular Document, Defendant shall produce such Document in single-page TIFF images with extracted text and a load file containing metadata fields, or in another reasonably usable form agreed upon by the parties. In all events, Defendant shall not degrade the searchability, usability, or completeness of any ESI in the course of production.

Instruction 5: Continuing Obligation. This Request imposes a continuing obligation on Defendant to supplement its production with any additional responsive Documents that come into its possession, custody, or control after the initial production, in accordance with Rule 26(e) of the Massachusetts Rules of Civil Procedure and the Standing Orders of this Court. Supplemental production shall be made promptly upon identification of additional responsive Documents.

REQUESTS FOR PRODUCTION

REQUEST NO. 1: The Exclusive Distribution Agreement and All Exhibits

All Documents constituting or relating to the Agreement, including without limitation all drafts, redlined versions, markup copies, comment copies, track-changes versions, executed copies, and counterpart signature pages of the Exclusive Distribution Agreement dated July 1, 2017, by and between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC.

This Request includes, but is not limited to, all Exhibits to the Agreement, specifically including Exhibit A (Territory Definition), as well as any other schedules, appendices, or attachments referenced in or forming a part of the Agreement.

This Request further includes all cover letters, transmittal correspondence, transmittal emails, acknowledgment receipts, and signature pages associated with the execution, delivery, or distribution of the Agreement to any party or person.

REQUEST NO. 2: Pre-Agreement Negotiations and Territory Discussions

All Documents and Communications relating to the negotiation, drafting, review, and execution of the Agreement, including without limitation any proposals, counterproposals, term sheets, letters of intent, memoranda of understanding, outlines, summaries of terms, and correspondence exchanged between Penterra and Vantage (or their respective agents, attorneys, consultants, or other representatives) during the period from January 1, 2016 through July 1, 2017.

This Request specifically seeks all Documents and Communications relating to the scope of the Territory, the geographic boundaries of the exclusive distribution rights, the definition and drafting of Exhibit A, the rationale or business justification for selecting the six New England States as the Territory, and any discussions regarding the inclusion or exclusion of additional states (including the Tri-State Area) from the Territory.

This Request also includes all meeting notes, agendas, presentations, internal Vantage memoranda, and strategy documents reflecting or discussing any aspect of the pre-Agreement negotiations.

REQUEST NO. 3: Purported Amendments, Modifications, or Waivers

All Documents constituting or purporting to constitute any amendment, modification, supplement, addendum, side letter, waiver, consent, or forbearance agreement relating to the Agreement at any time during the Relevant Period.

This Request includes, but is not limited to, any Document purporting to amend, modify, or expand the Territory beyond the six New England States defined in Exhibit A to the Agreement, whether by formal written instrument, email confirmation, or any other means.

This Request further includes any written instruments signed by authorized representatives of both parties as contemplated by Section 13.1 of the Agreement (the "Entire Agreement; Amendment" provision), and any Documents that Vantage contends satisfy the requirements of Section 13.1 for a valid amendment or modification of the Agreement.

REQUEST NO. 4: The Kapoor Email and Related Communications

The Kapoor Email dated January 12, 2018, in its entirety, including all attachments, reply emails, forwarded copies, and the complete email chain or thread of which it forms a part.

All Documents and Communications between Steven Kapoor and Donald R. Farnham (or any other Vantage representative) from January 1, 2018 through March 31, 2018, relating to the potential expansion, proposed expansion, or contemplated expansion of the Territory to include the Tri-State Area, including all discussions regarding the feasibility, terms, conditions, or timing of any such expansion.

All internal Vantage Documents and Communications referencing, analyzing, summarizing, responding to, or in any way discussing the Kapoor Email, including without limitation internal emails, memoranda, meeting notes, presentations, and board or management communications.

REQUEST NO. 5: Communications Regarding Territory Expansion

All Documents and Communications between any Vantage representative (including but not limited to Donald R. Farnham, Lisa Petrangelo, Brian Kopec, and any other Vantage officer, manager, employee, or agent) and any Penterra representative relating to any proposed, contemplated, requested, discussed, negotiated, or actual expansion of the Territory beyond the six New England States, for the entire Relevant Period.

All internal Vantage Documents and Communications discussing, analyzing, evaluating, or planning territorial expansion into New York, New Jersey, Pennsylvania, or any other state outside the Territory, including without limitation business plans, strategic plans, market analyses, feasibility studies, financial projections, presentations, emails, memoranda, and meeting agendas or minutes.

REQUEST NO. 6: Vantage's Decision to Commence Tri-State Distribution

All Documents and Communications relating to Vantage's decision to begin distributing the Products in the Tri-State Area on or about September 14, 2020 (or at any other time), including without limitation all internal memoranda, board or management meeting minutes, management committee minutes, meeting agendas, strategy documents, business plans, presentations, financial analyses, risk assessments, emails, text messages, instant messages, and any legal opinions, legal memoranda, or legal advice obtained by Vantage in connection with that decision (to the extent not protected by the attorney-client privilege or work product doctrine; for any such Documents withheld on privilege grounds, Defendant shall include a corresponding entry on its privilege log).

All Documents sufficient to identify each person who authorized, directed, approved, participated in, or was consulted regarding the decision to commence distribution of the Products in the Tri-State Area, including but not limited to records identifying the date on which the decision was made, the person or persons with final decision-making authority, and any conditions, caveats, or limitations discussed in connection with the decision.

REQUEST NO. 7: Tri-State Area Sales, Shipping, and Distribution Records

All sales records, invoices, credit memoranda, debit memoranda, purchase orders, confirmations of orders, shipping records, bills of lading, waybills, delivery confirmations, packing slips, proof of delivery receipts, tracking records, returns and returns processing records, and all other logistics documents and records for any Products shipped, delivered, sold, or otherwise distributed by Vantage to any customer, hospital, clinic, pharmacy, group purchasing organization, wholesaler, sub-distributor, or other entity located in the Tri-State Area during the period from September 1, 2020 through the date of production.

