O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Turtellotte Solutions, Inc. v. Tradestone Software, Inc., 2005 Mass. Super. LEXIS 595
(October 31, 2005) (van Gestel, J.).

The Plaintiff alleged misappropriation of software and moved for expedited discovery. In connection with its motion, the Plaintiff presented a form of protective order which required all confidential information filed with the Court to be in sealed envelopes or containers. The Court both denied the motion for expedited discovery and refused to endorse the protective order as presented. The Court expressed concern about the burden the confidentiality provision would impose on the Clerk’s Office. The practice of the Clerk’s Office is to store sealed documents in a separate location, as a result of which the “handling of documents in sealed envelopes or containers . . . is a logistical nightmare.” Because the Business Litigation Session receives more requests

 of this nature than other courts, “this Court . . . does not approve the blanket provisions permitting filings in sealed envelopes or containers. Rather, it imposes on the parties the requirement that they first follow the Uniform Rules on Impoundment Procedures,” which require a demonstration of “good cause.” The Rules also explicitly state that the agreement of the parties shall not in and of itself be sufficient to demonstrate good cause. The Court also cited The Boston Herald, Inc. v. Sharpe, 432 Mass. 593 (2000), in which the SJC held that the court files should be unrestricted except “in the most extreme situations.”

The Court declined to endorse the protective order and instructed the parties to revise it so that documents would not automatically be granted secret status. 

In the matter of Haley & Steele, Inc., 20 Mass. L. Rep. 204, 2005 Mass.
Super. LEXIS 540  (Nov. 14, 2005) (van Gestel, J.).

The Court addressed the interplay, if any, between the common law and certain provisions of Article 2 (sale of goods) and Article 9 (secured transactions) of the Uniform Commercial Code. Haley & Steele was a Newbury Street art dealership that had recently failed. The dealership’s primary secured creditor (Century Bank & Trust) seized a number of valuable 19th Century pieces in the possession of the dealership. The question before the Court was whether the artwork of individual customers who had delivered the artwork to the dealership for purposes of sale was subject to the claims of the bank. The Court held that they were not, based on its interpretation of Articles 2 and 9. The Court held that Article 9’s consignment provision did not apply to this artwork because the artwork was “consumer goods” (bought for use primarily for personal, family or household purposes) immediately before delivery to the dealership. Accordingly, the individuals whose artworks were at issue were “consumer consignors” to whom Article 9’s requirements did not apply.

The Court also held that Article 2, which provides that goods held by a

  buyer on sale or return are subject to claims of creditors, did not apply to the consumer consignors. The Court reasoned that Article 2 applies to “sales” and the consignment of the artwork to the dealership was not a sale. The Court also relied on the fact that Article 2 was amended in 2001 to remove any reference to consignments. For Article 2 to apply to the artwork at issue, therefore, title to the artwork had to pass to the dealership. Under the consignment contracts at issue, title remained with the consignor (the individual) until someone purchased the artwork at retail price from the dealership. Thus, the dealership is akin to a broker in a real estate transaction.

Because the Uniform Commercial Code did not apply, the bank’s interest in the artwork, if any, was governed by the common law of bailments. Under the law of bailments, title remains with the bailor, here the individual. The bailee, here the dealership, maintains a special interest for purposes of the bailment (i.e. the sale to a retail purchaser). Accordingly, the bank was not entitled to seize the artwork in question.