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FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024
EXHIBIT 23
FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022
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JIPYONG JIPYONG LLC
26F, Grand Central A, 14 Sejong-daero, Jung-gu, Seoul 04527, Korea T: 82-2-6200-1600 F: 82-2-6200-0800 http://www.jipyong.com
STRICTLY CONFIDENTIAL
VIA ELECTRONIC MAIL
June 26, 2023
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, NY 10112, USA
Attention: Rebecca Schwarz
Email: rebecca.schwarz@haynesboone.com, leslie.thorne@haynesboone.com,
joe.pinto@haynesboone.com
RE: Meet and Confer re RedHill’s Responses and Objections to Kukbo’s First and Second
Set of Discovery Requests
Dear Ms. Schwarz,
This letter is to follow up on (1) our discussion of April 28, 2023 regarding Kukbo’s meet and
confer letter of April 20, 2023 and RedHill’s response thereto dated April 27, 2023 (the “April
Letter”) and (2) our discussion on June 7, 2023 regarding Kukbo’s second meet and confer
letter on 26 May 2023 and RedHill’s response thereto dated June 6, 2023 (the “June Letter”).
RFP NOS. 4 & 5 REGARDING COMMUNICATIONS WITH NEXPEDIA AND NETWORK 1
RFP Nos. 4 and 5 ask for documents and communications exchanged between RedHill and
Nexpedia and Network 1 “concerning Kukbo.” RedHill objected to these requests on the
basis that they are overly broad and unduly burdensome without regard to whether the
information sought is material and necessary. In the April Letter, RedHill claimed that the
information was “parol evidence that [is] foreclosed under the…merger clause,” that
regardless the information was not “relevant or material” and that the information has “no
bearing whatsoever on the ultimate outcome due to existing law and documentary evidence.”
RedHill partially produced its communication with Nexpedia. This is not complete because
it seems that not all attachments to emails from Nexpedia were produced, especially ones
attached to the email dated October 21, 2021. As it appears that all transactions between
Nexpedia and RedHill were about Kukbo and considering a description of one of the
attachments specifically indicates that it concerns “transaction progress with Kukbo,” Kukbo’s
requests are within the scope of discovery, i.e., “all matter material and necessary in the
prosecution or defense of an action.” CPLR 3101(a). The test of whether information
sought in discovery is “material and necessary” is one of usefulness and reason and should be
interpreted liberally. Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 405 (N.Y., Feb. 21, 1968).
These requests seek documents which would show the reasons behind RedHill’s solicitation
of Kukbo’s investment in RedHill and Opaganib. Hence, they are reasonably expected to
disclose material and necessary facts concerning Kukbo’s fraudulent inducement claim and
will assist with preparation for trial. Id. RedHill’s motivations behind the investment
cannot be solely discovered through its communications with Kukbo, where the investment
was fraudulently induced.
RedHill’s objections concerning the date range are not justified and are not a reason to not
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produce documents given that the underlying communications are likely to be less than a year
in duration. Moreover, the requests are limited to communications with 2 specific entities
and only those concerning Kukbo.
RedHill’s objections based on the parol evidence rule are unsupported because: (1) “the parol
evidence rule…has no application in a suit brought where there are claims of fraud in the
execution of an agreement or to rescind a contract on the ground of fraud,” Escabi v. Twins
Contracting, LLC, 75 Misc. 3d 1209(A) at *10 (N.Y. Sup. Ct. 2022) (citing Sabo v. Delman, 3
N.Y.2d 155, 161 (1957)); (2) the Subscription Agreement (“SA”) contains a general merger
clause and where a merger clause is general and vague parol evidence is not excluded to show
fraud, See SA, § 7(a); see also Laduzinski v. Alvarez & Marsal Tax and LLC, 132 A.D.3d 164, 169
(2015)(finding a similar merger clause to be general); Aetna Cas. & Sur. Co. v. Aniero Concrete
Co., 404 F.3d 566, 575 (2d Cir. 2005) (citing Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320
(1959)); and (3) the parol evidence rule does not apply as the facts are peculiarly within
RedHill’s knowledge. New York courts “have repeatedly noted that allegedly fraudulent
sellers may not invoke even specific disclaimer clauses in order to preclude evidence of oral
misrepresentations ‘if the facts allegedly misrepresented are peculiarly within the seller's
knowledge.’”Yurish v. Sportini, 123 A.D.2d 760, 761 (1986). RedHill’s efforts towards the
public offering on November 23, 2021 (the “November PO”) were peculiarly within RedHill’s
knowledge. None of this is a matter of public record. Furthermore, the case cited by
RedHill in the April Letter did not involve facts peculiarly within the knowledge of the
representing party. See Getty Petroleum Corp. v. DeIorio, 194 A.D.2d 762, 763 (1993).
RFP NOS. 11, 12, 13, 22, 23 24, & 57 THROUGH 66 REGARDING DOCUMENTS AND
COMMUNICATIONS RELATED TO REGULATORY APPROVAL OF OPAGANIB
Kukbo’s RFP Nos. 11, 12, 13, 22, 23, 24 and 57 through 66 seek documents and
communications related to RedHill’s efforts and plan for obtaining regulatory approval of
Opaganib and communications with regulatory authorities during each specified time period.
RedHill objected to these requests on the basis that they are (1) overly broad and unduly
burdensome without regard to whether the information sought is material and necessary; (2)
the date range has no relevance; and (3) the scope could include production of confidential,
proprietary, or trade secret information. For RFP Nos. 11, 12, 13, 22, 23, & 24, RedHill
additionally objected that they were (4) not limited to countries which Kukbo alleged were
material and (5) irrelevant to the prosecution or defense of the lawsuit and not calculated to
lead to the discovery of relevant evidence. In the April Letter, RedHill additionally claimed
that the information was “parol evidence that [is] foreclosed under the…merger clauses.” In
the June Letter, RedHill claimed that Kukbo “appears to be seeking documents in support of
its claims for rescission…But Kukbo’s claim…was dismissed” and that the information “does
not impact whether Kukbo was fraudulently induced…or whether either party breached these
agreements.”
