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Markey v. Verimatrix

July 8, 2009

JOHN MARKEY, PH.D, PLAINTIFF,
v.
VERIMATRIX, INC., A CALIFORNIA CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. Magistrate Judge

Order

[Doc. No. 17 - [09cv66]]

[Doc. No. 11 - [09cv603]]

The parties have filed simultaneous briefing regarding a discovery dispute over the Defendant's designation of intellectual property information as "Attorney Eyes Only" in the protective order. The hearing on this matter set for July 9, 2009 at 2:00 p.m. in Courtroom A before Judge Battaglia, is hereby vacated as this motion is appropriate for submission on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the Court finds Defendant's designation of intellectual property information as "Attorney Eyes Only" in the protective order appropriate.

Background

1. Factual

In June 2004, the Plaintiff, Dr. Markey, executed a mutual Non-Disclosure Agreement (NDA) and based thereon shared his confidential information regarding a New Access Control System (NACS) for TV Broadcasting with the Defendant. In July 2004, the Plaintiff executed a consulting agreement with the Defendant on issues concerning Defendant's existing businesses (digital video watermarking and Internet Protocol television broadcasting in the telecommunications market), however, the agreement excluded any assignment by the Plaintiff of his intellectual property rights.

In May 2005, the Plaintiff executed an employment contract with the Defendant, and proceeded to share an Application Program Interface ("API") specification document for a set-top-box software design for the purpose of developing software for a prototype of the NACS that is set forth in one of the Plaintiff's pending patent applications. During this period, the Plaintiff was the only employee of the Defendant that was working on the NACS prototype development project.

In addition to the aforementioned employment agreement, on or about May 23, 2005, the Plaintiff, and Defendant entered an Employee Invention Assignment and Confidentiality Agreement, stating that the Plaintiff retained all rights to the pending patent applications referenced therein, derived applications, patents and reduction to practice including all work done by the Plaintiff or anyone on the implementation of the NACS system.

On September 6, 2005, the Defendant terminated Plaintiff's employment for cause alleging that the Plaintiff violated the non-disclosure agreement.

2. Procedural

Plaintiff first filed an action against the Defendant in the Superior Court of San Diego County in September 2007 alleging claims for (1) Wrongful Termination in Violation of Public Policy, (2) Breach of Contract, (3) Breach of the Implied Covenant of Good Faith and Fair Dealing, and (4) Promissory Estoppel. See San Diego Superior Court Case No. 37-2007-00074402-CU-WT-CTL. In November 2007 the Plaintiff filed an Amended Complaint adding a claim for Unfair Competition in Violation of California Business and Professions Code Section 17200.

After Demurrers and Motions to Strike, in April 2008, the Court upheld the claims of Wrongful Termination, Breach of Contract and the prayer for punitive damages. The Plaintiff filed a separate lawsuit against the Defendant on December 31, 2008 asserting claims of (1) Misappropriation of Trade Secrets in Violation of California Civil Code Sections 3426 et seq., (2) Quantum Meruit/Unjust Enrichment, and (3) Unlawful Business Practices. See San Diego Superior Court Case No. 37-2008-00099311-CU-IP-CTL (the matter was ...


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