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
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).
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
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 ...