RedHill partially produced documents exchanged with the FDA, EMA, and MHRA starting in
March 2020. RedHill is obligated to produce all responsive documents. The enumerated
requests seek documents that are reasonably expected to disclose facts concerning the
central dispute in this case, i.e., RedHill’s plans, expectations, and efforts towards securing
approval of Opaganib. Whether RedHill has made efforts to get Opaganib approved is
directly relevant to RedHill’s knowledge and intent in connection with Kukbo’s fraudulent
inducement and fraudulent misrepresentation claims. Moreover, the information is also
relevant to Kukbo’s breach of contract and anticipatory repudiation claims as it related to
RedHill’s performance of the contracts. RedHill admitted that it applied for approvals in
other countries. RedHill made representations about Opaganib’s approval in these countries
and making these subject to discovery, particularly with respect to Kukbo’s fraudulent
misrepresentation claim. The requests are reasonably expected to disclose information
concerning RedHill’s knowledge that Opaganib was unable to be approved. Given the direct
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relevance of this information, the effort to obtain them in preparation for trial reasonable.
Romano v. Steelcase Inc., 30 Misc.3d 426, 428 (Sup Ct, Sep. 21, 2010).
The parol evidence rule is not a valid basis to object because: (1) it does not apply in a suit
based on fraud in the execution or rescission, Escabi, 75 Misc. 3d 1209(A) at *10; (2) it does
not apply where a merger clause is general and vague, Aetna Cas. & Sur. Co., 404 F.3d at 575.
Both the Exclusive License Agreement (“ELA”) and the SA contain general merger clauses,
See ELA, § 17.5; SA, § 7(a); see also Superior Tech. Res., Inc. v. Lawson Software, Inc., 17 Misc.
3d 1137(A), 851 N.Y.S.2d 74 (Sup. Ct. 2007)(finding a similar merger clause to be vague);
Laduzinski, 132 A.D.3d at 169 (same). Moreover, all of the specific disclaimers cited by
RedHill solely concern “Regulatory Approval” in the “Territory” and are by definition limited
to approval by Korean regulatory authorities. See ELA, §§ 1.33, 1.43, 7.3, 9.3, and 9.4.3; (3)
Regardless, the parol evidence rule does not apply as the facts are peculiarly within the
knowledge of RedHill. Yurish, 123 A.D.2d at 761. The status of Opaganib’s approval in
other countries was peculiarly within RedHill’s knowledge and was not public. Courts have
found similar information to be peculiarly within the seller’s knowledge. See J & R Elecs. Inc.
v. Bus. & Decision N. Am., Inc., 2013 WL 5203134, at *8 (S.D.N.Y. Sept. 16, 2013) (information
concerning the functionality of a software); Banque Arabe Et Internationale D'Investissement
v. Maryland Nat. Bank, 819 F. Supp. 1282, 1292 (S.D.N.Y. 1993) (knowledge of a government
objection to converting properties subject to a mortgage loan); and (4) the parol evidence rule
only “bars review of extrinsic evidence to alter an unambiguous agreement or merger clause.”
Safariland, LLC v. H.B.A. Agencies, Ltd., 198 A.D.3d 519, 520 (2021). Hence, where the
contracts are ambiguous, parol evidence is allowed. Given the differing interpretations of
RedHill’s obligations towards Opaganib, parol evidence is not barred.
RedHill’s arguments about the rescission claim are also unavailing since RedHill did not
challenge nor did the Court strike RedHill’s affirmative defenses of failure of consideration,
frustration of purpose, and impossibility. See generally Decision and Order, dated May 8,
2023 (“Order”). Regardless, the information is relevant to fraudulent inducement, which is
itself a ground for rescission. Sorbaro Co. v. Cap. Video Corp., 168 Misc. 2d 143, 148 (Sup. Ct.
1996).
Finally, the date ranges are tailored to obtaining information relevant to the fraudulent
inducement of the SA and the ELA and RedHill’s continuing misrepresentations thereafter
which are relevant to the fraudulent misrepresentation claim.
To the extent RedHill believes the requested discovery implicates highly confidential,
proprietary, or sensitive business information, and/or information that would interfere with
RedHill’s privacy rights, RedHill should produce such information in accordance with the terms
of the Confidentiality Order. In any event, RedHill should indicate if any responsive
documents and/or communications exist and if any document is being withheld, as well as
the manner in which RedHill intends to limit the scope of its production pursuant to Rule 11-
e (22 NYCRR § 202.20-c(b)).
RFP NOS. 14, 15 & 16 REGARDING COMMUNICATIONS WITH REDHILL’S CRO CONCERNING
OPAGANIB
Kukbo’s RFP Nos. 14, 15, and 16 ask for documents and communications between RedHill and
its CRO “concerning Opaganib” during each specified time period. In response, RedHill
objected that the requests are (1) overly broad and unduly burdensome without regard to
whether the information sought is material and necessary; (2) the date range has no relevance;
and (3) the scope could include production of confidential, proprietary, or trade secret
information. In the April Letter, RedHill additionally claimed that the information was “parol
evidence that [is] foreclosed under the…merger clauses.”
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The requests are not overbroad. They are limited in time and pertain directly to the periods
covering RedHill’s fraudulent inducement of the SA and ELA and RedHill’s fraudulent
misrepresentations occurring thereafter.
RedHill used CROs to assist with its applications for regulatory approval in other countries, and
in some instances the CRO was directly handling the application. (See RHB00018184).
These requests are reasonably calculated to lead to material and necessary information
concerning the CRO’s assessment of Opaganib’s likelihood of approval and RedHill’s
knowledge of the rejections. It will additionally reveal information concerning RedHill’s
performance of its obligation to get Opaganib approved outside Korea. Information from all
countries in which RedHill applied is relevant as RedHill made representations about these
countries opening them to discovery. The documents are necessary for Kukbo’s prosecution
of its fraudulent inducement, fraudulent misrepresentation, breach of contract, and
anticipatory repudiation claims.
The parol evidence rule does not exclude discovery of these documents as (1) the rule does
not apply in cases of fraud in the inducement, Escabi, 75 Misc. 3d 1209(A) at *10; (2) the ELA
and SA’s merger clauses are general and vague and do not apply to regulatory applications
outside of Korea, see Aetna Cas. & Sur. Co., 404 F.3d at 575; (3) facts concerning Opaganib’s
approval in countries other than Korea is peculiarly within RedHill’s knowledge, Yurish, 123
A.D.2d at 761; and (4) the contracts are ambiguous, see Safariland, LLC, 198 A.D.3d at 520.
