1018-00007 · Penterra Pharmaceuticals Corp · Discovery

responses-to-vantage-rfp.docx DOCUMENT Litigation

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COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT DEPARTMENT BUSINESS LITIGATION SESSION

SUFFOLK COUNTY

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

Served Pursuant to Mass. R. Civ. P. 34

Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "PPC"), a Delaware corporation with its principal place of business and corporate headquarters at 400 Carnegie Center Drive, Suite 600, Princeton, New Jersey 08540, by and through its attorneys of record, Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, Massachusetts 02110, hereby responds and objects to Defendant Vantage Medical Distribution, LLC's ("Vantage") First Request for Production of Documents (the "Requests"), which were served upon Penterra on September 3, 2021. These Responses and Objections are made in accordance with Massachusetts Rule of Civil Procedure 34 and the applicable Standing Orders of the Superior Court, Business Litigation Session.

Penterra reserves all rights to supplement, amend, or correct these Responses and Objections as additional information becomes available through continuing investigation and discovery, as permitted by Mass. R. Civ. P. 26(e) and the applicable rules and orders of this Court. The production of documents in connection with these Responses is ongoing, and Penterra will continue to produce responsive, non-privileged documents on a rolling basis as they are identified, collected, reviewed, and processed.

These Responses and Objections are based upon information reasonably available to Penterra as of the date hereof. Penterra's investigation into the matters at issue in this litigation is continuing, and these Responses and Objections are made without prejudice to Penterra's right to rely upon subsequently discovered information or documents.

PRELIMINARY STATEMENT AND GENERAL OBJECTIONS

Penterra sets forth the following General Objections, each of which is incorporated by reference into every individual Response and Objection set forth below as though stated fully therein. The assertion of a General Objection with respect to a particular Request does not imply that the General Objection is necessarily relevant to that Request but is made to preserve Penterra's rights with respect to all Requests.

General Objection No. 1 — Scope and Proportionality. Penterra objects to each Request to the extent it seeks documents that are not relevant to the claims or defenses asserted in this action, or that are disproportionate to the needs of the case, considering the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Penterra notes that the scope of this dispute is limited in nature: the central question before the Court is whether the "Territory" as defined under the Exclusive Distribution Agreement dated July 1, 2017 (the "EDA" or the "Agreement"), by and between Penterra and Vantage, encompasses only the six New England states specifically identified in Exhibit A to the EDA — namely, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — or whether, as Vantage contends, the Territory also extends to include New York, New Jersey, and Pennsylvania (the "Tri-State Area"). Discovery requests that extend beyond the scope of this core dispute are objectionable, and Penterra reserves the right to object to such requests on proportionality grounds.

General Objection No. 2 — Attorney-Client Privilege and Work Product Doctrine. Penterra objects to each Request to the extent it calls for the production of documents or communications protected by the attorney-client privilege, the work product doctrine, the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection from disclosure. Without limitation, Penterra has retained the law firm of Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, Massachusetts 02110, in connection with the claims and defenses asserted in this litigation. Communications between Penterra personnel — including, but not limited to, Jennifer Chao, Esq., General Counsel of Penterra; Dr. Marcus Lindholm, Chief Executive Officer; Steven Kapoor, Vice President, Commercial Operations; Rachel Mendez, Director of Distribution & Logistics; and other Penterra officers, directors, and employees — and attorneys at Calderwood & Harkness LLP — including Linda Osei, Priya Anand, Hannah Brinkley, and Patrick Gallagher — are protected by the attorney-client privilege and, where applicable, the work product doctrine, and will not be produced. In addition, communications involving Jennifer Chao, Esq., in her capacity as General Counsel of Penterra, made for the purpose of seeking or providing legal advice, are privileged regardless of whether outside counsel was involved. Penterra will produce a privilege log identifying documents withheld on the basis of privilege in accordance with Mass. R. Civ. P. 26(b)(5) and the Standing Orders of the Business Litigation Session.

General Objection No. 3 — Overbreadth and Vagueness. Penterra objects to any Request that is overbroad, unduly burdensome, or vague in its definitions, instructions, or terms, including any Request that uses undefined or ambiguous terms, seeks "any and all" documents without reasonable limitation, or imposes search obligations that are not proportional to the needs of the case. To the extent Penterra responds to any such Request, it does so based upon a reasonable interpretation of the Request and without waiving this objection.

General Objection No. 4 — Confidentiality and Proprietary Information. Penterra objects to the production of documents containing trade secrets, proprietary business information, or confidential commercial or financial information absent the protections afforded by an appropriate protective order. Penterra notes that the Agreed Protective Order was entered by the Honorable Diane L. Costigan, J. on July 9, 2021, following the Initial Case Management Conference held on June 18, 2021. Penterra will designate documents as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" in accordance with the terms of the Agreed Protective Order, as appropriate. Penterra further notes that it is a publicly traded company listed on the Nasdaq Stock Market under the ticker symbol "PTRA," and certain financial, operational, and strategic information may be subject to the regulations of the U.S. Securities and Exchange Commission ("SEC"), including Regulation FD and other disclosure obligations. Production of non-public financial information must be handled with care to avoid any potential violation of applicable securities laws.

General Objection No. 5 — Documents Equally Available to Vantage. Penterra objects to any Request seeking documents that are equally available to Vantage or that are in Vantage's own possession, custody, or control. To the extent that Vantage seeks copies of documents that Vantage itself possesses, has authored, or has received, Penterra's obligation to produce such documents is limited, and the burden of producing such documents should fall upon Vantage.

General Objection No. 6 — Temporal Scope. Penterra objects to any Request that lacks a reasonable temporal limitation or that seeks documents from periods outside the scope of the relevant events giving rise to this litigation. Unless otherwise stated in a particular Response, Penterra will construe each Request as limited to the time period from January 1, 2017 through April 12, 2021 (the date of the filing of the Complaint in this action), except where a broader or narrower timeframe is specifically warranted by the subject matter of the Request or where the parties have agreed otherwise. Penterra objects to any Request that purports to seek documents "to the present" as overbroad and likely to encompass post-litigation documents that are privileged or otherwise protected from disclosure.

General Objection No. 7 — Reservation of Rights. These Responses and Objections are made without waiving and with a full reservation of all objections as to the competency, relevance, materiality, privilege, or admissibility of any document or information produced or identified herein, whether at trial, at any hearing, or in any other proceeding in this action or any related action. Penterra's production of any document in response to any Request shall not be deemed an admission that such document is relevant, material, or admissible for any purpose, nor shall it be deemed an admission that the document supports or is consistent with any factual or legal position taken by Vantage. Penterra further reserves the right to assert any and all objections, privileges, immunities, and other protections not specifically raised herein.

DEFINITIONS AND INSTRUCTIONS

Penterra has reviewed and incorporates the definitions and instructions set forth in Vantage's First Request for Production of Documents and responds to the Requests in accordance with the terms and definitions set forth therein, except as otherwise noted herein or where Penterra's interpretation of a particular term differs from Vantage's apparent intent.

For purposes of these Responses and Objections, the following definitions shall apply:

(a) "Agreement" or "EDA" means the Exclusive Distribution Agreement dated July 1, 2017, by and between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC, including all exhibits, schedules, and appendices attached thereto.

(b) "Products" means Oncalaris® (pegvisomant-axel), available in 20 mg and 40 mg injectable vials, and Renuvesta® (cilosporin-beta), available in 5 mg capsules, as defined in Section 1.12 of the EDA.

(c) "Territory" means the exclusive distribution territory as defined in Section 2.1 and Exhibit A of the EDA, which Penterra contends includes only the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.

(d) "Kapoor Email" means the email from Steven Kapoor, Vice President, Commercial Operations of Penterra, to Donald R. Farnham, Managing Member & CEO of Vantage, dated January 12, 2018.

(e) "Tri-State Area" or "Tri-State" means the states of New York, New Jersey, and Pennsylvania, which Vantage contends are encompassed within the Territory under the EDA.

(f) "Protective Order" means the Agreed Protective Order entered by the Honorable Diane L. Costigan, J. on July 9, 2021.

RESPONSES AND OBJECTIONS TO INDIVIDUAL REQUESTS

REQUEST NO. 1

Request: All executed copies of the Exclusive Distribution Agreement dated July 1, 2017, between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC, including all exhibits, schedules, appendices, amendments, modifications, addenda, and side letters related thereto.

Objections: None, subject to the General Objections set forth above.

Response: Penterra will produce a true and correct copy of the fully executed Exclusive Distribution Agreement dated July 1, 2017, by and between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC, including all exhibits attached thereto. The exhibits include, but are not limited to, Exhibit A (Territory Definition), which lists the following six states constituting the Territory: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Penterra will also produce all other exhibits, schedules, and appendices to the EDA as originally executed.

Penterra affirmatively states that no amendments, modifications, addenda, or side letters to the EDA exist. No writing modifying the terms of the EDA has been executed by the parties at any time since the Agreement was signed on July 1, 2017. This is consistent with Section 13.1 of the EDA, which provides that "[n]o amendment, modification, or supplement to this Agreement shall be effective unless made in writing and signed by duly authorized representatives of both Parties."

Documents Produced: Bates-stamped copies of the executed EDA and all exhibits, schedules, and appendices; production designator PPC-00001 through PPC-00047.

REQUEST NO. 2

Request: All documents relating to the negotiation, drafting, and execution of the Exclusive Distribution Agreement, including but not limited to all drafts, redlines, markup versions, term sheets, letters of intent, memoranda of understanding, and related correspondence between any representatives of Penterra and Vantage.

Objections: Penterra objects to this Request on the following grounds:

Relevance. The EDA contains an integration clause at Section 14.8, which provides in pertinent part: "This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral." The EDA further contains a written-amendment requirement at Section 13.1, which provides that no modification shall be effective unless in a signed writing. Under settled Massachusetts law, where a fully integrated written agreement exists, parol evidence of prior or contemporaneous negotiations is inadmissible to vary, contradict, or supplement the terms of the integrated agreement. See Robert Indus., Inc. v. Spence, 362 Mass. 751, 755 (1973); Bendetson v. Coolidge, 33 Mass. App. Ct. 944, 945 (1992). Pre-contractual negotiations are therefore legally irrelevant to the interpretation of the Territory definition contained in Exhibit A, which is clear and unambiguous on its face.

Attorney-Client Privilege. Penterra further objects to this Request to the extent it calls for the production of drafts of the EDA that were prepared by, shared with, or commented upon by legal counsel — whether Penterra's outside counsel during the negotiation period or Jennifer Chao, Esq., General Counsel of Penterra — in connection with the rendering of legal advice regarding the drafting and negotiation of the EDA. Such documents are protected by the attorney-client privilege.

Overbreadth and Burden. Penterra objects to this Request as overbroad and unduly burdensome to the extent it seeks "all documents relating to" the negotiation of the EDA without reasonable limitation, which would require Penterra to search for and review a large volume of internal and external communications spanning a period of approximately six months of negotiations.

