Docket No. HHD-CV-16-6070719-S
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`SS&C TECHNOLOGIES, INC.,
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`vs.
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`RICHARD PULLARA,
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`Docket No. HHD-CV-16-6070536-S
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`SS&C TECHNOLOGIES, INC.,
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`vs.
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`CLEARWATER ANALYTICS, LLC.
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF HARTFORD
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`AT HARTFORD
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF HARTFORD
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`AT HARTFORD
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`DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
`PRODUCTION OF DISCOVERY IN RESPONSE TO CERTAIN OF SS&C’S
`SECOND SET OF DISCOVERY REQUESTS
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`INTRODUCTION
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`Plaintiff’s Motion to Compel Production of Discovery in Response to Certain of SS&C’s
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`Second Set of Discovery Requests (“SS&C’s Second Motion to Compel”) continues a recurring
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`theme in this litigation. In it, SS&C makes sweeping, unfounded accusations that Defendants
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`misappropriated its trade secrets and used them to injure and cause damage to SS&C, and then
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`leverages those broad and baseless allegations to demand sweeping access to large swaths of
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`Defendants’ documents. SS&C’s claims of injury and damage have no factual support, and may
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`not be used as a basis to launch a fishing expedition into Defendants’ files and customer
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`relationships.
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`First, SS&C’s Interrogatory No. 25—and the many requests for production that are keyed
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`off of it—seeks extensive information and documents relating to each and every customer that has
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`switched from SS&C to Clearwater since 2010, even those that do not appear on the agreed list of
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`customers that “might have some connection to this case.” (SS&C’s Second Mot. to Compel, at 6-
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`7). As SS&C’s own motion makes clear, that list—to which Defendants have added the fruits of
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`their continued investigation (
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`)—is comprehensive and,
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`if anything, massively overbroad.
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` SS&C offers no good faith basis to seek discovery
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`regarding customers not on the agreed-to list. Specifically, although SS&C insists it has been
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`injured by Defendants’ alleged actions, SS&C has offered no reason to believe that Clearwater has
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`ever won over a single SS&C customer through anything but legitimate competition. It should not
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`be permitted discovery into every customer that has switched to Clearwater in the vain hope of
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`finding some shred of evidence to support its baseless claims of injury.
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`Second, SS&C’s Request for Production No. 41 demands all documents relating to any
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`customer’s transition from SS&C to Clearwater and is objectionable for the same reasons as
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`Interrogatory No. 25. It is also objectionable because transition efforts occur after a client has
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`already made its decision to switch to Clearwater and are therefore irrelevant to any alleged injury
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`or damages. Nevertheless, Clearwater has reasonably offered to search for such documents to the
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`extent they mention SS&C or its products, which are the only documents likely to show whether
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`and to what extent Defendants used any of SS&C’s information to assist in transitioning customers.
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`(See id. at 12). SS&C has refused, and instead insists that Clearwater must produce all documents
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`relating to any customer transition. There is no basis for SS&C’s demand, which would require
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`Defendants to review tens of thousands of irrelevant documents.
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`Third, SS&C’s Request for Production No. 49, which seeks information concerning the
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`value of Clearwater, has no bearing on any of the issues raised in this action. SS&C argues, without
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`authority, that the highly confidential valuation of a private company somehow bears on a potential
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`claim for unjust enrichment. It would not, but, in any event, SS&C has steadfastly refused to
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`articulate a damages theory, and cannot now use the mere possibility of claiming unjust enrichment
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`as a means to obtain discovery of highly sensitive valuation information.
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`Fourth, SS&C’s Request for Production No. 35 seeks far-reaching discovery of any
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`adverse action taken against Clearwater employees for violation of internal company policies
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`relating to confidential or proprietary information. It represents yet another effort by SS&C to
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`make an end run around the prior orders of others courts precluding SS&C from engaging in
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`“pattern and practice” discovery and inserting irrelevant events into this litigation. The requested
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`information has no bearing on any of the issues in this litigation and is not, as SS&C argues,
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`probative of Clearwater’s “intent” in this case.
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`All of these points were conveyed to SS&C during the parties’ extensive meet-and-confer
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`process, along with the substantial burdens imposed by the discovery requests at issue. As
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`Defendants have explained to SS&C, Defendants have already undertaken a substantial burden in
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`document review. To date, Defendants have reviewed 195,000 documents in this matter and
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`committed to review 300,000 more documents and calendar entries in order to respond to SS&C’s
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`Second Set of Interrogatories and Requests for Production of Documents.
