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Vantage Travel Service, Inc. v. Babine

Superior Court of Massachusetts, Suffolk

August 1, 2018

VANTAGE TRAVEL SERVICE, INC.
v.
Meredith BABINE

          File Date: August 2, 2018

          DECISION AND ORDER REGARDING PLAINTIFFS’ EMERGENCY MOTION FOR EXPEDITED DISCOVERY (DOCKET NO. 14.0)

          Brian A. Davis, Associate Justice of the Superior Court

          This is an action in which plaintiff Vantage Travel Service, Inc. ("Vantage") and its founder and CEO, plaintiff Henry R. Lewis ("Mr. Lewis" or, collectively with Vantage, "Plaintiffs"), seek injunctive relief based on defendant Meredith Babine’s ("Ms. Babine") allegedly unlawful retention, use, and potential disclosure of certain confidential information belonging to Plaintiffs. After a hearing on July 18, 2018, the Court issued an order on Plaintiffs’ Motion for Preliminary Injunction (the July 18 Order") that, among other things, required Ms. Babine, on or before July 25, 2018, to,

return to Vantage and/or Mr. Lewis any and all of Vantage’s trade secrets, confidential business information, and/or company property in her possession, custody, or control, as well as all of Mr. Lewis’ confidential personal information in her possession, custody, or control, and to, certify in writing, under penalties of perjury, that she has returned to Vantage and/or Mr. Lewis any and all of Vantage’s trade secrets, confidential business information, and/or company property in her possession, custody, or control, as well as all of Mr. Lewis’ confidential personal information in her possession, custody, or control ...

July 18 Order, ¶¶ 2 and 7.

         Ms. Babine did not provide the required certification to Plaintiffs on or before July 25, 2018, but she reportedly did gain access and make changes to a Vantage Facebook page on that date. In addition, Ms. Babine reportedly has been reaching out to certain Vantage clients since the July 18 Order entered for the purported purpose of obtaining pictures of a recent Vantage cruise in Europe for an unspecified "website," and she reportedly told participants on the same cruise that she was "hired by the owner’s wife to find out all of the fiancés [sic] of vantage cuz the wife was planning on leaving the owner and didn’t want any funds hidden ..." The Court finds it noteworthy in this context that the wife of Mr. Lewis, the founder of Vantage, recently has commenced divorce proceedings against him.

         Ms. Babine’s alleged conduct, as described above, prompted Plaintiffs to file an Emergency Motion for Expedited Discovery (the "Emergency Motion") on July 27, 2018. By means of that Emergency Motion, Plaintiffs seek: (1) leave to depose Ms. Babine for up to three hours within the next five business days; (2) leave to serve Ms. Babine with no more than five interrogatories for the purpose of determining what confidential and proprietary information of Plaintiffs Ms. Babine still may have in her possession, and whether any such information has been disclosed by Ms. Babine to any third party; (3) a further order compelling Ms. Babine to provide the written certification required by the Court’s July 18 Order; and (4) a further order prohibiting Ms. Babine from contacting any of Vantage’s former, current, or prospective customer, clients, partners, or vendors.

         Ms. Babine has filed a written opposition to Plaintiffs’ Emergency Motion with supporting materials (collectively, the "Opposition"), portions of which have been submitted under seal. In brief, Ms. Babine acknowledges that she did not provide the required written certification to Plaintiffs by July 25, 2018, but states that she did so before the close of business on July 27. A copy of Ms. Babine’s affidavit, dated July 27, 2018, is included with her Opposition materials. She denies having possession of any of Plaintiffs’ confidential information, and she agrees not to communicate with any of Vantage’s customers during the pendency of this action. Ms. Babine further asserts that she currently "suffers from a number of acute health conditions that make it impossible for her to meaningfully participate in a deposition at this time," although she has submitted no supporting affidavit from any medical provider and she offers no information as to when she expects to be able to sit for a deposition. She represents, however, that she will "respond to proper interrogatories in the ordinary course of this litigation," and she urges the Court to deny Plaintiffs’ Emergency Motion as "unnecessary."

          Massachusetts law holds that "[t]he conduct and scope of discovery is within the sound discretion of the judge." Solimene v. B. Grauel & Co., K.G., 399 Mass. 790, 799 (1987). In this case, the Court concludes, in its discretion, that the circumstances justify some level of expedited discovery of Ms. Babine, with appropriate safeguards to ensure that such discovery does not adversely affect Ms. Babine’s current, documented health status. The Court further believes (as the parties apparently do) that the imposition of additional restrictions on Ms. Babine’s ongoing communications with Vantage’s customers, clients, partners, and vendors is warranted at this time.

         Accordingly, Plaintiffs’ Emergency Motion is ALLOWED IN PART. IT IS HEREBY ORDERED that:

         1. Ms. Babine shall appear for a deposition of up to three (3) hours in length by Plaintiffs on a mutually-agreeable date within thirty (30) days of the date of this Order, provided, however, that Ms. Babine may file a motion seeking to extend this deadline for health reasons, which motion shall be accompanied by a supporting affidavit from a qualified medical provider who is personally familiar with Ms. Babine’s current condition. The affidavit also shall describe the conditions and timetable under which the medical provider reasonably believes Ms. Babine will be capable of being deposed by Plaintiffs;

         2. Plaintiff may serve Ms. Babine with up to five (5) written interrogatories, to which Ms. Babine shall respond, in writing and under oath, within fourteen (14) days of the date of service; and

         3. Per the agreement of the parties, Ms. Babine shall not contact any current or recent Vantage customers, clients, partners, ...


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