Respondents Document Request

June 26, 2015

Prescription Data AG v. IMS Health Incorporated et al (ICC

Case No. 20050/ASM)
Respondents Document Request
Redfern Schedule, June 26, 2015
1. This petition is made by the Respondents in time and form as contemplated by paragraph 25 of Procedural Order No. 1,
issued by the Arbitral Tribunal on April 16, 2015, in view of the fact that the Respondents have no access to the
requested documents as they are under the possession and custody of the Claimant and refer to relations established
by the Claimant with parties other than our clients.
2. The Respondents represent that the documents requested hereby are not in their possession, custody or control, that
they deem the same to be in the possession of the Claimant, and that all such documents are relevant and material for
the resolution of the dispute.

3. The Respondents use certain terms and abbreviations in their submissions, which carry the following meanings:
a. And means and/or;
b. Claimant means Prescription Data AG, including but not limited to its predecessors, successors, assignees, prior
and current subsidiaries, affiliates, officers, directors, agents and employees;
c. Communication means any exchange of information with regard to facts, ideas, concerns, photographs,
drawings, etc., including but not limited to correspondence, telex, fax transmissions, telecopies, e-mail, all attached
files and their corresponding texts, recordings in any oral communication medium, telephone records, message
records and notes and memoranda related to oral and written communications, and any translation of the same;
d. Concerning means addressed to, in connection with, in reference to, relating to, alluding to, demonstrating and/or
constituting something;
e. Document is used in the broadest possible sense and means all writings, recordings and other documents of any
kind and in any format, including information contained in any computer or in digital or electronic format, whether
printed or otherwise. If the copies, reproductions or facsimiles of any document are not identical because of any
handwritten notes, initials, identification marks

or any other modification, each one of such dissimilar copies shall be deemed as an independent document as per
the terms of this definition.
f.

Memorial means the Claimants Memorial filed by the Claimant, dated June 15, 2015;

g. Respondents means IMS HEALTH INCORPORATED, IMS HEALTH DO BRASIL LTDA., PHAMA SA, IMS HEALTH
ARGENTINA SA, IMS HEALTH BOLIVIA SRL, IMS AG, ASESORAS IMS HEALTH CHILE LIMITADA, CAPACITACIONES IMS
HEALTH CHILE LIMITADA, OPERACIONES CENTRALIZADAS LATINOAMERICANA LIMITADA, INTERCOMUNICACIONES Y
SERVICIO DE DATOS INTERDATA S.A., DATANDINA ECUADOR SOCIEDAD ANNIMA, ASSERTA CENTRO AMRICA
MEDICIN DE MERCADOS SA, IPP INFORMACIN PROMOCIONAL Y PUBLICITARIA SA DE CV, IMS HEALTH PARAGUAY
SA, IMS HEALTH DEL PER SA, IMS REPBLICA DOMINICANA SA, IMS HEALTH URUGUAY SA and IMS HEALTH DE
VENEZUELA CA.
4. Any material subject to the attorney-client privilege is excluded from the scope of each of the following requests for
documentation. The documents partially subject to the attorney-client privilege shall be produced as indicated
therein.
5. The use of some terms in the singular includes the plural and vice versa.
6. The Respondents expressly reserve their right to request the production of additional documents in the future, including
but not limited to documents the existence and/or relevance of which shall be appreciated by the Respondents on the
basis of documents produced by the Claimant.

7.
8.
9. No 10.
.

Identification of document or
category of documents
requested

11.

16.Crossreference

Justification of relevance and

materiality by the requesting
party
17.Comments

12. Objectio
ns by the
requested
party

13. Decisi
on by
Arbitral
Tribunal

20.Documents Related to the Damage and Detriment Sustained by the ClaimantGeneral

22.The
invoicing
documentation,
23.Memorial,
24.The Claimant claims four
21.1.
including relevant invoices, and 296, and
categories of damage:
projections
provided
by
the Document CP Decrease in revenues
Claimant to prepare the Report on 4, p. 2.
from the renewal of
Damages appended as Document CPcontracts;
4 in the Claimants Memorial.
Investment in the Sales
Data Business;
Interference by IMS i n
negotiations
with
information providers;
Cancellation or renewal
of business contracts in
2015.
25.To calculate the damage
sustained by the Claimant in
relation to each of the
described categories, Dr. Galli
contends
that
he
has
evaluated
the
invoicing

26.

27.

28.
29.
30. 31.

32.

33. contracts
and
projections provided by the
claimant. In spite of this, the
Claimant has failed to provide
this documentation together
with its Memorial or with the
Report on Damages submitted.
34. These documents, which
provide the basis for the claim
made by the Claimant, and
which Dr. Galli has invoked in
his report, must be made
available to the Respondents.
In the absence of these
documents, it is impossible for
the Respondents to confirm the
accuracy of the information
detailed in relation to the
damage sustained by the
Claimant, its calculations or
conclusions.
Certainly, it is
common practice in matters of
international arbitration for the
expert, especially an expert in
damages, to accompany all the
documents, information and
evidence on which he rests his
assertions.
35.