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` The proposals put forth by SS&C would require an unjustified expansion of
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`this already comprehensive discovery.
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`For these reasons, SS&C’s Second Motion to Compel should be denied in its entirety.
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`BACKGROUND
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`Once again, SS&C has provided a slanted and self-serving recitation of the factual record,
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`which is largely irrelevant to the issues before the Court. With no factual basis, SS&C characterizes
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`Clearwater’s rise and SS&C’s decline in the marketplace as the product of some malign
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`conspiracy, rather than a reflection of the relative quality of each company’s products and services.
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`SS&C further muddies the record by trying to confuse the issues presented in this matter with
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`issues pending in separate litigation brought by SS&C against Clearwater and a different former
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`Clearwater employee, SS&C Technologies, Inc. v. Rossa, et al., Circuit Court of Cook County
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`Illinois, Chancery Division, Case No. 15 CH 15891 (“Rossa Litigation”). Both this Court and the
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`court in the Rossa Litigation have previously ruled that the cases must be kept separate, and have
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`rejected SS&C’s efforts to combine them. Accordingly, Defendants must once again correct the
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`record.
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`There is no dispute that Mr. Pullara is a former employee of SS&C or that he had some
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`SS&C materials in his possession when he left the company in March 2012. (Ex. C, Pullara Resp.
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`to Interrog. No. 11). Mr. Pullara began working as a Manager of Insurance Solutions for
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`Clearwater on March 19, 2012. (Pullara Ans., ¶ 24). Nearly two months later, on May 10, 2012,
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`SS&C sent a letter to Mr. Pullara, citing a non-disclosure agreement Mr. Pullara had apparently
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`signed and reminding him of his non-disclosure obligations. (Ex. C, Pullara Resp. to Interrog. No.
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`11). Mr. Pullara took this letter and the referenced agreement seriously and promptly searched his
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`home and office for any SS&C material or devices that might contain any material governed by
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`the agreement. (Id.). Mr. Pullara destroyed any material he found, including flash drives in his
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`possession. (Id.). Mr. Pullara then informed SS&C by return letter that he did not have any
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`proprietary materials in his possession. (Id.).
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`While Mr. Pullara did share some SS&C materials with colleagues before receiving
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`SS&C’s letter, the universe of relevant information is very small—fewer than thirty documents,
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`far fewer than the thousands of documents SS&C insinuates are at issue.1 Moreover, none of the
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`information that was shared constitutes a protected trade secret. For example, SS&C makes much
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`of Mr. Pullara’s role in revising Clearwater’s “kill sheet” on SS&C. A kill sheet is a document
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`akin to a cheat sheet for sales staff that collects various talking points about competitors’ products.
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`There is nothing nefarious about kill sheets; both Clearwater and SS&C prepare them for multiple
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`competitors.
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`create and/or update kill sheets for various products, many of which were not sold by SS&C.
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` Mr. Pullara, as an insurance specialist, was assigned to
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`SS&C contends that Mr. Pullara’s input resulted in expanding Clearwater’s kill sheet on
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`SS&C from two pages to eight pages. A simple comparison of the two documents shows that
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`Clearwater fleshed out the original kill sheet to include additional public information, such as the
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`different types of SS&C products available and their functionalities, which was easily obtainable
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`from SS&C’s website at the time. (Ex. H, publicly available, archived version of SS&C website
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`as of 5/13/12). It also added information, such as typical contract length, that it could have learned
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`from any sales prospect.
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`Likewise, the “book of [SS&C] reports for CAMRA 6.0” comprises nothing more than
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`vague descriptions and screenshots of the various types of reports that can be run in CAMRA 6.0.
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`This information was also publicly disclosed on the SS&C website at the time and would have, by
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`1 As noted in Defendants’ Motion to Compel Discovery into SS&C’s Alleged Claims and Damages, to date, SS&C
`has refused to identify the alleged trade secrets at issue apart from a vague allusion to thousands of documents
`produced in this case, which makes it impossible to determine whether any information SS&C alleges is protected has
`in fact been shared.