Response: Subject to and without waiving the foregoing objections, and in the spirit of cooperation, Penterra will produce non-privileged correspondence and draft documents exchanged between Penterra personnel and Vantage personnel during the negotiation of the EDA, covering the period from approximately January 2017 through July 1, 2017. This production will include non-privileged email correspondence between Steven Kapoor and Donald R. Farnham, as well as term sheets and redline versions of the EDA that were exchanged between the parties in the ordinary course of negotiations. Penterra reserves its right to object to the admissibility of any such pre-contractual documents at trial on the basis of the parol evidence rule and the integration clause contained in Section 14.8 of the EDA.

Privileged communications between Penterra personnel and Penterra's legal counsel during the negotiation period, including drafts reflecting legal advice, will be withheld and identified on the privilege log to be served separately.

Documents Produced: Bates-stamped copies of non-privileged negotiation correspondence and drafts; production designator PPC-00048 through PPC-00189.

REQUEST NO. 3

Request: The email dated January 12, 2018, from Steven Kapoor to Donald R. Farnham, and all emails, letters, memoranda, text messages, instant messages, and other communications in the email chain or thread relating to the subject matter thereof, including any attachments thereto.

Objections: Penterra interposes no objection to the production of the Kapoor Email itself, dated January 12, 2018, and the surrounding email chain or thread of which it is a part, subject to the General Objections set forth above. However, Penterra objects to the phrase "all communications ... relating to the subject matter thereof" as overbroad and vague. The "subject matter" of the Kapoor Email — a brief, informal expression of interest in exploring potential geographic expansion — is sufficiently broad that Vantage's request could be construed to encompass virtually any communication regarding Vantage's distribution activities, growth trajectory, or geographic scope. Penterra will construe this Request to seek the Kapoor Email, the complete email thread of which it is a part, and closely related contemporaneous communications between Kapoor and Farnham regarding the specific topic of potential geographic expansion.

Response: Subject to and without waiving the foregoing objection, Penterra will produce the email dated January 12, 2018, from Steven Kapoor (Vice President, Commercial Operations, Penterra Pharmaceuticals Corp.) to Donald R. Farnham (Managing Member & CEO, Vantage Medical Distribution, LLC), together with the complete email thread or chain of which the Kapoor Email is a part, including all prior messages in the chain and any attachments.

The body of the Kapoor Email states in full:

"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."

Penterra notes that this email was an informal, forward-looking expression of willingness to discuss potential expansion at some unspecified future date, conditioned upon Vantage's completion of its ramp-up in the New England Territory. It does not constitute consent, authorization, or an amendment to the Territory definition under the EDA.

Penterra will also produce other non-privileged communications between Steven Kapoor and Donald R. Farnham from the period surrounding January 12, 2018, that relate to the topic of potential geographic expansion of Vantage's distribution activities. To the extent any responsive communications involve legal counsel or were made for the purpose of seeking or providing legal advice, such communications are privileged and will be withheld and identified on the privilege log.

Documents Produced: Bates-stamped copies of the Kapoor Email, the surrounding email thread, and related non-privileged communications; production designator PPC-00190 through PPC-00214.

REQUEST NO. 4

Request: All correspondence, emails, memoranda, notes, text messages, instant messages, and other communications between any representative of Penterra and any representative of Vantage regarding the Territory, any proposed or actual expansion of the Territory, or the distribution of the Products outside the states listed in Exhibit A to the EDA.

Objections: Penterra objects to this Request to the extent it is overbroad in that it seeks all communications between "any representative of Penterra" and "any representative of Vantage" over an unlimited time period. Penterra will limit its search to communications involving key personnel with knowledge of the Territory and distribution-related issues.

Penterra further objects to this Request to the extent it seeks communications protected by the attorney-client privilege. Without limitation, communications between Jennifer Chao, Esq., General Counsel of Penterra, and Vantage personnel, to the extent such communications were made for the purpose of conveying or implementing legal advice, are privileged. Communications between Penterra personnel and attorneys at Calderwood & Harkness LLP regarding the Territory dispute are likewise privileged.

Response: Subject to and without waiving the foregoing objections, Penterra will produce non-privileged communications between Penterra personnel — including Steven Kapoor, Vice President, Commercial Operations; Rachel Mendez, Director of Distribution & Logistics; and other personnel in the Commercial Operations and Distribution & Logistics departments — and Vantage personnel — including Donald R. Farnham, Managing Member & CEO; Lisa Petrangelo, Vice President, Operations; and Brian Kopec, Director of Sales — that relate to the Territory as defined in the EDA, any proposed or actual expansion of the Territory, or the distribution of Oncalaris® (pegvisomant-axel) or Renuvesta® (cilosporin-beta) outside the six New England states listed in Exhibit A.

This production includes, without limitation, the Kapoor Email of January 12, 2018 (also responsive to Request No. 3, above), as well as the cease-and-desist letter dated March 8, 2021, from Jennifer Chao, Esq., General Counsel of Penterra, to Donald R. Farnham, and the surrounding non-privileged correspondence. Penterra will also produce communications in which Penterra personnel discussed with Vantage personnel the scope of Vantage's distribution activities and the geographic boundaries of the Territory.

Documents reflecting communications between Jennifer Chao, Esq. and other Penterra personnel made for the purpose of seeking or providing legal advice regarding the Territory dispute, as well as communications with Calderwood & Harkness LLP, will be withheld as privileged and identified on the privilege log.

Documents Produced: Bates-stamped copies of responsive, non-privileged communications; production designator PPC-00215 through PPC-00398.

REQUEST NO. 5

Request: All documents reflecting, referring to, or relating to Penterra's knowledge of, awareness of, or response to Vantage's distribution of Products in New York, New Jersey, and/or Pennsylvania from September 2020 to the present.

Objections: Penterra objects to the temporal scope of this Request to the extent it seeks documents "to the present." Consistent with General Objection No. 6, Penterra will limit its production to documents dating from September 2020 through April 12, 2021 (the date of filing of the Complaint), except that Penterra will produce the Complaint itself and the cease-and-desist letter and related correspondence that predate the Complaint.

Penterra further objects to this Request to the extent it seeks communications between Penterra personnel and attorneys at Calderwood & Harkness LLP, which was retained in connection with this matter on or about March 29, 2021. All communications between Penterra personnel and Calderwood & Harkness LLP attorneys from March 29, 2021 forward are protected by the attorney-client privilege and the work product doctrine and will not be produced. Penterra also objects to the extent this Request seeks documents constituting attorney work product prepared in anticipation of this litigation, including internal memoranda, case assessments, legal analyses, and litigation strategy documents.

Response: Subject to and without waiving the foregoing objections, Penterra will produce non-privileged internal communications among Penterra personnel reflecting their awareness of Vantage's commencement of distribution activities in the Tri-State Area on or about September 14, 2020. This production includes internal email communications among Steven Kapoor, Rachel Mendez, and Jennifer Chao (to the extent such communications were made in Jennifer Chao's business capacity as a member of Penterra's executive leadership team, rather than in her capacity as legal counsel rendering legal advice), which discuss the discovery that Vantage had begun shipping Oncalaris® to hospitals and specialty pharmacies in New York, New Jersey, and Pennsylvania without Penterra's authorization.

Penterra will also produce the cease-and-desist letter dated March 8, 2021, from Jennifer Chao, Esq., General Counsel of Penterra, to Donald R. Farnham, Managing Member & CEO of Vantage, in which Penterra demanded that Vantage immediately cease distributing Oncalaris® outside the six New England states comprising the Territory under the EDA.

Communications between Penterra personnel and attorneys at Calderwood & Harkness LLP, commencing on or about March 29, 2021 (the date of engagement), are privileged and will be withheld and identified on the privilege log. Communications between Jennifer Chao, Esq. and other Penterra personnel made primarily for the purpose of obtaining or providing legal advice regarding the Vantage dispute — including communications in which Ms. Chao was acting in her capacity as General Counsel rather than as a business executive — are likewise privileged and will be withheld and logged.

Documents Produced: Bates-stamped copies of responsive, non-privileged documents; production designator PPC-00399 through PPC-00512.

REQUEST NO. 6

Request: All documents relating to any agreement, term sheet, letter of intent, proposal, negotiation, or communication between Penterra and Meridian National Distributors, Inc. regarding the distribution of Products in New York, New Jersey, Pennsylvania, and/or Maryland.

Objections: Penterra objects to this Request on the following grounds:

Relevance. The relationship between Penterra and Meridian National Distributors, Inc. ("Meridian") does not bear on the interpretation of the Territory definition contained in Section 2.1 and Exhibit A of the EDA. Whether Penterra sought to engage a separate distributor for the Tri-State Area is a collateral matter that does not speak to the plain language of Exhibit A or the parties' contractual obligations.

Confidentiality. The term sheet and related documents reflecting the proposed distribution arrangement between Penterra and Meridian contain commercially sensitive pricing, volume, and territory terms that constitute confidential business information. Production of such documents, if ordered, must be subject to the protections of the Agreed Protective Order, and Penterra will designate such documents as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" as appropriate.

Privilege. Penterra objects to the extent this Request seeks communications between Penterra personnel and legal counsel regarding the negotiation, structuring, and documentation of the proposed Meridian transaction.

Response: Subject to and without waiving the foregoing objections, and in the interest of cooperation and in recognition that the Meridian transaction may bear on the parties' course of performance and understanding of the Territory, Penterra will produce the following:

(a) The term sheet executed between Penterra Pharmaceuticals Corp. and Meridian National Distributors, Inc. — a New York corporation with its principal office at 520 Seventh Avenue, 12th Floor, New York, New York 10018 (President: Thomas Welliver) — dated February 15, 2021, for the distribution of Oncalaris® (pegvisomant-axel) in New York, New Jersey, Pennsylvania, and Maryland.

(b) Non-privileged correspondence between Penterra personnel and Meridian personnel regarding the proposed distribution arrangement, to the extent such correspondence does not involve legal counsel.

Penterra notes that the proposed distribution arrangement with Meridian did not proceed to a definitive agreement. The negotiations stalled on or about March 2021 when Vantage asserted, through its counsel Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP, that Vantage's exclusive distribution rights under the EDA encompassed the Tri-State Area, thereby creating a dispute that Penterra needed to resolve before engaging a separate distributor for those states.

All documents produced in connection with this Request will be designated "CONFIDENTIAL" under the Agreed Protective Order.

Documents Produced: Bates-stamped copies of the Meridian term sheet and related non-privileged correspondence; production designator PPC-00513 through PPC-00579. All documents designated CONFIDENTIAL.

REQUEST NO. 7

Request: All purchase orders, invoices, shipping records, bills of lading, delivery confirmations, and related documents for Products ordered by or shipped to Vantage Medical Distribution, LLC for the period July 1, 2017 to the present.

Objections: Penterra objects to this Request as overbroad to the extent it encompasses all Products — both Oncalaris® (pegvisomant-axel) and Renuvesta® (cilosporin-beta) — for the entire term of the EDA from July 1, 2017 through the present. The volume of transactional records over this period is substantial, and production of the complete universe of such records would be unduly burdensome. Penterra will focus its production on Oncalaris® shipment and purchase records, which are the primary subject of the dispute, and will distinguish between shipments to New England Territory addresses and any shipments related to the Tri-State Area.

