United States District Court, D. Kansas
ORDER ON MOTIONS FOR PROTECTIVE ORDERS
KENNETH G. GALE U.S. MAGISTRATE JUDGE
before the Court is Plaintiff's “Motion for Entry
of Protective Order.” (Doc. 54). Having reviewed the
submissions of the parties, Plaintiff's motion is
a patent infringement case brought pursuant to 35 U.S.C.
§ 271, et seq. The parties are competitors in
the grain storage cover industry. The Court previously
entered an Order (Doc. 52) on the parties' competing
motions for Protective Orders (Docs. 30, 32).
the Court's Order, Plaintiff submitted
a proposed Protective Order that reflects the Court's
Order on Motions for Protective Orders. Specifically, the
proposed Protective Order: (1) identifies that Ms. Lindsay
Edwards, as Raven's in-house counsel, is an individual
who may view designated Attorneys' Eyes Only Information
(as per pg. 8 of Court's Order on Motions for Protective
Orders); (2) provides that the confidentiality certifications
executed by expert witnesses, outside consultants or
investigators must be maintained for two years (as per pg 7.
of Court's Order on Motions for Protective Orders); (3)
provides that confidentiality certifications for potential,
anticipated or actual third party fact witnesses must be
delivered to counsel of record for all other parties within
30 days of execution (as per pgs. 6-7 of Court's Order on
Motions for Protective Orders); and (4) clarifies the term
‘counsel' used in the Protective Order to make
clear when referring to outside counsel versus in-house
(Doc. 55, at 1-2.)
contends that Plaintiff's proposed Protective Order (Doc.
55-2) “do[es] not accurately reflect the Court's
Order . . . .” (Doc. 58-1, at 1.) More specifically,
Defendant argues that the proposed order
restricts in-house access beyond what the Court ordered and
that only counsel of record, not counsel for the parties, may
access information (J&M unilaterally inserted these new
requirements after briefing closed and after the Court's
Order). With respect to in-house access, despite the
Court's order which states: ‘Plaintiff has not met
its burden pursuant to Fed.R.Civ.P. 26(c) to establish good
cause for the Court to enter a Protective Order prohibiting
in-house counsel from accessing [technical and financial] AEO
information' (Doc. 52, pp. 8, 9), J&M has taken it
upon itself to forbid Raven's in-house counsel (other
than Lindsay Edwards) from accessing AEO information. Doc.
55-2, p. 3 of 15, p. 6 of 15. The Court did not limit
Raven's in-house access to AEO information to one person.
To be fair, Raven proposed such a restriction, but J&M
refused that proposed concession. Also, since the
parties' briefing on the issue, Raven has hired a new
general counsel so such a restriction would unfairly burden
(Id., at 1-2.)
the parties' conflicting interpretations of the
Court's prior Order (Doc. 52), Plaintiff brings the
present motion seeking a Protective Order to serve as a
“single document that clearly and plainly sets forth
the terms of the protective order controlling the disclosure,
dissemination and use of certain identified categories of
confidential information produced in this litigation.”
(Doc. 55, at 1.)
Court will address the remaining issues in turn.
Designation of In-House Counsel to Receive Attorneys Eyes
Court's prior Order specifically addressed the
parties' disagreement “as to whether
Defendant's in-house general counsel Lindsay Edwards
should have access to certain of Plaintiff's proprietary
financial information marked AEO.” (Doc. 52, at 8.) The
Court's Order addressed only Ms. Edwards, not other
in-house attorneys, for the simple reason that
Defendant's briefing related only to Ms. Edwards.
(See, e.g., Doc. 35, at 2 (“There is no basis
to deny [Defendant's] one in-house attorney managing this
litigation access to AEO information”).) As such, the
Protective Order in this case applies solely to Ms. Edwards.
This issue, however, is resolved without prejudice as to ...