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`necessity, been disclosed to Clearwater by potential clients during the sales process to determine
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`whether the Clearwater solution would meet their needs.
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` Notably, while SS&C has attached a few examples of its alleged trade secrets
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`to its various briefs, it fails to attach the REX 6.0 Report Book, perhaps because the simple
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`examination of such demonstrates SS&C’s characterization of its contents to be hyperbole.
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`SS&C’s other examples of alleged trade secrets are similar.
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` to SS&C’s
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`motion are emails sent a few months outside of the relevant time period and reflect nothing more
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`than Mr. Pullara’s generic knowledge of various insurers based upon his years of experience in the
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`insurance industry, not any protected SS&C information. (SS&C’s Second Mot. to Compel.
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` The same is true of the “customer list” attached as
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` It is comprised primarily of
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`information that would have been, of necessity, disclosed by the relevant prospect during the sales
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`process, such as contract duration or pricing.
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`But SS&C’s mischaracterizations of its own documents are largely beside the point here.
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`More important is the fact that, contrary to SS&C’s misleading statement, there was no “focused
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`campaign against SS&C” at Clearwater.
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` To the contrary, Clearwater did not have to
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`target SS&C clients because they were contacting Clearwater on their own due to their
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`dissatisfaction with SS&C.
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` An email
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`exchange between Mr. Pullara and a former SS&C colleague, Derek Ryan, in October 2013 proves
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`the point. In response to Mr. Ryan’s question
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` Pullara responded that:
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` Mr. Ryan, still an SS&C employee, responded,
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`This exchange is consistent with Clearwater’s “win analyses,” in which client after client
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`recount how SS&C’s products and services did not satisfactorily meet their needs.
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` (recounting multiple problems with
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`solutions provided by SS&C that were solved by Clearwater, including data quality
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` expertise in tax reporting
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` and high costs associated with SS&C performance and
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`compliance reporting solutions);
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`rise and SS&C’s decline in the market is the result of the products and services each provides. It
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`is against this backdrop that SS&C’s Second Motion to Compel should be addressed.
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` The story of Clearwater’s
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`LEGAL STANDARD
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`While the scope of pre-trial discovery is broad, “it is not limitless.” Esposito v. Town of
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`Bethany, No. CV065002923S, 2007 WL 4711474, at *2 (Conn. Super. Ct. Dec. 14, 2007). The
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`scope of discovery is defined by “Practice Book § 13–2, [which] provides in relevant part:
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`‘[d]iscovery shall be permitted if the disclosure sought would be of assistance in the prosecution
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`or defense of the action and if it can be provided by the disclosing party or person with substantially
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`greater facility than it could otherwise be obtained by the person seeking disclosure.’” Jimenez v.
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`Brooks, No. LLICV146011314S, 2016 WL 1443594, at *4 (Conn. Super. Ct. Mar. 15, 2016)
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`(quoting Conn. Practice Book § 13-2). “It shall not be ground for objection that the information
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`sought would be inadmissible at trial if the information sought appears reasonably calculated to
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`lead
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`to
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`the discovery of admissible evidence.”
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`Id. “Discovery procedures, however,
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`are not intended to be used as tools to annoy, embarrass, or oppress the party who is the subject of
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`a discovery procedure.” Id.
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`To be appropriately tailored, there must be a demonstrated connection between the request
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`and the claims at issue in the action in which the discovery is sought. See, e.g., Constr. Servs. Of
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`Bristol, Inc. v. CDC Fin’l Corp., No. CV970478709S, 2000 WL 1770277, at *3-4 (Ct. Super. Ct.
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`Oct. 19, 2000) (refusing to compel financial information where the complaint was devoid of any
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`claim or allegation that would put financial information at issue); Osborne v. Vasquez, 2013 WL
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`995070, at *3 (D. Conn. Mar. 11, 2013) (denying a motion to compel a response to a discovery
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`requests seeking information about any excessive force complaints made against any defendants
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`in a civil rights action, finding that the information sought was of limited relevance to the claims
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`asserted and the request seeking it was overbroad, as it was not restricted by date or type of
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`complaint). Based on these legal principles, SS&C’s motion should be denied.
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`ARGUMENT
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`I.
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`SS&C’S INTERROGATORY NO. 25 AND ASSOCIATED REQUESTS FOR
`PRODUCTION ARE OVERLY BROAD AND UNDULY BURDENSOME.