Notwithstanding the above, Kukbo is willing to clarify its request and demand RedHill produce
only those documents and communications exchanged with your CRO concerning Opaganib’s
use as a COVID-19 treatment. To the extent RedHill believes the requested discovery
implicates highly confidential, proprietary, or sensitive business information, and/or
information that would interfere with RedHill’s privacy rights, RedHill should produce such
information in accordance with the terms of the Confidentiality Order. In any event, RedHill
should indicate if any responsive documents and/or communications exist and if any
document is being withheld, as well as the manner in which RedHill intend to limit the scope
of its production pursuant to Rule 11-e (22 NYCRR § 202.20-c(b)).
RFP NOS. 25, 26 & 29 REGARDING DOCUMENTS AND COMMUNICATIONS CONCERNING
CLINICAL STUDIES
Kukbo’s RFP Nos. 25, 26 & 29 asks RedHill to produce documents and communications
concerning clinical studies of Opaganib. In response, RedHill objected that the requests are
(1) overly broad and unduly burdensome without regard to whether the information sought
is material and necessary; (2) the date range has no relevance; and (3) the scope could include
production of confidential, proprietary, or trade secret information. In the April Letter,
RedHill additionally claimed that the information was “parol evidence that [is] foreclosed
under the…merger clause,” that regardless the information was not “relevant or material” and
that the information has “no bearing whatsoever on the ultimate outcome due to existing law
and documentary evidence.”
RedHill partially produced documents concerning clinical studies. RedHill’s partial response
cannot be complete as no protocol for the Phase 2/3 clinical studies conducted and/or to be
conducted have been produced. RedHill’s objections are all improper. These requests are
material and necessary to Kukbo’s fraudulent inducement, fraudulent misrepresentation,
anticipatory repudiation, and breach of contract claims. The requests are reasonably
calculated to lead to information concerning RedHill’s representations regarding whether and
how soon results of Opaganib’s clinical studies would be sufficient to obtain approval and
RedHill’s efforts to undertake a confirmatory study. Information sought in these requests is
sufficiently related to the issues in this lawsuit so as to make the effort to obtain them in
preparation for trial reasonable. Romano, 30 Misc.3d at 428.
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RedHill’s attempt to distinguish Romano in its April Letter because of the merger clause is
ineffective. The parol evidence rule is not applicable because (1) the rule does not apply in
cases of fraud in the inducement, Escabi, 75 Misc. 3d 1209(A) at *10; (2) the ELA and SA’s
merger clauses are general and vague and do not apply to regulatory applications outside of
Korea, see Aetna Cas. & Sur. Co., 404 F.3d at 575; (3) facts concerning RedHill’s plan and
execution of clinical trials is peculiarly within RedHill’s knowledge, Yurish, 123 A.D.2d at 761;
and (4) the contracts are ambiguous, see Safariland, LLC, 198 A.D.3d at 520.
To the extent RedHill believes the requested discovery implicates highly confidential,
proprietary, or sensitive business information, and/or information that would interfere with
RedHill’s privacy rights, RedHill should produce such information in accordance with the terms
of the Confidentiality Order. In any event, RedHill should indicate if any responsive
documents exist and if any document is being withheld, as well as the manner in which RedHill
intend to limit the scope of its production pursuant to Rule 11-e (22 NYCRR § 202.20-c(b)).
RFP NOS. 36, 37, 38 & 39 REGARDING DOCUMENTS AND COMMUNICATIONS RELATED TO
THE NOVEMBER PO
Kukbo’s RFP Nos. 36, 37, 38, and 39 ask for documents and communications of RedHill related
to the November PO. RedHill objected to the requests on the basis that the request was
overly broad and unduly burdensome without regard to whether the information sought is
material and necessary. RedHill also objected to RFP Nos. 37, 38, and 39 on the basis that
the requests are of a scope that would request privileged information. In the April Letter,
RedHill additionally claimed that the information was “parol evidence that [is] foreclosed
under the…merger clause,” that regardless the information was not “relevant or material” and
“direct[ed] Kukbo to RedHill’s public filings, wherein RedHill specifically disclosed it would
conduct future public offerings.”
RedHill’s objections are not a valid basis to refuse production. The November PO adversely
affected Kukbo’s investment, and its concealment is the crux of Kukbo’s fraudulent
inducement claim. The requested documents are reasonably expected to disclose
information concerning the timing of the November PO, and RedHill’s knowledge and intent,
which is necessary for the prosecution of Kukbo’s fraudulent inducement claim. RedHill’s
public statements that it expects to raise funds through public offerings do not disclose that
it was actively planning a public offering while soliciting Kukbo’s investment. Moreover, the
Court did not find that Kukbo ratified the SA, so Kukbo is entitled to discovery relevant to the
fraudulent inducement of the SA. See Order, p. 3.
The parol evidence rule is inapplicable because (1) the rule does not apply in cases of fraud in
the inducement, Escabi, 75 Misc. 3d 1209(A) at *10; (2) the SA’s merger clause is general and
vague, see Aetna Cas. & Sur. Co., 404 F.3d at 575; (3) facts concerning RedHill’s efforts towards
the November PO is peculiarly within RedHill’s knowledge, Yurish, 123 A.D.2d at 761; and (4)
Courts have found similar information to be peculiarly within the seller’s knowledge, see Basis
Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128, 139 (2014)
(underwriter’s non-public knowledge of the credit quality of subprime mortgages); Forty Cent.
Park S., Inc. v. Anza, 117 A.D.3d 523, 524 (2014) (finding justifiable reliance as
misrepresentations of profitability and positive returns on investment were peculiarly within
representor’s knowledge).
To the extent RedHill is objecting based on any privilege, RedHill should provide a privilege log
laying out what material there is that is being withheld pursuant to any privileges, and which
privilege RedHill contends to apply.
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RFP NO. 56 RE DOCUMENTS EXCHANGED BETWEEN OR AMONG REDHILL’S OFFICERS OR
EMPLOYEES CONCERNING KUKBO FROM JAN. 1, 2021 TO PRESENT
Kukbo’s RFP No. 56 asks for “all documents exchanged between or among [RedHill’s] officers
or employees concerning Kukbo from January 1, 2021 to the present.” RedHill has objected to
the request on the basis that it is (1) overly broad and unduly burdensome without regard to
whether the information sought is material and necessary; (2) the date range has no relevance;
(3) of a scope that would request privileged information; and (4) the scope could include
production of confidential, proprietary, or trade secret information.
There is no valid basis to object that the documents are overbroad as they are limited to a
time period of approximately 2 years and only concern communications relating to Kukbo.
The internal communications are reasonably calculated to lead to information concerning
whether or why RedHill purposefully withheld information regarding the November PO and
the status and likelihood of Opaganib’s approval in any country, which is relevant to its
fraudulent inducement and fraudulent misrepresentation claims.