Response: Subject to and without waiving the foregoing objections, Penterra will produce Oncalaris® (pegvisomant-axel, 20 mg and 40 mg vials) purchase orders, invoices, and shipping/distribution records maintained by Penterra's Distribution & Logistics department, overseen by Rachel Mendez, Director of Distribution & Logistics, for orders placed by Vantage Medical Distribution, LLC covering fiscal years 2018 through March 2021.

These records reflect the following Oncalaris® purchases by Vantage at wholesale acquisition cost ("WAC"):

The annual minimum purchase commitment under Section 5.2 of the EDA was $9,500,000 per year. As reflected in the data above, Vantage consistently exceeded the minimum purchase commitment in each year of the EDA's operation. Penterra notes that the significant increase in purchase volume from FY 2019 to FY 2020 and into FY 2021 coincides with the period during which Vantage commenced distribution activities in the Tri-State Area (beginning on or about September 14, 2020).

Penterra's internal distribution systems directed Oncalaris® shipments to Vantage only for delivery addresses located within the six New England states comprising the Territory. Penterra did not authorize, direct, or facilitate any shipments of Oncalaris® to delivery addresses in New York, New Jersey, or Pennsylvania. To the extent Vantage redistributed Oncalaris® to customers in the Tri-State Area, Vantage did so without Penterra's knowledge, consent, or authorization.

Penterra will also produce Renuvesta® (cilosporin-beta, 5 mg capsules) purchase and shipping records for Vantage upon reasonable request by Vantage, subject to the proportionality limitations set forth in General Objection No. 1.

Documents Produced: Bates-stamped copies of Oncalaris® purchase orders, invoices, and shipping records; production designator PPC-00580 through PPC-01247.

REQUEST NO. 8

Request: All internal Penterra communications, memoranda, reports, analyses, or presentations regarding Vantage's performance, sales volumes, compliance, or relationship under the EDA.

Objections: Penterra objects to this Request as overbroad and unduly burdensome. The Request seeks "all internal ... communications" regarding Vantage's performance over the multi-year term of the EDA, which would require Penterra to search for and review a vast volume of internal correspondence, reports, and analyses from numerous custodians across multiple departments. Penterra will conduct a reasonable search for responsive, non-privileged documents from the files of key custodians with primary responsibility for the Vantage relationship.

Penterra further objects to this Request to the extent it seeks communications between Penterra personnel and legal counsel, or internal communications made for the purpose of seeking or providing legal advice, which are protected by the attorney-client privilege.

Response: Subject to and without waiving the foregoing objections, Penterra will produce non-privileged internal correspondence, reports, and analyses regarding Vantage's performance under the EDA, including quarterly and annual distribution performance reviews, from the files of the following key custodians: Steven Kapoor, Vice President, Commercial Operations; and Rachel Mendez, Director of Distribution & Logistics. Penterra will also produce relevant non-privileged documents from the files of Jennifer Chao, Esq., General Counsel, to the extent such documents reflect business-related (as opposed to legal advice-related) assessments of Vantage's performance.

These documents reflect that Vantage consistently performed above the $9,500,000 annual minimum purchase commitment for Oncalaris® set forth in Section 5.2 of the EDA throughout the relevant period. Internal quarterly reviews prepared by the Commercial Operations department show that Penterra viewed Vantage as a high-performing regional distributor within its New England Territory, with strong market penetration among hospital systems and specialty oncology clinics.

Privileged communications — including legal assessments of Vantage's compliance with the territorial restrictions of the EDA prepared by or at the direction of Jennifer Chao, Esq. — will be withheld and identified on the privilege log.

Documents Produced: Bates-stamped copies of non-privileged internal performance reviews and related documents; production designator PPC-01248 through PPC-01410.

REQUEST NO. 9

Request: All documents identifying, describing, or relating to Penterra's regional exclusive distribution agreements, national specialty pharmacy partnerships, and overall distribution network for the Products, including but not limited to agreements with other distributors covering any geographic region.

Objections: Penterra objects to this Request on the following grounds:

Relevance. The structure of Penterra's broader distribution network — including agreements with other regional distributors and national specialty pharmacy partners — is not relevant to the interpretation of Section 2.1, Exhibit A, or any other provision of the EDA. The question before the Court is what the EDA's Territory definition means, not how Penterra has structured its distribution arrangements with third parties.

Confidentiality and Trade Secret. Penterra's distribution network arrangements, including the identity of its distribution partners, the geographic scope of their respective territories, pricing terms, volume commitments, and other commercial terms, constitute proprietary and confidential business information and, in certain instances, trade secrets. Production of these documents would cause competitive harm to Penterra and potentially violate confidentiality obligations owed to Penterra's other distribution partners.

Overbreadth. The Request is overbroad in that it seeks documents relating to Penterra's "overall distribution network" without limitation, which would encompass agreements and arrangements that have no bearing on the claims or defenses in this action.

Response: Subject to and without waiving the foregoing objections, Penterra will not produce agreements with other regional distributors or national specialty pharmacy partners, as such documents are neither relevant to the Territory dispute nor proportional to the needs of the case. Penterra's distribution arrangements with third parties are governed by separate agreements containing their own confidentiality provisions, and production of such agreements would risk harm to Penterra's commercial relationships and competitive position.

However, Penterra will produce non-privileged documents that specifically reference Vantage's Territory, Vantage's relationship to the broader distribution network, or the allocation of geographic regions among Penterra's distributors, to the extent any such non-privileged documents exist within the files of the key custodians identified in connection with Request No. 8. Penterra reserves the right to supplement this response if the Court orders further production following a motion to compel.

REQUEST NO. 10

Request: Penterra's internal financial documents, including revenue reports, sales data, and financial analyses, for Oncalaris® (pegvisomant-axel) in the New England states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont) and in New York, New Jersey, and Pennsylvania, for the period 2017 through the present.

Objections: Penterra objects to this Request on the following grounds:

Relevance and Proportionality. Penterra's own internal revenue data for Oncalaris® is not directly at issue in this declaratory-judgment action, which concerns the interpretation of the Territory definition in the EDA. Penterra's revenue from Oncalaris® sales — whether in the New England states, the Tri-State Area, or elsewhere — does not bear on the question of whether Exhibit A to the EDA includes New York, New Jersey, and Pennsylvania.

Confidentiality. Penterra is a publicly traded company listed on the Nasdaq Stock Market under the ticker symbol "PTRA." For fiscal year 2021, Penterra reported consolidated revenue of approximately $1.87 billion, with Oncalaris® (pegvisomant-axel) accounting for approximately $412 million, or approximately 22% of total revenue, as disclosed in Penterra's Annual Report on Form 10-K filed with the SEC. While consolidated and product-level revenue figures are publicly available through Penterra's SEC filings, granular, region-by-region revenue breakdowns are not publicly disclosed and constitute non-public, material financial information. Production of such data could implicate Penterra's obligations under Regulation FD and other SEC disclosure requirements.

Overbreadth. The Request is overbroad in seeking all internal financial documents, including revenue reports, sales data, and financial analyses, over a multi-year period.

Response: Subject to and without waiving the foregoing objections, Penterra will produce publicly available financial information regarding Oncalaris® revenue, including relevant excerpts from Penterra's Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q filed with the SEC for fiscal years 2017 through 2021. These filings contain product-level revenue disclosures for Oncalaris® at the consolidated level.

Penterra will not produce non-public, granular revenue data broken down by geographic region absent a specific showing by Vantage that such data is directly relevant to a claim or defense and that the need for the data outweighs the confidentiality and regulatory concerns identified above. Should the Court determine that region-specific revenue data is discoverable, Penterra requests that production be subject to the "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" designation under the Agreed Protective Order.

REQUEST NO. 11

Request: All documents relating to, preceding, or following the letter dated March 8, 2021, from Jennifer Chao, Esq. to Donald R. Farnham, including all drafts of the letter, all internal communications regarding the letter, and any responses thereto.

Objections: Penterra objects to this Request to the extent it seeks communications between Jennifer Chao, Esq., in her capacity as General Counsel of Penterra providing legal advice to the company, and other Penterra personnel or outside counsel, which are protected by the attorney-client privilege. Ms. Chao authored the March 8, 2021 letter in her capacity as General Counsel of Penterra, and her internal deliberations regarding the letter — including consultations with other Penterra executives regarding the legal basis for the cease-and-desist demand, the legal analysis underlying the territorial restriction, and the decision to send the letter — constitute privileged attorney-client communications.

Penterra further objects to the extent drafts of the March 8, 2021 letter reflect attorney work product, including Ms. Chao's mental impressions, legal theories, and strategic considerations regarding the Vantage dispute.

Response: Subject to and without waiving the foregoing objections, Penterra will produce the following:

(a) The final, sent version of the cease-and-desist letter dated March 8, 2021, from Jennifer Chao, Esq., General Counsel of Penterra Pharmaceuticals Corp., to Donald R. Farnham, Managing Member & CEO of Vantage Medical Distribution, LLC. The letter demands that Vantage immediately cease and desist from distributing Oncalaris® (pegvisomant-axel) outside the six New England states defined in Exhibit A to the EDA, asserts that Vantage's Tri-State distribution activities constitute a material breach of Section 2.1 of the EDA, and reserves all of Penterra's rights and remedies under the Agreement and applicable law, including the right to terminate the EDA pursuant to Section 12.2(a).

(b) The response letter from Kenneth M. Rourke, Esq. of Hargrove, Sinclair & Polk LLP, counsel for Vantage, dated March 22, 2021, addressed to Jennifer Chao, Esq. The Rourke letter asserts that Vantage's exclusive distribution rights under the EDA encompass the Tri-State Area based on the parties' course of dealing and the Kapoor Email of January 12, 2018, disputes that Vantage has committed any breach of the EDA, and threatens a counterclaim for breach of contract and tortious interference with prospective business relations in an amount of not less than $35 million.

(c) Any additional non-privileged correspondence between the parties (or their counsel) exchanged subsequent to the March 22, 2021 Rourke letter and prior to the filing of the Complaint on April 12, 2021.

Drafts of the March 8, 2021 cease-and-desist letter, internal deliberations and communications regarding the letter, and related internal legal memoranda prepared by or at the direction of Jennifer Chao, Esq. are privileged and will be withheld and identified on the privilege log.

Documents Produced: Bates-stamped copies of the final cease-and-desist letter, the Rourke response letter, and related non-privileged correspondence; production designator PPC-01411 through PPC-01438.

REQUEST NO. 12

Request: All documents constituting, evidencing, or relating to any consent, authorization, permission, or approval by Penterra for Vantage to distribute Products outside the Territory as defined in Exhibit A to the EDA, including but not limited to any "prior written consent" under Section 2.3 of the EDA.

Objections: None, subject to the General Objections set forth above.

Response: No documents responsive to this Request exist.

Penterra has never provided "prior written consent" under Section 2.3 of the EDA, or any other form of consent, authorization, permission, or approval, for Vantage to distribute Products — whether Oncalaris® (pegvisomant-axel), Renuvesta® (cilosporin-beta), or any other Product — outside the Territory as defined in Exhibit A. Section 2.3 of the EDA provides: "Distributor shall not, directly or indirectly, market, sell, distribute, or promote the Products outside the Territory without the prior written consent of [Penterra]." No such prior written consent has been given.