In

conclusion,

36.

37.

38.
39.
40. 41.
46.

42.

43.

produced.

44.

45.

Documents Related to the Damage and Detriment Sustained by the Claimant Prescription Data

51. Memor
47. 48. Documents that evidence
2. communications:
ial, 64-70.
49.
(i) as between the Claimant
and its customers, starting in
June 2013, in relation to the
[discount] offer made by IMS
on
its
Prescription
Data
products; and
50.
(ii) as between the Claimant and
its customers starting in June
2013,
whereby
the
customers
of
Prescription
Data were unwilling to modify
the business terms proposed
by it, and it had to be satisfied
with the continued application
of the old terms.

52. The
Claimant
is
demanding payment of over
US$ 13 million in damages
allegedly sustained as a result
of an alleged offering of
discounts on Prescription Data
products to its customers,
which allegedly caused that
the customers of Prescription
Data were unwilling to modify
the business terms proposed
by it, and it had to be satisfied
with the continued application
of the old terms.
53.
54. The documents being
requested are necessary to
prove the allegations made by
the
Claimant,
who
has
submitted that the action taken
by
IMS
has
caused
its
customers to refuse to modify
the terms of the contracts
entered into with the Claimant.
If these representations are in
fact groundless, there would be
no basis in fact for the claim
asserted by the Claimant and it
would not be entitled to the
damages claimed

55.This
party
shows
that
most of
these
negotiat
ions
were
oral in
nature.
In
addition,
it is
emphasi
zed that
- if any the
docume
ntation
required
by IMS
is
protecte
d by the
confiden
tiality
clause
that the
compani
es

56.

57.
58.
59. 60.

65. 66. All the Contracts executed by

3. the companies that operate under
the Close-Up brand in the Brazilian
market, in relation to the Prescription
Audit business, either entered into or
performed between 01.01.2008 and
1 2 . 31.2013 and indicated herein
have been allegedly considered in
order to determine the historical
1
growth rate of those contracts.

71.
1

61.

67. Memoria
l, 296;
Document CP4, p. 2 and
its Annex 1.

62. herein. This way, there

can be no doubt that the
documents
requested
are
relevant and material for the
resolution of the dispute.

63.

64.

68. The Claimant demands

payment of US$ 6.7 million
due to the decrease in
revenues from the renewal of
contracts, originating as from
the date of the launch by IMS
(allegedly June 2013), as well
as payment of US$ 6.4 million
in damages allegedly sustained
as a result of cancellations or
delays
in
contracting
engagements
with
its
customers in 2015. In the
Memorial and in the enclosed
Report
on
Damages
(Document CP-4), it is noted
that these contracts had

69.This
party
cannot
produce
the
contract
s
requeste
d by IMS,
inasmuc
h as
these
happen
to be
confiden
tial.
Thus,
they all
include a
confiden

70.

73.
Including but not limited to the contracts executed with Abbott, Actavis, Akon (Novartis), Allergam, Aspen (Cellofarm),
AstellasFarma, Astrazeneca, Bago, Baldacci, Bayer, Besins Health Care, BioativusMyrales, Biolab-Sanus, Biosinttica (Ache),
BoheringerIng., Boiron, Bristol Myers Squibb, Cristalia, Daiichi Sankyo, Darrow, Daudt Oliveira, Dermage, DiffucupChemobras, Dr.
Reddys, Eli Lilly, EMS, Eurofarma, Exeltis (ex Mabra), Farmalab Chiesi, Farmasa Hypermarcas, Farmoquimica, Ferring, FQM, Galderma,
GlaxoSmithKline, Glenmark, Gross, Grunenthal do Brasil, Hebron Quesalon, Herbarium, Hexal, Igefarma, Isdin Johnson & Johnson,
Johnson (Div. Janssen), Latinofarma, Leo Pharma, Libbs, Loreal, Lundbeck, Mantecorp, Marjan, Maed Johnson, Medley, Meizler, Melora,
Merck, Merck Sharp y Dohme, Moksha8, Mundipharma, Myralis, Neo Quimica, Nikkho, Novo Nordisk, NycomedPharma, Organon, Pfizer,
Pierre Fabre, Roche, Sandoz, Sanofi Aventis, Schering Brazil, Schering Plough, Servier, Shire Farmaceutica, Solvay Farma, Stiefel, Supera,
Support Danone, Takeda, Teva, Theraskin (Igefarma), Torrent, TRB Pharma, UCI Farma, UniaoQuimica, Valeant (Bausch & Lomb),
Wyeth, Zambon, Zodiac, ZidusNikkho.

72.

74.
75.
76. 77.

83. 84. All the Contracts entered into

4. by the companies that operate under
the Close-Up brand in the Brazilian
market in relation to the Prescription
Audit business,

78.

