United States District Court, S.D. New York
OPINION AND ORDER
Honorable Ronald L. Ellis United States Magistrate Judge
November 3, 2016, Defendant Sloan-Kettering Institute for
Cancer Research ("SKI") filed a motion to enforce
the Court's Protective Order and sanction Plaintiff
Errant Gene Therapeutics, LLC ("EGT") and its
counsel. (Doc. No. 100). SKI filed a second motion for
sanctions and to hold EGT's lawyers in contempt of Court
for additional violations of the Court's Protective Order
on February 8, 2017. (Doc. No. 134.) Because EGT has violated
the Protective Order by using protected information to
initiate actions in other jurisdictions, the Court GRANTS
SKI's motions for sanctions, but does not certify the
matter for contempt.
March 18, 2015, Plaintiff Errant Gene Therapeutics, LLC
initiated this action by filing a Complaint against
Sloan-Kettering Institute for Cancer Research. (Doc. No. 1.)
The Parties negotiated a protective order and submitted
briefs as to the scope of the discovery to be categorized as
"Attorney Eyes Only" ("AEO") and the
number of people who would have access to information
designated as "Confidential." (Doc. Nos. 52-54,
61-64, 66, 70, 72.) On June 2, 2016, the Court held oral
argument on these issues and ruled that SKI's proposed
protective order, (Doc. No. 53-1), would operate as the
Parties' interim Protective Order until a final order was
issued by the Court. (Doc. No. 58.) The interim Protective
Order contained the provision:
...Confidential and Attorneys' Eyes Only information
shall be used by the Receiving Party solely for the purposes
of preparation for trial, pretrial proceedings, and trial of
actions and proceedings in the above-captioned action and not
for any business, commercial, regulatory, competitive,
personal or any other action.
(Doc. No. 53-1 at ¶ 8(1).) The Court issued an Opinion
and Order adopting SKI's proposed scope of the
"Attorneys' Eyes Only" designation to include
highly confidential research, development, and commercial
information. (Doc. No. 77 at 6-8.) In addition, the Court
adopted EGT's proposal to limit disclosure of
confidential informational to three employees. (Id.
at 8-9.) The Court directed the Parties "to conduct
discovery in [a] manner consistent with the opinion."
(Id. at 9.) The Parties never filed a fully-executed
amended protective order to replace the interim Protective
EGT's Proposed Motion
September 22, 2016, EGT requested leave from The Honorable
Alison J. Nathan to file a Second Amended Complaint. (Doc.
No. 87.) Judge Nathan terminated the Motion and directed the
Parties to resubmit the Motion before the undersigned. (Doc.
No. 88.) On September 30, 2016, the Court received a letter
from EGT indicating that the Parties had stipulated to EGT
filing the Second Amended Complaint. Letter from Kenneth
Sussmane, Counsel for EGT, to the Honorable Ronald L. Ellis
(Sept. 30, 2016). The letter indicated that a motion
requesting leave to file the Second Amended Complaint would
be forthcoming, and attached the proposed Second Amended
Complaint which contained highlighting of sections that SKI
contended should be filed under seal. (Id.) EGT
stated that those highlighted portions should not be filed
under seal or redacted. (Id.) On October 19, 2016,
EGT filed a joint letter from the Parties wherein EGT moved
to file its Second Amended Complaint and the Parties argued
their respective positions on sealing and redaction. (Doc.
No. 96.) EGT filed a letter in reply to some of SKI's
arguments that the Second Amended Complaint should be filed
under seal on October 21, 2016. (Doc. No. 97, refiled at
103.) SKI objected to EGT's reply letter, arguing that it
was improperly filed outside the Court's instruction to
submit discovery issues by joint letter. (Doc. No. 98.)
SKI's November 3, 2016 Motion
first motion to enforce the Protective Order and sanction EGT
and its counsel [hereafter "SKI's First
Motion"], SKI alleges that EGT violated the Court's
Protective Order through filing a complaint against Bluebird
Bio, Inc. ("Bluebird") in the Circuit Court of Cook
County, Illinois, using information learned in discovery that
was designated AEO and Confidential (Doc. No. 102.) EGT filed
its complaint against Bluebird on September 27, 2016
[hereinafter the "Illinois complaint"], and it
In the course of discovery in that [federal] case, Third Rock
Ventures and SKI produced documents relating to
[Bluebird]'s communications and dealings with SKI. Those
documents were designated as 'attorneys eyes only, '
thus EGT is precluded from publicly reciting what such
documents disclose in this Complaint.
Weiss Decl. Exh. 11. at ¶ 67. Following paragraph 67,
paragraphs 68-80 are redacted. Weiss Decl. Exh. 11. SKI
alleges that these redacted allegations contain information
derived from documents that are designated AEO and
Confidential. (Doc. No. 102 at 9.)
October 13, 2016, after being notified that SKI believed that
the Illinois complaint was a violation of the Protective
Order, EGT filed a motion to voluntarily nonsuit the Illinois
case "out of an abundance of caution." (Doc. No.
104 at 6, 8.); Vickery Decl. U 11. The Illinois court granted
the motion on October 14, 2016. Vickery Decl. If 11.
First Motion seeks a Court Order that would "(1) enjoin
EGT from further misuse of protected materials, (2) revoke
the pro hac vice admissions of the culpable
attorneys [Vitale Vickery Niro & Gasey LLP], (3) preclude EGT
from any use of the non-party documents it received under its
subpoena, and (4) award SKI its reasonable attorneys'
fees and ...