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Boston Scientific Corp. v. Lee, Flexibility and Creativity Should Be Tapped During Meet and Confer, Not After…

Dongchul Lee worked as a senior biomedical systems engineer for Boston Scientific and subsequently left to work for Nevro Corporation, a direct competitor in the spinal cord stimulation device market. Boston Scientific sued Lee, but not Nevro, alleging that Lee’s breached both his confidentiality agreement and brought work product and trade secrets to Nevro.

As part of discovery, Boston Scientific sought to have Nevro produce the two computers laptops assigned to Donghul Lee as part of his employment and all documents containing proprietary information. During the meet and confer, the parties were able to agree to a production regarding documents containing proprietary information but were unable to agree on an approach for the two laptops. When the lawsuit commenced, the first laptop Nevro assigned to Lee was given to a third party e-discovery vendor and Lee was assigned a second laptop which had been used by other employees, one of whom handled sensitive and confidential issues for Nevro. With respect to Lee’s first laptop, Nevro both sent it to a third party vendor and produced forensic information about its contents and in addition offered to have an independent vendor review a full forensic image of the laptop, an offer which Boston Scientific declined. Boston Scientific issued a subpoena for both of Lee’s laptops demanding a complete forensic image of each and Nevro filed a motion to quash.

In its analysis, the court noted that although Rule 26 broadly construes relevancy, one of the boundaries involves the protection of third parties from “harassment, inconvenience or disclosure of confidential documents.” The court further noted that Fed.R. Civ.P. 45(d) 2 (B) (ii) states that when a court “orders compliance with a subpoena over an objection, ‘the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.”’

The judge immediately found that Lee’s second laptop was not discoverable as he only began utilizing it after the litigation began. Boston Scientific argued that forensic imaging of both laptops was necessary to determine the hardware Lee used to download Boston Scientific documents and whether or not any of the documents were deleted after the litigation began. The court found Boston Scientific’s demand for a complete forensic image of both laptops too much to demand as the forensic imaging would disclose both privileged communication and irrelevant trade secrets from a nonparty-competitor. Boston Scientific’s subpoena, the court reasoned, sought protected matter, not permitted under Rule 45 rendering the subpoena overbroad and imposing an undue burden on Nevro. The court emphasized that forensic imaging “remains highly invasive and engenders the risk of unanticipated, accidental disclosure of crown jewels,” and was a particularly pronounced threat in competitor-competitor litigation. The court rejected Boston Scientific’s fall back positon which was the approach originally offered by Nero, the retention of an independent vendor to review a full forensic image of the first laptop. The court found that to allow Boston Scientific to now seek shelter from a fallback position would make a “mockery of both parties’ obligations to meet and confer in good faith from the start.” The court emphasized that the “time to tap flexibility and creativity is during meet and confer, not after.”

Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014)

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