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

Superior Court of Massachusetts, Suffolk, Business Litigation Session

September 14, 2018

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

          DECISION AND ORDER REGARDING MULTIPLE, RECENTLY-FILED EMERGENCY MOTIONS

          Brian A. Davis, Associate Justice of the Superior Court

         Litigation counsel’s ability to prepare and file "emergency" motions in these consolidated actions is rapidly outstripping the Court’s ability to review and decide the same on a contemporaneous basis. There are many attorneys at work, but only one judge. In a valiant effort to keep up with the flow, the following constitutes the Court’s abbreviated decisions and orders with respect to the parties’ most recently filed emergency requests.

         1. Defendant Direct Digital Imaging Technology (Bejing), Inc.’s ("DITT") Emergency Motion for Clarification of the Court’s September 12, 2018 Decision and Order (Docket Entry No. 86.0): This motion is ALLOWED. The Court hereby clarifies its September 12, 2018 Decision and Order (the "Sept. 12 Order") by further ordering that third-party Kurt J. Lesker Company’s ("Lesker") obligation to produce documents in response to plaintiff Hologic, Inc.’s ("Hologic") subpoena shall be limited to those that reference or reasonably pertain to the alleged trade secrets that Hologic has specifically identified in its existing response to DDIT’s Interrogatory No. 1. For purposes of this order and the Court’s Sept. 12 Order, "specifically identified" trade secrets are those that Hologic has described with particularity in the main text and in footnote 1 of its existing response to DDIT’s Interrogatory No. 1, but not any undisclosed "additional trade secrets" as to which Hologic merely has reserved its rights;[1]

         2. DDIT’s Emergency Cross-Motion for Protective Order (Docket Entry No. 85.0): This motion is ALLOWED. Hologic’s questioning of deposition witnesses during expedited discovery shall be limited to questions that reference or reasonably pertain to the alleged trade secrets that Hologic has specifically identified in in the main text and in footnote 1 of its existing response to DDIT’s Interrogatory No. 1, as defined above;

         3. Hologic’s Emergency Motion to Compel (Docket Entry No. 82.0): This motion is ALLOWED IN PART as follows: (a) within seven (7) days of the date of this Decision and Order, DDIT shall provide Hologic with a supplemental, fully-responsive answer to Hologic’s Interrogatory No. 33 that identifies, with particularity, the "publicly available information" referenced by DDIT in its initial response dated August 30, 2018; (b) within seven (7) days of the date of this Decision and Order, DDIT shall provide Hologic with a supplemental, fully-responsive answer to Hologic’s Interrogatory No. 30; (c) within seven (7) days of the date of this Decision and Order, DDIT shall provide Hologic with a supplemental, fully-responsive answer to Hologic’s Interrogatory No. 35 solely as it pertains to the machine identified in DDIT_0017420; and (d) within ten (10) days of the date of this Decision and Order, DDIT shall provide Hologic with complete copies of any and all non-privileged documents in the possession, custody, or control of DDIT and/or any DDIT subsidiary that are reasonably responsive to Hologic Request for Production No. 71, 75-76, and 79. No other relief requested by Hologic in its emergency motion is granted at this time;

         4. DDIT’s Emergency Cross-Motion for Protective Order (Docket Entry No. 82.5): The Court does not discern any material difference between this motion and DDIT’s Cross-Motion for Protective Order (Docket Entry No. 85.0). Accordingly, the Court TAKES NO ACTION on this motion because it is duplicative; and

         5. DDIT’s Emergency Motion to Quash Hologic’s Proposed Deposition of Fei "Leo" Jiang (Docket Entry No. 80.0): This motion is ALLOWED IN PART. If Hologic wishes to depose Mr. Jiang prior to the preliminary injunction hearing on October 10, 2018, it may and must do so by means of a telephonic or videoconference deposition. The parties shall reasonably cooperate for the purpose of making Mr. Jiang available for a telephonic or videoconference deposition by Hologic on a mutually-acceptable time and date on or prior to September 28, 2018. If the parties are unable to agree upon a time and date for Mr. Jiang’s telephonic or videoconference deposition, the Court will select one.

         SO ORDERED.

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Notes:

[1] DDIT argues that it will be "effectively ... ambush[ed]" if Hologic is permitted to conduct expedited discovery concerning DDIT’s misappropriation and/or use of the specific alleged trade secrets that are described in footnote 1 of Hologic’s existing response to DDIT’s Interrogatory No. 1. The Court disagrees. Hologic claims to have a good faith basis to believe that DDIT has misappropriated at least some of Hologic’s alleged trade secrets, and the Court deems it a legitimate use of discovery for Hologic to attempt to determine the extent of any such ...


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