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Wolters Kluwer Financial Services Inc. v. Scivantage

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 ...


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