Motion-Secondary: Redhill Biopharma Ltd. v. Kukbo Co., Ltd.

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                                FILED: NEW YORK COUNTY CLERK 05/09/2024 03:26 PM                                              INDEX NO. 653200/2022
NYSCEF DOC. NO. 218                                                                    RECEIVED NYSCEF: 05/09/2024




          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF NEW YORK: COMMERCIAL DIVISION

          RedHill Biopharma Ltd.,
                                                                        Index No.: 653200/2022
                          Plaintiff and Counterclaim Defendant,
                                                                        Part 61/ Hon. Justice Bannon
          v.

          Kukbo Co., Ltd.,

                          Defendant and Counterclaim Plaintiff.



          AFFIRMATION OF REBECCA SCHWARZ IN SUPPORT OF MOTION TO REDACT

                 Rebecca Schwarz, an attorney duly admitted to practice law in the State of New York,

          pursuant to CPLR 2106 and mindful of the penalties for perjury, hereby affirms as follows:

                 1.     I am an attorney with the law firm of Haynes and Boone, LLP, counsel for Plaintiff

          and Counterclaim Defendant RedHill Biopharma Ltd. (“RedHill”) in the above-captioned action.

          As such, I am fully familiar with the facts and circumstances set forth herein.

                 2.     I submit this Affirmation in support of RedHill’s motion, pursuant to 22

          N.Y.C.R.R. § 216.1 and the Part 61 Rules for Sealing, to temporarily seal and permanently redact

          (“Motion to Redact”) specific information Kukbo Co. Ltd. (“Kukbo” and collectively with

          RedHill, the “Parties”) contends is protected by Article 2(1) of the Korean Personal Information

          Protection Act, that are attached to, and referenced in, RedHill’s Motion for Summary Judgment

          (see NYSCEF No. 179) and Motion for Sanctions (see NYSCEF No. 206).

                 3.     I am fully familiar with the facts and circumstances herein, based upon my personal

          knowledge and from review of the files maintained by my office.

                 4.     RedHill is relying on certain emails, email addresses and deposition transcripts that

          Kukbo contends contain personal information protected by Article 2(1) of the Korean Personal




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FILED: NEW YORK COUNTY CLERK 05/09/2024 03:26 PM                                            INDEX NO. 653200/2022
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          Information Protection Act in its Motion for Summary Judgment and Motion for Sanctions (Ex.

          C to the Affirmation of A. Frish, NYSCEF No. 130; Ex. G to the Affirmation of A. Frish, NYSCEF

          No. 134; Ex. H to the Affirmation of A. Frish, NYSCEF No. 135; Ex. I to the Affirmation of A.

          Frish, NYSCEF No. 136; Ex. K to the Affirmation of A. Frish, NYSCEF No. 138; Ex. N to the

          Affirmation of A. Frish, NYSCEF No. 141; Ex. O to the Affirmation of A. Frish, NYSCEF No.

          142; Ex. Q to the Affirmation of A. Frish, NYSCEF No. 144; Ex. R to the Affirmation of A. Frish,

          NYSCEF No. 145; Ex. S to the Affirmation of A. Frish, NYSCEF No. 146; Ex. T to the

          Affirmation of A. Frish, NYSCEF No. 147; Ex. U to the Affirmation of A. Frish, NYSCEF No.

          148; Ex. V to the Affirmation of A. Frish, NYSCEF No. 149; Ex. W to the Affirmation of A.

          Frish, NYSCEF No. 151; Ex. Y to the Affirmation of A. Frish, NYSCEF No. 152; Ex. Z to the

          Affirmation of A. Frish, NYSCEF No. 153; Ex. FF to the Affirmation of Adi Frish, NYSCEF No.

          163; Ex. LL to the Affirmation of Rebecca Schwarz, NYSCEF No. 171; Ex. A to the Affirmation

          of Rebecca Schwarz, NYSCEF No. 183; Ex. B to the Affirmation of Rebecca Schwarz, NYSCEF

          No. 184; Ex. O to the Affirmation of Rebecca Schwarz, NYSCEF No. 197; Ex. P to the

          Affirmation of Rebecca Schwarz, NYSCEF No. 198; Ex. Q to the Affirmation of Rebecca

          Schwarz, NYSCEF No. 199; Ex. S to the Affirmation of Rebecca Schwarz, NYSCEF No. 201;

          Ex. T to the Affirmation of Rebecca Schwarz, NYSCEF No. 202; Ex. U to the Affirmation of

          Rebecca Schwarz, NYSCEF No. 203; Ex. V to the Affirmation of Rebecca Schwarz, NYSCEF

          No. 204; Ex. W to the Affirmation of Rebecca Schwarz, NYSCEF No. 205; RedHill’s

          Memorandum of Law in Support of its Motion for Sanctions, NYSCEF No. 206) (collectively,

          the “Documents Referencing Korean Email Addresses”).           RedHill offers the Documents