Furthermore, no amendment to Exhibit A has been executed as required by Section 13.1 of the EDA, which mandates that "[n]o amendment, modification, or supplement to this Agreement shall be effective unless made in writing and signed by duly authorized representatives of both Parties."

Penterra acknowledges that the Kapoor Email of January 12, 2018 (produced in response to Request Nos. 3 and 4) references a willingness to "explore expansion into NY/NJ/PA." However, Penterra's position is — and Penterra will demonstrate at trial — that the Kapoor Email does not constitute "prior written consent" under Section 2.3 or an amendment to the Territory definition under Section 13.1. The Kapoor Email is, on its face, a forward-looking, conditional, and informal expression of willingness to discuss potential future expansion, explicitly conditioned on Vantage's New England footprint being "fully ramped." It does not grant consent for Vantage to commence distribution in the Tri-State Area, and no reasonable reading of the email would support such an interpretation.

REQUEST NO. 13

Request: All documents relating to, rebutting, or supporting the calculation of damages alleged in Vantage's counterclaims, including but not limited to lost profits analyses, projected revenue calculations, financial models, and related analyses.

Objections: Penterra objects to this Request on the following grounds:

Prematurity. To the extent this Request seeks documents relating to the damages alleged in Vantage's counterclaims (breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel, seeking damages of not less than $35 million), such discovery may be premature. Penterra anticipates that dispositive motions, including motions for summary judgment, may resolve the counterclaims — or the underlying liability questions — before damages discovery is necessary. Penterra reserves the right to seek a phased discovery schedule from the Court.

Privilege and Work Product. Penterra objects to the extent this Request seeks communications between Penterra personnel and Calderwood & Harkness LLP regarding Penterra's assessment of Vantage's damages claims, or work product prepared by Calderwood & Harkness LLP or Penterra's General Counsel in anticipation of litigation regarding damages analysis, legal theories, or litigation strategy.

Response: Subject to and without waiving the foregoing objections, Penterra will produce non-privileged, relevant documents bearing on the damages claimed in Vantage's counterclaims to the extent such documents are currently in Penterra's possession, custody, or control. Penterra notes that it is Vantage, not Penterra, that bears the burden of proving its alleged damages, and the primary sources of information regarding Vantage's claimed lost profits, projected revenues, and other damages are within Vantage's own possession and control.

Penterra will produce records of its commercial dealings with Vantage, including the purchase orders, invoices, and sales data already responsive to Request No. 7, above, which reflect the volume and value of Oncalaris® purchases by Vantage during the relevant period. To the extent Penterra possesses additional non-privileged documents relevant to the quantification of Vantage's alleged damages, Penterra will produce such documents on a rolling basis.

REQUEST NO. 14

Request: All audit reports, management letters, and financial statements prepared by or with Penterra's independent auditors relating to distribution revenue, including revenue attributable to Vantage Medical Distribution, LLC.

Objections: Penterra objects to this Request on the following grounds:

Relevance. Audit reports and management letters prepared by Penterra's independent auditor, Whitfield & Pryce LLP, regarding Penterra's distribution revenue do not bear on the interpretation of the Territory definition in the EDA. The scope of Vantage's exclusive distribution territory is a question of contract interpretation, not a question that turns on Penterra's audited financial results.

Proportionality. The burden and expense of producing internal audit work papers and management letters — which may contain commentary on Penterra's revenue recognition policies, internal controls, and other matters unrelated to this dispute — substantially outweighs the likely benefit of such production.

Confidentiality. Penterra's audited financial statements are publicly available through its SEC filings. Internal audit work papers and management letters, however, are not publicly disclosed and contain confidential, proprietary information regarding Penterra's financial reporting processes, internal controls, and related matters.

Response: Subject to and without waiving the foregoing objections, Penterra will not produce internal audit work papers or management letters from Whitfield & Pryce LLP, as such documents are neither relevant to the claims or defenses in this action nor proportional to the needs of the case.

Penterra will provide references to its publicly filed financial statements with the SEC, which are available through the SEC's EDGAR database and Penterra's investor relations website. Relevant filings include Penterra's Annual Reports on Form 10-K for fiscal years 2017 through 2020, and its Quarterly Reports on Form 10-Q for fiscal year 2021, each of which contains audited (or reviewed) financial statements, revenue disclosures, and management's discussion and analysis of financial condition and results of operations, including product-level revenue data for Oncalaris® (pegvisomant-axel).

PRIVILEGE LOG NOTICE

Penterra states that it is withholding certain documents from production on the basis of the attorney-client privilege, the work product doctrine, or both. In accordance with Mass. R. Civ. P. 26(b)(5) and the Standing Orders of the Business Litigation Session, Penterra will serve a separate privilege log identifying each document withheld from production. The privilege log will include, for each withheld document, the following information to the extent disclosure thereof would not reveal privileged information: the date of the document or communication; the author or sender; the recipient(s) and any individuals copied; a general description of the subject matter; and the specific privilege or protection asserted as the basis for withholding.

Without limitation, the categories of documents being withheld on the basis of privilege include:

(a) Communications between Penterra personnel — including Dr. Marcus Lindholm, CEO; Jennifer Chao, Esq., General Counsel; Steven Kapoor, Vice President, Commercial Operations; Rachel Mendez, Director of Distribution & Logistics; and other officers and employees — and attorneys at Calderwood & Harkness LLP (Linda Osei, Priya Anand, Hannah Brinkley, and Patrick Gallagher), commencing on or about March 29, 2021, the date of Calderwood & Harkness's engagement in connection with this matter, and continuing through the present.

(b) Communications between Jennifer Chao, Esq., General Counsel of Penterra, and other Penterra personnel made for the primary purpose of seeking or providing legal advice regarding the Vantage dispute, the interpretation and enforcement of the EDA's territorial restrictions, the cease-and-desist letter of March 8, 2021, and the scope of the Territory, whether or not outside counsel was involved in such communications.

(c) Drafts of the March 8, 2021 cease-and-desist letter from Jennifer Chao, Esq. to Donald R. Farnham, and related internal legal memoranda, legal analyses, and strategy documents prepared by or at the direction of Jennifer Chao, Esq. in her capacity as General Counsel.

(d) Communications with Penterra's directors' and officers' liability insurer, Atlantic Shield Insurance Co., and Penterra's commercial general liability insurer, Commonwealth Mutual Assurance Corp., to the extent such communications were made in anticipation of litigation and at the direction of legal counsel, and relate to coverage, defense, and indemnification obligations arising from the claims and counterclaims asserted in this action.

Penterra's privilege log will be served within the time period required by the applicable rules and any scheduling orders entered by the Court.

DOCUMENT PRODUCTION SUMMARY

The following summarizes the document production made by Penterra in connection with these Responses and Objections:

Total Documents Produced: The initial production encompasses documents bearing Bates numbers PPC-00001 through PPC-01438. Additional documents will be produced on a rolling basis as Penterra's document review continues.

Format of Production: Documents have been produced in the following formats: (i) electronically stored information ("ESI"), including email correspondence and electronic documents, has been produced in TIFF image format with extracted text, metadata, and load files suitable for ingestion into standard litigation review platforms; and (ii) hard-copy documents have been scanned and produced in TIFF image format with OCR text. Native-format production has been provided for spreadsheets, financial models, and other documents for which the native format is necessary to preserve the functionality and integrity of the document.

Confidentiality Designations: Certain documents have been designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" pursuant to the Agreed Protective Order entered by the Honorable Diane L. Costigan, J. on July 9, 2021. The confidentiality designations are indicated on the face of each produced document and in the accompanying load file metadata.

Rolling Production: This production is being made on a rolling basis. Penterra's document collection, review, and production efforts are ongoing, and Penterra reserves the right to supplement this production as additional responsive, non-privileged documents are identified.

RESERVATION OF RIGHTS

Penterra reserves the right to amend, supplement, or correct these Responses and Objections as additional information is identified through continuing investigation, document review, depositions, and other discovery in this action. Penterra's responses are based upon information reasonably available as of the date hereof, and Penterra's investigation is continuing.

Nothing herein shall be construed as a waiver of any objection, privilege, immunity, or other protection from disclosure not specifically raised herein. Penterra's failure to assert a particular objection with respect to a particular Request shall not be deemed a waiver of such objection, and Penterra reserves the right to assert additional objections as may be appropriate.

These Responses and Objections are made solely for the purpose of this litigation and shall not be construed as admissions of the relevance, materiality, or admissibility of any document or information produced or identified herein, whether at trial, at any hearing, or in any other proceeding. Penterra's production of documents shall not be construed as an admission that any such document supports, corroborates, or is consistent with any factual or legal position taken by Vantage in this action.

Dated: October 8, 2021

Respectfully submitted,

PENTERRA PHARMACEUTICALS CORP.

By its attorneys,

CALDERWOOD & HARKNESS LLP

By: ________

Linda Osei (BBO No. 654821) Priya Anand (BBO No. 687934) Hannah Brinkley (BBO No. 701256) Patrick Gallagher (BBO No. 712483)

1 Federal Street, 35th Floor Boston, Massachusetts 02110 Telephone: (617) 455-8200 Facsimile: (617) 455-8201 losei@calderwoodharkness.com panand@calderwoodharkness.com hbrinkley@calderwoodharkness.com pgallagher@calderwoodharkness.com

CERTIFICATE OF SERVICE

I, Hannah Brinkley, hereby certify that on October 8, 2021, a true and correct copy of the foregoing Plaintiff Penterra Pharmaceuticals Corp.'s Responses and Objections to Defendant Vantage Medical Distribution, LLC's First Request for Production of Documents, together with the documents produced therewith (Bates Nos. PPC-00001 through PPC-01438), was served upon counsel for Defendant by electronic mail and by first-class United States mail, postage prepaid, to:

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

________________________________________

Hannah Brinkley

PENTERRA PHARMACEUTICALS CORP.,

Plaintiff,

VANTAGE MEDICAL DISTRIBUTION, LLC,

Defendant.

