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Wolters Kluwer Financial Services Inc. v. Scivantage

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


May 23, 2007

WOLTERS KLUWER FINANCIAL SERVICES INC., PLAINTIFF,
v.
SCIVANTAGE, ADNANE CHARCHOUR, SANJEEV DOSS, CAMERON ROUTH AND GREGORY ALVES, DEFENDANTS.

The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

MEMORANDUM OPINION & ORDER

Plaintiff Wolters Kluwer Financial Services ("Plaintiff"), through its counsel, Dorsey & Whitney LLP,*fn1 moved this Court on May 3, 2007 to allow Plaintiff to use, in the actions Wolters Kluwer Financial Services Inc. and CCH Inc. v. Scivantage, Inc. et. al., No. 1:07-cv-10729 (D. Ma.) and Scivantage Inc. v. Wolters Kluwer, N.V.,No. 07-cv-3329 (S.D.N.Y.), transcripts of "attorneys' eyes only" depositions that Plaintiff had taken of the individual Defendants in this action, No. 07-cv-2352 (S.D.N.Y.).

Because the Protective Order in this action that governs "attorneys' eyes only" material prohibits the use of such "attorneys' eyes only" material in "any other litigation proceeding," and for additional reasons articulated below, Plaintiff's motion is DENIED.

I.BACKGROUND

Generally, only the background that is directly relevant to the issues presented in this Motion will be provided here.

A. Depositions of Defendants

On March 29, 2007, by written Order, inter alia, and after an extensive plea by Plaintiff as to their urgency, I ordered depositions to be expedited and that the four individual Defendants in this action -- Sanjeev Doss, Cameron Routh, Gregory Alves, and Adnane Charchour -- be deposed on April 2 and April 3, 2007.

The following day, March 30, 2007, at the close of business, Plaintiff moved the Part I emergency motions judge, the Honorable Kevin Castel, to compel the depositions to go forward on April 2 and 3.*fn2 Defendants, on March 29, 2007, had proposed a confidentiality order to Plaintiff to govern discovery in this action, which provided for designations of material as "confidential" or "attorneys' eyes only." Plaintiff had refused to stipulate to Defendants' proposed confidentiality order at that time. Judge Castel, via an untranscribed telephone conference, ordered the depositions to go forward on an "attorneys' eyes only" basis until further Order by myself.*fn3

Following the depositions of April 2 and 3,*fn4 I again reiterated on April 6 that "depositions and the fruits of those depositions" would be on an "attorneys' eyes only" basis.*fn5 I requested proposed confidentiality orders from both parties.

B. Protective Order

Following the submission of proposed confidentiality orders from both sides, I ordered, on April 12, 2007, that Defendants' proposed confidentiality order, with minor changes made by the Court, would govern the "disclosure and use of confidential discovery information in this action." See Confidentiality Stipulation and Protective Order, April 12, 2007 ("Protective Order") at 1.

The Protective Order provides, inter alia, that "Protected Material requested and exchanged herein shall be used only for the purpose of the prosecution or defense of this action. [and] shall not be used for any business, commercial, or competitive purpose, or used in any other litigation proceeding." Protective Order ¶ 7(a). Additionally, the Protective Order provides more specifically that "In the absence of written permission from the Producing Party or Designating Party, as applicable, or an order of the Court, any Protected Material consisting of or containing "ATTORNEYS' EYES ONLY INFORMATION" shall be used solely for purposes of the prosecution and defense of the above-entitled litigation." Protective Order ¶ 4(c).

The Protective Order provides that "Discovery Material designated as CONFIDENTIAL INFORMATION or ATTORNEYS' EYES ONLY INFORMATION shall be treated by each Receiving Party as confidential according to the category designated for such material unless and until the Court rules to the contrary or the Producing Party or Designating Party, as applicable, agrees otherwise." Protective Order ¶ 4(a). The Protective Order does provide for a process by which a party may challenge the propriety of a confidentiality designation. Protective Order ¶ 8.*fn6 However, the Protective Order reiterates, in the same section that addresses "challenges," that "Any document designated "CONFIDENTIAL INFORMATION" or "ATTORNEYS' EYES ONLY INFORMATION" shall enjoy the protection of such designation until the issue relating to the propriety of the designation has been resolved." Protective Order ¶ 8.

The Protective Order also provides, inter alia, that "Counsel for the Receiving Party shall be permitted to retain. a copy of all depositions, including exhibits and deposition evaluations containing Protected Material." Protective Order ¶ 12.

