The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DE-DESIGNATE PLAINTIFFS' PRELIMINARY INJUNCTION SUBMISSIONS FROM "ATTORNEYS-EYES-ONLY" TO "CONFIDENTIAL" [Doc. No. 47]
Defendants Sonicview USA, Sonicviewra, Sonicviewsa, DontPay4TV, Roberto Sanz, Duane Bernard and Courtney Bernard (collectively, "Defendants") move this court to order that Plaintiffs Dish Network, Echostar Technologies and Nagrastar (collectively, "Plaintiffs") de-designate some of their filings in support of their motion for preliminary injunction from "Attorneys Eyes Only" (AEO) to "Confidential." For the following reasons, the court GRANTS in part and DENIES in part Defendants' motion to de-designate.
Plaintiffs filed a complaint on July 17, 2009 alleging that Defendants engage in the unlawful manufacture, distribution and trafficking of "devices, components and technologies intended to facilitate the illegal and unauthorized reception and decryption of Dish Network's satellite television programming." Compl. ¶ 1. The same day, Plaintiffs filed a redacted ex parte motion for a temporary restraining order to enjoin Defendants from engaging in alleged satellite television piracy activities and for a seizure order directing the U.S. Marshal to seize Defendants' records, inventory and alleged related piracy material. Plaintiffs also asked the court to temporarily seal the case. They did not serve Defendants with the complaint or ex parte papers.
The court denied the TRO and seizure request "[b]ecause Plaintiffs failed to establish that Defendants are likely to ignore court orders or destroy evidence if given notice of this litigation." July 23 Order, p.2. It also denied Plaintiffs' request to seal the entire case. Instead, the court sealed the confidential informants' declarations because revealing their identities would jeopardize the success of Plaintiffs' investigations and subject the informants to threats of physical harm. Id. at 10.
Plaintiffs served all Defendants with the complaint between July 27 and July 30, 2009. Together, the parties moved for entry of a protective order. Judge Stormes entered the stipulated protective order (SPO) on August 14, 2009. That same day, Plaintiffs filed a motion for a preliminary injunction with Judge Lorenz. The motion was set for hearing October 26, 2009. Plaintiffs also applied to seal Nigel Jones' expert report and redact the names of the confidential informants. The court ordered the parties to provide supplemental briefing on why the expert report should be sealed in its entirety. On August 20, 2009, the court ordered sealed the names of the confidential informants and certain excerpts of the expert report.
On September 20, 2007, Defendants filed a motion to dismiss certain counts in the complaint in lieu of an answer. On October 7, 2009--less than a week before their opposition to the preliminary injunction motion was due--Defendants filed this motion with Judge Lorenz to de-designate Plaintiffs' un-redacted preliminary injunction papers from AEO to Confidential, under the SPO. Defendants also moved to extend the time to file their opposition to the preliminary injunction motion to 45 days after the court rules on the motion for de-designation. Judge Lorenz referred the motion to de-designate under the SPO to Judge Stormes. He also granted Defendants an extension of time to oppose the preliminary injunction motion. That opposition is due two weeks after the date of this order. Stipulated Protective Order.
The SPO makes these designations for "Confidential" and "Confidential--Attorney's Eyes Only" documents.
Any party may designate information as "CONFIDENTIAL" only if, in the good faith belief of such party and its counsel, the unrestricted disclosure of such information could be potentially prejudicial to the business or operations of such party.
Any party may designate information as "HIGHLY CONFIDENTIAL--ATTORNEY'S EYES ONLY" only if, in the good faith belief of such party and its counsel, the information is among that considered to be most sensitive by the party, including but not limited to trade secret or other confidential research, development, financial or other commercial information.
SPO ¶ 4 (emphasis added).
Information designated "Confidential" may only be viewed by: counsel of the receiving party, independent experts, and executives, directors or in-house counsel who participate in policy decisions regarding this action, parties' technical personnel to prepare for trial in this matter, stenographic and clerical employees, and witnesses, to whom disclosure is reasonably necessary during their depositions, so long as these people read the SPO and execute an Agreement to be bound by the SPO. SPO ¶ 9. AEO information can only be viewed by counsel for the receiving party and independent experts.
For those individuals who agree to be bound by the SPO, they: (1) promise to only use the Confidential information to assist counsel in this litigation; (2) promise to not disclose or discuss the Confidential information to any unauthorized persons; (3) acknowledge that they are subjecting themselves to the jurisdiction of this court for enforcement of the SPO; and (4) understand that disclosure or use of the Confidential ...