United States District Court, N.D. California
September 12, 2005.
FRISKIT, INC., Plaintiff,
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
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.
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
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.
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 gained or the individual from
future competitive endeavors." Id. at 491.
B. Whether Larson Qualifies as an Independent Expert
Here, there is no evidence that Larson meets any of the five
factors outlined in Digital Equipment Corp. Id. Moreover,
Larson has not occupied a position with Plaintiff for over four
years. In addition, Defendants have not submitted any evidence
that Larson is involved with Plaintiff's competitive decision
making. Without more, the Court declines to grant Defendants'
motion for protective order preventing Larson from accessing
C. Whether Price Qualifies as an Independent Exert
In the same way, Defendants do not support their contention
regarding Price. Defendants argue that Price is not an
"independent" expert, as required by the protective order,
because he was previously in Defendants' employ. The mere fact
that Price was Defendants former employee does not automatically
bar Price from being an "independent" expert. Carpenter Technology,
132 F.R.D. at 27. Here, again, Defendants do not support their
contention with specific facts. Rather, Defendants rely on the
existence of an employee confidentiality agreement for precluding
Price access to Defendants' confidential information. However,
the terms of the employee agreement provides against any
unauthorized disclosure by Price of Defendants' confidential
information, not authorized access to Price the same
information. As the motion before the Court relates to the
latter, the Court will not address the issue of the employee
confidentiality agreement which may prevent Price from disclosing
confidential information to third parties.*fn1
Much of the confidential information at issue is the same
information that Price has already had access to while working
for Defendants. Price's work during his employment with
Defendants exposed him to a large amount of trade secret
information, more specifically, to the source code, which is the
apparent basis for Price's expertise. The motion at hand requests
an order preventing Price from seeing the same information he
already has seen. The evidence does not support the contention
that Price is not independent, i.e., involved in Plaintiff's
competitive-decision making. In addition, Price does not meet the
five factors outlined in Digital Equipment. 142 F.R.D. at 491.
Price's only connection to Defendants is the mere fact of being a
former employee. Therefore, without more evidence to support
Defendants contention regarding Price, the Court is unwilling to
grant Defendants motions.
The Court hereby DENIES Defendants motion for protective order
preventing Larson and Price from accessing confidential
IT IS SO ORDERED.
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