The Protective Order provides that "[t]he obligations created by this Order shall survive the termination of this lawsuit unless otherwise modified by the respective Court in each action." Protective Order ¶ 13. The Protective Order also provides that "The Court shall retain jurisdiction, even after termination of this lawsuit, to enforce this order and to make such amendments and modifications to this Order as may be appropriate." Id.

C. Plaintiff's Voluntary Dismissal and Subsequent Actions

On Friday, April 13, 2007, at some time between approximately 3:30 P.M. and the close of business, Plaintiff voluntarily dismissed this action pursuant to Fed. R. Civ. P. 41(a)(1)(i).*fn7 It appears to be undisputed that on April 13, subsequent to approximately 3:30 P.M.: 1) Defendants produced tens of thousands of pages of documents to Plaintiffs, as per their production deadline, in addition to tens of thousands of pages that Defendants had previously produced; and 2) Plaintiffs did not produce any discovery to Defendants, by their production deadline, beyond the approximately 500 pages of documents that Plaintiffs had previously produced.*fn8

Also, at some time Friday, April 13, 2007, Plaintiff, along with an additional co-Plaintiff, CCH Incorporated, a related corporate entity to Plaintiff, filed a complaint in the District of Massachusetts (No. 07-cv-10729) against the Defendants in this action, as well as an additional Defendant, Bahwan Cybertek Inc. Plaintiffs requested, inter alia, a permanent injunction in that action.

On Sunday, April 15, 2007, Plaintiff's lead counsel emailed Defendant's counsel and stated, "[T]he previous matter has concluded and a new matter has replaced it."*fn9

Email of Kristan Peters to James Chou, April 15, 2007, attached to Declaration of Richard J. Rabin, April 24, 2007, Ex. 37.

On Monday morning, April 16, 2007, Defendants informed the Court of Plaintiffs' voluntary dismissal. Defendants also alleged that Plaintiff had used information from the "attorneys' eyes only" depositions in this action in its complaint filed in Massachusetts.

In a conference call with Plaintiff's co-counsel, Marc Reiner, and Defendants' counsel, I ordered that Plaintiffs return all discovery in their possession to the Court.*fn10 I agreed to take custody of the discovery in an effort to broker a compromise between the parties, as Plaintiff voiced concerns that it did not want to return discovery directly to Defendants, and Defendants voiced concerns as to what might happen if Plaintiff kept the discovery.

On Tuesday, April 17, 2007, after Plaintiff informed the Court it had made copies of the discovery for its potential use in Massachusetts (after I ordered the return of the discovery),*fn11 I reiterated by email, "in writing to be certain there is no misunderstanding, that Plaintiff shall return all discovery in its possession, this set to Defendants, by noon tomorrow," April 18, 2007 (emphasis intact).

On Wednesday, April 18, 2007, Defendants forwarded to the Court Plaintiff's letter to Defendants of April 17, in which Plaintiff objected to the designation of the depositions as "attorneys' eyes only," and provided its own designations of "attorneys' eyes only" material in the six transcripts. (It is worth noting that the Protective Order provides that "Discovery Material. may be so designated by such Producing Party." and does not similarly provide that the Receiving Party may designate material. Protective Order ¶ 3(a).) Defendants also forwarded to the Court Plaintiff's subsequent letter to Defendants of April 18, in which Plaintiff "clarified" its letter of April 17 to state that it "object[ed] to the designation of any of the defendants' deposition transcripts as "Confidential" or "Attorneys' Eyes Only." Defendants argued that "plaintiff has voluntarily dismissed this suit, leaving no valid reason to. use [the transcripts] in any new action" and specifically requested that Plaintiff turn over to Defendants all copies and originals of the deposition transcripts in this action.

Also on Wednesday, April 18, Defendants' counsel represented that he had received an incomplete set of copies of CD-Roms that I had previously ordered Plaintiffs to return to Defendants.*fn12 On Thursday, April 19, Mr. Reiner represented that he could not answer questions about the missing CD-Roms, as he had been transferred off the case due to "internal staffing issues." Mr. Reiner represented that other associates or partners familiar with the matter were currently unavailable.

Later on Thursday, April 19, I contacted the managing partner at Dorsey & Whitney, who put me in touch with another partner, Zachary Carter. Mr. Carter informed me that he would arrange for the return of any transcripts of depositions in this action to the Court by Friday, April 20, 2007. Also on Thursday, April 19, Defendants submitted a proposed Order that would have required Plaintiff to return and/or destroy all copies of transcripts taken in this action.

