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

Superior Court of Massachusetts, Suffolk, Business Litigation Session

September 13, 2018

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

          DECISION AND ORDER REGARDING DEFENDANT’S EMERGENCY MOTION TO COMPEL AND FOR A PROTECTIVE ORDER (DOCKET ENTRY NO. 71.5)

          Brian A. Davis, Associate Justice of the Superior Court

          These are two, hard-fought consolidated actions in which the original claims of plaintiff Hologic, Inc. ("Hologic") focused on whether defendant Direct Digital Imaging Technology (Bejing), Inc. ("DDIT") had breached its contract with Hologic by failing to purchase certain selenium-coated detector units from Hologic pursuant to an October 2012 "Supply and License Agreement" between the parties. Defendant Lawrence Ibbetson ("Mr. Ibbetson" or, collectively with DDIT, "Defendants") was and is alleged to have aided and abetted DDIT’s breach of contract. More recently, the Court allowed Hologic’s motion to amend its complaint to add claims that DDIT, again with Mr. Ibbetson’s purported assistance, also has misappropriated Hologic’s trade secrets concerning its selenium-coated detectors. See Decision and Order, entered September 10, 2018 (Docket Entry No. 75.0). Whether any actual misappropriation occurred is hotly contested.

         The parties now are speeding towards a hearing on Hologic’s motion for a preliminary injunction that would prohibit Defendants from using or disclosing Hologic’s alleged trade secrets during the pendency of this action. The preliminary injunction hearing is scheduled to take place on October 10, 2018. This Court previously granted the parties the opportunity to conduct expedited discovery in advance of the injunction hearing. The expedited discovery process has not been an entirely smooth one, however. Currently before the Court is DDIT’s emergency motion to compel Hologic to provide supplemental responses to certain interrogatories propounded by DDIT on an expedited basis, and for a protective order prohibiting Hologic from going forward the planned deposition of the Kurt J. Lesker Company ("Lesker"), an equipment supplier to DDIT. The need for a prompt decision on DDIT’s emergency motion precludes an extended discussion by the Court of the specific grounds for DDIT’s requests or oral argument on the motion. Rather, having reviewed and considered the parties’ various written submissions, the Court rules that DDIT’s emergency motion is ALLOWED IN PART, as follows.

1. DDIT’s Request for an Order Compelling Hologic to Identify Its Alleged Trade Secrets with Greater Specificity: This particular request is DENIED. Hologic represents in its opposition papers that it already has described in its response to DDIT’s Interrogatory No. 1 the particular trade secrets that Hologic "currently alleges DDIT has misappropriated." Taking Hologic at its word, the Court will not require Hologic to define or identify its alleged trade secrets with greater specificity at this time. Hologic will be precluded, however, from citing or relying upon any alleged trade secrets that have not been specifically identified in its existing response to DDIT’s Interrogatory No. 1 at the upcoming preliminary injunction hearing.
2. DDIT’s Request for an Order Compelling Hologic to Identify All Relevant Public Documents that are Similar to Its Alleged Trade Secrets or that Hologic Used in the Development of Its Alleged Trade Secrets: This particular request is ALLOWED IN PART. Hologic’s response to DDIT’s Interrogatory No. 2 identifies three publicly available documents that Hologic says it "considered during development" of its alleged trade secrets. It is unclear from Hologic’s response whether those three documents represent the entire universe of publicly available documents considered by Hologic during the development process. Accordingly, on or before September 17, 2018, Hologic shall serve DDIT with a supplemental response to Interrogatory No. 2 which identifies all publicly available documents considered by Hologic during development of its alleged trade secrets. No additional supplementation by Hologic is ordered at this time. To the extent DDIT asserts that Hologic’s alleged trade secrets are disclosed in other, not-yet-identified, publicly available documents, it is DDIT’s burden to uncover those documents and to offer them in evidence at the preliminary injunction hearing, if its wishes to do so.
3. DDIT’s Request for an Order Compelling Hologic to Provide a List of All Individuals with Access to Hologic’s Alleged Trade Secrets: This particular request is ALLOWED IN PART. The parties appear to agree that Hologic’s "Agile" system contains a record of the individuals who have accessed the internal Hologic materials that constitute or contain Hologic’s alleged trade secrets. Hologic has offered to provide DDIT with access to its Agile system in order to permit DDIT to identify those individuals for itself. Where the burden of culling out responsive information is substantially the same for both sides, it is appropriate and permissible for a party to answer an interrogatory by providing the inquiring party with access to "the business records of the party upon whom the interrogatory has been served" and giving the inquiring party a "reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries" of such business records. See Mass.R.Civ.P. 33(c). Accordingly, on a date and at a time reasonably convenient to DDIT on or before September 19, 2018, Hologic shall give DDIT’s outside counsel a reasonable opportunity to examine, audit, and inspect Hologic’s Agile system at Hologic’s Massachusetts offices with sufficient instruction and assistance so as to permit DDIT to identify the individuals who have accessed the internal Hologic materials that constitute or contain Hologic’s alleged trade secrets. Hologic also shall permit DDIT’s outside counsel to make copies, compilations, abstracts, or summaries of any relevant Agile system entries or records as determined by DDIT’s outside counsel.
4. DDIT’s Request for a Protective Order Prohibiting Hologic from Deposing Lesker: This particular request is ALLOWED IN PART. Whether DDIT and/or any DDIT employee or consultant has disclosed Hologic’s alleged trade secrets to Lesker, and whether any of Hologic’s alleged trade secrets have been utilized by Lesker in the development of any coating equipment intended for DDIT, are questions that are relevant to the Hologic’s pending motion for a preliminary injunction. It is permissible for Hologic to depose Lesker on these topics. However, in order to ensure that Hologic’s inquiries of Lesker remain focused only on issues that are directly relevant to the Hologic’s pending motion for a preliminary injunction, Hologic’s questioning of Lesker shall be limited to the topics of: (a) DDIT and/or any DDIT employee or consultant has disclosed to Lesker any Hologic alleged trade secret specifically identified in Hologic’s existing answer to DDIT’s Interrogatory No. 1; (b) whether any coating equipment developed by Lesker for DDIT reflects or incorporates any Hologic alleged trade secret specifically identified in Hologic’s ...

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