Fiscal Year	Oncalaris® Purchases (WAC)	EDA Minimum (§ 5.2)	Variance
FY 2018	$11,200,000	$9,500,000	+$1,700,000
FY 2019	$14,800,000	$9,500,000	+$5,300,000
FY 2020	$18,300,000	$9,500,000	+$8,800,000
FY 2021 (through March)	$16,100,000	$9,500,000 (annualized)	+$6,600,000 (annualized)

COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT BUSINESS LITIGATION SESSION
SUFFOLK COUNTY
PLAINTIFF PENTERRA PHARMACEUTICALS CORP.'S RESPONSES AND OBJECTIONS TO DEFENDANT VANTAGE MEDICAL DISTRIBUTION, LLC'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Served Pursuant to Mass. R. Civ. P. 34
Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "PPC"), a Delaware corporation with its principal place of business and corporate headquarters at 400 Carnegie Center Drive, Suite 600, Princeton, New Jersey 08540, by and through its attorneys of record, Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, Massachusetts 02110, hereby responds and objects to Defendant Vantage Medical Distribution, LLC's ("Vantage") First Request for Production of Documents (the "Requests"), which were served upon Penterra on September 3, 2021. These Responses and Objections are made in accordance with Massachusetts Rule of Civil Procedure 34 and the applicable Standing Orders of the Superior Court, Business Litigation Session.
Penterra reserves all rights to supplement, amend, or correct these Responses and Objections as additional information becomes available through continuing investigation and discovery, as permitted by Mass. R. Civ. P. 26(e) and the applicable rules and orders of this Court. The production of documents in connection with these Responses is ongoing, and Penterra will continue to produce responsive, non-privileged documents on a rolling basis as they are identified, collected, reviewed, and processed.
These Responses and Objections are based upon information reasonably available to Penterra as of the date hereof. Penterra's investigation into the matters at issue in this litigation is continuing, and these Responses and Objections are made without prejudice to Penterra's right to rely upon subsequently discovered information or documents.
PRELIMINARY STATEMENT AND GENERAL OBJECTIONS
Penterra sets forth the following General Objections, each of which is incorporated by reference into every individual Response and Objection set forth below as though stated fully therein. The assertion of a General Objection with respect to a particular Request does not imply that the General Objection is necessarily relevant to that Request but is made to preserve Penterra's rights with respect to all Requests.
General Objection No. 1 — Scope and Proportionality. Penterra objects to each Request to the extent it seeks documents that are not relevant to the claims or defenses asserted in this action, or that are disproportionate to the needs of the case, considering the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Penterra notes that the scope of this dispute is limited in nature: the central question before the Court is whether the "Territory" as defined under the Exclusive Distribution Agreement dated July 1, 2017 (the "EDA" or the "Agreement"), by and between Penterra and Vantage, encompasses only the six New England states specifically identified in Exhibit A to the EDA — namely, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — or whether, as Vantage contends, the Territory also extends to include New York, New Jersey, and Pennsylvania (the "Tri-State Area"). Discovery requests that extend beyond the scope of this core dispute are objectionable, and Penterra reserves the right to object to such requests on proportionality grounds.
General Objection No. 2 — Attorney-Client Privilege and Work Product Doctrine. Penterra objects to each Request to the extent it calls for the production of documents or communications protected by the attorney-client privilege, the work product doctrine, the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection from disclosure. Without limitation, Penterra has retained the law firm of Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, Massachusetts 02110, in connection with the claims and defenses asserted in this litigation. Communications between Penterra personnel — including, but not limited to, Jennifer Chao, Esq., General Counsel of Penterra; Dr. Marcus Lindholm, Chief Executive Officer; Steven Kapoor, Vice President, Commercial Operations; Rachel Mendez, Director of Distribution & Logistics; and other Penterra officers, directors, and employees — and attorneys at Calderwood & Harkness LLP — including Linda Osei, Priya Anand, Hannah Brinkley, and Patrick Gallagher — are protected by the attorney-client privilege and, where applicable, the work product doctrine, and will not be produced. In addition, communications involving Jennifer Chao, Esq., in her capacity as General Counsel of Penterra, made for the purpose of seeking or providing legal advice, are privileged regardless of whether outside counsel was involved. Penterra will produce a privilege log identifying documents withheld on the basis of privilege in accordance with Mass. R. Civ. P. 26(b)(5) and the Standing Orders of the Business Litigation Session.
General Objection No. 3 — Overbreadth and Vagueness. Penterra objects to any Request that is overbroad, unduly burdensome, or vague in its definitions, instructions, or terms, including any Request that uses undefined or ambiguous terms, seeks "any and all" documents without reasonable limitation, or imposes search obligations that are not proportional to the needs of the case. To the extent Penterra responds to any such Request, it does so based upon a reasonable interpretation of the Request and without waiving this objection.
General Objection No. 4 — Confidentiality and Proprietary Information. Penterra objects to the production of documents containing trade secrets, proprietary business information, or confidential commercial or financial information absent the protections afforded by an appropriate protective order. Penterra notes that the Agreed Protective Order was entered by the Honorable Diane L. Costigan, J. on July 9, 2021, following the Initial Case Management Conference held on June 18, 2021. Penterra will designate documents as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" in accordance with the terms of the Agreed Protective Order, as appropriate. Penterra further notes that it is a publicly traded company listed on the Nasdaq Stock Market under the ticker symbol "PTRA," and certain financial, operational, and strategic information may be subject to the regulations of the U.S. Securities and Exchange Commission ("SEC"), including Regulation FD and other disclosure obligations. Production of non-public financial information must be handled with care to avoid any potential violation of applicable securities laws.
General Objection No. 5 — Documents Equally Available to Vantage. Penterra objects to any Request seeking documents that are equally available to Vantage or that are in Vantage's own possession, custody, or control. To the extent that Vantage seeks copies of documents that Vantage itself possesses, has authored, or has received, Penterra's obligation to produce such documents is limited, and the burden of producing such documents should fall upon Vantage.
General Objection No. 6 — Temporal Scope. Penterra objects to any Request that lacks a reasonable temporal limitation or that seeks documents from periods outside the scope of the relevant events giving rise to this litigation. Unless otherwise stated in a particular Response, Penterra will construe each Request as limited to the time period from January 1, 2017 through April 12, 2021 (the date of the filing of the Complaint in this action), except where a broader or narrower timeframe is specifically warranted by the subject matter of the Request or where the parties have agreed otherwise. Penterra objects to any Request that purports to seek documents "to the present" as overbroad and likely to encompass post-litigation documents that are privileged or otherwise protected from disclosure.
General Objection No. 7 — Reservation of Rights. These Responses and Objections are made without waiving and with a full reservation of all objections as to the competency, relevance, materiality, privilege, or admissibility of any document or information produced or identified herein, whether at trial, at any hearing, or in any other proceeding in this action or any related action. Penterra's production of any document in response to any Request shall not be deemed an admission that such document is relevant, material, or admissible for any purpose, nor shall it be deemed an admission that the document supports or is consistent with any factual or legal position taken by Vantage. Penterra further reserves the right to assert any and all objections, privileges, immunities, and other protections not specifically raised herein.
DEFINITIONS AND INSTRUCTIONS
Penterra has reviewed and incorporates the definitions and instructions set forth in Vantage's First Request for Production of Documents and responds to the Requests in accordance with the terms and definitions set forth therein, except as otherwise noted herein or where Penterra's interpretation of a particular term differs from Vantage's apparent intent.
For purposes of these Responses and Objections, the following definitions shall apply:
(a) "Agreement" or "EDA" means the Exclusive Distribution Agreement dated July 1, 2017, by and between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC, including all exhibits, schedules, and appendices attached thereto.
(b) "Products" means Oncalaris® (pegvisomant-axel), available in 20 mg and 40 mg injectable vials, and Renuvesta® (cilosporin-beta), available in 5 mg capsules, as defined in Section 1.12 of the EDA.
(c) "Territory" means the exclusive distribution territory as defined in Section 2.1 and Exhibit A of the EDA, which Penterra contends includes only the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.
(d) "Kapoor Email" means the email from Steven Kapoor, Vice President, Commercial Operations of Penterra, to Donald R. Farnham, Managing Member & CEO of Vantage, dated January 12, 2018.
(e) "Tri-State Area" or "Tri-State" means the states of New York, New Jersey, and Pennsylvania, which Vantage contends are encompassed within the Territory under the EDA.
(f) "Protective Order" means the Agreed Protective Order entered by the Honorable Diane L. Costigan, J. on July 9, 2021.
RESPONSES AND OBJECTIONS TO INDIVIDUAL REQUESTS
REQUEST NO. 1
Request: All executed copies of the Exclusive Distribution Agreement dated July 1, 2017, between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC, including all exhibits, schedules, appendices, amendments, modifications, addenda, and side letters related thereto.
Objections: None, subject to the General Objections set forth above.
Response: Penterra will produce a true and correct copy of the fully executed Exclusive Distribution Agreement dated July 1, 2017, by and between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC, including all exhibits attached thereto. The exhibits include, but are not limited to, Exhibit A (Territory Definition), which lists the following six states constituting the Territory: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Penterra will also produce all other exhibits, schedules, and appendices to the EDA as originally executed.
Penterra affirmatively states that no amendments, modifications, addenda, or side letters to the EDA exist. No writing modifying the terms of the EDA has been executed by the parties at any time since the Agreement was signed on July 1, 2017. This is consistent with Section 13.1 of the EDA, which provides that "[n]o amendment, modification, or supplement to this Agreement shall be effective unless made in writing and signed by duly authorized representatives of both Parties."
Documents Produced: Bates-stamped copies of the executed EDA and all exhibits, schedules, and appendices; production designator PPC-00001 through PPC-00047.
REQUEST NO. 2
Request: All documents relating to the negotiation, drafting, and execution of the Exclusive Distribution Agreement, including but not limited to all drafts, redlines, markup versions, term sheets, letters of intent, memoranda of understanding, and related correspondence between any representatives of Penterra and Vantage.
Objections: Penterra objects to this Request on the following grounds:
Relevance. The EDA contains an integration clause at Section 14.8, which provides in pertinent part: "This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral." The EDA further contains a written-amendment requirement at Section 13.1, which provides that no modification shall be effective unless in a signed writing. Under settled Massachusetts law, where a fully integrated written agreement exists, parol evidence of prior or contemporaneous negotiations is inadmissible to vary, contradict, or supplement the terms of the integrated agreement. See Robert Indus., Inc. v. Spence, 362 Mass. 751, 755 (1973); Bendetson v. Coolidge, 33 Mass. App. Ct. 944, 945 (1992). Pre-contractual negotiations are therefore legally irrelevant to the interpretation of the Territory definition contained in Exhibit A, which is clear and unambiguous on its face.
Attorney-Client Privilege. Penterra further objects to this Request to the extent it calls for the production of drafts of the EDA that were prepared by, shared with, or commented upon by legal counsel — whether Penterra's outside counsel during the negotiation period or Jennifer Chao, Esq., General Counsel of Penterra — in connection with the rendering of legal advice regarding the drafting and negotiation of the EDA. Such documents are protected by the attorney-client privilege.