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`SS&C’s motion to compel a response to Interrogatory No. 25 represents a sudden departure
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`from the parties’ previous, exhaustive negotiations to create an agreed-upon at-issue entity list to
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`be used in discovery in this matter. As SS&C acknowledges, the entity list was the result of
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`collaboration between both parties in order to come up with a workable list of search terms for
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`entity-specific discovery requests, and includes:
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`• Entities on SS&C’s client list that switched to Clearwater, originally identified in
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`• Customers who switched from SS&C to Clearwater between 2012 and August 2016
`that were identified in SS&C’s Answer to Interrogatory No. 5 (provided by SS&C);
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`• The companies Mr. Pullara recalls working with in some capacity in his position with
`either SS&C or Clearwater (provided by Defendants);
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`• A list of entities identified by SS&C that it believed were at issue in this litigation; and
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`• Correspondence refinement of SS&C’s May 18, 2017 list by Defendants to refine the
`entities included in SS&C’s list.
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` Defendants cooperated to create the list; even though,
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`they do not agree that the entities it includes are necessarily relevant to SS&C’s claims. The list
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`reflects Defendants’ diligent investigation of the allegations of this case and their effort to
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`compromise in the face of overreaching discovery.
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`After several months of negotiation to create the agreed list, SS&C abandoned it in
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`Interrogatory No. 25 and the associated requests for production.
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` The impact of that about-face is compounded by Interrogatory No. 25’s stated
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`timeframe of January 1, 2010 (over two years before Mr. Pullara hire date) to the present, a more
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`than seven-year period that dwarfs the period of relevant conduct in this case.
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` By abandoning the effort expended by both parties in generating the
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`entity list and imposing a timeframe for information sought, Interrogatory No. 25 and associated
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`Request for Production Nos. 34, 40, 41, 42, 46, and 50 (each of which seeks documents relating to
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`all customers who switched from SS&C to Clearwater) extend far beyond the legitimate scope of
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`discovery and attempt to impose an undue burden on Defendants.
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`A.
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`Discovery requests relating to all customers who switched from SS&C to
`Clearwater are overly broad and irrelevant.
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`The scope of discovery is established by Practice Book § 13-2, “which provides in relevant
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`part: ‘a party . . . may obtain . . . discovery of information or disclosure, production and inspection
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`of papers, books or documents material to the subject matter involved in the pending action, which
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`are not privileged . . . . Discovery shall be permitted if the disclosure sought would be of assistance
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`in the prosecution or defense of the action . . . .” Dotson v. Hartford Roman Catholic Diocesan
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`Corp., No. CV106012742S, 2011 WL 1021745, at *4 (Conn. Super. Ct. Feb. 17, 2011) (quoting
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`Practice Book § 13-2 (omissions in original)). The court in Dotson noted that to fall within this
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`scope, the discovery sought must bear some relation to the allegations of the operative complaint:
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`Discovery is confined to facts material to the plaintiff's cause of
`action and does not afford an open invitation to delve into the
`defendant's affairs . . . . A plaintiff must be able to demonstrate good
`faith as well as probable cause that the information sought is both
`material and necessary to his action . . . . A plaintiff should describe
`with such details as may be reasonably available the material he
`seeks . . . and should not be allowed to indulge a hope that a
`thorough ransacking of any information and material which the
`defendant may possess would turn up evidence helpful to [his] case
`. . . . What is reasonably necessary and what the terms of the
`judgment require call for the exercise of the trial court’s discretion.
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`Id. (quoting Berger v. Cuomo, 230 Conn. 1, 6-7, 644 A.2d 333, 337 (1994) (omissions in original))
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`(emphasis added). Accordingly, the court in Dotson refused to order the sweeping production of
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`all information concerning complaints of sexual assault against a priest, instead limiting that
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`production to a defined time period shown to be relevant to the claims made in the case. Id. A
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`similar finding was made in Gjika v. Cummings, No. CV106005867, 2011 WL 3427221 (Ct.
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`Super. Ct. July 12, 2011), in which the court rejected the defendant’s efforts to compel several
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`years of the plaintiff’s medical records as nothing more than a “fishing expedition.” Id. at *1.