Notwithstanding the above, in its June Letter RedHill requested that Kukbo amend the request
to “concerning whether or why RedHill purposefully withheld information regarding the
November PO and the status and likelihood of Opaganib’s approval in the US, the UK, the EU
or the Republic of Korea.” Kukbo is willing to clarify its request and demand RedHill produce
documents exchanged between or among RedHill’s officers or employees concerning whether
or why RedHill withheld information regarding the November PO and the status and likelihood
of Opaganib’s approval in any country.
To the extent RedHill believes the requested discovery implicates highly confidential,
proprietary, or sensitive business information, and/or information that would interfere with
RedHill’s privacy rights, RedHill should produce such information in accordance with the terms
of the Confidentiality Order. To the extent RedHill believes the requested discovery includes
privileged information, RedHill should provide a privilege log laying out what material there is
that is being withheld pursuant to any privileges, and which privilege RedHill contends to apply.
RFP NOS. 67 THROUGH 71 AND 77 THROUGH 82 RE DOCUMENTS AND COMMUNICATIONS
WITH SHAREHOLDERS AND BOARD OF DIRECTORS RELATED TO ADS/NOVEMBER PO
Kukbo’s RFP Nos. 67 through 71 and 77 through 82 requests documents and communications
with and related to RedHill’s shareholders and board of directors concerning the stock ratio
change, price of ADS, any dispute with shareholders, and the November PO during the
relevant period. RedHill objected to these requests stating that they are (1) overly broad and
unduly burdensome without regard to whether the information sought is material and
necessary; (2) the date range has no relevance; and (3) the scope could include production of
confidential, proprietary, or trade secret information. In the June Letter, RedHill additionally
claimed that the information was “irrelevant to the claims at issue,” “parol evidence that [is]
foreclosed under the…merger clauses,” and directed Kukbo to the public filings included in
the first production.
Regardless of the Court’s order, the information is relevant to Kukbo’s remaining claims.
Defenses for failure of consideration remain as RedHill did not challenge nor did the Court
strike any of Kukbo’s affirmative defenses. See generally Order.
The parol evidence rule does not apply because (1) this case involves fraud in the inducement,
Escabi, 75 Misc. 3d 1209(A) at *10; (2) the SA’s merger clause is general and vague, see Aetna
Cas. & Sur. Co., 404 F.3d at 575; and (3) information concerning RedHill’s ADS price, other than
that publicly disclosed, are peculiarly within RedHill’s knowledge, Yurish, 123 A.D.2d at 761.
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To the extent RedHill believes the requested discovery implicates highly confidential,
proprietary, or sensitive business information, and/or information that would interfere with
RedHill’s privacy rights, RedHill should produce such information in accordance with the terms
of the Confidentiality Order. In any event, RedHill should indicate if any responsive
documents exist and if any document is being withheld, as well as the manner in which RedHill
intend to limit the scope of its production pursuant to Rule 11-e (22 NYCRR § 202.20-c(b)).
RFP NOS. 74 & 75 RE DOCUMENTS CONCERNING DATA ROOM OPERATION AND ACCESS
Kukbo’s RFP Nos. 74 and 75 ask for all documents relating to the Data Room operation and
maintenance, and Kukbo’s access to the Data Room from October 25, 2021 to the present.
RedHill objected to these requests stating that they are (1) overly broad and unduly
burdensome without regard to whether the information sought is material and necessary; (2)
the date range has no relevance; and (3) of a scope that would request privileged information.
In the June Letter, RedHill additionally claimed that the information was overbroad, “Kukbo
must narrow the request to target the claims at issue,” and directed Kukbo to its first
production.
Kukbo produced an excel sheet of data room entries but has not produced any proof that
shows when RedHill cut off data room’s access to Kukbo. As RedHill should be aware, a
simple entry that indicates the “room status” was “active” does not mean that Kukbo had
access to the uploaded files. These requests are directly relevant to Kukbo’s anticipatory
repudiation claim as well as its fraudulent inducement and fraudulent misrepresentation
claims. Access to the data room is essential for Kukbo to be able to obtain approval of
Opaganib in Korea. RedHill admitted that it cut off Kukbo’s access to the Data Room. The
requested documents are relevant to RedHill’s performance of its contractual obligations, ELA,
§ 4.1, and its control over Kukbo’s access to critical information concerning Opaganib, which
goes to Kukbo’s reliance. The requests are not overbroad as they are limited only to the data
room Kukbo had access to, and its access only lasted roughly a year. Given the relevance to
Kukbo’s claims, the effort to produce this information is reasonable. Allen, 21 N.Y.2d at 405.
To the extent RedHill is objecting based on any privilege, RedHill should provide a privilege log
laying out what material there is that is being withheld pursuant to any privileges, and which
privilege RedHill contends to apply.
ROG NO. 6 REGARDING IDENTIFICATION OF REDHILL’S CRO
This interrogatory asks RedHill to identify its CRO. RedHill has objected to this interrogatory
stating that it (1) imposes obligates on RedHill to provide information beyond the
requirements of Local Rule 11-a; (2) is overbroad and unduly burdensome, and (3) is irrelevant
and not reasonably calculated to lead to the discovery of admissible evidence. In the April
Letter, RedHill additionally claimed that it was irrelevant because RedHill was not obligated to
secure Opaganib’s approval.
In New York, “parties are required to disclose the names of witnesses who are material and
necessary to the prosecution or defense of an action.” Awai v. Benchmark Constr. Serv., Inc.,
172 A.D.3d 978, 979 (2019). Moreover, Local Rule 11-a(b) allows interrogatories on the
“names of witnesses with knowledge of information material and necessary to the subject
matter of the action.” The identity of RedHill’s CRO is both material and necessary to Kukbo’s
fraudulent inducement, fraudulent misrepresentation, and breach of contract claims.
RedHill used CROs to assist with its applications for regulatory approval in other countries, and
in some instances the CRO directly handled the application. (See RHB00018184). Hence,
they are fact witnesses with direct knowledge of RedHill’s regulatory applications and clinical
trials.
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For the avoidance of doubt, Kukbo will, however, clarify its interrogatory and demand RedHill
to identify its CRO hired in relation to the clinical trials and regulatory compliance of Opaganib
as a COVID-19 treatment.
If you would like to discuss the above over a call, we are available between 8 am and 10 am
(EST) any day during the week of June 26, 2023.
