Author Sherry Argov asserts that she had an agreement with the predecessor of Simon & Schuster Digital Sales to publish and sell digital paperback hard-copies of her book Why Men Love Bitches. The agreement required the payment of royalties on a per-copy basis. The book was successful, selling more than 2 million copies between 2002 and Simon & Schuster’s 2016 acquisition of the company that had initially published the book. Argov says that this agreement was violated by Simon & Schuster’s inclusion of the book in its sBook and eLending subscription programs and other all-inclusive bulk marketing platforms, which is expressly prohibited by the agreement and with no royalties paid to Argov. Argov says that she waived an advanced payment in return for the clause prohibiting the inclusion of the book in bulk subscriptions. She further asserts that some of the subscription s permit the downloading of her book without t the digital rights management information, allowing the book to be copied and further distributed due to the lack of encryption security. Argov says that Simon & Schuster refused to withdraw the book from these subscription services and refused to provide an accounting of the number of views or downloads occurred through the subscription services. Argov asserts copyright infringement, breach of contract and of the implied covenant of good faith and fair dealing, and violation of 93A. She further seeks a declaration that the agreement with Simon & Schuster is terminated as a result of the breaches of the agreement. Judge O’Toole has the case.
Wildlife Acoustics makes bioacoustics monitoring technology used to monitor various animal species around the world. This technology can supplement or replace other, more manpower-intensive monitoring methods. Wildlife’s recorder design allowed for a significant reduction in power usage, enabling the use of much smaller batteries and a smaller and lighter recording device that is considerably easier to pack into remote locations. Wildlife accuses Australia’s Frontier Labs of infringing its U.S. Patent No. 7,782,195, which covers these recording devices, through the sale of competing BAR audio recording devices. Judge O’Toole has been assigned to the case, which was filed by my firm, Lando & Anastasi.
Judge O’Toole ruled on a pair of privilege disputes in this trade secret litigation, finding some claims of privilege to be without merit while upholding others. Lynx accuses Zebra of misappropriating real-time player tracking technology and used it to obtain a deal with the NFL that did not include Lynx. During discovery, certain e-mail chains were produced by Zebra in both keyword-searchable and non-searchable formats; redactions based on privilege were made in only one of the formats. The parties could not resolve whether the privilege claim was legitimate, leading to the filing of a motion to remove the redactions by Lynx. A first set of e-mails included communications between Zebra, Zebra’s counsel, and non-employee consultants hired by Zebra o assist in reaching agreement with the NFL. Following en camera review of the communications in question, Judge O’Toole determined that Zebra had waived privilege in these communications by sharing them with the consultants. He found that the Kovel doctrine, which extends privilege to communications with third parties that are necessary, or at least highly useful, for effective consultation between the client and the attorney, did not apply, because the redacted communications were not made for the purpose of obtaining legal advice, and instead concerned business advice. The communications also did not demonstrate that the consultants were necessary to interpret matters beyond the lawyers’ reach. He also rejected Zebra’s attempted reliance on the “functional equivalent” doctrine, by which non-employee agents of a corporation can be considered functionally equivalent to corporate employees by virtue of their close connection to the corporation, such that privilege would extend. Here, the consultants were not so closely tied to Zebra as to be equivalent to employees – they lacked longstanding relations with the company, worked remotely, were not Zebra’s sole representatives in negotiations, and were free to work for others. Judge O’Toole further noted that neither the First Circuit nor the District of Massachusetts had ever adopted or applied the doctrine. The results were different with respect to a different set of communications, with Judge O’Toole upholding the privilege in communications between Zebra executives and in-house counsel. He noted that such communications would only be privileged if they revolved around legal, as opposed to business, advice, but noted that the communications in question did address legal perspectives on issues being discussed.