This Request includes all records sufficient to identify, for each such transaction: (a) the customer name; (b) the customer address, including city, state, and zip code; (c) the product type and dosage form (i.e., Oncalaris® 20 mg, Oncalaris® 40 mg, or Renuvesta® 5 mg); (d) the quantity shipped or sold; (e) the shipment or delivery date; (f) the invoice amount; and (g) the revenue actually received or recognized by Vantage for each such transaction.

REQUEST NO. 8: Tri-State Area Customer Information

All Documents identifying Vantage's customers, accounts, or prospects in the Tri-State Area for the Products during the Relevant Period, including without limitation customer lists, account profiles, customer contact information, account setup or onboarding forms, credit applications, credit approval records, sales call reports, sales visit logs, and customer relationship management ("CRM") system records or entries.

All Documents and Communications between Vantage and any Tri-State Area customer or prospective customer relating to the distribution, sale, pricing, availability, or promotion of the Products, including correspondence, proposals, quotations, order confirmations, and customer service records.

REQUEST NO. 9: Tri-State Area Financial Records and Revenue Data

All financial records, accounting records, accounting entries, general ledger entries, journal entries, revenue reports, sales reports, profit-and-loss statements, contribution margin analyses, gross margin reports, management reports, and any other financial Documents reflecting revenues, costs, cost of goods sold, margins, and profits derived from the sale or distribution of the Products in the Tri-State Area during the period from September 1, 2020 through the date of production.

This Request specifically includes all Documents sufficient to identify, verify, and reconcile the approximately $6.4 million in Tri-State Area revenues reported by Vantage for the period of September 2020 through March 2021, including the underlying transactional data, revenue recognition records, and any adjustments, accruals, or deferrals applied to such revenues. To the extent Vantage maintains revenue data broken down by state, county, customer, product line, or other category, all such data shall be produced.

REQUEST NO. 10: Vantage's Overall Financial Records Related to the Agreement

All Documents reflecting Vantage's total purchases of Products from Penterra for each fiscal year from FY 2018 through FY 2021, including without limitation purchase orders, purchase order confirmations, invoices from Penterra, payment records, wire transfer confirmations, check images, accounts payable ledger entries, and receiving records.

This Request includes all records sufficient to verify the following annual purchase amounts for Oncalaris® (in all dosage forms) from Penterra: FY 2018 — approximately $11.2 million; FY 2019 — approximately $14.8 million; FY 2020 — approximately $18.3 million; and FY 2021 (through March 2021) — approximately $16.1 million.

This Request further includes all Documents reflecting whether and how Vantage met the minimum annual purchase commitment of $9.5 million per year for Oncalaris® at wholesale acquisition cost, as required by Section 5.2 of the Agreement, including any correspondence, certifications, reports, or other Documents exchanged between Penterra and Vantage regarding compliance with the minimum purchase commitment, and any Documents reflecting shortfalls, waivers, or adjustments with respect to that commitment.

REQUEST NO. 11: Vantage's Counterclaim Damages Computation

All Documents and Communications supporting, comprising, underlying, or relating to Vantage's claimed damages of $35 million as asserted in its Counterclaims filed on May 14, 2021, including without limitation any damages analyses, damages calculations, lost-profits analyses, lost-profits calculations, unjust enrichment analyses, reasonable expectation analyses, expert reports or draft expert reports, financial models, economic models, forecasts, projections, and any Communications with Cranmer, Hodges & Associates, P.C. (or any other accountant, financial advisor, or consultant) relating to the computation, methodology, or quantification of Vantage's claimed damages (to the extent such Communications are not protected by the attorney-client privilege or work product doctrine).

This Request further includes all assumptions, data inputs, variables, supporting documentation, source data, and workpapers underlying any damages model, damages calculation, or financial projection prepared by or on behalf of Vantage in connection with its Counterclaims, including any sensitivity analyses, scenario analyses, or alternative damages calculations.

REQUEST NO. 12: Vantage's Revenue and Financial Statements

Vantage's audited or unaudited financial statements, including income statements (or statements of operations), balance sheets, statements of cash flows, and all accompanying notes, schedules, and supplementary information, for each of the fiscal years 2017, 2018, 2019, 2020, and 2021 (or, for FY 2021, for the most recent interim period available), as prepared by or with the assistance of Cranmer, Hodges & Associates, P.C. or any other accounting firm or financial advisor.

This Request includes all Documents sufficient to verify Vantage's total revenue of approximately $148 million for FY 2021, and Vantage's revenue attributable to Penterra products (including Oncalaris® and Renuvesta®) of approximately $67 million, representing approximately 45.3% of Vantage's total revenue for FY 2021.

This Request also includes any management letters, audit findings letters, or communications between Cranmer, Hodges & Associates, P.C. (or any other auditor) and Vantage management relating to accounting treatments, revenue recognition, or financial reporting of Penterra product revenues or Tri-State Area revenues.

REQUEST NO. 13: Written Consent Under Section 2.3

All Documents that Vantage contends constitute, evidence, or reflect "prior written consent" from Penterra (in its capacity as "Supplier" under the Agreement) authorizing Vantage to solicit orders for, market, promote, deliver, or distribute the Products outside the Territory, as referenced in Section 2.3 of the Agreement.

All Communications — whether between Vantage and Penterra, or internal to Vantage — in which Vantage requested, discussed, sought, received, or claims to have received such prior written consent, including all emails, letters, memoranda, and other correspondence.