Sincerely,
Jipyong LLC
/s/ Jinhee Kim
Cc: hambk@jipyong.com
marykosman@jipyong.com
smjun@jipyong.com
JAbernethy@cohengresser.com
LAppling@cohengresser.com
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FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 EXHIBIT 23 FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 JIPYONG JIPYONG LLC 26F, Grand Central A, 14 Sejong-daero, Jung-gu, Seoul 04527, Korea T: 82-2-6200-1600 F: 82-2-6200-0800 http://www.jipyong.com STRICTLY CONFIDENTIAL VIA ELECTRONIC MAIL June 26, 2023 Haynes and Boone, LLP 30 Rockefeller Plaza, 26th Floor New York, NY 10112, USA Attention: Rebecca Schwarz Email: rebecca.schwarz@haynesboone.com, leslie.thorne@haynesboone.com, joe.pinto@haynesboone.com RE: Meet and Confer re RedHill’s Responses and Objections to Kukbo’s First and Second Set of Discovery Requests Dear Ms. Schwarz, This letter is to follow up on (1) our discussion of April 28, 2023 regarding Kukbo’s meet and confer letter of April 20, 2023 and RedHill’s response thereto dated April 27, 2023 (the “April Letter”) and (2) our discussion on June 7, 2023 regarding Kukbo’s second meet and confer letter on 26 May 2023 and RedHill’s response thereto dated June 6, 2023 (the “June Letter”). RFP NOS. 4 & 5 REGARDING COMMUNICATIONS WITH NEXPEDIA AND NETWORK 1 RFP Nos. 4 and 5 ask for documents and communications exchanged between RedHill and Nexpedia and Network 1 “concerning Kukbo.” RedHill objected to these requests on the basis that they are overly broad and unduly burdensome without regard to whether the information sought is material and necessary. In the April Letter, RedHill claimed that the information was “parol evidence that [is] foreclosed under the…merger clause,” that regardless the information was not “relevant or material” and that the information has “no bearing whatsoever on the ultimate outcome due to existing law and documentary evidence.” RedHill partially produced its communication with Nexpedia. This is not complete because it seems that not all attachments to emails from Nexpedia were produced, especially ones attached to the email dated October 21, 2021. As it appears that all transactions between Nexpedia and RedHill were about Kukbo and considering a description of one of the attachments specifically indicates that it concerns “transaction progress with Kukbo,” Kukbo’s requests are within the scope of discovery, i.e., “all matter material and necessary in the prosecution or defense of an action.” CPLR 3101(a). The test of whether information sought in discovery is “material and necessary” is one of usefulness and reason and should be interpreted liberally. Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 405 (N.Y., Feb. 21, 1968). These requests seek documents which would show the reasons behind RedHill’s solicitation of Kukbo’s investment in RedHill and Opaganib. Hence, they are reasonably expected to disclose material and necessary facts concerning Kukbo’s fraudulent inducement claim and will assist with preparation for trial. Id. RedHill’s motivations behind the investment cannot be solely discovered through its communications with Kukbo, where the investment was fraudulently induced. RedHill’s objections concerning the date range are not justified and are not a reason to not 1 FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 Strictly Confidential JIPYONG produce documents given that the underlying communications are likely to be less than a year in duration. Moreover, the requests are limited to communications with 2 specific entities and only those concerning Kukbo. RedHill’s objections based on the parol evidence rule are unsupported because: (1) “the parol evidence rule…has no application in a suit brought where there are claims of fraud in the execution of an agreement or to rescind a contract on the ground of fraud,” Escabi v. Twins Contracting, LLC, 75 Misc. 3d 1209(A) at *10 (N.Y. Sup. Ct. 2022) (citing Sabo v. Delman, 3 N.Y.2d 155, 161 (1957)); (2) the Subscription Agreement (“SA”) contains a general merger clause and where a merger clause is general and vague parol evidence is not excluded to show fraud, See SA, § 7(a); see also Laduzinski v. Alvarez & Marsal Tax and LLC, 132 A.D.3d 164, 169 (2015)(finding a similar merger clause to be general); Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 575 (2d Cir. 2005) (citing Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320 (1959)); and (3) the parol evidence rule does not apply as the facts are peculiarly within RedHill’s knowledge. New York courts “have repeatedly noted that allegedly fraudulent sellers may not invoke even specific disclaimer clauses in order to preclude evidence of oral misrepresentations ‘if the facts allegedly misrepresented are peculiarly within the seller's knowledge.’”Yurish v. Sportini, 123 A.D.2d 760, 761 (1986). RedHill’s efforts towards the public offering on November 23, 2021 (the “November PO”) were peculiarly within RedHill’s knowledge. None of this is a matter of public record. Furthermore, the case cited by RedHill in the April Letter did not involve facts peculiarly within the knowledge of the representing party. See Getty Petroleum Corp. v. DeIorio, 194 A.D.2d 762, 763 (1993). RFP NOS. 11, 12, 13, 22, 23 24, & 57 THROUGH 66 REGARDING DOCUMENTS AND COMMUNICATIONS RELATED TO REGULATORY APPROVAL OF OPAGANIB Kukbo’s RFP Nos. 11, 12, 13, 22, 23, 24 and 57 through 66 seek documents and communications related to RedHill’s efforts and plan for obtaining regulatory approval of Opaganib and communications with regulatory authorities during each specified time period. RedHill objected to these requests on the basis that they are (1) overly broad and unduly burdensome without regard to whether the information sought is material and necessary; (2) the date range has no relevance; and (3) the scope could include production of confidential, proprietary, or trade secret information. For RFP Nos. 11, 12, 13, 22, 23, & 24, RedHill additionally objected that they were (4) not limited to countries which Kukbo alleged were material and (5) irrelevant to the prosecution or defense of the lawsuit and not calculated to lead to the discovery of relevant evidence. In the April Letter, RedHill additionally claimed that the information was “parol evidence that [is] foreclosed under the…merger clauses.” In the June Letter, RedHill claimed that Kukbo “appears to be seeking documents in support of its claims for rescission…But Kukbo’s claim…was dismissed” and that the information “does not impact whether Kukbo was fraudulently induced…or whether either party breached these agreements.” RedHill partially produced documents exchanged with the FDA, EMA, and MHRA starting in March 2020. RedHill is obligated to produce all responsive documents. The enumerated requests seek documents that are reasonably expected to disclose facts concerning the central dispute in this case, i.e., RedHill’s plans, expectations, and efforts towards securing approval of Opaganib. Whether RedHill has made efforts to get Opaganib approved is directly relevant to RedHill’s knowledge and intent in connection with Kukbo’s fraudulent inducement and