On Friday, April 20, Plaintiff's lead counsel, Ms. Peters, wrote this Court and, inter alia, stated that Mr. Carter "has asked an associate to retrieve all transcripts that could be located relating to the Scivantage matter and has had them provided to the Court."*fn13 Concomitantly, Plaintiff's counsel provided to the Court an original copy, marked "original," and a copy, marked "copy," of the five substantive depositions of Defendants taken in this action.*fn14 All copies were stamped "attorneys' eyes only." Generally, the words "attorneys' eyes only" appeared at the top of each page that contained substantive deposition testimony. Plaintiff also provided its own proposed order that requested that Defendants' designations of the depositions as "attorneys' eyes only" be deemed "null and void."

On Monday, April 23, Defendants' counsel (and Mr. Doss' counsel, separately) wrote the Court and alleged that Plaintiff, in fact, continued to retain transcripts of depositions taken in this action. Later that afternoon, Plaintiff's counsel emailed the Court and requested until Wednesday, April 25, to respond to Mr. Doss' submission before this Court rendered any decision.

On Tuesday, April 24, at 2:41 P.M., Defendants' counsel informed this Court by email that a hearing regarding discovery matters at Plaintiff's request was scheduled in the Massachusetts action, No. 07-cv-10729, for 11 A.M., Wednesday, April 25.

On Tuesday, April 24, at 4:45 P.M., via an email, the parties were reminded that my April 16 verbal order "ordered discovery returned to the Court," "with the intention that the parties would not utilize such discovery following [my] April 16 verbal order." See Email of Mark Noferi, April 24, 2007, 4:45 P.M. Further, my law clerk, at my direction, asked Plaintiff's lead counsel, as clearly as I knew how, to "represent to the Court whether [her] law firm currently possesses, or has possessed since Friday, April 20, any copies (in any format) of any transcripts of any depositions taken in this action." Id. I asked Plaintiff's lead counsel to "please identify which copies of which transcripts your law firm possesses, or has possessed, since Friday, April 20." Id. "If [Plaintiff's] law firm does currently possess such copies, [I] direct[ed] [her] firm to return any such copies to this Court by 11 A.M. tomorrow, pending the disposition of the motions currently before the Court." Id.

At some point on Tuesday, April 24, from a review of public court filings, and court filings subsequently provided to this Court by Defendants, Plaintiff filed several motions in the District of Massachusetts action, including a "motion for short order of notice," and a motion for extensive "emergency discovery."*fn15 Plaintiff's lead counsel's name appeared on the various motions. Plaintiff's lead counsel submitted a declaration, signed by her, and attached prior declarations and exhibits filed in this action, which included substantial portions of the aforementioned "attorneys' eyes only" depositions taken in this action. Plaintiff also requested that the Massachusetts Court issue an order returning the deposition transcripts to Plaintiffs "to use in [the Massachusetts] action."*fn16

Plaintiff apparently requested the Massachusetts Court at some point to hold a hearing on the motions ex parte.*fn17

Plaintiff' lead counsel called my law clerk ex parte at the close of business on April 24 and asked whether my order encompassed exhibits, attached to pleadings and motions, that contained transcripts. Plaintiff's lead counsel expressed a concern regarding its "work product." See Email of Kristan Peters, April 24, 2007, 7:33 P.M. ("if the Court were requiring Dorsey to divest itself of critical aspects of its work product, we would have to immediately appeal to the Second Circuit.")*fn18

On Wednesday, April 25, at 2:25 P.M., via an email, it was clarified that I did not require, at this time, "Plaintiff to provide copies of exhibits attached to pleadings and motions in this action, if such exhibits contained portions of deposition transcripts. As to other copies of deposition transcripts," I stated my order "stands." I also reiterated that, while as yet unanswered, my request for factual representations stood.*fn19

At some point on April 25, 2007, Plaintiff filed a "motion to remove confidentiality designations" and again submitted a proposed order that would declare "Defendants' designations of the depositions in their entirety as CONFIDENTIAL and ATTORNEYS' EYES ONLY" as "null and void."