Overbreadth and Burden. Penterra objects to this Request as overbroad and unduly burdensome to the extent it seeks "all documents relating to" the negotiation of the EDA without reasonable limitation, which would require Penterra to search for and review a large volume of internal and external communications spanning a period of approximately six months of negotiations.
Response: Subject to and without waiving the foregoing objections, and in the spirit of cooperation, Penterra will produce non-privileged correspondence and draft documents exchanged between Penterra personnel and Vantage personnel during the negotiation of the EDA, covering the period from approximately January 2017 through July 1, 2017. This production will include non-privileged email correspondence between Steven Kapoor and Donald R. Farnham, as well as term sheets and redline versions of the EDA that were exchanged between the parties in the ordinary course of negotiations. Penterra reserves its right to object to the admissibility of any such pre-contractual documents at trial on the basis of the parol evidence rule and the integration clause contained in Section 14.8 of the EDA.
Privileged communications between Penterra personnel and Penterra's legal counsel during the negotiation period, including drafts reflecting legal advice, will be withheld and identified on the privilege log to be served separately.
Documents Produced: Bates-stamped copies of non-privileged negotiation correspondence and drafts; production designator PPC-00048 through PPC-00189.
REQUEST NO. 3
Request: The email dated January 12, 2018, from Steven Kapoor to Donald R. Farnham, and all emails, letters, memoranda, text messages, instant messages, and other communications in the email chain or thread relating to the subject matter thereof, including any attachments thereto.
Objections: Penterra interposes no objection to the production of the Kapoor Email itself, dated January 12, 2018, and the surrounding email chain or thread of which it is a part, subject to the General Objections set forth above. However, Penterra objects to the phrase "all communications ... relating to the subject matter thereof" as overbroad and vague. The "subject matter" of the Kapoor Email — a brief, informal expression of interest in exploring potential geographic expansion — is sufficiently broad that Vantage's request could be construed to encompass virtually any communication regarding Vantage's distribution activities, growth trajectory, or geographic scope. Penterra will construe this Request to seek the Kapoor Email, the complete email thread of which it is a part, and closely related contemporaneous communications between Kapoor and Farnham regarding the specific topic of potential geographic expansion.
Response: Subject to and without waiving the foregoing objection, Penterra will produce the email dated January 12, 2018, from Steven Kapoor (Vice President, Commercial Operations, Penterra Pharmaceuticals Corp.) to Donald R. Farnham (Managing Member & CEO, Vantage Medical Distribution, LLC), together with the complete email thread or chain of which the Kapoor Email is a part, including all prior messages in the chain and any attachments.
The body of the Kapoor Email states in full:
"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."
Penterra notes that this email was an informal, forward-looking expression of willingness to discuss potential expansion at some unspecified future date, conditioned upon Vantage's completion of its ramp-up in the New England Territory. It does not constitute consent, authorization, or an amendment to the Territory definition under the EDA.
Penterra will also produce other non-privileged communications between Steven Kapoor and Donald R. Farnham from the period surrounding January 12, 2018, that relate to the topic of potential geographic expansion of Vantage's distribution activities. To the extent any responsive communications involve legal counsel or were made for the purpose of seeking or providing legal advice, such communications are privileged and will be withheld and identified on the privilege log.
Documents Produced: Bates-stamped copies of the Kapoor Email, the surrounding email thread, and related non-privileged communications; production designator PPC-00190 through PPC-00214.
REQUEST NO. 4
Request: All correspondence, emails, memoranda, notes, text messages, instant messages, and other communications between any representative of Penterra and any representative of Vantage regarding the Territory, any proposed or actual expansion of the Territory, or the distribution of the Products outside the states listed in Exhibit A to the EDA.
Objections: Penterra objects to this Request to the extent it is overbroad in that it seeks all communications between "any representative of Penterra" and "any representative of Vantage" over an unlimited time period. Penterra will limit its search to communications involving key personnel with knowledge of the Territory and distribution-related issues.
Penterra further objects to this Request to the extent it seeks communications protected by the attorney-client privilege. Without limitation, communications between Jennifer Chao, Esq., General Counsel of Penterra, and Vantage personnel, to the extent such communications were made for the purpose of conveying or implementing legal advice, are privileged. Communications between Penterra personnel and attorneys at Calderwood & Harkness LLP regarding the Territory dispute are likewise privileged.
Response: Subject to and without waiving the foregoing objections, Penterra will produce non-privileged communications between Penterra personnel — including Steven Kapoor, Vice President, Commercial Operations; Rachel Mendez, Director of Distribution & Logistics; and other personnel in the Commercial Operations and Distribution & Logistics departments — and Vantage personnel — including Donald R. Farnham, Managing Member & CEO; Lisa Petrangelo, Vice President, Operations; and Brian Kopec, Director of Sales — that relate to the Territory as defined in the EDA, any proposed or actual expansion of the Territory, or the distribution of Oncalaris® (pegvisomant-axel) or Renuvesta® (cilosporin-beta) outside the six New England states listed in Exhibit A.
This production includes, without limitation, the Kapoor Email of January 12, 2018 (also responsive to Request No. 3, above), as well as the cease-and-desist letter dated March 8, 2021, from Jennifer Chao, Esq., General Counsel of Penterra, to Donald R. Farnham, and the surrounding non-privileged correspondence. Penterra will also produce communications in which Penterra personnel discussed with Vantage personnel the scope of Vantage's distribution activities and the geographic boundaries of the Territory.
Documents reflecting communications between Jennifer Chao, Esq. and other Penterra personnel made for the purpose of seeking or providing legal advice regarding the Territory dispute, as well as communications with Calderwood & Harkness LLP, will be withheld as privileged and identified on the privilege log.
Documents Produced: Bates-stamped copies of responsive, non-privileged communications; production designator PPC-00215 through PPC-00398.
REQUEST NO. 5
Request: All documents reflecting, referring to, or relating to Penterra's knowledge of, awareness of, or response to Vantage's distribution of Products in New York, New Jersey, and/or Pennsylvania from September 2020 to the present.
Objections: Penterra objects to the temporal scope of this Request to the extent it seeks documents "to the present." Consistent with General Objection No. 6, Penterra will limit its production to documents dating from September 2020 through April 12, 2021 (the date of filing of the Complaint), except that Penterra will produce the Complaint itself and the cease-and-desist letter and related correspondence that predate the Complaint.
Penterra further objects to this Request to the extent it seeks communications between Penterra personnel and attorneys at Calderwood & Harkness LLP, which was retained in connection with this matter on or about March 29, 2021. All communications between Penterra personnel and Calderwood & Harkness LLP attorneys from March 29, 2021 forward are protected by the attorney-client privilege and the work product doctrine and will not be produced. Penterra also objects to the extent this Request seeks documents constituting attorney work product prepared in anticipation of this litigation, including internal memoranda, case assessments, legal analyses, and litigation strategy documents.
Response: Subject to and without waiving the foregoing objections, Penterra will produce non-privileged internal communications among Penterra personnel reflecting their awareness of Vantage's commencement of distribution activities in the Tri-State Area on or about September 14, 2020. This production includes internal email communications among Steven Kapoor, Rachel Mendez, and Jennifer Chao (to the extent such communications were made in Jennifer Chao's business capacity as a member of Penterra's executive leadership team, rather than in her capacity as legal counsel rendering legal advice), which discuss the discovery that Vantage had begun shipping Oncalaris® to hospitals and specialty pharmacies in New York, New Jersey, and Pennsylvania without Penterra's authorization.
Penterra will also produce the cease-and-desist letter dated March 8, 2021, from Jennifer Chao, Esq., General Counsel of Penterra, to Donald R. Farnham, Managing Member & CEO of Vantage, in which Penterra demanded that Vantage immediately cease distributing Oncalaris® outside the six New England states comprising the Territory under the EDA.
Communications between Penterra personnel and attorneys at Calderwood & Harkness LLP, commencing on or about March 29, 2021 (the date of engagement), are privileged and will be withheld and identified on the privilege log. Communications between Jennifer Chao, Esq. and other Penterra personnel made primarily for the purpose of obtaining or providing legal advice regarding the Vantage dispute — including communications in which Ms. Chao was acting in her capacity as General Counsel rather than as a business executive — are likewise privileged and will be withheld and logged.
Documents Produced: Bates-stamped copies of responsive, non-privileged documents; production designator PPC-00399 through PPC-00512.
REQUEST NO. 6
Request: All documents relating to any agreement, term sheet, letter of intent, proposal, negotiation, or communication between Penterra and Meridian National Distributors, Inc. regarding the distribution of Products in New York, New Jersey, Pennsylvania, and/or Maryland.
Objections: Penterra objects to this Request on the following grounds:
Relevance. The relationship between Penterra and Meridian National Distributors, Inc. ("Meridian") does not bear on the interpretation of the Territory definition contained in Section 2.1 and Exhibit A of the EDA. Whether Penterra sought to engage a separate distributor for the Tri-State Area is a collateral matter that does not speak to the plain language of Exhibit A or the parties' contractual obligations.
Confidentiality. The term sheet and related documents reflecting the proposed distribution arrangement between Penterra and Meridian contain commercially sensitive pricing, volume, and territory terms that constitute confidential business information. Production of such documents, if ordered, must be subject to the protections of the Agreed Protective Order, and Penterra will designate such documents as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" as appropriate.
Privilege. Penterra objects to the extent this Request seeks communications between Penterra personnel and legal counsel regarding the negotiation, structuring, and documentation of the proposed Meridian transaction.
Response: Subject to and without waiving the foregoing objections, and in the interest of cooperation and in recognition that the Meridian transaction may bear on the parties' course of performance and understanding of the Territory, Penterra will produce the following:
(a) The term sheet executed between Penterra Pharmaceuticals Corp. and Meridian National Distributors, Inc. — a New York corporation with its principal office at 520 Seventh Avenue, 12th Floor, New York, New York 10018 (President: Thomas Welliver) — dated February 15, 2021, for the distribution of Oncalaris® (pegvisomant-axel) in New York, New Jersey, Pennsylvania, and Maryland.
(b) Non-privileged correspondence between Penterra personnel and Meridian personnel regarding the proposed distribution arrangement, to the extent such correspondence does not involve legal counsel.
Penterra notes that the proposed distribution arrangement with Meridian did not proceed to a definitive agreement. The negotiations stalled on or about March 2021 when Vantage asserted, through its counsel Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP, that Vantage's exclusive distribution rights under the EDA encompassed the Tri-State Area, thereby creating a dispute that Penterra needed to resolve before engaging a separate distributor for those states.
All documents produced in connection with this Request will be designated "CONFIDENTIAL" under the Agreed Protective Order.
Documents Produced: Bates-stamped copies of the Meridian term sheet and related non-privileged correspondence; production designator PPC-00513 through PPC-00579. All documents designated CONFIDENTIAL.
REQUEST NO. 7
Request: All purchase orders, invoices, shipping records, bills of lading, delivery confirmations, and related documents for Products ordered by or shipped to Vantage Medical Distribution, LLC for the period July 1, 2017 to the present.
