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FRISKIT, INC. v. REALNETWORKS

September 12, 2005.

FRISKIT, INC., Plaintiff,
v.
REALNETWORKS, INC., and LISTEN.COM., Defendants.



The opinion of the court was delivered by: MARIA-ELENA JAMES, Magistrate Judge

ORDER DENYING DEFENDANTS' MOTION FOR PROTECTIVE ORDER PREVENTING CAMERON PRICE AND MICHAEL LARSON FROM ACCESSING CONFIDENTIAL MATERIALS
I. INTRODUCTION
Before the Court is a letter dated July 22, 2005 from defendants RealNetworks, Inc. and Listen.com (collectively "Defendants"), and a response letter dated July 27, 2005 from plaintiff Friskit, Inc. ("Plaintiff"). Defendants move this Court for a protective order preventing Cameron Price and Michael Larson from accessing confidential materials.

II. BACKGROUND

  As an initial matter, the Court notes that the parties have failed to submit a joint discovery dispute letter regarding the issue at hand. Rather, contrary to this Court's standing order regarding discovery disputes, the parties submitted individual letters. In the future, if parties fail to abide by this Court's standing order, and continue to fail to submit joint discovery letters, the Court shall not hear the matter.

  The current dispute before this Court ensued when Plaintiff identified two individuals, Michael Larson ("Larson") and Cameron Price ("Price"), as its independent experts. Larson is a former employee of Plaintiff, while Price is a former employee of Defendants. The Court will address Defendants' narrowly tailored request for a protective order preventing Larson and Price from accessing confidential materials.

  A. Defendants' Arguments

  The Protective Order specifically contemplates that a non-party individual who is to review confidential information be "independent." Defs.' Letter at 2. Defendants advocate for a broad construction of the term "independent." Defendants contend that Price is not independent because he is a former employee of Defendants. Defendants further argue that Price is subject to an "Employee Development and Confidentiality Agreement" that prevents him from conveying "to any third party information describing any Confidential Information or Trade Secret without Defendants' prior written authorization, even after termination of his employment. Defs.' Letter at 2. For these reasons, Defendants argue that Price should be precluded from accessing Defendants' confidential information.

  Defendants also argue that Larson should be precluded as well. In support of their argument, they state, "as a former Friskit [Plaintiff] employee, Mr. Larson may own stock in the company and/or retain working relations with individuals such as . . . Friskit's former CEO." Defs.' Letter at 3 (emphasis added). Defendants further state, "Mr. Larson may wield some influence over company direction." Defs.' Letter at 3 (emphasis added).

  B. Plaintiff's Arguments

  On the other hand, Plaintiff argues that Defendants do not offer any evidence for their assertion that Larson has any ties with Plaintiff. Rather, Plaintiff argues that Defendants simply speculate as to Larson's ties with Plaintiff by stating that Larson "may own stock" or "might" have some kind of a working relationship with Plaintiff. Pl.'s Letter at 2. Without more, Plaintiff states that Defendants have failed to meet their burden of proof for the motion.

  Plaintiff also states that Defendants' arguments with respect to Price is illogical. First, Plaintiff argues that while Price was previously exposed to the confidential information during his employment with Defendants, he is now denied the same information. Pl.'s Letter at 2. In addition, Plaintiff states that while Price was trustworthy to receive this information working for Defendants, he is less trustworthy to receive it now. Pl.'s Letter at 2. There is no evidence to support a contention that Price is now untrustworthy. III. DISCUSSION

  A. Standard of Review

  Access to confidential information turns on the individual's "actual" activity and relationship with the party. Carpenter Technology Corporation v. Armco, Inc., 132 F.R.D. 24, 27 (E.D. Pa. 1990). In determining whether to qualify an expert as "independent" under the terms of a protective order, the court should consider and weigh the following factors: (1) the experts's position within the receiving party's business as an officer, director, shareholder or employee; (2) the extent of regular employment, consultation or association with the receiving party; (3) the expert's present involvement in the receiving party's competitive decisions including participation in or advise related to research; (4) the potential for future involvement of the expert in the receiving party's competitive decisions; (5) if the expert is deemed disqualified as "independent," the individual's willingness to curtail or forego future involvement with the receiving party. Digital Equipment Corp. v. Micro Technologies, Inc., 142 F.R.D. 488, 491 (D. Colo. 1992).

  In other words, the ultimate focus of the "court's decision should rest upon considerations of the individual's relationship to or status within the receiving party's business, the likelihood of that relationship continuing, and the feasibility of separating either the knowledge ...


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