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Compass Minerals America Inc. v. GAIA Enterprises, Inc.

United States District Court, D. Kansas

August 16, 2017

COMPASS MINERALS AMERICA INC., Plaintiff,
v.
GAIA ENTERPRISES, INC., Defendant.

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge

         This matter is before the Court on Gaia's Motion to Enter Its Proposed Protective Order (ECF No. 36) and Plaintiff's Motion for Entry of Confidentiality and Protective Order (ECF No. 38). The parties agree on virtually all provisions of a proposed Protective Order. Each has filed a motion to advocate its position regarding a single paragraph on which they disagree. After balancing the relevant factors and applying the appropriate legal standards, the Court finds that Defendant's is the more well-reasoned and appropriate approach.

         I. Background

         This is a case in which competitors in the pet-friendly deicing products market bring claims including alleged trademark and trade dress infringement against each other. The parties agree that the Court should enter a protective order in the case, and that such order should classify protected information into two tiers: “confidential” and “highly confidential-attorneys' eyes only” (AEO). While the parties have agreed on every other provision in the proposed order, they have competing proposals for the circumstances in which one party's in-house counsel may obtain and review documents designated as AEO by the producing party.

         II. Discussion

         Both parties agree that any counsel involved in competitive decision-making should not be permitted to review AEO documents. In ruling on these motions, the Court accepts the definition of “competitive decision-making” as “shorthand for a counsel's activities, association, and relationship with a client that are such as to involve counsel's advice and participation in any or all of the client's decisions (pricing, product design, etc.) made in light of similar or corresponding information about a competitor.”[1] The parties have arrived at a mutually acceptable procedure for allowing one designated in-house attorney for each party to gain access to AEO documents, as follows:

7. Who May Review Documents Designated HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY. Documents designated as HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY by a producing party in this action shall not be given, shown, made available, or communicated in any way to any person other than the following:
a. Counsel. Outside counsel of record for the parties, and employees and agents of counsel who have responsibility for the preparation and trial of the action; b. Parties. One in-house attorney for each of the parties to whom disclosure is reasonably necessary for this litigation, in accordance with the following procedures:
i. If and when a receiving party elects to disclose to the receiving party's in-house attorney documents that have been designated by a producing party as HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY, the receiving party shall first identify to the producing party its designated in-house attorney.
ii. Prior to the disclosure of any HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, the receiving party's designated in-house attorney shall: (a) certify that he or she is not involved in any competitive decision-making for the receiving party with respect to the issues involved in the above-captioned matter, (b) be provided with a copy of this Order and be required to read it and agree to all of its terms in writing, and (c) execute the accompanying Acknowledgement and Agreement to Be Bound.
iii. If the producing party objects to the receiving party's designated in-house attorney, the producing party shall, within 48 hours of notice of the identity of the receiving party's designated in-house attorney, provide the receiving party with a written explanation detailing the reasons why the producing party believes the receiving party's designated in-house attorney should not have access to HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY documents. During this 48-hour period, the receiving party shall not show to its designated in-house attorney documents that have been designated HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY by the producing party.[2]

         Under this procedure, therefore, before the receiving party's in-house attorney may view AEO materials, the producing party will have 48 hours to object to that individual having access to the document. Plaintiff's proposed language continues and concludes with the following paragraph:

iv. Within 48 hours of receiving notice of the producing party's objection to the receiving party's designated in-house attorney, the receiving party shall have 48 hours to accept or reject the written explanation provided by the producing party. During this second 48-hour period, the receiving party shall not show to its designated in-house attorney documents that have been designated HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY by the producing party. If, upon the expiration of this second 48 hour period, the receiving party rejects the producing party's explanation, the receiving party shall set forth the specific reasons why the designated person is entitled to see materials pursuant to this Order and the receiving party is free to disclose to its designated in-house attorney documents that have been designated HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY by the producing party. Nothing in the foregoing shall preclude the producing party from seeking relief from the Court but the burden shall be on the producing party to show why notwithstanding the signed copy of this Order, disclosure is not appropriate.[3]

         Under this procedure, a second 48-hour period follows during which the receiving party may reject the reasons for its in-house attorney being unable to see the AEO materials, and after which it may disclose the AEO materials to its designated in-house attorney. Defendant agrees to Plaintiff's proposal for what occurs during this second 48-hour period. The parties' disagreement begins at the conclusion of the second 48-hour ...


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