Objections: Penterra objects to this Request as overbroad to the extent it encompasses all Products — both Oncalaris® (pegvisomant-axel) and Renuvesta® (cilosporin-beta) — for the entire term of the EDA from July 1, 2017 through the present. The volume of transactional records over this period is substantial, and production of the complete universe of such records would be unduly burdensome. Penterra will focus its production on Oncalaris® shipment and purchase records, which are the primary subject of the dispute, and will distinguish between shipments to New England Territory addresses and any shipments related to the Tri-State Area.
Response: Subject to and without waiving the foregoing objections, Penterra will produce Oncalaris® (pegvisomant-axel, 20 mg and 40 mg vials) purchase orders, invoices, and shipping/distribution records maintained by Penterra's Distribution & Logistics department, overseen by Rachel Mendez, Director of Distribution & Logistics, for orders placed by Vantage Medical Distribution, LLC covering fiscal years 2018 through March 2021.
These records reflect the following Oncalaris® purchases by Vantage at wholesale acquisition cost ("WAC"):
The annual minimum purchase commitment under Section 5.2 of the EDA was $9,500,000 per year. As reflected in the data above, Vantage consistently exceeded the minimum purchase commitment in each year of the EDA's operation. Penterra notes that the significant increase in purchase volume from FY 2019 to FY 2020 and into FY 2021 coincides with the period during which Vantage commenced distribution activities in the Tri-State Area (beginning on or about September 14, 2020).
Penterra's internal distribution systems directed Oncalaris® shipments to Vantage only for delivery addresses located within the six New England states comprising the Territory. Penterra did not authorize, direct, or facilitate any shipments of Oncalaris® to delivery addresses in New York, New Jersey, or Pennsylvania. To the extent Vantage redistributed Oncalaris® to customers in the Tri-State Area, Vantage did so without Penterra's knowledge, consent, or authorization.
Penterra will also produce Renuvesta® (cilosporin-beta, 5 mg capsules) purchase and shipping records for Vantage upon reasonable request by Vantage, subject to the proportionality limitations set forth in General Objection No. 1.
Documents Produced: Bates-stamped copies of Oncalaris® purchase orders, invoices, and shipping records; production designator PPC-00580 through PPC-01247.
REQUEST NO. 8
Request: All internal Penterra communications, memoranda, reports, analyses, or presentations regarding Vantage's performance, sales volumes, compliance, or relationship under the EDA.
Objections: Penterra objects to this Request as overbroad and unduly burdensome. The Request seeks "all internal ... communications" regarding Vantage's performance over the multi-year term of the EDA, which would require Penterra to search for and review a vast volume of internal correspondence, reports, and analyses from numerous custodians across multiple departments. Penterra will conduct a reasonable search for responsive, non-privileged documents from the files of key custodians with primary responsibility for the Vantage relationship.
Penterra further objects to this Request to the extent it seeks communications between Penterra personnel and legal counsel, or internal communications made for the purpose of seeking or providing legal advice, which are protected by the attorney-client privilege.
Response: Subject to and without waiving the foregoing objections, Penterra will produce non-privileged internal correspondence, reports, and analyses regarding Vantage's performance under the EDA, including quarterly and annual distribution performance reviews, from the files of the following key custodians: Steven Kapoor, Vice President, Commercial Operations; and Rachel Mendez, Director of Distribution & Logistics. Penterra will also produce relevant non-privileged documents from the files of Jennifer Chao, Esq., General Counsel, to the extent such documents reflect business-related (as opposed to legal advice-related) assessments of Vantage's performance.
These documents reflect that Vantage consistently performed above the $9,500,000 annual minimum purchase commitment for Oncalaris® set forth in Section 5.2 of the EDA throughout the relevant period. Internal quarterly reviews prepared by the Commercial Operations department show that Penterra viewed Vantage as a high-performing regional distributor within its New England Territory, with strong market penetration among hospital systems and specialty oncology clinics.
Privileged communications — including legal assessments of Vantage's compliance with the territorial restrictions of the EDA prepared by or at the direction of Jennifer Chao, Esq. — will be withheld and identified on the privilege log.
Documents Produced: Bates-stamped copies of non-privileged internal performance reviews and related documents; production designator PPC-01248 through PPC-01410.
REQUEST NO. 9
Request: All documents identifying, describing, or relating to Penterra's regional exclusive distribution agreements, national specialty pharmacy partnerships, and overall distribution network for the Products, including but not limited to agreements with other distributors covering any geographic region.
Objections: Penterra objects to this Request on the following grounds:
Relevance. The structure of Penterra's broader distribution network — including agreements with other regional distributors and national specialty pharmacy partners — is not relevant to the interpretation of Section 2.1, Exhibit A, or any other provision of the EDA. The question before the Court is what the EDA's Territory definition means, not how Penterra has structured its distribution arrangements with third parties.
Confidentiality and Trade Secret. Penterra's distribution network arrangements, including the identity of its distribution partners, the geographic scope of their respective territories, pricing terms, volume commitments, and other commercial terms, constitute proprietary and confidential business information and, in certain instances, trade secrets. Production of these documents would cause competitive harm to Penterra and potentially violate confidentiality obligations owed to Penterra's other distribution partners.
Overbreadth. The Request is overbroad in that it seeks documents relating to Penterra's "overall distribution network" without limitation, which would encompass agreements and arrangements that have no bearing on the claims or defenses in this action.
Response: Subject to and without waiving the foregoing objections, Penterra will not produce agreements with other regional distributors or national specialty pharmacy partners, as such documents are neither relevant to the Territory dispute nor proportional to the needs of the case. Penterra's distribution arrangements with third parties are governed by separate agreements containing their own confidentiality provisions, and production of such agreements would risk harm to Penterra's commercial relationships and competitive position.
However, Penterra will produce non-privileged documents that specifically reference Vantage's Territory, Vantage's relationship to the broader distribution network, or the allocation of geographic regions among Penterra's distributors, to the extent any such non-privileged documents exist within the files of the key custodians identified in connection with Request No. 8. Penterra reserves the right to supplement this response if the Court orders further production following a motion to compel.
REQUEST NO. 10
Request: Penterra's internal financial documents, including revenue reports, sales data, and financial analyses, for Oncalaris® (pegvisomant-axel) in the New England states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont) and in New York, New Jersey, and Pennsylvania, for the period 2017 through the present.
Objections: Penterra objects to this Request on the following grounds:
Relevance and Proportionality. Penterra's own internal revenue data for Oncalaris® is not directly at issue in this declaratory-judgment action, which concerns the interpretation of the Territory definition in the EDA. Penterra's revenue from Oncalaris® sales — whether in the New England states, the Tri-State Area, or elsewhere — does not bear on the question of whether Exhibit A to the EDA includes New York, New Jersey, and Pennsylvania.
Confidentiality. Penterra is a publicly traded company listed on the Nasdaq Stock Market under the ticker symbol "PTRA." For fiscal year 2021, Penterra reported consolidated revenue of approximately $1.87 billion, with Oncalaris® (pegvisomant-axel) accounting for approximately $412 million, or approximately 22% of total revenue, as disclosed in Penterra's Annual Report on Form 10-K filed with the SEC. While consolidated and product-level revenue figures are publicly available through Penterra's SEC filings, granular, region-by-region revenue breakdowns are not publicly disclosed and constitute non-public, material financial information. Production of such data could implicate Penterra's obligations under Regulation FD and other SEC disclosure requirements.
Overbreadth. The Request is overbroad in seeking all internal financial documents, including revenue reports, sales data, and financial analyses, over a multi-year period.
Response: Subject to and without waiving the foregoing objections, Penterra will produce publicly available financial information regarding Oncalaris® revenue, including relevant excerpts from Penterra's Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q filed with the SEC for fiscal years 2017 through 2021. These filings contain product-level revenue disclosures for Oncalaris® at the consolidated level.
Penterra will not produce non-public, granular revenue data broken down by geographic region absent a specific showing by Vantage that such data is directly relevant to a claim or defense and that the need for the data outweighs the confidentiality and regulatory concerns identified above. Should the Court determine that region-specific revenue data is discoverable, Penterra requests that production be subject to the "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" designation under the Agreed Protective Order.
REQUEST NO. 11
Request: All documents relating to, preceding, or following the letter dated March 8, 2021, from Jennifer Chao, Esq. to Donald R. Farnham, including all drafts of the letter, all internal communications regarding the letter, and any responses thereto.
Objections: Penterra objects to this Request to the extent it seeks communications between Jennifer Chao, Esq., in her capacity as General Counsel of Penterra providing legal advice to the company, and other Penterra personnel or outside counsel, which are protected by the attorney-client privilege. Ms. Chao authored the March 8, 2021 letter in her capacity as General Counsel of Penterra, and her internal deliberations regarding the letter — including consultations with other Penterra executives regarding the legal basis for the cease-and-desist demand, the legal analysis underlying the territorial restriction, and the decision to send the letter — constitute privileged attorney-client communications.
Penterra further objects to the extent drafts of the March 8, 2021 letter reflect attorney work product, including Ms. Chao's mental impressions, legal theories, and strategic considerations regarding the Vantage dispute.
Response: Subject to and without waiving the foregoing objections, Penterra will produce the following:
(a) The final, sent version of the cease-and-desist letter dated March 8, 2021, from Jennifer Chao, Esq., General Counsel of Penterra Pharmaceuticals Corp., to Donald R. Farnham, Managing Member & CEO of Vantage Medical Distribution, LLC. The letter demands that Vantage immediately cease and desist from distributing Oncalaris® (pegvisomant-axel) outside the six New England states defined in Exhibit A to the EDA, asserts that Vantage's Tri-State distribution activities constitute a material breach of Section 2.1 of the EDA, and reserves all of Penterra's rights and remedies under the Agreement and applicable law, including the right to terminate the EDA pursuant to Section 12.2(a).
(b) The response letter from Kenneth M. Rourke, Esq. of Hargrove, Sinclair & Polk LLP, counsel for Vantage, dated March 22, 2021, addressed to Jennifer Chao, Esq. The Rourke letter asserts that Vantage's exclusive distribution rights under the EDA encompass the Tri-State Area based on the parties' course of dealing and the Kapoor Email of January 12, 2018, disputes that Vantage has committed any breach of the EDA, and threatens a counterclaim for breach of contract and tortious interference with prospective business relations in an amount of not less than $35 million.
(c) Any additional non-privileged correspondence between the parties (or their counsel) exchanged subsequent to the March 22, 2021 Rourke letter and prior to the filing of the Complaint on April 12, 2021.
Drafts of the March 8, 2021 cease-and-desist letter, internal deliberations and communications regarding the letter, and related internal legal memoranda prepared by or at the direction of Jennifer Chao, Esq. are privileged and will be withheld and identified on the privilege log.
Documents Produced: Bates-stamped copies of the final cease-and-desist letter, the Rourke response letter, and related non-privileged correspondence; production designator PPC-01411 through PPC-01438.
REQUEST NO. 12
Request: All documents constituting, evidencing, or relating to any consent, authorization, permission, or approval by Penterra for Vantage to distribute Products outside the Territory as defined in Exhibit A to the EDA, including but not limited to any "prior written consent" under Section 2.3 of the EDA.
Objections: None, subject to the General Objections set forth above.
Response: No documents responsive to this Request exist.