If no such prior written consent exists or can be produced, Defendant shall state as much in its response to this Request.

REQUEST NO. 14: Course of Dealing / Course of Performance Evidence

All Documents and Communications that Vantage contends demonstrate, evidence, or reflect a course of dealing or course of performance between Penterra and Vantage that modified, waived, superseded, or expanded the Territory beyond the six New England States defined in Exhibit A to the Agreement.

All Documents reflecting each and every instance in which Vantage shipped, sold, delivered, or distributed Products to any customer, account, or entity located outside the Territory (whether in the Tri-State Area or in any other geographic area) at any time during the Relevant Period, including records sufficient to identify the customer name, customer location, product type, quantity, date, and revenue received for each such out-of-Territory transaction.

All Documents and Communications reflecting any instance in which Penterra was aware of, acknowledged, acquiesced to, approved, ratified, or failed to object to any out-of-Territory shipment, sale, or distribution by Vantage, including any correspondence, reporting, or discussions between the parties regarding such activity.

REQUEST NO. 15: Communications with Penterra Regarding Cease-and-Desist

All Documents and Communications between Vantage and Penterra (including but not limited to Communications between Donald R. Farnham and Jennifer Chao, and Communications between counsel for Vantage at Hargrove, Sinclair & Polk LLP and Penterra or its counsel at Calderwood & Harkness LLP) relating to Penterra's cease-and-desist letter dated March 8, 2021, and Vantage's written response dated March 22, 2021.

All internal Vantage Documents and Communications discussing, analyzing, evaluating, or formulating a response to the cease-and-desist letter, including strategy memoranda, draft responses, meeting notes, emails, and any communications with counsel regarding the same (to the extent not protected by the attorney-client privilege or work product doctrine; for any such Documents withheld on privilege grounds, Defendant shall include a corresponding entry on its privilege log).

REQUEST NO. 16: Knowledge of or Communications Regarding Meridian National Distributors, Inc.

All Documents and Communications in Vantage's possession, custody, or control relating to Meridian National Distributors, Inc. ("Meridian") or its principal, Thomas Welliver, including without limitation any Documents or Communications reflecting Vantage's knowledge of, awareness of, or response to Penterra's proposed or actual appointment of Meridian as a distributor for the Products in the Tri-State Area.

This Request includes all Documents relating to the February 15, 2021 term sheet between Penterra and Meridian (or any prior or subsequent versions thereof), including any copies of such term sheet in Vantage's possession, any Communications in which the term sheet was discussed or referenced, and any internal Vantage analyses, memoranda, or discussions regarding the potential impact of Meridian's appointment on Vantage's business.

REQUEST NO. 17: Promissory Estoppel — Reliance Evidence

All Documents and Communications that Vantage contends demonstrate detrimental reliance on any promise, representation, assurance, or course of conduct by Penterra relating to the expansion of the Territory to include the Tri-State Area, as alleged in Vantage's promissory estoppel counterclaim (Count III of the Counterclaims).

All Documents reflecting investments, expenditures, capital outlays, hiring decisions, personnel deployments, lease agreements, real property acquisitions, warehouse or distribution center buildouts, infrastructure improvements, equipment purchases, technology investments, marketing expenditures, or other costs incurred by Vantage in reliance on the alleged promise, representation, or assurance of Tri-State Area exclusivity or authorization.

For each such expenditure or investment, produce Documents sufficient to identify the date, amount, purpose, authorizing person, and the specific promise or representation upon which Vantage contends it relied.

REQUEST NO. 18: Organizational and Corporate Governance Documents

All Documents reflecting Vantage's organizational structure and corporate governance, including without limitation its operating agreement (and all amendments thereto), articles of organization, certificates of formation, membership certificates, membership interest ledgers, management agreements, and any resolutions, written consents, or minutes of meetings of managers, members, or any management committee relating to the Agreement, the Tri-State Area expansion, or this litigation.

This Request also includes any organizational charts, management reporting structures, or Documents identifying the individuals with authority to bind Vantage contractually or to authorize distribution activities outside the Territory.

REQUEST NO. 19: Insurance Policies

All Documents constituting or relating to any insurance policy or policies maintained by Vantage at any time during the Relevant Period that may provide coverage, indemnification, or reimbursement for any of the claims asserted by Penterra in this action or any of the counterclaims asserted by Vantage, including without limitation commercial general liability policies, errors and omissions policies, professional liability policies, directors and officers liability policies, and any umbrella or excess liability policies.

This Request includes the complete policy documents (including all declarations pages, endorsements, riders, and exclusions), as well as all correspondence between Vantage and any insurer relating to notice of the claims in this action, reservation of rights, coverage determinations, or tenders of defense.

REQUEST NO. 20: Communications with Third Parties Regarding the Dispute

All Documents and Communications between Vantage (including any officer, manager, employee, agent, or representative of Vantage) and any third party (other than Vantage's counsel of record, Hargrove, Sinclair & Polk LLP, to the extent such Communications are protected by the attorney-client privilege or work product doctrine) relating to the dispute between Penterra and Vantage concerning the Territory, the Tri-State Area distribution, the cease-and-desist letter, or this litigation.

This Request includes, but is not limited to, Communications with customers, suppliers, vendors, group purchasing organizations, industry contacts, trade associations, regulatory bodies, and any other person or entity with whom Vantage discussed or disclosed information regarding the dispute.

REQUEST NO. 21: Document Retention and Destruction

All Documents relating to Vantage's document retention, preservation, and destruction policies and practices, whether formal or informal, written or unwritten, including any document management policies, data retention schedules, records retention policies, and electronic data management or archiving policies in effect at any time during the Relevant Period.