85. Memoria
l, 296;
Document CP4,

79. Prescription
Audit
contracts.
However,
these
contracts were not provided by
Dr. Galli.
80.
In order to allow
the Respondents to evaluate
whether there has actually
been a decrease in revenues
from the renewal of contracts
starting in June 2013, it is of
the
essence
that
the
Respondents should obtain
access to the revenues from
the renewal of contracts prior
to June 2013. In the absence of
this
information,
it
is
impossible
to
determine
whether the Claimant has
actually
sustained
any
decrease in its revenues after
June 2013, and consequently
determine if it has sustained
the damages it is claiming. If
it is determined that no such
decrease has occurred, then
the Claimant has not sustained
86.
Claimant
a lossThe
for which
any demands
damages
payment of US$ 6.7 million
due to the decrease in
revenues from the renewal of

81.docume
nts to
IMS,
which is
not only
the
Respond
ents in
these
proceedi
ngs, but
also a
direct
competit
or in the
Prescript
ion Data
market.
Thus, to
compel
this
party to
produce
the
conditio
ns
agreed
with its
custome
rs in the
past to
87.Like the
previous
request
for
discover

82.

88.

89.
90.
91.
92.

Executed since 01.01.2014.2

93. pp. 2-3

and its
Annex 2.

94. contracts, originating as

from the date of the launch by
IMS (allegedly June 2013), as
well as payment of US$ 6.4
million in damages allegedly
sustained as a result of
cancellations or delays in
contracting engagements with
its customers in 2015. In the
Memorial and in the enclosed
Report
on
Damages
(Document CP-4), it is noted
that these contracts had
reportedly been considered to
determine any impairment to
the mean renewal rate of these
contracts compared to past
periods.
95. However, the Claimant
has failed to provide these
contracts. Instead, it has only
submitted
two
tables
establishing the variation of
these contracts in 2013, 2014

96.docume
nts are
also
protecte
d by a
confiden
tiality
clause
and its
producti
on to
IMS, as a
competit
or in the
Prescript
ion Data
market
is
contrary
to the
interests
of this
party
(IBA
9.2).

97.

98.
99.
2

101.
Including but not limited to the contracts executed with Abbott, Alcon (Novartis), Aspen, Aspen (Cellofarm), AstellasFarma,
Astrazeneca, Bago, Baldacci, Bausch & Lomb, Bayer, Besins Healthcare, BiolabSanus, Bristol Myers Squibb, Chiesi, Cristalia, Daiichi
Sankyo, Danone, DiffucupChemobras, Eli Lilly, EMS, Eurofarma, Farmoquimica, GlaxoSmithKline, GlaxoSmithKline (Stiefel), Glenmark,
Grunenthal do Brasil, Hebron (Quesaln), Hypermarcas, Isdin Johnson & Johnson, Johnson (Div. Janssen), Leo Pharma,
Libbs, Loreal,
Lundbeck, Marjan, Maed Johnson, Medley, Meizler, Melora, Merck, Merck Sharp y Dohme, Moksha8, Mundipharma, Nikkho, Novartis, Novo
Nordisk, Pfizer, Pierre Fabre, Roche, Sandoz, Sanofi Aventis, Servier, Takeda, Teva, Theraskin (Igefarma), Torrent, UCI Farma, UniaoQuimica,
Valeant, Zambon, Zodiac.

100.

102.
103.
104. 105.

110.111. Documents showing that the

5. customers of the companies that
operate under the Close-Up brand
have advised on the alleged
termination of the contracts or the
delay in renewing the same,
allegedly attributed to the
Respondents doing.

106.

112. Docume
nt CP-4, pp. 45.

107. It is of the essence that

the Respondents should obtain
access to the current contracts
on which the Claimant bases
its claim for damages, to
ascertain the accuracy of the
information
contained
in
Exhibits 2 and 6 and the
damages claimed by the
Claimant in relation to those
parameters. It if is proven that
revenues
have
not
been
diminished, then the Claimant
has
not
suffered
an
indemnifiable loss.
For this
reason, these documents are
relevant
and
material
to
113.
The Claimant
demands
payment of US$ 6.4 million in
damages allegedly sustained
as a result of cancellations or
delays
in
contracting
engagements
with
its
customers in 2015.
114. The
documentation
required is necessary to prove
if the customers of the
Claimant
have
actually
cancelled or delayed the

108.

109.

115.
In
this
regard,
Claimant
states that
everything
that exists
and can be
produced
in this
regard has
been
annexed to
Claimants
Memorial
or will be
in due
time.
However,
the
request of
IMS since
it intended
to prove a
negative

116.

117.
118.
119. 120.

121.

122. renewal of contracts in

2015. If not, there would be no
basis to allow the Claimant to
make such a claim. If so, these
documents are relevant and
material to resolve the matter.

Documents Related to Damages Sustained by the ClaimantSales Data

125.