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`SS&C’s Interrogatory No. 25 is a classic example of a fishing expedition—indeed, it falls
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`within the Black’s Law Dictionary definition of that term: “An attempt, through broad discovery
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`requests or random questions, to elicit information from another party in the hope that something
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`relevant might be found . . . .” Gjika, 2011 WL 3427221, at *1 n.6 (quoting Black’s Law Dictionary
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`(7th Ed. 1999)). Notwithstanding
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`its unsubstantiated allegation
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`that Defendants’
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`“misappropriation of SS&C’s trade secrets has caused, and will continue to cause, damages to
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`SS&C’s business, client relationships, goodwill and reputation,” (Complaint, ¶ 51) SS&C has not
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`yet identified any specific clients or documents that give rise to any injury in this case and has
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`refused to articulate a damages theory. SS&C does not allege—because there is no reason to
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`believe—that Defendants used SS&C material to influence any SS&C client to switch to
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`Clearwater. In fact, as noted by Mr. Pullara in his October 10, 2013 email to a former SS&C
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`colleague, targeting SS&C clients was not necessary because those clients generally approached
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`Clearwater due to their dissatisfaction with SS&C. (Id., at 4-5). Indeed, many of the win analyses
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`for SS&C clients that switched to Clearwater that have been produced in this matter show that the
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`switch to Clearwater was the result of customer dissatisfaction with the products and services
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`provided by SS&C as well as interest in the streamlined services that Clearwater’s solutions
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`offered. (Id., at 5).
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`SS&C’s motion, which is heavy on insinuation but short on factual support, is consistent
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`with SS&C’s blunderbuss discovery strategy. Innuendo is not a proper basis for discovery, and
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`SS&C’s claim that information about switching customers is “highly relevant to SS&C’s liability
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`and damage theories” is quite simply false. (See generally Defendants’ Mot. to Compel SS&C’s
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`Liability and Damages Information). Just as in Dotson, SS&C instead seeks to ransack the
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`Defendants’ information in hopes of turning up something, anything, that will support its claim.
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`B.
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`Discovery into all customers who switched from SS&C to Clearwater is
`unduly burdensome.
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`Contrary to SS&C’s contention, Defendants have not refused wholesale to respond to these
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`requests. Defendants have simply rejected SS&C’s demand to abandon the parties’ prior efforts in
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`formulating the entity list and take on the undue burden imposed by Interrogatory No. 25 and the
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`associated requests for production. As shown by the sheer number of discovery requests associated
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`with Interrogatory No. 25, every entity added to the parties’ agreed entity list increases the number
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`of documents returned for those requests, thereby increasing the burden of response. In absence of
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`more specific allegations or articulation of damages, there is absolutely no basis on which to argue
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`that every single client that switched to Clearwater is relevant in this action.
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`The burden and marginal relevance of the information sought in Interrogatory No. 25 is
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`compounded by the fact that the information that SS&C claims it is seeking in this interrogatory
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`is information within its own possession. As noted in Practice Book § 13-2, “Discovery shall be
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`permitted if the disclosure sought would be of assistance in the prosecution or defense of the action
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`and if it can be provided by the disclosing party or person with substantially greater facility than
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`it could otherwise be obtained by the party seeking disclosure.” Conn. Practice Book § 13-2. The
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`“substantially greater facility” requirement is typically invoked where one party seeks to impose
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`on another the burden of physically obtaining information that is equally available to, or more
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`readily available to, the requesting party. See Jacques v. Cassidy, 28. Conn. Supp. 212, 222, 257
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`A.2d 29, 34 (Super. Ct. 1969) (“‘Substantially greater facility’ should not be interpreted so as to
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`require the moving party to prove that it is impossible or even difficult for him to obtain the
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`information. If it is easier—to a substantial degree—for the other party to provide it, that is all that
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`phrase . . . requires.”).
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`One common example of “substantially greater facility” includes a refusal to produce
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`documents that are publicly available. See, e.g., Deutsche Bank Nat’l Trust Co. v. Griffin, 2008
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`WL 1948029, at *2 (Conn. Super. Ct. Apr. 22, 2008) (documents sought by the plaintiff were
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`publicly available and therefore equally accessible to the plaintiff). Other examples include
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`instances where the production of documents is more practical than taking a deposition. See, e.g.,
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`Clarke v. Rieger, 2007 WL 155198, at *3 (Conn. Super. Ct. Jan. 9, 2007) (pleadings and medical
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`records from a previous case were obtainable through means less burdensome than a deposition of
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`the attorney from that case).
