May 16, 2013
GSI TECHNOLOGY, INC., a Delaware corporation, Plaintiff,
UNITED MEMORIES, INC., a Colorado corporation, Defendant.
ORDER RE MOTIONS TO ENTER PROTECTIVE ORDER (Re: Docket Nos. 38, 39, 40, 41)
PAUL S. GREWAL, Magistrate Judge.
Plaintiff GSI Technology, Inc. ("GSI") and Defendant United Memories, Inc. ("UMI") each submitted two letter briefs regarding their dispute over entry of the protective order that ought to govern in this case. The parties have isolated two issues for the court to resolve - GSI proposes two modifications to the Model Protective Order, both of which are opposed by UMI. The court discusses each in turn below.
As a preliminary matter, under Patent L.R. 2-2, this district's Model Protective Order governs unless the court enters a different protective order. As the Model Protective Order "set[s] forth presumptively reasonable conditions regarding the treatment of highly confidential information, " this court has previously held it appropriate to place the burden of showing good cause on the party urging the deviation from the terms of the Model Protective Order.
GSI first argues that it should be able to designate a single client representative, who would have access to documents designated "Highly Confidential - Attorney's Eyes Only." In GSI's view, good cause exists for such a provision because UMI can and has over-designated materials as highly confidential. Under the Model Protective Order and the protective order substantially agreed upon by the parties, information may be designated "Highly Confidential - Attorney's Eyes Only" only when the information consists of "extremely sensitive Confidential Information or Items, ' disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means." According to GSI, UMI has already shown that it takes an unduly broad view of this provision by "indicat[ing] that it considered information such as its organizational structure, the job responsibilities of its employees, and the hire date of its employees" to be "Highly Confidential - Attorney's Eyes Only" information. GSI urges that in light of the pending preliminary injunction hearing on June 25, 2013, and what it fears will be a pattern of overdesignation by UMI, the deviation it proposes is necessary to allow its attorneys to discuss these materials with the client representative and quickly understand them in time for the hearing.
While the court understands GSI's concerns, without disclosure of the identity of the potential GSI "client representative, " the court is unable to weigh the risk of inadvertent disclosure of UMI's information against GSI's ability to prosecute its claims. As GSI and UMI are competitors and adversaries in a trade secret and breach of contract case, the risk of inadvertent disclosure through an unknown "client representative" is very real. The court cannot issue a blank check for GSI to designate any client representative, without context to assess the potential risk of inadvertent disclosure.
GSI next argues that the Designating Party, rather than the Challenging Party, should bear the burden of filing a motion with the court in the event the parties dispute the confidentiality designation of a document. This proposal is nonsensical in that it forces the Designating Party to preempt its opposing party's challenges to the designation, when that motion should properly be framed by the Challenging Party itself. The proposal also goes too far - if the Challenging Party expresses disagreement with a designation during meet and confer, the Designating Party must file a motion to maintain the confidential designation, or else the confidential designation will automatically evaporate. This mechanism is excessive and is also prone to potential abuse. In any event, the Model Protective Order acts as a sufficient check against over-designation of materials because although the Challenging Party must bring the motion, the burden of persuasion regarding the confidentiality of the document remains on the Designating Party. GSI's proposed modification is thus unnecessary.
It appears that there is a more narrowly-tailored way to resolve the parties' discovery discord - motions to compel, challenging the designations of specific categories of documents. If GSI believes certain categories of documents are clearly overdesignated, GSI may file a five page or less letter brief requesting relief, and UMI may respond with the same within three days. The court will then decide whether a hearing is necessary and can resolve the manner expeditiously.
GSI's proposed modifications are DENIED. UMI shall file a complete proposed protective order consistent with this ruling without delay.
IT IS SO ORDERED.