Penterra has never provided "prior written consent" under Section 2.3 of the EDA, or any other form of consent, authorization, permission, or approval, for Vantage to distribute Products — whether Oncalaris® (pegvisomant-axel), Renuvesta® (cilosporin-beta), or any other Product — outside the Territory as defined in Exhibit A. Section 2.3 of the EDA provides: "Distributor shall not, directly or indirectly, market, sell, distribute, or promote the Products outside the Territory without the prior written consent of [Penterra]." No such prior written consent has been given.
Furthermore, no amendment to Exhibit A has been executed as required by Section 13.1 of the EDA, which mandates that "[n]o amendment, modification, or supplement to this Agreement shall be effective unless made in writing and signed by duly authorized representatives of both Parties."
Penterra acknowledges that the Kapoor Email of January 12, 2018 (produced in response to Request Nos. 3 and 4) references a willingness to "explore expansion into NY/NJ/PA." However, Penterra's position is — and Penterra will demonstrate at trial — that the Kapoor Email does not constitute "prior written consent" under Section 2.3 or an amendment to the Territory definition under Section 13.1. The Kapoor Email is, on its face, a forward-looking, conditional, and informal expression of willingness to discuss potential future expansion, explicitly conditioned on Vantage's New England footprint being "fully ramped." It does not grant consent for Vantage to commence distribution in the Tri-State Area, and no reasonable reading of the email would support such an interpretation.
REQUEST NO. 13
Request: All documents relating to, rebutting, or supporting the calculation of damages alleged in Vantage's counterclaims, including but not limited to lost profits analyses, projected revenue calculations, financial models, and related analyses.
Objections: Penterra objects to this Request on the following grounds:
Prematurity. To the extent this Request seeks documents relating to the damages alleged in Vantage's counterclaims (breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel, seeking damages of not less than $35 million), such discovery may be premature. Penterra anticipates that dispositive motions, including motions for summary judgment, may resolve the counterclaims — or the underlying liability questions — before damages discovery is necessary. Penterra reserves the right to seek a phased discovery schedule from the Court.
Privilege and Work Product. Penterra objects to the extent this Request seeks communications between Penterra personnel and Calderwood & Harkness LLP regarding Penterra's assessment of Vantage's damages claims, or work product prepared by Calderwood & Harkness LLP or Penterra's General Counsel in anticipation of litigation regarding damages analysis, legal theories, or litigation strategy.
Response: Subject to and without waiving the foregoing objections, Penterra will produce non-privileged, relevant documents bearing on the damages claimed in Vantage's counterclaims to the extent such documents are currently in Penterra's possession, custody, or control. Penterra notes that it is Vantage, not Penterra, that bears the burden of proving its alleged damages, and the primary sources of information regarding Vantage's claimed lost profits, projected revenues, and other damages are within Vantage's own possession and control.
Penterra will produce records of its commercial dealings with Vantage, including the purchase orders, invoices, and sales data already responsive to Request No. 7, above, which reflect the volume and value of Oncalaris® purchases by Vantage during the relevant period. To the extent Penterra possesses additional non-privileged documents relevant to the quantification of Vantage's alleged damages, Penterra will produce such documents on a rolling basis.
REQUEST NO. 14
Request: All audit reports, management letters, and financial statements prepared by or with Penterra's independent auditors relating to distribution revenue, including revenue attributable to Vantage Medical Distribution, LLC.
Objections: Penterra objects to this Request on the following grounds:
Relevance. Audit reports and management letters prepared by Penterra's independent auditor, Whitfield & Pryce LLP, regarding Penterra's distribution revenue do not bear on the interpretation of the Territory definition in the EDA. The scope of Vantage's exclusive distribution territory is a question of contract interpretation, not a question that turns on Penterra's audited financial results.
Proportionality. The burden and expense of producing internal audit work papers and management letters — which may contain commentary on Penterra's revenue recognition policies, internal controls, and other matters unrelated to this dispute — substantially outweighs the likely benefit of such production.
Confidentiality. Penterra's audited financial statements are publicly available through its SEC filings. Internal audit work papers and management letters, however, are not publicly disclosed and contain confidential, proprietary information regarding Penterra's financial reporting processes, internal controls, and related matters.
Response: Subject to and without waiving the foregoing objections, Penterra will not produce internal audit work papers or management letters from Whitfield & Pryce LLP, as such documents are neither relevant to the claims or defenses in this action nor proportional to the needs of the case.
Penterra will provide references to its publicly filed financial statements with the SEC, which are available through the SEC's EDGAR database and Penterra's investor relations website. Relevant filings include Penterra's Annual Reports on Form 10-K for fiscal years 2017 through 2020, and its Quarterly Reports on Form 10-Q for fiscal year 2021, each of which contains audited (or reviewed) financial statements, revenue disclosures, and management's discussion and analysis of financial condition and results of operations, including product-level revenue data for Oncalaris® (pegvisomant-axel).
PRIVILEGE LOG NOTICE
Penterra states that it is withholding certain documents from production on the basis of the attorney-client privilege, the work product doctrine, or both. In accordance with Mass. R. Civ. P. 26(b)(5) and the Standing Orders of the Business Litigation Session, Penterra will serve a separate privilege log identifying each document withheld from production. The privilege log will include, for each withheld document, the following information to the extent disclosure thereof would not reveal privileged information: the date of the document or communication; the author or sender; the recipient(s) and any individuals copied; a general description of the subject matter; and the specific privilege or protection asserted as the basis for withholding.
Without limitation, the categories of documents being withheld on the basis of privilege include:
(a) Communications between Penterra personnel — including Dr. Marcus Lindholm, CEO; Jennifer Chao, Esq., General Counsel; Steven Kapoor, Vice President, Commercial Operations; Rachel Mendez, Director of Distribution & Logistics; and other officers and employees — and attorneys at Calderwood & Harkness LLP (Linda Osei, Priya Anand, Hannah Brinkley, and Patrick Gallagher), commencing on or about March 29, 2021, the date of Calderwood & Harkness's engagement in connection with this matter, and continuing through the present.
(b) Communications between Jennifer Chao, Esq., General Counsel of Penterra, and other Penterra personnel made for the primary purpose of seeking or providing legal advice regarding the Vantage dispute, the interpretation and enforcement of the EDA's territorial restrictions, the cease-and-desist letter of March 8, 2021, and the scope of the Territory, whether or not outside counsel was involved in such communications.
(c) Drafts of the March 8, 2021 cease-and-desist letter from Jennifer Chao, Esq. to Donald R. Farnham, and related internal legal memoranda, legal analyses, and strategy documents prepared by or at the direction of Jennifer Chao, Esq. in her capacity as General Counsel.
(d) Communications with Penterra's directors' and officers' liability insurer, Atlantic Shield Insurance Co., and Penterra's commercial general liability insurer, Commonwealth Mutual Assurance Corp., to the extent such communications were made in anticipation of litigation and at the direction of legal counsel, and relate to coverage, defense, and indemnification obligations arising from the claims and counterclaims asserted in this action.
Penterra's privilege log will be served within the time period required by the applicable rules and any scheduling orders entered by the Court.
DOCUMENT PRODUCTION SUMMARY
The following summarizes the document production made by Penterra in connection with these Responses and Objections:
Total Documents Produced: The initial production encompasses documents bearing Bates numbers PPC-00001 through PPC-01438. Additional documents will be produced on a rolling basis as Penterra's document review continues.
Format of Production: Documents have been produced in the following formats: (i) electronically stored information ("ESI"), including email correspondence and electronic documents, has been produced in TIFF image format with extracted text, metadata, and load files suitable for ingestion into standard litigation review platforms; and (ii) hard-copy documents have been scanned and produced in TIFF image format with OCR text. Native-format production has been provided for spreadsheets, financial models, and other documents for which the native format is necessary to preserve the functionality and integrity of the document.
Confidentiality Designations: Certain documents have been designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" pursuant to the Agreed Protective Order entered by the Honorable Diane L. Costigan, J. on July 9, 2021. The confidentiality designations are indicated on the face of each produced document and in the accompanying load file metadata.
Rolling Production: This production is being made on a rolling basis. Penterra's document collection, review, and production efforts are ongoing, and Penterra reserves the right to supplement this production as additional responsive, non-privileged documents are identified.
RESERVATION OF RIGHTS
Penterra reserves the right to amend, supplement, or correct these Responses and Objections as additional information is identified through continuing investigation, document review, depositions, and other discovery in this action. Penterra's responses are based upon information reasonably available as of the date hereof, and Penterra's investigation is continuing.
Nothing herein shall be construed as a waiver of any objection, privilege, immunity, or other protection from disclosure not specifically raised herein. Penterra's failure to assert a particular objection with respect to a particular Request shall not be deemed a waiver of such objection, and Penterra reserves the right to assert additional objections as may be appropriate.
These Responses and Objections are made solely for the purpose of this litigation and shall not be construed as admissions of the relevance, materiality, or admissibility of any document or information produced or identified herein, whether at trial, at any hearing, or in any other proceeding. Penterra's production of documents shall not be construed as an admission that any such document supports, corroborates, or is consistent with any factual or legal position taken by Vantage in this action.
Dated: October 8, 2021
Respectfully submitted,
PENTERRA PHARMACEUTICALS CORP.
By its attorneys,
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei (BBO No. 654821) Priya Anand (BBO No. 687934) Hannah Brinkley (BBO No. 701256) Patrick Gallagher (BBO No. 712483)
1 Federal Street, 35th Floor Boston, Massachusetts 02110 Telephone: (617) 455-8200 Facsimile: (617) 455-8201 losei@calderwoodharkness.com panand@calderwoodharkness.com hbrinkley@calderwoodharkness.com pgallagher@calderwoodharkness.com
CERTIFICATE OF SERVICE
I, Hannah Brinkley, hereby certify that on October 8, 2021, a true and correct copy of the foregoing Plaintiff Penterra Pharmaceuticals Corp.'s Responses and Objections to Defendant Vantage Medical Distribution, LLC's First Request for Production of Documents, together with the documents produced therewith (Bates Nos. PPC-00001 through PPC-01438), was served upon counsel for Defendant by electronic mail and by first-class United States mail, postage prepaid, to:
Kenneth M. Rourke, Esq. Alicia Fontaine, Esq. Hargrove, Sinclair & Polk LLP 200 Ashbury Asset Advisors, Suite 1800 Boston, Massachusetts 02109 krourke@hsplaw.com afontaine@hsplaw.com
________________________________________
Hannah Brinkley
PENTERRA PHARMACEUTICALS CORP.,
Plaintiff,
v. | Docket No. 2184-CV-01537-BLS
VANTAGE MEDICAL DISTRIBUTION, LLC,
Defendant.
Fiscal Year | Oncalaris® Purchases (WAC) | EDA Minimum (§ 5.2) | Variance
FY 2018 | $11,200,000 | $9,500,000 | +$1,700,000
FY 2019 | $14,800,000 | $9,500,000 | +$5,300,000
FY 2020 | $18,300,000 | $9,500,000 | +$8,800,000
FY 2021 (through March) | $16,100,000 | $9,500,000 (annualized) | +$6,600,000 (annualized)

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT DEPARTMENT BUSINESS LITIGATION SESSION

SUFFOLK COUNTY

PRELIMINARY STATEMENT AND GENERAL OBJECTIONS

DEFINITIONS AND INSTRUCTIONS

RESPONSES AND OBJECTIONS TO INDIVIDUAL REQUESTS

REQUEST NO. 1

REQUEST NO. 2

REQUEST NO. 3

REQUEST NO. 4

REQUEST NO. 5

REQUEST NO. 6

REQUEST NO. 7

REQUEST NO. 8

REQUEST NO. 9

REQUEST NO. 10

REQUEST NO. 11

REQUEST NO. 12

REQUEST NO. 13

REQUEST NO. 14

PRIVILEGE LOG NOTICE

DOCUMENT PRODUCTION SUMMARY

RESERVATION OF RIGHTS

PENTERRA PHARMACEUTICALS CORP.

CALDERWOOD & HARKNESS LLP

CERTIFICATE OF SERVICE

PENTERRA PHARMACEUTICALS CORP.,

VANTAGE MEDICAL DISTRIBUTION, LLC,

Record

Parties

Dates

Amounts