Ivymedia Corporation v. Ilikebus, Inc. et al

Filing 106

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. re 99 MOTION to Compel Disclosure and Document Production filed by Tong Wei, Ilikebus, Inc., Alan Zou In accordance with the foregoing, defendants motion to compel is ALLOWED but their request for reimbursement of the expense of filing the motion is DENIED without prejudice.(Caruso, Stephanie)

United States District Court
District of Massachusetts

IVYMEDIA CORPORATION,
Plaintiff,
v.
ILIKEBUS, INC., ALAN ZOU, TONG
WEI AND JOHN DOE,
Defendants.

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Civil Action No.
15-11918-NMG

ORDER
GORTON, J.
Plaintiff IvyMedia Corporation (“plaintiff”) alleges
copyright infringement by iLIKEBUS, Inc., its director, Alan
Zou, and its Chief Executive Officer, Tong Wei (collectively,
“defendants”).

iLIKEBUS, Inc. is a competitor of plaintiff in

the business of online ticketing and reservation services for
bus companies.

Specifically, plaintiff claims that defendants

unlawfully copied its website’s characteristics.
Defendants’ motion to compel disclosure and document
production related to plaintiff’s claim of $600,000 in actual
damages is pending before the Court.

For the reasons that

follow, that motion will be allowed, in large part, but denied,
in some part.
Plaintiff has thus far produced only a description of the
methodology it used to calculate its purported damages and a
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letter from its marketing manager regarding damages.

Plaintiff

refuses to produce any other information or documents with
respect to alleged damages on the grounds that such material
involves confidential and proprietary trade secrets.
“[T]here is no absolute privilege for trade secrets and
similar confidential information.” ITT Electro-Optical Prod.
Div. of ITT Corp. v. Elec. Tech. Corp., 161 F.R.D. 228, 231 (D.
Mass. 1995) (quoting Fed. Open Mkt. Comm. v. Merrill, 443 U.S.
340, 362 (1979)).

Federal Rule of Civil Procedure 26(c)(1)(G)

states that courts may issue protective orders that limit the
kind of information that is revealed about a trade secret or
require that it only be revealed in a certain manner.

A court

must weigh the need for the information that supposedly includes
trade secrets against the purported injury that would occur if
such secrets were disclosed. Id.

It is within a court’s

discretion to determine the appropriate protection, if any, for
sensitive information at issue. Id.
Applying that principle, defendants’ motion to compel is
well taken.

Although the information underlying plaintiff’s

damages calculations may involve trade secrets, defendants are
entitled to such information in order to respond to plaintiff’s
claim of damages. See Elec. Tech. Corp., 161 F.R.D. at 231.
Moreover, this Court has already issued a protective order to
which the discovery sought will be subject.
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If plaintiff

chooses to waive its claim for monetary damages and limit the
relief sought to an injunction, it will not be required to
disclose what it deems to be trade secret information.
Defendants’ request that plaintiff be required to reimburse
them for expenses incurred as a result of the filing of the
motion to compel will be denied without prejudice.

If plaintiff

persists in withholding discovery of its purported actual
damages, however, defendants may renew such request.
In accordance with the foregoing, defendants’ motion to
compel is ALLOWED but their request for reimbursement of the
expense of filing the motion is DENIED without prejudice.

So ordered.
/s/ Nathaniel M. Gorton
d
Nathaniel M. Gorton
United States District Judge
Dated April 21, 2017

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