An issue that sometimes comes up in negotiating protective orders is whether an acquisition bar should be included, i.e. a prohibition of counsel who see confidential documents from prosecuting patents in a certain field. In this case the magistrate judge declined to adopt the proposed acquisition bar, and the defendant appealed that decision to the district judge.
This protective order opinion addresses the question of disclosure of certain information to a specified in-house counsel. It provides one of the relatively rare examples of a court resolving protective order disputes in an opinion which explains why the requested language was or was not adopted. (With dreadnought-sized footnotes).
I don’t know what’s in the water in Marshall and Waco these days, but there are protective order issues popping up everywhere for some reason, including this recent one from Judge Albright’s court in Waco.
The provisions contained in protective orders can come from many sources – court form orders, party agreements, and specific provisions based on courts’ rulings. The last category is few and far between in part because courts sometimes resolve a dispute in the text of the protective order itself and not in a separate order stating which side’s language it is adopting, and why. So unless you know the provision was disputed and how, you wouldn’t know that the language represents a decision by a court, as opposed to an agreement. This order provides an example of the latter and provides four more thumbtacks for you – four more court rulings on specific requested language in a protective order.
Protective orders are often entered in civil cases to protect confidential information from public disclosure. The more complex the case, the more complex the orders become, with varying levels of protection depending on the type of information, often culminating with near clean-room procedures for source code.
Such procedures usually begin with the provisions in a court’s standing protective order, but are often modified by the parties to reflect particular needs or concerns in a particular case. Only occasionally, as here, do the parties need to refer a dispute over a particular provision for resolution by the court, but when it occurs it’s informative to see what the dispute was and how the Court resolved it.