Richards v. Kallish

Background

The court held a telephone status conference on September 19, 2023, to address discovery disputes raised in several party filings. This order memorialized the rulings made during that conference and separately addressed Richards’s request to seal part of an exhibit.

Richards’s August 9 letter motion

The court ruled as follows:

- Denied Richards’s motion to compel evidence that the individuals listed on the defendants’ privilege log were employed by Everyone’s Earth. - Denied Richards’s motion to compel production of 199 attorney invoices in unredacted form for the court’s private review. - Denied, without prejudice to renewal after Richards reviewed the defendants’ September 18, 2023 document production, Richards’s motion to compel production of 295 privilege-log entries. If Richards sought further court intervention, she was required to provide the disputed privilege-log descriptions and explain the grounds for questioning them. - Denied Richards’s request for the court’s private review of 624 documents that the defendants had removed from their privilege log as nonresponsive. Any renewed request had to identify the disputed descriptions from the log of nonresponsive documents and explain the grounds for questioning them. - Denied as moot Richards’s motion to compel production of Everyone’s Earth’s financial statements and related documents because the parties indicated that those documents had been produced. - Granted Richards’s request for permission to subpoena Tommie Copper Inc. for documents showing sales of Tommie Copper stock by Thomas C. Kallish from Tommie Copper Inc. or its applicable holding company, while noting that permission was not required. - Granted Richards’s request for the court’s private review of four pages that she had produced with redactions to protect purported trade secrets. The court directed her to submit the pages and an explanatory letter by September 22, 2023. It deferred ruling on whether she had to produce the documents with an attorneys’-eyes-only designation.

Defendants’ August 16 letter motion

The court granted the defendants’ motion to compel Richards to correct deficiencies in her document production. It directed her to identify where each document began and ended and to place each document in a separate PDF file. The court also stated that the defendants could apply their own Bates numbers to the production, which would govern in the case, unless the parties and their vendors agreed on a more efficient solution.

The court granted in part and denied in part the defendants’ motion to compel Richards to respond to Requests for Production Nos. 5 through 8. The defendants had to narrow those requests to communications relevant to the patents at issue, and Richards had to produce documents responsive to the narrowed requests.

The court denied the defendants’ motion to compel responses seeking copies of all payments Richards received from Tommie Copper, Inc. and Tommie Copper (Holdings) Inc.

Richards’s August 25 letter motion

The court denied Richards’s motion to strike part of the defendants’ reply concerning their motion for a protective order. It also denied Richards’s motion to compel unredacted copies of Everyone’s Earth’s stockholder lists and communications between the defendants and Everyone’s Earth stockholders or prospective investors concerning the patents at issue.

Sealing request

Richards moved to seal pages five through seven of Exhibit B to the defendants’ reply, asserting that the pages contained confidential trade secrets relating to the patents. The defendants argued that they owned the patents and disputed the need for sealing.

The court explained that filed materials relevant to the judicial process generally carry a presumption of public access. Because the exhibit was filed in connection with a discovery dispute, the presumption was lower than it would be for materials connected to a trial or a motion that could end the case. The court also explained that protecting trade secrets can justify sealing when the sealing is necessary and narrowly tailored.

The court found that pages five through seven facially appeared to contain trade secrets because they appeared to include business information that could give an advantage to competitors who did not know or use it. Because the information related to the patents and inventorship was disputed, the court found it premature for the defendants to disclose the information publicly over Richards’s objections. It therefore granted Richards’s motion to seal and ordered the pages provisionally sealed pending resolution of the inventorship dispute. The Clerk was directed to change the viewing level for the filing to selected parties, and the defendants were directed to submit a redacted version of Exhibit B omitting those pages.

The court directed the Clerk to terminate the pending letter motions at ECF Nos. 94, 97, 99, 100, and 102. The order did not decide the parties’ underlying patent or inventorship claims.