On Thursday, April 26, after a request by Plaintiff's counsel at 3:05 P.M. that day for another day to respond to my requests for transcripts and factual representations, I emailed Plaintiff's counsel at 4:19 P.M. and once again requested transcripts of any depositions in Plaintiff's possession.*fn20 Later that day, I pointed Plaintiff's counsel's attention to two cases that unsurprisingly, supported the proposition that an attorney may be ordered to turn over "work product" to the Court.*fn21

Incredulously, on Friday, April 27, at approximately midday, and having failed to make any substantive response to my April 24 order, Plaintiff's lead counsel provided twenty additional copies of deposition transcripts to the Court, and told the Court that her "colleague made an attempt. to locate the transcripts in the office, and missed some." Plaintiff's lead counsel represented that "most of the transcripts remaining are attorney work product."*fn22 Plaintiff's lead counsel represented that "some of the attached transcripts that were brought to my attention yesterday for the first time do not appear to be work product privileged."*fn23 Among those transcripts characterized as "not work product privileged" were clean paper copies of the five substantive depositions of Defendants taken in this case that form the crux of this instant motion. Those copies were all marked "attorneys' eyes only."

On Friday, April 27, at 5:20 P.M, I requested a conference call with counsel for the parties to discuss Plaintiff's request to have the just-delivered copies of transcripts returned so that counsel might use one or more to defend against Defendants' previously-filed motion for contempt and sanctions.*fn24 I also requested the parties' views regarding "a) the effect of the confidentiality order in this action on Plaintiff's request, b) the effect of the Massachusetts litigation, or c) the interplay between those two issues."

On Tuesday, May 1, I held a transcribed conference call with parties' counsel. Plaintiff's lead counsel stated, "Your Honor specifically stated to me that in clarifying its order that all exhibits to previous pleadings were something that I could use." See Transcript of May 1, 2007, at 16. I corrected Plaintiff's lead counsel and stated, "I never said that you could use them, never.. [U]nder this kind of language that you all agreed to. you can't use them. I said you could keep them because I didn't want them, but I never said you could use them." Id.*fn25

I requested letter-briefs of a "couple of pages" from the parties regarding the use of deposition transcripts in other litigation, one from Plaintiff by Thursday, May 3, and an opposition by Defendants by Monday, May 7. See Transcript of May 1, 2007, at 11. Plaintiff submitted a thirteen-page "Motion to Release Transcripts for Use in Continuing Cases" on May 3, in which she moves this Court to allow the use of the deposition transcripts at issue in the Massachusetts Action, No. 07-cv-10729 (D. Ma.), and the New York action filed by Defendants, No. 07-cv-3329 (S.D.N.Y.). Defendants submitted their opposition on May 7. Having requested a letter-brief of a "couple of pages," I denied Plaintiff's request to reply.

On Wednesday, May 2, I returned one (original) copy of the deposition transcripts at issue to Plaintiff's counsel for use in defending against Defendants' motion for sanctions and contempt, with the explicit proviso that such deposition transcripts were not to be used in "any other litigation, including but not limited to the new action in Massachusetts," and that such deposition transcripts would be returned to this Court after Plaintiff's opposition to Defendants' motion for contempt and sanctions.

II. STANDARD OF REVIEW

"Whether to lift or modify a protective order is a decision committed to the sound discretion of the trial court." See, e.g., In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 147 (2d Cir. 1987). "Where there has been reasonable reliance by a party or deponent, a District Court should not modify a protective order granted under Rule 26(c) 'absent a showing of improvidence in the grant of [the] order or some extraordinary circumstance or compelling need.'" SEC v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001), citing Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979).

III. DISCUSSION

As a threshold matter, this Court retains jurisdiction, pursuant to the explicit retention of jurisdiction in the Protective Order, "even after termination of this lawsuit," to "enforce this order and to make such amendments and modifications to this Order as may be appropriate." Protective Order ¶ 13. Even if the Protective Order here did not explicitly provide for retention of jurisdiction, this Court would in all likelihood retain the power to supervise disclosure of documents under the Protective Order and modify its terms, if appropriate. See, e.g., Gambale v. Deutsche Bank AG, 377 F.3d 133, 141 (2d Cir. 2004) ("The court's supervisory power does not disappear because jurisdiction over the relevant controversy has been lost.")