All litigation hold notices, preservation notices, or similar directives issued by or on behalf of Vantage in connection with this action, the underlying dispute between Penterra and Vantage, or any anticipated or related litigation, including the dates on which such notices were issued, the persons to whom they were directed, and the scope of the materials covered.

All Documents reflecting the destruction, deletion, disposal, or loss of any Documents potentially responsive to this Request at any time after March 8, 2021 (the date of Penterra's cease-and-desist letter), including any records of automatic deletion protocols, system purges, or scheduled destruction of electronic or paper records.

Respectfully submitted,

PENTERRA PHARMACEUTICALS CORP., By its attorneys,

CALDERWOOD & HARKNESS LLP

________________________________________

Linda Osei (BBO No. 672419) Priya Anand (BBO No. 685203) Hannah Brinkley (BBO No. 691847) Patrick Gallagher (BBO No. 694512)

Calderwood & Harkness LLP 1 Federal Street, 35th Floor Boston, MA 02110 Telephone: (617) 555-8200 Facsimile: (617) 555-8201

Dated: August 9, 2021

CERTIFICATE OF SERVICE

I, Hannah Brinkley, hereby certify that on August 9, 2021, a true and correct copy of the foregoing Plaintiff Penterra Pharmaceuticals Corp.'s First Request for Production of Documents to Defendant Vantage Medical Distribution, LLC was served upon counsel for Defendant by electronic mail and by first-class mail, postage prepaid, to the following:

Kenneth M. Rourke, Esq. Alicia Fontaine, Esq. Hargrove, Sinclair & Polk LLP 200 Ashbury Asset Advisors, Suite 1800 Boston, MA 02109 krourke@hsplaw.com afontaine@hsplaw.com

________________________________________

Hannah Brinkley

PENTERRA PHARMACEUTICALS CORP.,

Plaintiff,

VANTAGE MEDICAL DISTRIBUTION, LLC,

Defendant.

COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BUSINESS LITIGATION SESSION SUFFOLK COUNTY
Docket No. 2184-CV-01537-BLS
PLAINTIFF PENTERRA PHARMACEUTICALS CORP.'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT VANTAGE MEDICAL DISTRIBUTION, LLC
Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "Plaintiff"), by and through its attorneys, Calderwood & Harkness LLP, pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure, hereby requests that Defendant Vantage Medical Distribution, LLC ("Vantage" or "Defendant") produce the documents and things described below for inspection and copying at the offices of Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, MA 02110, within thirty (30) days of service of this Request, or at such other time and place as the parties may mutually agree upon in writing. This Request is served on August 9, 2021.
In answering these Requests, Defendant is reminded of its obligations under the Massachusetts Rules of Civil Procedure, the Massachusetts Superior Court Standing Order on discovery, and all applicable orders of the Business Litigation Session of this Court, including the obligation to make a diligent search of all sources likely to contain responsive documents and to produce all non-privileged responsive documents in a timely and complete manner.
DEFINITIONS
As used herein, the following terms shall have the meanings set forth below. These definitions are intended to supplement, and not limit, the definitions and rules of construction set forth in the Massachusetts Rules of Civil Procedure.
A. "Agreement" or "EDA" means the Exclusive Distribution Agreement dated July 1, 2017, by and between Penterra Pharmaceuticals Corp. (in its capacity as "Supplier") and Vantage Medical Distribution, LLC (in its capacity as "Distributor"), including all Exhibits thereto (including but not limited to Exhibit A — Territory Definition, Exhibit B — Product Specifications, and Exhibit C — Pricing Schedule), and any purported amendments, modifications, supplements, side letters, or addenda thereto, whether executed by one or both parties, and regardless of whether Penterra contends such instruments are valid, enforceable, or binding.
B. "Products" means Oncalaris® (pegvisomant-axel), in 20 mg and 40 mg vial dosage forms, and Renuvesta® (cilosporin-beta), in 5 mg capsule dosage form, as those products are identified and defined in the Agreement, and shall include all lots, batches, and units of such products, regardless of National Drug Code (NDC) number or packaging configuration.
C. "Territory" means the geographic region defined in Exhibit A to the Agreement, specifically the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the "New England States"), including all counties, municipalities, and jurisdictions located within those six states.
D. "Tri-State Area" means the states of New York, New Jersey, and Pennsylvania, including all counties, municipalities, and jurisdictions located within those three states.
E. "Kapoor Email" means the email communication dated January 12, 2018, sent by Steven Kapoor, Vice President of Commercial Operations at Penterra, to Donald R. Farnham, Managing Member and Chief Executive Officer of Vantage, and any and all reply emails, forwarded copies, attachments, and related email chains or threads, whether sent or received before or after January 12, 2018, that form part of the same email thread or conversation.
F. "Relevant Period" means the period commencing on July 1, 2017 (the effective date of the Agreement) and continuing through and including the date of Vantage's response to this Request, unless a different time period is specifically identified in an individual Request below.
G. "Document" or "Documents" as used herein, shall be given the broadest interpretation permissible under Rule 34 of the Massachusetts Rules of Civil Procedure and shall include, without limitation, all writings, drawings, graphs, charts, photographs, recordings, electronically stored information (including but not limited to emails, text messages, SMS messages, instant messages, messages sent or received through messaging platforms such as Meridian Solutions, Northgate Data Systems, or Meridian Services Inc., database entries, spreadsheets, presentations, metadata, and system logs), and any other data or data compilations — whether stored in paper, electronic, magnetic, optical, or any other medium — from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. The term "Document" also includes all drafts, non-identical copies, and versions of any document that differ in any respect from the original or from any other copy, including copies bearing annotations, highlighting, marginalia, or other markings not present on the original.
H. "Communication" or "Communications" means any exchange of information, whether oral or written, whether formal or informal, including but not limited to letters, emails, text messages, instant messages, memoranda, meeting notes, telephone call records and logs, voicemail recordings and transcripts, video conference recordings, presentations, reports, and any other form of correspondence, dialogue, or information exchange between or among two or more persons, regardless of the medium or method by which such exchange occurred.
I. "You," "Your," or "Vantage" means Vantage Medical Distribution, LLC, and its current and former members, managers, officers, directors, employees, agents, representatives, attorneys, accountants (including but not limited to Cranmer, Hodges & Associates, P.C.), consultants, advisors, subsidiaries, affiliates, and any other persons or entities acting or purporting to act on its behalf at any time during the Relevant Period.
J. "Penterra" means Penterra Pharmaceuticals Corp. and its current and former officers, directors, employees, agents, and representatives, including but not limited to Dr. Marcus Lindholm (Chief Executive Officer), Jennifer Chao (Senior Vice President, General Counsel), Steven Kapoor (Vice President, Commercial Operations), and Rachel Mendez (Director, Distribution Strategy), as well as any other individual who acted in a representative capacity on behalf of Penterra at any time during the Relevant Period.
K. "Relating to" or "Concerning" means referring to, describing, evidencing, constituting, reflecting, mentioning, pertaining to, connected with, commenting on, responsive to, setting forth, analyzing, summarizing, memorializing, or being in any way logically or factually relevant to the subject matter in question.
L. "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, estate, governmental entity, agency, or instrumentality, or any other legal entity, however organized or constituted.
INSTRUCTIONS
The following Instructions apply to each and every Request set forth below. To the extent any Instruction conflicts with a specific direction contained in an individual Request, the specific direction shall control.
Instruction 1: Scope and Time Period. Unless otherwise specified in a particular Request, each Request covers the entire Relevant Period, as defined above (i.e., July 1, 2017 through the date of production). Where a Request specifies a narrower or different time period, that specified time period shall govern with respect to that Request only.
Instruction 2: Responsive Documents in Possession, Custody, or Control. Defendant shall produce all responsive Documents and things that are in its possession, custody, or control, regardless of where such Documents are physically located. This obligation extends to Documents held by Defendant's agents, attorneys (to the extent not privileged), accountants (including but not limited to Cranmer, Hodges & Associates, P.C.), consultants, advisors, and any other persons or entities acting on Defendant's behalf. If responsive Documents are in the possession of a third party over whom Defendant has a legal right to obtain such Documents, or who would provide them upon request, Defendant shall obtain and produce such Documents.