126.127. Documents according to which,

6. in the Report on Damages included
by the Claimant as Document CP-4 in
the Claimants Memorial, the expert
concluded that the companies
operating under the Close-Up brand
in Brazil were forced to begin
activities in the Sales Data market as
a business safeguard to defend
themselves from IMSs decision to
penetrate the Prescription Data
market.

133.
3

128. Memoria
l, 296;
Document CP4, p. 3.

129. The Claimant demands

payment of US$ 1.9 million in
damages from its investment
in the Sales Data Business.

123.
Th
ere was
no
assertion
that
there
was
docume
ntation
or that
there
should
be one.
We are

124.

131.

132.

130. The enclosed Report on

Damages claims that, in order
to prepare the report, those
who sign the same were
allegedly
provided
information showing that the
companies that
operate
under
the
Close-Up
International brand in Brazil
decided in 2013 to begin
competing in the sales data

135.
This party considers that, in the Claimants Memorial, the Claimant included new claims without the authorization of the Arbitral
Tribunal, in breach of article 23 (4) of the Regulations. The Respondents will state its pertinent objections to have these new claims
excluded. However, according to the rule whereby all allegations in a claim must be made simultaneously and not in staggered fashion, and
in the unlikely case that the Arbitral Tribunal decides to take cognizance of those claims, we request, given the imminent expiration of the
term set out in Procedural Order No. 1, the production of documentary evidence related to those new claims without thereby being

134.

deemed as having howsoever consented to arbitral jurisdiction over said controversy or to the extemporaneous incorporation of those
claims at this stage.

136.
137.
138. 139.

147.148. The invoices, the contracts and

7. the historical records of the accounts
of the companies operating under
the Close-Up brand in relation to the
investments made in 2013 and 2014
in the Sales Data Business, according
to which one would have determined

140.

149. Memoria
l, 296;
Document CP4, pp. 3 - 4.

141. the
prescription
data
business.
142.
143.
The documents
required are necessary to
determine the basis that would
support the conclusion arrived
at by the expert relating to the
launch of the offer made by
Close-Up as a result of the
alleged breach of the Master
Contract by the Respondents.
If this conclusion is found to be
groundless, then the Claimant
would not be entitled to the
outcome sought because there
would
be
no
causation
between the alleged breach
and the alleged financial loss
sustained by the Claimant.
144. In this manner, there can
be no doubt about the
importance and relevance of
these documents in resolving
the claim for damages made
150. The Claimant demands
payment of US$ 1.9 million for
investment in the Sales Data
Business.
151. The enclosed Report on

145.

146.

152.
In
this
regard,
Respond
ent will
present
the

153.

154.
155.
156.
157. contingency
known
as
Investment in the Sales Data
Business included in Annex 4 of
Document CP-4 appended by the
Claimant, which had allegedly been
analyzed in order to prepare that
report.

158.

159. states that, in order to

prepare the report, those who
sign the same were allegedly
shown
documentation
evidencing
the
alleged
investment made by the
Claimant (to launch the sales
data business in Brazil), but
this
information
was
not
accompanied together with
that
report,
for
control
purposes.
160. Instead, the Claimant
included, in Annex 4, a table
purporting to state the sum
invested in the Sales Data
business in 2014 and 2015.
161. It is of the essence that
the Respondents be given
access
to
the
current
documentation used by the
Claimant to ascertain the
accuracy of the information
and calculations contained in
Annex 4 and the damages
claimed by the Claimant on
that basis. If the Claimant did
not make the investments
claimed, then its demand for

162.
sin
ce they
are
protecte
d by
confident
iality
clauses
already
referredto above.
Regardin
g the
accounts,
compreh
ensive
productio
n of
them
amounts
to
revealing
IMS how
Claimant
conducts
its
business.
As such,
IMS will
thereby
get an
unfair
advantag
e in this
field,
which is

164.

165.
166.
167. 168.

175.176. Documents showing:

8.
177.
(i) revenue generated by the
Sales Data Business of the
Claimant in 2014 and 2015;
and
178.
(ii) revenue
generated
by
businesses other than the
Sales Data Business of the
Claimant in 2014 and 2015.

169.

179. Memo
rial, 290
and
180. 296;
181. Docume
nt CP-4, pp. 3,
4.

170. Damages would lack all

basis in fact.
171.
172. Consequently,
these
documents are relevant and
material for the resolution of
this dispute.
182.
The
Claimant
is
demanding payment of US$
1.9 million in damages for the
alleged financial cost endured
by the companies that operate
under
the
CLOSE
UP
INTERNATIONAL brand in Brazil
for the diversion of these
funds to develop the Sales
Data Business.
183. This
financial
cost
represents the return the
Claimant would have received
if the money it invested in the
Sales Data business would
have been invested in its other
business areas.
184. To determine whether
the Financial Cost represents
a loss for the Claimant and, if
so,
its
magnitude,
the
Respondents need to access
the documents evidencing this
return generated by (i) the

173.

174.

