E  V  I  D  E  N  T  I  A  R  Y     A  N  D     D  I  S  C  O  V  E  R  Y      I  S  S  U  E  S  :
The Court tackled the appropriate scope of a Secretary of State subpoena investigating the Gillette merger.

Galvin v. The Gillette Co., 19 Mass. L. Rep. 291, 2005 Mass. Super. LEXIS 194
(April 28, 2005), clarified, 19 Mass. L. Rep. 380, 2005 Mass. Super. LEXIS 248
(May 19, 2005) (van Gestel, J.).

The Gillette Company voluntarily produced a large quantity of documents and information to the Secretary of the Commonwealth in connection with its merger with The Procter & Gamble Company, but challenged the Secretary’s standing to demand certain other materials.

The Court recognized the Secretary’s broad discretionary powers and acknowledged its duty to “tread cautiously” when asked to enjoin an executive agency. The Court agreed with Gillette, however, that the Uniform Securities Act, from which the Secretary derived his investigatory authority, expressly excluded mergers from its scope. On the other hand, the Secretary was entitled to investigate Goldman, Sachs & Co. and UBS Securities, LLC,

which issued Gillette’s fairness opinions. Accordingly, the Court quashed the subpoena to Gillette without prejudice to issuance of a new subpoena consistent with the Court’s interpretation of the statute.

Within hours of the Court’s April 28, 2005 decision, the Secretary issued a new subpoena, generating another round of quarreling. The Court ordered Gillette to produce some of the materials sought, but declined to force Gillette to undertake the “nearly impossible” task of searching all of its “e-mail, servers, archives, discs, back-up tapes, hard drives . . . back up systems thereof, and all other databases of Gillette” where the company had 18,500 active users and e-mail traffic of approximately 14 million messages per month.