Instruction 3: Document Identification and Privilege Log. If any Document is withheld, in whole or in part, on the basis of any claim of privilege, work product protection, or any other ground, Defendant shall identify each such Document on a privilege log with sufficient detail as required under Massachusetts law and applicable orders of this Court. The privilege log shall include, at a minimum, the following information for each withheld Document: (a) the date of the Document; (b) the author(s) or sender(s) of the Document; (c) the recipient(s) and any persons copied on the Document; (d) a description of the subject matter of the Document sufficient to assess the claim of privilege without revealing the privileged content; and (e) the specific legal basis for the privilege or protection asserted. If a Document is produced in redacted form, the privilege log shall identify the specific portions redacted and the basis for each redaction.
Instruction 4: Form of Production. Documents shall be produced as they are kept in the usual course of business, or organized and labeled to correspond to each category in this Request. Electronically stored information ("ESI") shall be produced in its native format, including all associated metadata. If production in native format is not practicable for any particular Document, Defendant shall produce such Document in single-page TIFF images with extracted text and a load file containing metadata fields, or in another reasonably usable form agreed upon by the parties. In all events, Defendant shall not degrade the searchability, usability, or completeness of any ESI in the course of production.
Instruction 5: Continuing Obligation. This Request imposes a continuing obligation on Defendant to supplement its production with any additional responsive Documents that come into its possession, custody, or control after the initial production, in accordance with Rule 26(e) of the Massachusetts Rules of Civil Procedure and the Standing Orders of this Court. Supplemental production shall be made promptly upon identification of additional responsive Documents.
REQUESTS FOR PRODUCTION
REQUEST NO. 1: The Exclusive Distribution Agreement and All Exhibits
All Documents constituting or relating to the Agreement, including without limitation all drafts, redlined versions, markup copies, comment copies, track-changes versions, executed copies, and counterpart signature pages of the Exclusive Distribution Agreement dated July 1, 2017, by and between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC.
This Request includes, but is not limited to, all Exhibits to the Agreement, specifically including Exhibit A (Territory Definition), as well as any other schedules, appendices, or attachments referenced in or forming a part of the Agreement.
This Request further includes all cover letters, transmittal correspondence, transmittal emails, acknowledgment receipts, and signature pages associated with the execution, delivery, or distribution of the Agreement to any party or person.
REQUEST NO. 2: Pre-Agreement Negotiations and Territory Discussions
All Documents and Communications relating to the negotiation, drafting, review, and execution of the Agreement, including without limitation any proposals, counterproposals, term sheets, letters of intent, memoranda of understanding, outlines, summaries of terms, and correspondence exchanged between Penterra and Vantage (or their respective agents, attorneys, consultants, or other representatives) during the period from January 1, 2016 through July 1, 2017.
This Request specifically seeks all Documents and Communications relating to the scope of the Territory, the geographic boundaries of the exclusive distribution rights, the definition and drafting of Exhibit A, the rationale or business justification for selecting the six New England States as the Territory, and any discussions regarding the inclusion or exclusion of additional states (including the Tri-State Area) from the Territory.
This Request also includes all meeting notes, agendas, presentations, internal Vantage memoranda, and strategy documents reflecting or discussing any aspect of the pre-Agreement negotiations.
REQUEST NO. 3: Purported Amendments, Modifications, or Waivers
All Documents constituting or purporting to constitute any amendment, modification, supplement, addendum, side letter, waiver, consent, or forbearance agreement relating to the Agreement at any time during the Relevant Period.
This Request includes, but is not limited to, any Document purporting to amend, modify, or expand the Territory beyond the six New England States defined in Exhibit A to the Agreement, whether by formal written instrument, email confirmation, or any other means.
This Request further includes any written instruments signed by authorized representatives of both parties as contemplated by Section 13.1 of the Agreement (the "Entire Agreement; Amendment" provision), and any Documents that Vantage contends satisfy the requirements of Section 13.1 for a valid amendment or modification of the Agreement.
REQUEST NO. 4: The Kapoor Email and Related Communications
The Kapoor Email dated January 12, 2018, in its entirety, including all attachments, reply emails, forwarded copies, and the complete email chain or thread of which it forms a part.
All Documents and Communications between Steven Kapoor and Donald R. Farnham (or any other Vantage representative) from January 1, 2018 through March 31, 2018, relating to the potential expansion, proposed expansion, or contemplated expansion of the Territory to include the Tri-State Area, including all discussions regarding the feasibility, terms, conditions, or timing of any such expansion.
All internal Vantage Documents and Communications referencing, analyzing, summarizing, responding to, or in any way discussing the Kapoor Email, including without limitation internal emails, memoranda, meeting notes, presentations, and board or management communications.
REQUEST NO. 5: Communications Regarding Territory Expansion
All Documents and Communications between any Vantage representative (including but not limited to Donald R. Farnham, Lisa Petrangelo, Brian Kopec, and any other Vantage officer, manager, employee, or agent) and any Penterra representative relating to any proposed, contemplated, requested, discussed, negotiated, or actual expansion of the Territory beyond the six New England States, for the entire Relevant Period.
All internal Vantage Documents and Communications discussing, analyzing, evaluating, or planning territorial expansion into New York, New Jersey, Pennsylvania, or any other state outside the Territory, including without limitation business plans, strategic plans, market analyses, feasibility studies, financial projections, presentations, emails, memoranda, and meeting agendas or minutes.
REQUEST NO. 6: Vantage's Decision to Commence Tri-State Distribution
All Documents and Communications relating to Vantage's decision to begin distributing the Products in the Tri-State Area on or about September 14, 2020 (or at any other time), including without limitation all internal memoranda, board or management meeting minutes, management committee minutes, meeting agendas, strategy documents, business plans, presentations, financial analyses, risk assessments, emails, text messages, instant messages, and any legal opinions, legal memoranda, or legal advice obtained by Vantage in connection with that decision (to the extent not protected by the attorney-client privilege or work product doctrine; for any such Documents withheld on privilege grounds, Defendant shall include a corresponding entry on its privilege log).
All Documents sufficient to identify each person who authorized, directed, approved, participated in, or was consulted regarding the decision to commence distribution of the Products in the Tri-State Area, including but not limited to records identifying the date on which the decision was made, the person or persons with final decision-making authority, and any conditions, caveats, or limitations discussed in connection with the decision.
REQUEST NO. 7: Tri-State Area Sales, Shipping, and Distribution Records