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`Here, SS&C is perfectly capable of determining for itself which of its lost customers
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`switched to Clearwater, and has done so. Requiring Clearwater to search through its records to
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`identify each and every such customer, and then using that information to require Defendants to
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`review 75,000 additional documents (perhaps more depending on the eventual scope of
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`Interrogatory No. 25) using SS&C’s proposed search terms, is unjustified given the parties’ similar
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`access to information.2
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`II.
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`SS&C’S REQUEST FOR PRODUCTION NO. 41 IS IRRELEVANT AND
`UNDULY BURDENSOME.
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`Request for Production No. 41 seeks “[a]ll Documents and Communications relating to
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`any customer’s transition from SS&C’s software, products, and services to Clearwater’s software,
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`products and services.” (SS&C’s Second Mot. to Compel,
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` Given the otherwise
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`extraordinarily broad scope of this request, Defendants proposed that the search protocol for
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`responsive documents require hits on SS&C-related terms.
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` This proposal makes sense given SS&C’s focus on Defendants’ alleged use of SS&C
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`information. Documents that do not contain any SS&C-related terms are highly unlikely to have
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`any relevance, and reviewing them would be a burdensome waste. Removing SS&C-related terms
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`from the search would require Clearwater to review an additional 75,000 documents, a number
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`that will grow with every addition to the entity search list.
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`. Yet SS&C has refused this
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`reasonable limitation, and insists that Clearwater undertake a substantial additional burden.
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`This burden is not justified by the marginal relevance of this information. The “transition”
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`period for any client includes the process of moving the client’s information from the SS&C
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`system to the Clearwater system after the client makes the decision to switch. This information is
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`beyond the scope of discovery, as the allegations of the Complaint are focused on client
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`acquisition, not the transition process. Further, those allegations are focused on SS&C clients
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`acquired by Clearwater and do not warrant the use of broad search terms unconnected to SS&C.
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`2 Indeed, this position is consistent with SS&C’s stated position on burden with respect to Defendants’ discovery
`requests.
` (objecting to a search protocol across an agreed entity list resulting
`in 195,000 documents for review as unduly burdensome).
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`Those search terms would return a large volume of highly confidential client financial information
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`that is not Clearwater’s to disclose and has absolutely no relevance to this matter, along with
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`wholly irrelevant communications concerning training schedules and access to the Clearwater
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`system.
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`III.
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`SS&C’S REQUEST FOR PRODUCTION NO. 49 IS IRRELEVANT.
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`As discussed at length in Defendants’ Motion to Compel Discovery into SS&C’s Alleged
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`Claims and Damages, despite Clearwater’s repeated requests, SS&C has not yet disclosed a
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`damage theory or identified any information to support its claim for damages in this action.
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`Nevertheless, SS&C now claims entitlement to information concerning the valuation of the entire
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`Clearwater business operation, claiming that it is relevant to the issue of damages. To support this
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`position, SS&C cites only to Conn. Gen. Stat. § 35-53, which provides, in pertinent part, “[a]
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`complainant also may recover for the unjust enrichment caused by misappropriation that is not
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`taken into account in computing damages for actual loss.” SS&C does not offer any definition of
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`“unjust enrichment” in this context, nor is there any Connecticut rule or decision that includes a
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`defendant company’s business valuation in that measure of damages in trade-secret litigation.
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`Defendants have located no authority in which a plaintiff was entitled to take into account the
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`entire value of a company to determine unjust enrichment damages in any case, regardless of
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`whether it involved trade secrets. See Michael A. Rosenhouse, Annotation, Proper Measure and
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`Elements for Misappropriation of Trade Secrets Damages, 11 A.L.R.4th 12 (originally published
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`in 1982, updated 2017) (collecting cases concerning trade secrets damages, none of which identify
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`appreciation of value of an entire business concern as a method of determining unjust enrichment).