fraudulent misrepresentation claims. Moreover, the information is also relevant to Kukbo’s breach of contract and anticipatory repudiation claims as it related to RedHill’s performance of the contracts. RedHill admitted that it applied for approvals in other countries. RedHill made representations about Opaganib’s approval in these countries and making these subject to discovery, particularly with respect to Kukbo’s fraudulent misrepresentation claim. The requests are reasonably expected to disclose information concerning RedHill’s knowledge that Opaganib was unable to be approved. Given the direct 2 FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 Strictly Confidential JIPYONG relevance of this information, the effort to obtain them in preparation for trial reasonable. Romano v. Steelcase Inc., 30 Misc.3d 426, 428 (Sup Ct, Sep. 21, 2010). The parol evidence rule is not a valid basis to object because: (1) it does not apply in a suit based on fraud in the execution or rescission, Escabi, 75 Misc. 3d 1209(A) at *10; (2) it does not apply where a merger clause is general and vague, Aetna Cas. & Sur. Co., 404 F.3d at 575. Both the Exclusive License Agreement (“ELA”) and the SA contain general merger clauses, See ELA, § 17.5; SA, § 7(a); see also Superior Tech. Res., Inc. v. Lawson Software, Inc., 17 Misc. 3d 1137(A), 851 N.Y.S.2d 74 (Sup. Ct. 2007)(finding a similar merger clause to be vague); Laduzinski, 132 A.D.3d at 169 (same). Moreover, all of the specific disclaimers cited by RedHill solely concern “Regulatory Approval” in the “Territory” and are by definition limited to approval by Korean regulatory authorities. See ELA, §§ 1.33, 1.43, 7.3, 9.3, and 9.4.3; (3) Regardless, the parol evidence rule does not apply as the facts are peculiarly within the knowledge of RedHill. Yurish, 123 A.D.2d at 761. The status of Opaganib’s approval in other countries was peculiarly within RedHill’s knowledge and was not public. Courts have found similar information to be peculiarly within the seller’s knowledge. See J & R Elecs. Inc. v. Bus. & Decision N. Am., Inc., 2013 WL 5203134, at *8 (S.D.N.Y. Sept. 16, 2013) (information concerning the functionality of a software); Banque Arabe Et Internationale D'Investissement v. Maryland Nat. Bank, 819 F. Supp. 1282, 1292 (S.D.N.Y. 1993) (knowledge of a government objection to converting properties subject to a mortgage loan); and (4) the parol evidence rule only “bars review of extrinsic evidence to alter an unambiguous agreement or merger clause.” Safariland, LLC v. H.B.A. Agencies, Ltd., 198 A.D.3d 519, 520 (2021). Hence, where the contracts are ambiguous, parol evidence is allowed. Given the differing interpretations of RedHill’s obligations towards Opaganib, parol evidence is not barred. RedHill’s arguments about the rescission claim are also unavailing since RedHill did not challenge nor did the Court strike RedHill’s affirmative defenses of failure of consideration, frustration of purpose, and impossibility. See generally Decision and Order, dated May 8, 2023 (“Order”). Regardless, the information is relevant to fraudulent inducement, which is itself a ground for rescission. Sorbaro Co. v. Cap. Video Corp., 168 Misc. 2d 143, 148 (Sup. Ct. 1996). Finally, the date ranges are tailored to obtaining information relevant to the fraudulent inducement of the SA and the ELA and RedHill’s continuing misrepresentations thereafter which are relevant to the fraudulent misrepresentation claim. To the extent RedHill believes the requested discovery implicates highly confidential, proprietary, or sensitive business information, and/or information that would interfere with RedHill’s privacy rights, RedHill should produce such information in accordance with the terms of the Confidentiality Order. In any event, RedHill should indicate if any responsive documents and/or communications exist and if any document is being withheld, as well as the manner in which RedHill intends to limit the scope of its production pursuant to Rule 11- e (22 NYCRR § 202.20-c(b)). RFP NOS. 14, 15 & 16 REGARDING COMMUNICATIONS WITH REDHILL’S CRO CONCERNING OPAGANIB Kukbo’s RFP Nos. 14, 15, and 16 ask for documents and communications between RedHill and its CRO “concerning Opaganib” during each specified time period. In response, RedHill objected that the requests are (1) overly broad and unduly burdensome without regard to whether the information sought is material and necessary; (2) the date range has no relevance; and (3) the scope could include production of confidential, proprietary, or trade secret information. In the April Letter, RedHill additionally claimed that the information was “parol evidence that [is] foreclosed under the…merger clauses.” 3 FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 Strictly Confidential JIPYONG The requests are not overbroad. They are limited in time and pertain directly to the periods covering RedHill’s fraudulent inducement of the SA and ELA and RedHill’s fraudulent misrepresentations occurring thereafter. RedHill used CROs to assist with its applications for regulatory approval in other countries, and in some instances the CRO was directly handling the application. (See RHB00018184). These requests are reasonably calculated to lead to material and necessary information concerning the CRO’s assessment of Opaganib’s likelihood of approval and RedHill’s knowledge of the rejections. It will additionally reveal information concerning RedHill’s performance of its obligation to get Opaganib approved outside Korea. Information from all countries in which RedHill applied is relevant as RedHill made representations about these countries opening them to discovery. The documents are necessary for Kukbo’s prosecution of its fraudulent inducement, fraudulent misrepresentation, breach of contract, and anticipatory repudiation claims. The parol evidence rule does not exclude discovery of these documents as (1) the rule does not apply in cases of fraud in the inducement, Escabi, 75 Misc. 3d 1209(A) at *10; (2) the ELA and SA’s merger clauses are general and vague and do not apply to regulatory applications outside of Korea, see Aetna Cas. & Sur. Co., 404 F.3d at 575; (3) facts concerning Opaganib’s approval in countries other than Korea is peculiarly within RedHill’s knowledge, Yurish, 123 A.D.2d at 761; and (4) the contracts are ambiguous, see Safariland, LLC, 198 A.D.3d at 520. Notwithstanding the above, Kukbo is willing to clarify its request and demand RedHill produce only those documents and communications exchanged with your CRO concerning Opaganib’s use as a COVID-19 treatment. To the extent RedHill believes the requested discovery implicates highly confidential, proprietary, or sensitive business information, and/or information that would interfere with RedHill’s privacy rights, RedHill should produce such information in accordance with the terms of the Confidentiality Order. In any event, RedHill should indicate if any responsive documents and/or communications exist and if any document is being withheld, as well as the manner in which RedHill intend to limit the scope of its production pursuant to Rule 11-e (22 NYCRR § 