All sales records, invoices, credit memoranda, debit memoranda, purchase orders, confirmations of orders, shipping records, bills of lading, waybills, delivery confirmations, packing slips, proof of delivery receipts, tracking records, returns and returns processing records, and all other logistics documents and records for any Products shipped, delivered, sold, or otherwise distributed by Vantage to any customer, hospital, clinic, pharmacy, group purchasing organization, wholesaler, sub-distributor, or other entity located in the Tri-State Area during the period from September 1, 2020 through the date of production.
This Request includes all records sufficient to identify, for each such transaction: (a) the customer name; (b) the customer address, including city, state, and zip code; (c) the product type and dosage form (i.e., Oncalaris® 20 mg, Oncalaris® 40 mg, or Renuvesta® 5 mg); (d) the quantity shipped or sold; (e) the shipment or delivery date; (f) the invoice amount; and (g) the revenue actually received or recognized by Vantage for each such transaction.
REQUEST NO. 8: Tri-State Area Customer Information
All Documents identifying Vantage's customers, accounts, or prospects in the Tri-State Area for the Products during the Relevant Period, including without limitation customer lists, account profiles, customer contact information, account setup or onboarding forms, credit applications, credit approval records, sales call reports, sales visit logs, and customer relationship management ("CRM") system records or entries.
All Documents and Communications between Vantage and any Tri-State Area customer or prospective customer relating to the distribution, sale, pricing, availability, or promotion of the Products, including correspondence, proposals, quotations, order confirmations, and customer service records.
REQUEST NO. 9: Tri-State Area Financial Records and Revenue Data
All financial records, accounting records, accounting entries, general ledger entries, journal entries, revenue reports, sales reports, profit-and-loss statements, contribution margin analyses, gross margin reports, management reports, and any other financial Documents reflecting revenues, costs, cost of goods sold, margins, and profits derived from the sale or distribution of the Products in the Tri-State Area during the period from September 1, 2020 through the date of production.
This Request specifically includes all Documents sufficient to identify, verify, and reconcile the approximately $6.4 million in Tri-State Area revenues reported by Vantage for the period of September 2020 through March 2021, including the underlying transactional data, revenue recognition records, and any adjustments, accruals, or deferrals applied to such revenues. To the extent Vantage maintains revenue data broken down by state, county, customer, product line, or other category, all such data shall be produced.
REQUEST NO. 10: Vantage's Overall Financial Records Related to the Agreement
All Documents reflecting Vantage's total purchases of Products from Penterra for each fiscal year from FY 2018 through FY 2021, including without limitation purchase orders, purchase order confirmations, invoices from Penterra, payment records, wire transfer confirmations, check images, accounts payable ledger entries, and receiving records.
This Request includes all records sufficient to verify the following annual purchase amounts for Oncalaris® (in all dosage forms) from Penterra: FY 2018 — approximately $11.2 million; FY 2019 — approximately $14.8 million; FY 2020 — approximately $18.3 million; and FY 2021 (through March 2021) — approximately $16.1 million.
This Request further includes all Documents reflecting whether and how Vantage met the minimum annual purchase commitment of $9.5 million per year for Oncalaris® at wholesale acquisition cost, as required by Section 5.2 of the Agreement, including any correspondence, certifications, reports, or other Documents exchanged between Penterra and Vantage regarding compliance with the minimum purchase commitment, and any Documents reflecting shortfalls, waivers, or adjustments with respect to that commitment.
REQUEST NO. 11: Vantage's Counterclaim Damages Computation
All Documents and Communications supporting, comprising, underlying, or relating to Vantage's claimed damages of $35 million as asserted in its Counterclaims filed on May 14, 2021, including without limitation any damages analyses, damages calculations, lost-profits analyses, lost-profits calculations, unjust enrichment analyses, reasonable expectation analyses, expert reports or draft expert reports, financial models, economic models, forecasts, projections, and any Communications with Cranmer, Hodges & Associates, P.C. (or any other accountant, financial advisor, or consultant) relating to the computation, methodology, or quantification of Vantage's claimed damages (to the extent such Communications are not protected by the attorney-client privilege or work product doctrine).
This Request further includes all assumptions, data inputs, variables, supporting documentation, source data, and workpapers underlying any damages model, damages calculation, or financial projection prepared by or on behalf of Vantage in connection with its Counterclaims, including any sensitivity analyses, scenario analyses, or alternative damages calculations.
REQUEST NO. 12: Vantage's Revenue and Financial Statements
Vantage's audited or unaudited financial statements, including income statements (or statements of operations), balance sheets, statements of cash flows, and all accompanying notes, schedules, and supplementary information, for each of the fiscal years 2017, 2018, 2019, 2020, and 2021 (or, for FY 2021, for the most recent interim period available), as prepared by or with the assistance of Cranmer, Hodges & Associates, P.C. or any other accounting firm or financial advisor.
This Request includes all Documents sufficient to verify Vantage's total revenue of approximately $148 million for FY 2021, and Vantage's revenue attributable to Penterra products (including Oncalaris® and Renuvesta®) of approximately $67 million, representing approximately 45.3% of Vantage's total revenue for FY 2021.
This Request also includes any management letters, audit findings letters, or communications between Cranmer, Hodges & Associates, P.C. (or any other auditor) and Vantage management relating to accounting treatments, revenue recognition, or financial reporting of Penterra product revenues or Tri-State Area revenues.
REQUEST NO. 13: Written Consent Under Section 2.3
All Documents that Vantage contends constitute, evidence, or reflect "prior written consent" from Penterra (in its capacity as "Supplier" under the Agreement) authorizing Vantage to solicit orders for, market, promote, deliver, or distribute the Products outside the Territory, as referenced in Section 2.3 of the Agreement.
All Communications — whether between Vantage and Penterra, or internal to Vantage — in which Vantage requested, discussed, sought, received, or claims to have received such prior written consent, including all emails, letters, memoranda, and other correspondence.
If no such prior written consent exists or can be produced, Defendant shall state as much in its response to this Request.
REQUEST NO. 14: Course of Dealing / Course of Performance Evidence
All Documents and Communications that Vantage contends demonstrate, evidence, or reflect a course of dealing or course of performance between Penterra and Vantage that modified, waived, superseded, or expanded the Territory beyond the six New England States defined in Exhibit A to the Agreement.
All Documents reflecting each and every instance in which Vantage shipped, sold, delivered, or distributed Products to any customer, account, or entity located outside the Territory (whether in the Tri-State Area or in any other geographic area) at any time during the Relevant Period, including records sufficient to identify the customer name, customer location, product type, quantity, date, and revenue received for each such out-of-Territory transaction.