185.
In
this
regard,
Claimant
states
that this
documen
tation is
protecte
d by the
same
privilege
invoked
before,
e.g., the
confident
iality of
the
required
documen
tation.
This
party
provides
the
alternativ
e, to the
extent
that this
is

186.

187.
188.
189. 190.

191.

evidencing 199. Me
197.198. Documents
between
the morial,
9. communications
Claimant and the providers of 60.
information for the Sales Audit
market or its customers starting
August 2013, in relation to the fact
that IMS offered that upon renewal
of their contract, it would pay an
amount more than 100% higher than
the value it had been paying for
those data for the Sales Audit and
afterward it paid . . . the amount
promised.

192. businesses
of
the
Claimant.
193.
194. These documents are
therefore highly relevant and
material for the resolution of
the claim for damages made
by the Claimant.
200. The Claimant demands
payment of US$ 3.5 million in
damages
for
IMSs
interference
in
the
negotiations with information
providers.
201. The documents required
are necessary to prove the
allegations
made
by
the
Claimant in relation to the
interference by IMS in the
Claimants negotiations with
its data providers. If this
allegation is groundless, then
the Claimants demands would
have no basis in fact and
therefore would not be entitled
to the damages claimed.
202. Consequently, there can
be no doubt about the
relevance and materiality of

195.

196.

203.
The
documen
tation
required
by IMS
does not
exist.
Respond
ent does
not prove
that it
exists
and if it
does, is
not in the
possessi
on of this
party
(IBA 3.3
c). This
proves
that IMS
is
pursuing
a ''fishing
expeditio

204.

205.
206.
207. 208.
213. 214. Documents related to the
10. negotiation of the contracts agreed
by the companies that operate under
the Close-Up brand in Brazil with
information providers for the Sales
Audit market starting in August 2013,
including the contracts, the original
and final offers made by the Close-Up
companies and/or the providers,
4
and drafts of those contracts.

209.
215. Memorial
, 60 and
296;
Document CP4, p. 4 and its
Annex 5.

210. resolution of the dispute.

211.

212.

216. CU demands payment of

US$ 3.5 million in damages
due to IMSs interference in
the
negotiations
with
information providers.

220.
We
are
therefore
also
facing a
''fishing
expeditio
n''
attempt
by IMS.
There
was no
assertion
that
there
was
documen
tation. So
much so
that IMS
does not
even
meet the
burden of
establishi
ng that
the
alleged
documen
tation is
in the

221.

217. To
calculate
these
damages,
the
expert
in
damages reviewed contracts
previously
agreed
with
information providers, which
were
later
significantly
altered.
The
damages
sustained by the Claimant
represent the variation in the
sums
demanded
by
the
providers
for
the
same
information.
218. The
Claimant
has
submitted, in Annex 5, a table
purporting to indicate this
variation.

222.
223.
4

219. However, the Claimant

has not submitted the current
contracts or pre-contractual

225.
Including but not limited to the contracts agreed with Abrafarma (2) and Abradilan; and the contracts signed with Abrafarma on
October 17, 2013, and December 20, 2013, and the contract signed with Abradilan on June 4, 2014.

224.

226.
227.
228. 229.

231.
be
given
access to those contracts to
ascertain the accuracy of the
information and calculations
contained in Annex 5. If, in
fact, the final prices of the
contracts are not lower than
those initially offered by the
Claimant and/or the providers,
then the Claimant did not
sustain a loss for which
damages payments would be
required. This is why these
documents are relevant and
material for the resolution of
the claim for damages made
234. Documents Related to Allegations Not Supported in the Witness Statements

232.

233.

235. 236. Documents that support the

11. facts mentioned in the witness
statement of Jorge Daniel Guzmn:

240.
All
these
docume
nts are
confiden
tial (IBA
9.2).
Thus, for
example,
disclosin
g to IMS
a
strategic
plan to
launch a
product

241.

(i)

Strategic plan to launch the

Sales Audit product. (CT- 2, p.
3.1).

(ii)

Documents related to
negotiations and contract
between the Claimant and
Abrafarma described in
4.1.1-4.1.6 of the witness
statement of Mr. Guzmn

230.

237. Witness
Statement of
Jorge Daniel
Guzmn, CT-2;
Memorial,
120-128,
238. 203, 290298.

239. The Claimant has

submitted Mr. Guzmns
statement to supports its
allegations (i) that [g]iven
the refusal to sell [that the
Claimant communicated to
the Respondents], IMS
expressed its threat that IMS
would compete in the
Prescription Data Business,
that [i]t would do so in
advance and with products
that would be offered at a
price substantially lower than

242.
243.
244.

245. (CT-2).
246.
(iii) Documents related to
negotiations and the contract
between the Claimant and
Abrafarma described in
4.2.1-4.2.7 and 5.5.1 of the
witness statement of Mr.
Guzmn (CT-2).
(iv)

Calls to and minutes of

meetings with most of the
Prescription Data providers
described in 5.4 in the
witness statement of Mr.
Guzmn (CT-2).

