I've seen this come up between parties a couple of times lately. Given that parties almost universally agree that source code is entitled to special protection in protective orders, parties are sometimes extending similar protection to non-source-code items, such as mechanical drawings.
I think it's clear that parties can agree to treat material however they want, and I haven't seen the Court reject an agreed-upon protective order on the basis that it was too burdensome on the parties. But, until now, I hadn't seen how the Court would treat a dispute about this issue.
On Monday, in Wuhan Healthgen Biotechnology Corporation et al v. ExpressTec LLC, C.A. No. 24-318-RGA-SRF (D. Del.), the Court addressed exactly this issue and rejected the idea that non-source-code items must be protected like source code:
ORAL ORDER . . . IT IS ORDERED that: (1) Defendants' proposals for a third-tier heightened Attorneys' Eyes Only Special Handling designation, which would cover formulations, proprietary manufacturing information and technology, and product research and development records, among other information, is REJECTED. Defendants argue that protections similar to those imposed on source code review are necessary in this case for non-source code materials due to the history of relations between the parties. . . . Although Defendants acknowledge that Plaintiffs' outside U.S. counsel is not likely to knowingly disseminate protected information to Plaintiffs or other foreign competitors, Defendants are concerned about breaches into Plaintiffs' attorneys' information storage and security systems by foreign actors. . . . But the parties have a history of litigation on similar subject matter before the ITC and the U.S. District Court for the District of Kansas, and there is no indication that such restrictive measures were imposed in those proceedings or that a breach of sensitive data occurred in those proceedings due to a lack of protections. . . . Defendants cite no authority supporting the extension of source code-level protections to non-source code information.
Id. I don't think this holding necessarily forecloses the idea of treating items with heightened protection in all future cases. But it's something that'll likely be cited if there is a dispute on that point.
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