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Errant Gene Therapeutics, LLC v. Sloan-Kettering Institute for Cancer Research

United States District Court, S.D. New York

June 5, 2017



          Honorable Ronald L. Ellis United States Magistrate Judge


         On 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.


         On 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 Order.

         A. EGT's Proposed Motion

         On 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.)

         B. SKI's November 3, 2016 Motion

         In its 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 states:

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.)

         On 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.

         SKI's 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][1], (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 ...

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