(v)

Documents related to
negotiations and the contract
between the Claimant and
Drogaria described in 5.5.2
of the witness statement of Mr.
Guzmn (CT-2).

Documents related to
negotiations and the contract
between the Claimant and
Drogara Araujo described in
5.5.3 of the witness statement
252. 253. Documents that support the
12. facts mentioned in the witness
statement of Paulo Murilo

247.

248. Close Up International;

(ii) that the Respondents
delivered a presentation in
the 2013 World Review that
represented a breach of the
non-compete obligation on
the part of the Respondents;
and (iii) that because of the
sudden incursion by IMS in
the Prescription Data market,
the Claimant was compelled
to change its business
strategy and enter the Sales
Data Business, and the
damage caused by that
change in business strategy.

250.
to
the main
commerc
ial
competit
or what
measure
s will be
adopted
in order
to wrest
customer
s away.

251.

256.
The
se
documen
ts do not

257.

249. The documents

requested are needed to
ascertain the veracity of Mr.
Guzmns statement, which
is relevant and material both
in lending credence to his
position as witness as well as
in ascertaining the veracity of
the allegations that are based
on his statement.

(vi)

254. Witnes
s Statement
of Paulo
Murilo de

255. The Claimant has

submitted Mr. Paivas
statement to supports the
allegations

258.
259.
260.
261. de Paiva Jr.:
262.
(i) Calls to and minutes of
meetings between the
Claimant and Abrafarma
described in 36-38 of the
witness statement of Mr. Paiva
(CT-4).
(ii)

263. Paiva
Jr., CT-4;
Memorial,
198.

Documents related to
negotiations with Abradilan
described in 40 of the
witness statement of Mr. Paiva
(CT-4).

265. The documents

requested are needed to
ascertain the veracity of Mr.
Paivas statement, which is
relevant and material both in
lending credence to his
position as witness as well as
in ascertaining the veracity of
the allegations that are based
on his statement.

(iii) Documents that show

communications between
Messrs. Paiva and Nilton
Paletta described in 41 of
the witness statement of Mr.
Paiva (CT-4).
(iv) The two communications
between IMS and Mr. Paiva
described in 42 of the
268. 269. Documents that support the
13. facts mentioned in the witness
statement of Vctor Hugo Strozzi:

264. that the Respondents

delivered a presentation in the
2013 World Review, and then
sent that presentation by mail
to customers, which
represented a breach of the
non-compete obligation of the
Respondents that influenced
negatively on the business
plan of Close-Up for the years
2013 and 2014. (Memorial,
198)

267.

273.
Reg
272. The Claimant has
274.
arding
submitted Mr. Strozzis
the
statement to supports the
documen
allegations that, because of
t (i) this
270. (i)
Call to and minutes of
must be
the sudden incursion by IMS
Meeting that ultimately
also
in the Prescription Data
required
approved the contract [with
market, the Claimant was
by
Abrafarma] halfheartedly.
compelled
to
change
its
275.
(*) (iv) These letters were sent by IMS. It is hence striking that it now requires this party to submit them. However, for obvious Abrafarm
reasons, only the letter that was
received by this party will be produced.

271. Witness
Statement of
Vctor Hugo
Strozzi, CT-5;
Memorial,
290-295.

266.
me
ntioned
their
existence
as the
Respond
ent
intends
to
expose.
Another
example
that IMS
carried
out a
''fishing
expeditio
n.'' As for
that
requeste
d in (iii),
what
happene
d was
expresse
d orally,
so there
could be

276.
277.
278.

285.
It
is a
docume
nt totally
foreign
to this
party
and it is
hence
impossib
le to
have it
in our
control
or
possessi
on. IMS

287.

294.
All
matters
relating
to the
transfer
of
''knowhow'' that is in
the
possessi
on of
293. Although the Claimant
this
held in its Memorial that the
party have
transfer of information on
been
these providers [from IMS to
produce
Close-Up] implied the transfer
d.by IMS.
(*) This was an oral comment that leaves no documentary evidence. This is another example of the '' fishing expedition '' tried

295.

279. (CT-5, p. 1 (sic 13).

280.
(ii) Documents related to
negotiations with Abradilan,
mentioned in 1 (sic 16) of the
witness statement of Mr. Strozzi
(CT-5).

282.

283. and enter the Sales

Data Business, and the
damage caused by that
change in business strategy.

284. The documents

requested are needed to
ascertain the veracity of Mr.
(iii) Documents that show the
Strozzis statement, which is
comments by the anonymous
relevant and material both in
executive president described
lending credence to his
in 1 (sic
position as witness as well as
281. 19) of the witness
in ascertaining the veracity of
statement of Mr. Strozzi (CT-5).
the allegations that are based
on his statement.
288. Documents Related to Allegations Not Supported in the Claimants Memorial
The
procedure 291. Memoria
289. 290.
14. manuals in which, according to what l, 109-119.
the Claimant has stated, the transfer
of
know-how
was
allegedly
implemented.