A. The Protective Order Bars Use of Protected Material in "Any Other Litigation Proceeding"

The Protective Order here provides, stated most simply, that "Protected Material. shall not be used. in any other litigation proceeding." Courts have found similarly-worded Protective Orders to be valid and enforceable, and have indeed imposed sanctions for a party's use of protected documents in other litigation without prior modification of the Protective Order. See, e.g., On Command Video Corp. v. Lodgenet Entertainment Corp., 976 F. Supp. 917, 920-22 (N.D. Cal. 1997) (where plaintiffs in federal court commenced lawsuit against same defendant in state court and used protected information, Court found plaintiffs in contempt, stating, "The purpose of the Order is to limit the use of confidential information to this case. By using such information to file a separate lawsuit in another forum, plaintiff violated the plain terms of the Protective Order.");*fn26 In re Biovail Corp. Securities Litigation, 2007 WL 259933, at *2 (S.D.N.Y. 2007) (where Defendants in federal litigation filed separate complaint in state court that included protected information provided by third-party pursuant to federal litigation, Court restrained Defendants from using any protected material and ordered Defendants to produce all documents to third-party and redact any pleading in any court that contained the protected information);*fn27 Poliquin v. Garden Way, 154 F.R.D. 29, 32 (D. Me. 1994) (where plaintiff's attorney gave confidential deposition transcript to co-counsel litigating against same defendant in state court, Court directed attorney to destroy documents, noting, although "counsel in any other action against Defendant is free to initiate discovery anew.." plaintiff's counsel was not allowed to use specific depositions produced in reliance on the Protective Order.).*fn28

Plaintiff argues that her Massachusetts action is "continuing," not "new," litigation, and thus distinguishable from the caselaw above, because Plaintiff voluntarily dismissed this action pursuant to Fed. R. Civ. P. 41(a)(1)(i) and filed a new complaint in Massachusetts, involving most of the same parties, and many of the same operative facts. However, caselaw holds that a refiled lawsuit after a voluntary dismissal is a "new" and "second" lawsuit. See Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947) ("Traditionally, a plaintiff. has had an unqualified right. to take a non-suit in order to file a new action after further preparation, unless the defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit."); see also Cardio-Medical Associates, Ltd. v. Crozer-Chester Medical Center, 95 F.R.D. 194 (E.D. Pa. 1982) ("[T]he major purpose of a rule 41(a) voluntary dismissal without prejudice is to permit a plaintiff to bring a completely new suit"), aff'd, 721 F.2d 68, 77 (3d Cir. 1983); cf. McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir. 1985) (Posner, J.) ("As. the language and history of Rule 41(a) imply, the general purpose of the rule is to preserve the plaintiff's right to take a voluntary non-suit and start over so long as the defendant is not hurt.").

As the above caselaw makes clear, the policy underlying a Rule 41(a) voluntary dismissal is that Plaintiff may, in Judge Posner's words, "start over so long as the defendant is not hurt." It is plausible that a situation might exist in which, notwithstanding a Protective Order like the one here that bars the use of material in "any other litigation proceeding," equity and judicial efficiency might favor that (presumably reciprocal) discovery is used in a new action after a Rule 41(a) dismissal, "so long as the defendant is not hurt."*fn29 Here, however, Plaintiff's voluntary dismissal literally hours (if not minutes) before its deadline to provide substantively reciprocal discovery, while having received all of Defendants' documents, and Plaintiff's subsequent use of deposition transcripts in connection with a motion, filed on short notice, in the new Massachusetts action that sought to obtain additional, extensive, and potentially redundant "emergency discovery" raises the spectre that indeed, Defendants may be prejudiced (or may already have been prejudiced) by Plaintiff's efforts to use near-unilateral discovery gained in this action to seek new relief in a new court.

Plaintiff's argument that the Massachusetts action represents "continuing litigation," rather than "new" litigation, is undercut by the fact that had Plaintiff chosen to "continue" this litigation, Plaintiff simply could have moved, pursuant to 28 U.S.C. § 1404(a), to transfer venue for this litigation to Massachusetts.*fn30 Indeed, as Plaintiff purportedly dismissed this action and filed the Massachusetts action in response to Defendant's motion to dismiss this action for, inter alia, lack of personal jurisdiction in New York, Plaintiffs might even have sought a stipulation from Defendants to transfer the action. Yet Plaintiff instead voluntarily dismissed this action on its own initiative, despite the Protective Order in place, avoiding its deadline to provide reciprocal discovery. Plaintiff then cancelled depositions (the majority of the remaining depositions being of its witnesses), and stated to Defendants that "[T]he previous matter has concluded and a new matter has replaced it." Plaintiff's conflicting position that "equity" favors treating the Massachusetts action as "new" litigation when it is tactically beneficial, but as "continuing" litigation when that course appears tactically preferable, is, to say the least, troubling.

