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Hologic, Inc. v. Direct Digital Imaging Technology (Beijing), Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

June 29, 2018

HOLOGIC, INC.
v.
DIRECT DIGITAL IMAGING TECHNOLOGY (BEIJING), INC. Hologic, Inc.
v.
Lawrence Ibbetson

          File Date: July 3, 2018

          OPINION

          Mitchell H. Kaplan, Justice of the Superior Court

          Defendant Lawrence Ibbetson has moved to compel further answers to two interrogatories: no. 3 and no. 8.

         To some extent Ibbetson has conflated a motion to compel further answers to interrogatories with a motion for summary judgment. If Hologic can identify no facts in response to an interrogatory asking for the factual basis for a claim, this may be significant if Ibbetson files a motion for summary judgment, but Hologic can only provide as much information as it has. On the other hand, if Hologic has no factual basis for a claim, a request for extensive discovery in search of facts to support that allegation may be a classic example of a "fishing expedition."

         With respect to interrogatory no. 3, Ibbetson asks for an explanation concerning the basis for Hologic’s contention that Ibbetson breached a Non-Competition Agreement (Non-Comp Agreement) by going to work for Hologic’s customer, DDIT. That is a reasonable request, as generally a person does not breach this type of restrictive covenant by going to work for his employer’s customer. It certainly could happen, but Ibbetson is entitled to an explanation concerning what Hologic asserts that that DDIT does that makes it a competitor of Hologic within the meaning of this provision of the Non-Comp Agreement. An example might be a description of the products that DDIT sells that compete with products sold by Hologic. To respond to this interrogatory by stating that the Non-Comp Agreement speaks for itself is quite inappropriate, and obviously provides no information regarding the factual basis for Hologic’s claim. Similarly, simply reciting the language of the Non-Comp Agreement and asserting generic breach is not informative. Hologic should be able to identify the conduct that constituted the alleged breach. For example, suggesting to DDIT that there are other vendors that could provide products or services that Hologic was selling to DDIT would not appear to breach of this provision, as long as Ibbetson was not working as an agent for the other vendor. If Hologic, in good faith, believes that there are facts from which it could be inferred that Ibbetson was an agent of the other vendor, it should so state. If it is unable to provide more information than it has already, inferences may be drawn from that.

         Similarly, interrogatory no. 8 requests a description of the confidential information that Ibbetson shared with DDIT. That seems like an appropriate interrogatory. Ibbetson goes on to ask Hologic to identify the date on which Ibbetson shared this information, specifically to whom it was revealed, and the method of communication. If Hologic has that information it must of course disclose it, but it is scarcely surprising that Hologic would not yet have such detailed information. That is the type of thing usually only identified through discovery, after which it would be appropriate for Hologic to amend its interrogatory answer.

         On the other hand, Hologic’s generic response to interrogatory no. 8 is again quite inappropriate. Ibbetson was a senior engineer for Hologic, apparently substantially involved in its relationship with DDIT, before his employment with Hologic was terminated. Simply describing the types of Hologic information that an engineer in Ibbetson’s position would be expected to know, and, in effect, asserting that he must have disclosed some of it, is of no value at all. The concept of inevitable disclosure has no application to answers to interrogatories. It may be that events occurring after Ibbetson began consulting for DDIT lead to plausible inferences that Ibbetson disclosed some particular information. If so, that must be disclosed. If Hologic is unable to identify any reasonably particularized information allegedly disclosed, that will permit an inference that this alleged breach of the confidentiality provisions of the Non-Comp Agreement is based only on speculation.

          Whether certain information is actually confidential or whether, if confidential, it was already disclosed to DDIT under the parties’ technology sharing arrangement apparently in place for a number of years, is something to be addressed at summary judgment. Indeed, given Ibbetson’s position at Hologic it may have been his responsibility to identify and protect confidential information, rather than have it identified to him as confidential by others. However, Ibbetson is entitled to the best description that Hologic can provide concerning the confidential information it alleges was improperly disclosed to DDIT.

         ORDER

         For the foregoing reasons, Ibbetson’s motion to compel is ALLOWED to the following extent. Hologic is directed to review its answers to interrogatories 3 and 8 and provide more particularized responses, as described above, within 14 days of receipt of this Order. Hologic’s supplemental responses will be ...


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