202.20-c(b)). RFP NOS. 25, 26 & 29 REGARDING DOCUMENTS AND COMMUNICATIONS CONCERNING CLINICAL STUDIES Kukbo’s RFP Nos. 25, 26 & 29 asks RedHill to produce documents and communications concerning clinical studies of Opaganib. In response, RedHill objected that the requests are (1) overly broad and unduly burdensome without regard to whether the information sought is material and necessary; (2) the date range has no relevance; and (3) the scope could include production of confidential, proprietary, or trade secret information. In the April Letter, RedHill additionally claimed that the information was “parol evidence that [is] foreclosed under the…merger clause,” that regardless the information was not “relevant or material” and that the information has “no bearing whatsoever on the ultimate outcome due to existing law and documentary evidence.” RedHill partially produced documents concerning clinical studies. RedHill’s partial response cannot be complete as no protocol for the Phase 2/3 clinical studies conducted and/or to be conducted have been produced. RedHill’s objections are all improper. These requests are material and necessary to Kukbo’s fraudulent inducement, fraudulent misrepresentation, anticipatory repudiation, and breach of contract claims. The requests are reasonably calculated to lead to information concerning RedHill’s representations regarding whether and how soon results of Opaganib’s clinical studies would be sufficient to obtain approval and RedHill’s efforts to undertake a confirmatory study. Information sought in these requests is sufficiently related to the issues in this lawsuit so as to make the effort to obtain them in preparation for trial reasonable. Romano, 30 Misc.3d at 428. 4 FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 Strictly Confidential JIPYONG RedHill’s attempt to distinguish Romano in its April Letter because of the merger clause is ineffective. The parol evidence rule is not applicable because (1) the rule does not apply in cases of fraud in the inducement, Escabi, 75 Misc. 3d 1209(A) at *10; (2) the ELA and SA’s merger clauses are general and vague and do not apply to regulatory applications outside of Korea, see Aetna Cas. & Sur. Co., 404 F.3d at 575; (3) facts concerning RedHill’s plan and execution of clinical trials is peculiarly within RedHill’s knowledge, Yurish, 123 A.D.2d at 761; and (4) the contracts are ambiguous, see Safariland, LLC, 198 A.D.3d at 520. To the extent RedHill believes the requested discovery implicates highly confidential, proprietary, or sensitive business information, and/or information that would interfere with RedHill’s privacy rights, RedHill should produce such information in accordance with the terms of the Confidentiality Order. In any event, RedHill should indicate if any responsive documents exist and if any document is being withheld, as well as the manner in which RedHill intend to limit the scope of its production pursuant to Rule 11-e (22 NYCRR § 202.20-c(b)). RFP NOS. 36, 37, 38 & 39 REGARDING DOCUMENTS AND COMMUNICATIONS RELATED TO THE NOVEMBER PO Kukbo’s RFP Nos. 36, 37, 38, and 39 ask for documents and communications of RedHill related to the November PO. RedHill objected to the requests on the basis that the request was overly broad and unduly burdensome without regard to whether the information sought is material and necessary. RedHill also objected to RFP Nos. 37, 38, and 39 on the basis that the requests are of a scope that would request privileged information. In the April Letter, RedHill additionally claimed that the information was “parol evidence that [is] foreclosed under the…merger clause,” that regardless the information was not “relevant or material” and “direct[ed] Kukbo to RedHill’s public filings, wherein RedHill specifically disclosed it would conduct future public offerings.” RedHill’s objections are not a valid basis to refuse production. The November PO adversely affected Kukbo’s investment, and its concealment is the crux of Kukbo’s fraudulent inducement claim. The requested documents are reasonably expected to disclose information concerning the timing of the November PO, and RedHill’s knowledge and intent, which is necessary for the prosecution of Kukbo’s fraudulent inducement claim. RedHill’s public statements that it expects to raise funds through public offerings do not disclose that it was actively planning a public offering while soliciting Kukbo’s investment. Moreover, the Court did not find that Kukbo ratified the SA, so Kukbo is entitled to discovery relevant to the fraudulent inducement of the SA. See Order, p. 3. The parol evidence rule is inapplicable because (1) the rule does not apply in cases of fraud in the inducement, Escabi, 75 Misc. 3d 1209(A) at *10; (2) the SA’s merger clause is general and vague, see Aetna Cas. & Sur. Co., 404 F.3d at 575; (3) facts concerning RedHill’s efforts towards the November PO is peculiarly within RedHill’s knowledge, Yurish, 123 A.D.2d at 761; and (4) Courts have found similar information to be peculiarly within the seller’s knowledge, see Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128, 139 (2014) (underwriter’s non-public knowledge of the credit quality of subprime mortgages); Forty Cent. Park S., Inc. v. Anza, 117 A.D.3d 523, 524 (2014) (finding justifiable reliance as misrepresentations of profitability and positive returns on investment were peculiarly within representor’s knowledge). To the extent RedHill is objecting based on any privilege, RedHill should provide a privilege log laying out what material there is that is being withheld pursuant to any privileges, and which privilege RedHill contends to apply. 5 FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 Strictly Confidential JIPYONG RFP NO. 56 RE DOCUMENTS EXCHANGED BETWEEN OR AMONG REDHILL’S OFFICERS OR EMPLOYEES CONCERNING KUKBO FROM JAN. 1, 2021 TO PRESENT Kukbo’s RFP No. 56 asks for “all documents exchanged between or among [RedHill’s] officers or employees concerning Kukbo from January 1, 2021 to the present.” RedHill has objected to the request on the basis that it is (1) overly broad and unduly burdensome without regard to whether the information sought is material and necessary; (2) the date range has no relevance; (3) of a scope that would request privileged information; and (4) the scope could include production of confidential, proprietary, or trade secret information. There is no valid basis to object that the documents are overbroad as they are limited to a time period of approximately 2 years and only concern communications relating to Kukbo. The internal communications are reasonably calculated to lead to information concerning whether or why RedHill purposefully withheld information regarding the November PO and the status and likelihood of Opaganib’s approval in any country, which is relevant to its fraudulent inducement and fraudulent misrepresentation claims. Notwithstanding the above, in its June Letter RedHill requested that Kukbo amend the request to “concerning whether or why RedHill purposefully withheld information regarding the November PO and the status and likelihood of Opaganib’s approval in