United States District Court, N.D. California
ORDER RE: DEFENDANT'S MOTION FOR ENTRY OF A PROTECTIVE ORDER Re: Dkt. No. 53
JACQUELINE SCOTT CORLEY, Magistrate Judge.
Plaintiff Antonio Medina, an inventor and doctor of optometry with two federal bank fraud convictions, has sued Microsoft and an individual, Cyrus Bamji, for patent infringement and unfair competition. Microsoft seeks a protective order which restricts disclosure of its "confidential"-not just "highly confidential"-information to Plaintiff's attorneys and qualified experts. The catch, however, is that Dr. Medina is not represented by counsel and claims that he cannot afford to retain an expert. After carefully considering the parties' submissions, and having had the benefit of oral argument on August 7, 2014, the Court concludes that Microsoft is entitled to the protective order it seeks, so long as there is a process in effect to prevent unilateral over-designation.
A. Allegations of the Second Amended Complaint
In 1992, Dr. Medina was issued Patent No. 5, 081, 530 ("the 530") "for invention of the three dimensional camera and range finder.'" (Dkt. No. 59 ¶ D.1). Dr. Medina still owns the 530. Dr. Medina owned Multivision Research, a company "involved in the development, manufacture and sale of the three dimensional camera and range finder" embodied in the 530. ( Id. ¶ D.7).
Prior to 1998, Dr. Medina advised 3DV that its 3D cameras and chips infringed the 530. The parties engaged in numerous meetings and communications to discuss Dr. Medina assigning the 530 to 3DV, but no agreement ever materialized. In 2008, Dr. Medina became aware that another company, Canasta, was infringing the 530. And from January 2008 through the present "Microsoft used infringing cameras in its project Natal and in its second generation Kinect for Xbox One and for Windows." ( Id. ¶ D.4). Finally, in 2008 and 2009 defendant Cyrus Bamji infringed the'531 "by building and demonstrating cameras in public scientific meetings and trade shows." Microsoft purchased 3DV and Canesta in 2009 and 2010 respectively.
Microsoft unfairly competed with Multivision by virtue of its agreements with 3DV and Canesta. "On or about September 2013 Microsoft destroyed Multivision's competition and impeded commercialization and sale of Dr. Medina's 3D camera due to sales of Microsoft 3D camera at a subsidized, below cost price despite Dr. Medina's camera being of superior performance and design." ( Id. ¶ E.14.) Once Microsoft acquired dominant control of the 3D camera market, it increased the price of the camera.
Dr. Medina makes claims for patent infringement as well as unfair competition and practices in violation of California Business and Professions Code sections 17200 and 17043. He demands monetary damages of at least $15, 500, 000 trebled, punitive damages, interest, and attorney fees and costs, as well as an injunction preventing Microsoft from selling 3D cameras below cost.
B. Dr. Medina's Criminal History
Dr. Medina has twice been convicted of criminal bank fraud. Following a jury trial in 1993, Dr. Medina was convicted of fraudulently altering a check for $365 to $365, 000, depositing the check for the higher amount, and then wiring $350, 000 to an account in his name in England. United States v. Puerta, 38 F.3d 34, 36 (1st Cir. 1994). The trial judge sentenced him to 18 months imprisonment and ordered restitution. Id. at 37-38. Then, just two years ago, a jury again found Dr. Medina guilty of criminal bank fraud. United States v. Puerta , 11-cr-00055, Dkt. Nos. 70 (C.D. Cal. Sept. 12, 2012). This time he was charged with a deceptive scheme of having deposited a check in the amount of $157, 000 when he knew the account had insufficient funds. He then arranged for an international wire transfer of $100, 000 to himself before the bank realized there were insufficient funds to cover the deposit. Id. at Dkt. No. 106. In October 2013, the trial judge sentenced Dr. Medina to restitution and 15 months imprisonment. Id. at Dkt. No. 130. The case is on appeal.
C. The Pending Motion
Microsoft asks the Court to enter the District's standard protective order for trade secrets with one significant modification. In the normal case, "highly confidential" information is designated as "attorneys eyes only" and can only be shared with outside counsel and qualified experts. Microsoft wants that restriction to apply to "confidential" information as well. Dr. Medina insists he should be permitted to review all discovery-non-confidential, confidential, and even highly confidential-because he is representing himself and cannot afford to hire an expert.
Northern District Patent Local Rule 2-2 provides that the Northern District's Model Protective Order ("the Model Order") governs a case unless and until the presiding judge enters a different protective order. The Model Order divides confidential information into two categories: (1) confidential information, and (2) highly confidential information. See ¶¶ 2.2, 2.8, 2.9, 7.2, 7.3. Highly confidential information is "extremely sensitive" information, the "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." ¶ 2.8. Such information may be disclosed only to a party's outside counsel, in-house counsel "who has no involvement in competitive decision-making, " and experts with a need-to-know, along with certain court ...