          Referencing Korean Email Addresses in connection with its Motion for Summary Judgment to

          show the negotiations between the Parties related to the Subscription Agreement, the Amendment



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FILED: NEW YORK COUNTY CLERK 05/09/2024 03:26 PM                                              INDEX NO. 653200/2022
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          to the Subscription Agreement, the Exclusive License Agreement and the Letter Agreement

          (collectively, “the Agreements”), RedHill’s fulfillment of its obligations under the Agreements,

          and Kukbo’s repeated acknowledgement of its obligation to pay the amounts due under the

          Agreements. RedHill offers the Documents Referencing Korean Email Addresses in connection

          with its Motion for Sanctions to demonstrate misrepresentations made by Kukbo and Kukbo’s

          counsel related to its productions in this action.

                 5.        The Parties met and conferred on April 25, 2024, and April 29, 2024 regarding all

          exhibits designated as “Confidential” or “Highly Confidential – Attorneys Eyes Only” by Kukbo

          in this action that RedHill intended to rely on in its Motion for Summary Judgment and Motion

          for Sanctions.

                 6.        After RedHill filed its Motion for Summary Judgment and Motion for Sanctions on

          April 30, 2024, Kukbo requested additional redactions and thereafter provided requested

          redactions on May 4, 2024 that Kukbo claims are necessary pursuant to Article 2(1) of the Korean

          Personal Information Protection Act.

                 7.        On May 4, 2024, May 6, 2024, May 7, 2024, and May 9, 2024, the Parties continued

          to confer in order to limit these redactions to the extent permissible under the Korean Personal

          Information Protection Act. After conferring regarding the scope of the redactions, Kukbo

          maintains that the redactions as-applied are required under the Korean Personal Information

          Protection Act.

                 8.        For the reasons set forth above, and in the accompanying Memorandum of Law,

          RedHill’s Motion to Redact should be granted and the Exhibits attached to and referenced in

          RedHill’s Motion for Summary Judgment and Motion for Sanctions referring to Kukbo employee

          email addresses (NYSCEF No. 130, NYSCEF No. 134, NYSCEF No. 135, NYSCEF No. 136,



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FILED: NEW YORK COUNTY CLERK 05/09/2024 03:26 PM                                              INDEX NO. 653200/2022
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          NYSCEF No. 138, NYSCEF No. 141, NYSCEF No. 142, NYSCEF No. 144, NYSCEF No. 145,

          NYSCEF No. 146, NYSCEF No. 147, NYSCEF No. 148, NYSCEF No. 149, NYSCEF No. 151,

          NYSCEF No. 152, NYSCEF No. 153, NYSCEF No. 163, NYSCEF No. 171, NYSCEF No. 183,

          NYSCEF No. 184, NYSCEF No. 197, NYSCEF No. 198, NYSCEF No. 199, NYSCEF No. 201,

          NYSCEF No. 202, NYSCEF No. 203, NYSCEF No. 204, NYSCEF No. 205 and NYSCEF No.

          206) as well as RedHill’s Memorandum of Law in Support of its Motion for Sanctions (NYSCEF

          No. 206) should be redacted in the manner proposed.

                 9.     I hereby verify that the foregoing statements are true to the best of my knowledge,

          information, and belief.

                 10.    There was a pending order to show cause to redact NYSCEF No. 197, NYSCEF

          No. 198 and NYSCEF No. 199, see, e.g., NYSCEF Nos. 207 and 214 (Motion Sequence No. 008),

          but since that motion was filed, Kukbo has requested additional redactions to NYSCEF No. 197,

          NYSCEF No. 198 and NYSCEF No. 199 as well as redactions to NYSCEF No. 130, NYSCEF

          No. 134, NYSCEF No. 135, NYSCEF No. 136, NYSCEF No. 138, NYSCEF No. 141, NYSCEF

          No. 142, NYSCEF No. 144, NYSCEF No. 145, NYSCEF No. 146, NYSCEF No. 147, NYSCEF

          No. 148, NYSCEF No. 149, NYSCEF No. 151, NYSCEF No. 152, NYSCEF No. 153, NYSCEF

          No. 163, NYSCEF No. 171, NYSCEF No. 183, NYSCEF No. 184, NYSCEF No. 201, NYSCEF

          No. 202, NYSCEF No. 203, NYSCEF No. 204, NYSCEF No. 205 and NYSCEF No. 206. RedHill

          has since filed a notice of withdrawal of its earlier Motion to Redact given the broader redactions

          now requested by Kukbo.




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FILED: NEW YORK COUNTY CLERK 05/09/2024 03:26 PM                                             INDEX NO. 653200/2022
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                 I affirm this 9 day of May, 2024, under the penalties of perjury under the laws of New

          York, which may include a fine or imprisonment, that the foregoing is true, and I understand that

          this document may be filed in an action or proceeding in a court of law.

                 Dated: May 9, 2024


                                                      __________________________________________
                                                      Rebecca Schwarz




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