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`The only justification offered for this request is SS&C’s unsupported speculation that
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`“[t]he benefits to Clearwater that may be associated with the use of misappropriated trade secrets—
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`such as higher revenue, decreased costs, or increased value of its assets—likely resulted in a higher
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`valuation of the business.” (SS&C’s Second Mot. to Compel, at 14). That speculation appears to
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`be based upon a single email from a Clearwater salesperson making an offhand comment
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`concerning the company’s growth. (Id., at 16). SS&C then jumps to the conclusion that the growth
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`mentioned in that email must be due to Defendants’ alleged misappropriation of trade secrets,
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`entitling it to sweeping disclosure of Clearwater’s financial information. This is far too thin a reed
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`to justify allowing SS&C to delve into the proprietary financial information concerning the value
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`of a private entity, especially where, again, SS&C has not asserted unjust enrichment as a damages
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`theory.
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`IV.
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`SS&C’S REQUEST FOR PRODUCTION NO. 35 ATTEMPTS TO INJECT
`IRRELEVANT ISSUES FROM COLLATERAL LITIGATION INTO THIS CASE.
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`SS&C’s Request for Production No. 35 represents the latest attempt by SS&C to introduce
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`wholly irrelevant issues from the concurrently pending Rossa Litigation into this matter. The first
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`such effort is reflected in Plaintiff SS&C Technologies, Inc.’s Motion for Entry of Protective Order
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`(“SS&C Mot. for Prot. Order”). In that motion, SS&C argued that it should be entitled to use
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`documents disclosed in discovery in this matter in the Rossa Litigation. (SS&C Mot. for Prot.
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`Order, at 2-3). In an attempt to justify this request, SS&C made the same arguments it now
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`advances to compel a response to SS&C Request for Production No. 35, alleging—with minimal
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`factual support—a pattern and practice of alleged misconduct on the part of Clearwater, Rossa,
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`and Pullara. (Id., at 3-8). This Court rejected that argument. (Order, Doc. No. 122). The court in
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`the Rossa Litigation also rejected a similar argument when SS&C filed an unsuccessful motion to
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`compel seeking so-called “pattern and practice discovery.” (See Ex. P, April 17, 2017
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`Memorandum and Order on SS&C’s Motion to Reconsider). SS&C’s current motion with respect
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`to its Request for Production No. 35 now seeks a third bite at the apple.
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`Once again, the information that SS&C is attempting to bring into this case—lawsuits or
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`disciplinary action for violation of policies and procedures related to use of confidential or
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`proprietary information namely—largely pertains to conduct at issue in the Rossa Litigation, which
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`has no bearing on SS&C’s claims here. And while SS&C argues that such discovery is relevant to
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`Clearwater’s “intent” for purposes of punitive damages, it cites no authority for that proposition.
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`(SS&C’s Second Mot. to Compel, at 16-17). Neither of the cases cited by SS&C stand for the
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`proposition that a plaintiff in trade secrets litigation may engage in broad-ranging discovery that
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`encompasses collateral claims and disciplinary action. Indeed, the Appellate Court of Connecticut
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`has made the opposite finding in other commercial litigation matters, affirming the exclusion of
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`evidence of alleged prior misconduct in a suit for tortious interference with contract in which
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`punitive damages were sought. See, e.g., Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.
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`App. 99, 132-38, 30 A.3d 703, 727-29 (2011) (affirming a trial court order excluding evidence of
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`prior bad acts of one of the principles of a defendant company, finding it had no relevance to the
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`claims asserted and should be excluded pursuant to Connecticut Evidence Code § 4-5(a)).
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`Neither of the two Connecticut trade secrets cases cited by SS&C, Lydall, Inc. v.
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`Ruschmeyer, 282 Conn. 209, 919 A.2d 421 (1999), and Elm City Cheese Co. v. Federico, 215
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`Conn. 59, 752 A.2d 1037 (1999), support its contention that conduct unrelated to the allegations
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`in the complaint is relevant to the issue of whether conduct is willful and malicious. Neither case
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`supports SS&C’s argument that information about other causes of action in which Defendants are
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`involved have any relevance to the issue of punitive damages.
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` For example, in Lydall, Inc., the Connecticut Supreme Court reversed a finding by the trial
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`court that the defendant’s conduct was willful and malicious. The court ruled that the fact that
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`defendant: (1) had secretly planned a hostile takeover of his employer while still employed; (2)
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`lied to his employer about meetings with competitors; and (3) was angry at his employer because
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`of unfavorable performance reviews were all insufficient to support a finding of willful and
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`malicious conduct. Lydall, Inc., 282 Conn. at 244-45,