Thus, I hold that the Protective Order in place in this action does not, and did not, allow the parties to this action to use "confidential" or "attorneys' eyes only" information in another action, including, but not limited to, the Massachusetts action, No. 07-cv-10729, and Defendants' New York action, No. 07-cv-3329.

B. Plaintiff's Motion to Modify the Protective Order is Denied

Regarding Plaintiff's efforts to move this Court to modify the Protective Order to use protected material in other litigation, Plaintiff's efforts are undercut by Plaintiff's apparent previous use of protected material in Massachusetts on an "emergency" basis, in part to seek the Massachusetts Court's modification of the Protective Order, before this Court had the opportunity to rule upon the issue of the Protective Order.*fn31 Moreover, Plaintiff's arguments regarding the propriety of the underlying "attorneys' eyes only" designations are irrelevant to its instant motion. The Protective Order makes clear that "attorneys' eyes only" information shall remain "attorneys' eyes only," and "shall be used solely for the purposes of the prosecution and defense of the above-entitled litigation," until an order of this Court provides otherwise (or Defendants provide permission, which certainly did not happen here).*fn32 In essence, Plaintiff, when it used "attorneys' eyes only" information in Massachusetts, did, to say the least, "jump the gun."

Plaintiff's counsel also suggested that following Plaintiff's voluntary dismissal, this Court's repeated orders to return discovery forthwith concomitantly modified the Protective Order and granted her the ability to use transcripts of these "attorneys' eyes only" depositions in the Massachusetts action. Such a contention strains credulity. I will address Plaintiff's actions, however, in a future opinion regarding Defendants' motion for contempt and sanctions, once such motion is fully briefed.

It is "presumptively unfair for courts to modify protective orders which assure confidentiality and upon which the parties have reasonably relied." AT&T Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005), citing S.E.C. v. TheStreet.com, 273 F.3d 222, 230 (2d Cir. 2001). Here, as the Court has entered a protective order and the parties have relied on that order, Plaintiff has not shown at this time a "a showing of improvidence in the grant" or "some extraordinary circumstance or compelling need" that supports modification of the Protective Order. See AT&T Corp. v. Sprint Corp., 407 F.3d at 562, citing Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296.

I will decline, at this time, to direct Plaintiff to redact from its filings in the Massachusetts action the "attorneys' eyes only" transcripts of depositions taken in this action. See In re Biovail Corp. Securities Litigation, 2007 WL 259933, at *1.*fn33 I will reserve decision on that sanction, as well as the more serious sanctions, including contempt, requested by Defendants, e.g., an award of costs and attorneys' fees for defending this motion and other motions in this litigation. These sanctions, as well as the branch of Defendant's motion that seeks disqualification of Plaintiff's counsel from the Massachusetts action, will abide the fully briefed motion and any hearings that are warranted.

While Lewis Carroll, if regaled with these facts, might write a best seller, I find them quite disturbing. Nonetheless at this time, I impose only two modest sanctions on Plaintiff's counsel. First, notwithstanding the language in the Protective Order that provides that counsel may keep "a copy of all depositions," I will leave in place the directive that Plaintiff's counsel, concomitant with its submission of an opposition to Defendants' motion for contempt and sanctions, shall return to the Court the copy of the deposition transcripts currently in its possession (and any other copies, if such copies are still in Plaintiff's counsel's possession).

Secondly, while not an order, I strongly suggest that Ms. Kristan Peters attend the New York County Lawyers' Association Continuing Legal Education class "Ethical Bounds of Aggressive Litigation," on June 19, 2007, at 8:30 A.M, at 14 Vesey Street, New York, NY 10007.*fn34 "The very spring and root of honesty and virtue lie in good education." Plutarch, MORALS.

IV. CONCLUSION

Plaintiff's motion to modify the Protective Order in this action is DENIED. Accordingly, as the Protective Order provides that "confidential" and "attorneys' eyes only" information may not be used in any other litigation, Plaintiff (and any party in this action) is barred from using such information in any other litigation, including any state, federal, administrative, or arbitration proceeding, and specifically including Wolters Kluwer Financial Services Inc. and CCH Inc. v. Scivantage, Inc. et. al., No. 1:07-cv-10729 (D. Ma.) and Scivantage Inc. v. Wolters Kluwer, N.V., No. 07-cv-3329 (S.D.N.Y.), until further order of this Court.


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