All Documents and Communications reflecting any instance in which Penterra was aware of, acknowledged, acquiesced to, approved, ratified, or failed to object to any out-of-Territory shipment, sale, or distribution by Vantage, including any correspondence, reporting, or discussions between the parties regarding such activity.
REQUEST NO. 15: Communications with Penterra Regarding Cease-and-Desist
All Documents and Communications between Vantage and Penterra (including but not limited to Communications between Donald R. Farnham and Jennifer Chao, and Communications between counsel for Vantage at Hargrove, Sinclair & Polk LLP and Penterra or its counsel at Calderwood & Harkness LLP) relating to Penterra's cease-and-desist letter dated March 8, 2021, and Vantage's written response dated March 22, 2021.
All internal Vantage Documents and Communications discussing, analyzing, evaluating, or formulating a response to the cease-and-desist letter, including strategy memoranda, draft responses, meeting notes, emails, and any communications with counsel regarding the same (to the extent not protected by the attorney-client privilege or work product doctrine; for any such Documents withheld on privilege grounds, Defendant shall include a corresponding entry on its privilege log).
REQUEST NO. 16: Knowledge of or Communications Regarding Meridian National Distributors, Inc.
All Documents and Communications in Vantage's possession, custody, or control relating to Meridian National Distributors, Inc. ("Meridian") or its principal, Thomas Welliver, including without limitation any Documents or Communications reflecting Vantage's knowledge of, awareness of, or response to Penterra's proposed or actual appointment of Meridian as a distributor for the Products in the Tri-State Area.
This Request includes all Documents relating to the February 15, 2021 term sheet between Penterra and Meridian (or any prior or subsequent versions thereof), including any copies of such term sheet in Vantage's possession, any Communications in which the term sheet was discussed or referenced, and any internal Vantage analyses, memoranda, or discussions regarding the potential impact of Meridian's appointment on Vantage's business.
REQUEST NO. 17: Promissory Estoppel — Reliance Evidence
All Documents and Communications that Vantage contends demonstrate detrimental reliance on any promise, representation, assurance, or course of conduct by Penterra relating to the expansion of the Territory to include the Tri-State Area, as alleged in Vantage's promissory estoppel counterclaim (Count III of the Counterclaims).
All Documents reflecting investments, expenditures, capital outlays, hiring decisions, personnel deployments, lease agreements, real property acquisitions, warehouse or distribution center buildouts, infrastructure improvements, equipment purchases, technology investments, marketing expenditures, or other costs incurred by Vantage in reliance on the alleged promise, representation, or assurance of Tri-State Area exclusivity or authorization.
For each such expenditure or investment, produce Documents sufficient to identify the date, amount, purpose, authorizing person, and the specific promise or representation upon which Vantage contends it relied.
REQUEST NO. 18: Organizational and Corporate Governance Documents
All Documents reflecting Vantage's organizational structure and corporate governance, including without limitation its operating agreement (and all amendments thereto), articles of organization, certificates of formation, membership certificates, membership interest ledgers, management agreements, and any resolutions, written consents, or minutes of meetings of managers, members, or any management committee relating to the Agreement, the Tri-State Area expansion, or this litigation.
This Request also includes any organizational charts, management reporting structures, or Documents identifying the individuals with authority to bind Vantage contractually or to authorize distribution activities outside the Territory.
REQUEST NO. 19: Insurance Policies
All Documents constituting or relating to any insurance policy or policies maintained by Vantage at any time during the Relevant Period that may provide coverage, indemnification, or reimbursement for any of the claims asserted by Penterra in this action or any of the counterclaims asserted by Vantage, including without limitation commercial general liability policies, errors and omissions policies, professional liability policies, directors and officers liability policies, and any umbrella or excess liability policies.
This Request includes the complete policy documents (including all declarations pages, endorsements, riders, and exclusions), as well as all correspondence between Vantage and any insurer relating to notice of the claims in this action, reservation of rights, coverage determinations, or tenders of defense.
REQUEST NO. 20: Communications with Third Parties Regarding the Dispute
All Documents and Communications between Vantage (including any officer, manager, employee, agent, or representative of Vantage) and any third party (other than Vantage's counsel of record, Hargrove, Sinclair & Polk LLP, to the extent such Communications are protected by the attorney-client privilege or work product doctrine) relating to the dispute between Penterra and Vantage concerning the Territory, the Tri-State Area distribution, the cease-and-desist letter, or this litigation.
This Request includes, but is not limited to, Communications with customers, suppliers, vendors, group purchasing organizations, industry contacts, trade associations, regulatory bodies, and any other person or entity with whom Vantage discussed or disclosed information regarding the dispute.
REQUEST NO. 21: Document Retention and Destruction
All Documents relating to Vantage's document retention, preservation, and destruction policies and practices, whether formal or informal, written or unwritten, including any document management policies, data retention schedules, records retention policies, and electronic data management or archiving policies in effect at any time during the Relevant Period.
All litigation hold notices, preservation notices, or similar directives issued by or on behalf of Vantage in connection with this action, the underlying dispute between Penterra and Vantage, or any anticipated or related litigation, including the dates on which such notices were issued, the persons to whom they were directed, and the scope of the materials covered.
All Documents reflecting the destruction, deletion, disposal, or loss of any Documents potentially responsive to this Request at any time after March 8, 2021 (the date of Penterra's cease-and-desist letter), including any records of automatic deletion protocols, system purges, or scheduled destruction of electronic or paper records.
Respectfully submitted,
PENTERRA PHARMACEUTICALS CORP., By its attorneys,
CALDERWOOD & HARKNESS LLP
________________________________________
Linda Osei (BBO No. 672419) Priya Anand (BBO No. 685203) Hannah Brinkley (BBO No. 691847) Patrick Gallagher (BBO No. 694512)
Calderwood & Harkness LLP 1 Federal Street, 35th Floor Boston, MA 02110 Telephone: (617) 555-8200 Facsimile: (617) 555-8201
Dated: August 9, 2021
CERTIFICATE OF SERVICE
I, Hannah Brinkley, hereby certify that on August 9, 2021, a true and correct copy of the foregoing Plaintiff Penterra Pharmaceuticals Corp.'s First Request for Production of Documents to Defendant Vantage Medical Distribution, LLC was served upon counsel for Defendant by electronic mail and by first-class mail, postage prepaid, to the following:
Kenneth M. Rourke, Esq. Alicia Fontaine, Esq. Hargrove, Sinclair & Polk LLP 200 Ashbury Asset Advisors, Suite 1800 Boston, MA 02109 krourke@hsplaw.com afontaine@hsplaw.com
________________________________________
Hannah Brinkley
PENTERRA PHARMACEUTICALS CORP.,
Plaintiff,
v.
VANTAGE MEDICAL DISTRIBUTION, LLC,
Defendant.

COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BUSINESS LITIGATION SESSION SUFFOLK COUNTY

DEFINITIONS

INSTRUCTIONS

REQUESTS FOR PRODUCTION

CALDERWOOD & HARKNESS LLP

CERTIFICATE OF SERVICE

PENTERRA PHARMACEUTICALS CORP.,

VANTAGE MEDICAL DISTRIBUTION, LLC,

Record

Parties

Dates

Amounts