296.

292. As clearly indicated by

the
Respondents in
their
answer to the Request for
Arbitration, under Argentine
law a 5-year non-compete
clause is only admissible if the
transfer of a business includes
the know-how. (Answer to
Request for Arbitration, 93).

297.
298.
299. 300.

305. 306. Calls to and minutes of the

15. following
meetings,
and
communications related to the same,
between the Claimant and the
Respondents,
in
which
the
Respondents allegedly threatened to
breach the non-compete obligation:
(i)

The meeting held in 2010

between Nilton Paletta and
engineer Andreas Strakos
(Memorial, 129).

(ii)

The meeting between Ari

Bousbib and Norberto
Bonaparte in December 2010
(Memorial, 123).

(iii) The meeting between Nilton

Paletta and Jorge Guzmn
in 2011 (Memorial, 126;
Annex C-7).

301.

307. Mem
orial,
123,
308. 125, 127,
129;
309. Witness
Statement of
Vctor Hugo
Strozzi, CT-5,
pp. 1-2; and
Witness
Statement of
Andreas
Strakos, CT-1,
p. 10.

302. submitted any document

in support of its allegation.
These documents, which will
ultimately determine whether
IMS has actually transferred
know-how to Close-Up, are
highly relevant and material for
the resolution of this dispute.

303.

304.

310. The Claimant contends

that the Respondents breached
the
agreed
non-compete
obligation and that said breach
was
tortious.
(Memorial,
120- 121).

314.
Nei
ther the
witnesse
s nor this
party has
stated
that the
documen
ts IMS
requests
actually
exist.
This is
yet
another
evidence
of the
''fishing
expeditio
n'' tried
by IMS.
However,
the
related
documen
tation

315.

311. In
support
of
this
argument, the Claimant has
asserted that the Respondents
threatened to breach the noncompete obligation in several
meetings held in 2010-2012.
312. The
documents
requested are relevant and
material in ascertaining the
veracity of these allegations.
313. Also,
the
documents
requested are necessary to
ascertain the veracity of the
witness statements of Messrs.

316.
317.
318.

319. 126; Annex C-7).

320.
321. (v)
The
meeting
on
November
27,
2012
between
Nilton
Paletta,
Andreas Strakos and Jorge
Guzmn (Memorial, 127).

326. (i)
16.

The PowerPoint presentation

shown at the IMS World
Review event held in Sao
Paulo in July 2013.

322.

328. Mem
orial,
192329. 195);
Witness
327.
Statement of
(ii) The communications whereby
Paulo Murilo
IMS allegedly circulated,
among prospective Prescription de Paiva Jr.,
CT-4, pp. 6, 8,
Data Business customers, a
10.
PowerPoint that differed from
that shown in said event
(Memorial, 192).

323.
Strakos
and Strozzi, who mentioned
some of these meetings in
their
respective
witness
statements.
Consequently,
these documents are relevant
and material in supporting the
credibility of these witnesses.

324.

325.

330. The Claimant holds that

IMS allegedly included new
Prescription Data products in
the PowerPoint presentation
shown at the IMS World Review
event in 2013, in breach of the
non-compete clause provided
for in the Master Contract.

332.
It is
striking
that IMS
requests
these
documen
ts from
this
party,
given
that it
owns
those
very
documen
ts, and it
shows it
cannot
produce
them
itself. In
fact,
333.
IMS
is the
one in
control of

334.

331. The
Claimant
also
contends that the PowerPoint
presentation circulated among
customers
after
the
aforementioned
event
was
different from that shown at
the same. IMS consequently
requests that a copy of the
PowerPoint
the
Claimant
alleges was actually shown in
the event held in 2013 should
be produced. The existence of
this document and its contents
are relevant and material for

335.
336.
337. 338.

339.

340.
allegation
made by the Claimant in
relation to the breach of the
non-compete clause on the
part of the Respondents. Also,
the document requested is
necessary to ascertain the
veracity of the statement of Mr.
Paiva, which is relevant and
material both to his credibility
as a witness as well as to the
veracity of the allegations that
are based on his statement.

341.

342.

343. Documents Related to Allegations Not Supported in the Expert Reports

344. 345. Documents provided by the
17. Claimant to expert
Dr. Garca
Menndez, a n d d o c u m e n t s u s e d
by the expert in preparing his expert
report, submitted as Document CP-1.

348.
Thi
349.
346. Documen 347. It is common practice
s
t CP-1
that those documents be
request
provided by the expert. The
is
documents
requested
are
objected
relevant and material to prove
to since
it lacks
the veracity and accuracy of
relevanc
the
allegations
and
e and
assertions contained in the
materiali
expert report submitted as
ty given
Document CP-1.
that the
354.
Thi
355.
350. 351. Documents provided by the 352. Documen 353. It is common practice
s
request
18. Claimant to expert Dr. Marcelo t CP-2
that those documents be
is
Pedraza, a n d d o c u m e n t s u s e d
provided by the expert. The
objected
by the expert in preparing his expert
documents
requested
are
to since
it lacks
report
dated
November
2014,
relevant and material to prove
professio
submitted as Document CP-2.
In
the veracity and accuracy of
nal
the under Law 23.187, article 6 that, in listing the duties of lawyers,
the prescribes
allegations
356.particular,
(*) Provided
that they '' ... faithfullyand
observe professional secrecy...''