the US, the UK, the EU or the Republic of Korea.” Kukbo is willing to clarify its request and demand RedHill produce documents exchanged between or among RedHill’s officers or employees concerning whether or why RedHill withheld information regarding the November PO and the status and likelihood of Opaganib’s approval in any country. To the extent RedHill believes the requested discovery implicates highly confidential, proprietary, or sensitive business information, and/or information that would interfere with RedHill’s privacy rights, RedHill should produce such information in accordance with the terms of the Confidentiality Order. To the extent RedHill believes the requested discovery includes privileged information, RedHill should provide a privilege log laying out what material there is that is being withheld pursuant to any privileges, and which privilege RedHill contends to apply. RFP NOS. 67 THROUGH 71 AND 77 THROUGH 82 RE DOCUMENTS AND COMMUNICATIONS WITH SHAREHOLDERS AND BOARD OF DIRECTORS RELATED TO ADS/NOVEMBER PO Kukbo’s RFP Nos. 67 through 71 and 77 through 82 requests documents and communications with and related to RedHill’s shareholders and board of directors concerning the stock ratio change, price of ADS, any dispute with shareholders, and the November PO during the relevant period. RedHill objected to these requests stating that they are (1) overly broad and unduly burdensome without regard to whether the information sought is material and necessary; (2) the date range has no relevance; and (3) the scope could include production of confidential, proprietary, or trade secret information. In the June Letter, RedHill additionally claimed that the information was “irrelevant to the claims at issue,” “parol evidence that [is] foreclosed under the…merger clauses,” and directed Kukbo to the public filings included in the first production. Regardless of the Court’s order, the information is relevant to Kukbo’s remaining claims. Defenses for failure of consideration remain as RedHill did not challenge nor did the Court strike any of Kukbo’s affirmative defenses. See generally Order. The parol evidence rule does not apply because (1) this case involves fraud in the inducement, Escabi, 75 Misc. 3d 1209(A) at *10; (2) the SA’s merger clause is general and vague, see Aetna Cas. & Sur. Co., 404 F.3d at 575; and (3) information concerning RedHill’s ADS price, other than that publicly disclosed, are peculiarly within RedHill’s knowledge, Yurish, 123 A.D.2d at 761. 6 FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 Strictly Confidential JIPYONG To the extent RedHill believes the requested discovery implicates highly confidential, proprietary, or sensitive business information, and/or information that would interfere with RedHill’s privacy rights, RedHill should produce such information in accordance with the terms of the Confidentiality Order. In any event, RedHill should indicate if any responsive documents exist and if any document is being withheld, as well as the manner in which RedHill intend to limit the scope of its production pursuant to Rule 11-e (22 NYCRR § 202.20-c(b)). RFP NOS. 74 & 75 RE DOCUMENTS CONCERNING DATA ROOM OPERATION AND ACCESS Kukbo’s RFP Nos. 74 and 75 ask for all documents relating to the Data Room operation and maintenance, and Kukbo’s access to the Data Room from October 25, 2021 to the present. RedHill objected to these requests stating that they are (1) overly broad and unduly burdensome without regard to whether the information sought is material and necessary; (2) the date range has no relevance; and (3) of a scope that would request privileged information. In the June Letter, RedHill additionally claimed that the information was overbroad, “Kukbo must narrow the request to target the claims at issue,” and directed Kukbo to its first production. Kukbo produced an excel sheet of data room entries but has not produced any proof that shows when RedHill cut off data room’s access to Kukbo. As RedHill should be aware, a simple entry that indicates the “room status” was “active” does not mean that Kukbo had access to the uploaded files. These requests are directly relevant to Kukbo’s anticipatory repudiation claim as well as its fraudulent inducement and fraudulent misrepresentation claims. Access to the data room is essential for Kukbo to be able to obtain approval of Opaganib in Korea. RedHill admitted that it cut off Kukbo’s access to the Data Room. The requested documents are relevant to RedHill’s performance of its contractual obligations, ELA, § 4.1, and its control over Kukbo’s access to critical information concerning Opaganib, which goes to Kukbo’s reliance. The requests are not overbroad as they are limited only to the data room Kukbo had access to, and its access only lasted roughly a year. Given the relevance to Kukbo’s claims, the effort to produce this information is reasonable. Allen, 21 N.Y.2d at 405. To the extent RedHill is objecting based on any privilege, RedHill should provide a privilege log laying out what material there is that is being withheld pursuant to any privileges, and which privilege RedHill contends to apply. ROG NO. 6 REGARDING IDENTIFICATION OF REDHILL’S CRO This interrogatory asks RedHill to identify its CRO. RedHill has objected to this interrogatory stating that it (1) imposes obligates on RedHill to provide information beyond the requirements of Local Rule 11-a; (2) is overbroad and unduly burdensome, and (3) is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. In the April Letter, RedHill additionally claimed that it was irrelevant because RedHill was not obligated to secure Opaganib’s approval. In New York, “parties are required to disclose the names of witnesses who are material and necessary to the prosecution or defense of an action.” Awai v. Benchmark Constr. Serv., Inc., 172 A.D.3d 978, 979 (2019). Moreover, Local Rule 11-a(b) allows interrogatories on the “names of witnesses with knowledge of information material and necessary to the subject matter of the action.” The identity of RedHill’s CRO is both material and necessary to Kukbo’s fraudulent inducement, fraudulent misrepresentation, and breach of contract claims. RedHill used CROs to assist with its applications for regulatory approval in other countries, and in some instances the CRO directly handled the application. (See RHB00018184). Hence, they are fact witnesses with direct knowledge of RedHill’s regulatory applications and clinical trials. 7 FILED: NEW YORK COUNTY CLERK 06/04/2024 09:46 PM INDEX NO. 653200/2022 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 06/04/2024 Strictly Confidential JIPYONG For the avoidance of doubt, Kukbo will, however, clarify its interrogatory and demand RedHill to identify its CRO hired in relation to the clinical trials and regulatory compliance of Opaganib as a COVID-19 treatment. If you would like to discuss the above over a call, we are available between 8 am and 10 am (EST) any day during the week of June 26, 2023. Sincerely, Jipyong LLC /s/ Jinhee Kim Cc: hambk@jipyong.com marykosman@jipyong.com smjun@jipyong.com JAbernethy@cohengresser.com LAppling@cohengresser.com 8