357.
358.
359.
360. sources where he obtained the
definitions and information contained
in pp. 4, 5, 6, and 7 of the report.
Document CP-2.
366.
Documents provided by the
365.
19. Claimant to experts Galli, Maltagliatti
and De Vega, a n d d o c u m e n t s
u s e d by the experts in preparing
their expert report, submitted as
Document CP-3.

371. 372. Documents provided by the

20. Claimant to expert Dr. Marcelo
Pedraza, a n d d o c u m e n t s u s e d
by the expert in preparing his expert
report dated January 2015, submitted
as Document CP-5.

361.

362. contained in the expert

report submitted as Document
CP-2.

367. Documen 368. It is common practice

t CP-3
that those documents be
provided by the expert. The
documents
requested
are
relevant and material to prove
the veracity and accuracy of
the
allegations
and
assertions contained in the
expert report submitted as
374. It is CP-3.
common practice
373. Documen Document
t CP-5
that those documents be
provided by the expert. The
documents
requested
are
relevant and material to prove
the veracity and accuracy of
the
allegations
and
assertions contained in the
expert report submitted as
Document CP-5.

363.

364.

369.
Thi
s request
is
objected
to since
it lacks
relevanc
e and
materiali
ty given
that the
375.
Thi
s request
is
objected
to since
it lacks
relevanc
e and
materiali
ty given
that the
expert
witness

370.

376.

377. Missing Documents or Files Referenced in the Documents

378. 379. Files referenced in Document
21. C-5 quinquies:
380. (i)
Files attached to e-mail
dated December 15,

381.Docum
ent C-5
quinquies.

382. The Claimant states in

its Memorial that the
transfer of information on
these providers [from IMS to
Close-Up] implied the

383.
T
hese
annexe
s were
attache
d in due

384.

385.
386.
387.

388. 2008 05:08 p.m. from

Pablo Bellmunt
(pbellmunt@closeupinternational.com) to
Francisco Sebastian Ricca,
with Matter: CENTRO
informacin confidencial
Datosd Meykos Enero 2008,
resending e-mail dated
December 15, 2008 03:24
p.m. from
DPerez@ar.imshealth.com to
pbellmunt@closeupinternational.com, with
Matter: Datosd Meykos Enero
2008. The attached files have
been identified as
enero2008.zip, which, when
decompressed, contains two
files: 1) IMS.DBR, comprised
of 20056 rows, and Mdico.
DBF, comprised of 15334
rows.
389.
390.
(ii)
Files attached to
e-mail dated December 15,
2008 05:08 p.m. from Pablo
Bellmunt (pbellmunt@closeupinternational.com) to
Francisco Sebastian Ricca,
with Matter: CENTRO

391.

392. transfer of know-how,

and makes a reference to
Document C-5. As such, the
requested documents are an
essential part of the
document to which the
Claimant makes reference to
support its allegations, and
are therefore absolutely
relevant and material for the
resolution of this dispute.

393.

394.

395.
396.
397.

398. DPerez@ar.imshealth.co
m to pbellmunt@closeupinternational.com, with
Matter: Emailing:
MEYKOS.zip. The attached
files have been identified as
MEYROS.zip, which, when
decompressed, contains: 1)
one file named Memos, and
399. 2) one file named
Recetas, comprised of
404. 405. Files referenced in Document
22. C-5 ter:
(i) File attached to an e-mail
dated December 18, 2008
1:46 p.m. from Juan Carlos
Moraco (jmoraco@closeupinternational.com) t o
Francisco Ricca, with Matter:
RV: Info Colombia. The
attached file has been
identified as
Info_Colombia.zip which,
when decompressed, contains
an Excel spreadsheet titled
Info_Colombia.xls;
406.
(ii) File attached to an e-mail
dated January 22, 2009 12:45
407. p.m. from Juan Carlos
Moraco (jmoraco@closeupinternational.com) t o

400.

408. Docum
ent C-5
ter

401.

409. The Claimant states in

its Memorial that the
transfer of information on
these providers [from IMS to
Close-Up] implied the
transfer of know-how, and
makes a reference to
Document C-5. As such, the
requested documents are an
essential part of the
document to which the
Claimant makes reference in
bringing support for its
allegations, and are therefore
absolutely relevant and
material for the resolution of
this dispute.

402.

403.

410.
Id.
above

411.

412.
413.
414.

420.

415. RE:proveedores
centro. The attached file is
identified as
Detail_Centro_2008.zip.

416.

417.

418.

419.