A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Protective Order

Judge Noreika Sanctions Patentee for Mistreating Source Code

Andrew E. Russell, July 13, 2021
Source Code Protective Order

Fire. I couldn't find an image of raining brimstone.
Fire. I couldn't find an image of raining brimstone. Ricardo Gomez Angel, Unsplash

On Monday, Judge Noreika sanctioned a patentee plaintiff for not following the protective order regarding source code.

Here is what the plaintiff did:

Plaintiff violated the Protective Order at least six times over a period of almost one year by: 1) creating an electronic copy of the source code on July 6, 2020; 2) sending that electronic copy to a vendor that had not signed the Acknowledgement and Agreement to Be Bound by Stipulated Protective Order (which actually violated two provisions of the Protective Order); 3) failing to maintain a log of all copies; 4) storing an electronic and apparently unencrypted copy of the source code …
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Can a Party Redact "Irrelevant" Information from Relevant Documents in Discovery, on the Basis That It Is a Trade Secret?

Andrew E. Russell, June 28, 2021
Protective Order LR 26.2

Secret
"SECRET" stamp, RestrictedData, CC BY 2.0

The parties in Progressive Sterilization, LLC v. Turbett Surgical LLC, C.A. No. 19-637 (D. Del.) brought a dispute about "excessive" redactions to certain production in their patent action.

The defendant sought information from third parties who were under contract with the plaintiff, including various consultants and a former business partner.

Plaintiff apparently has confidentiality agreements with these people, and tried to filter their document production in the case, redacting information it thought should not be produced to the defendant. According to defendant's letter brief:

[Plaintiff] insisted on reviewing [the] third-party subpoena recipients’ responsive documents and redacting certain non-privileged content . . . prior to their production to Defendants

According …

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Relief from a Protective Order: How to Do It and How NOT to Do It

Andrew E. Russell, Feb. 5, 2021
Sealing Protective Order

Shield of Sir John Smythe (1534–1607)
Shield of Sir John Smythe (1534–1607), The Met

This week judges in the District of Delaware issued two orders regarding discovery disputes seeking relief from protective orders in patent actions. One granted relief, and one denied it. The contrast between the two is a great illustration of how you should and shouldn't argue for relief from a protective order.

How Not to Do It

In the first action, plaintiff Wildcat sought permission to disclose defendant's materials from the district court in a co-pending IPR to support its secondary considerations of non-obviousness. The protective order specifically allowed this:

All Protected Material shall be used solely for the above-captioned cases or any related appellate proceeding and/or proceedings before the United States …
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Judge Andrews Relays Comments on Value of Predictability in a Judge

Andrew E. Russell, July 20, 2020
Precedent Protective Order

In ruling on a protective order dispute today, Judge Andrews wrote:

Urban legend has it that one of my predecessors said he is not bound by his own prior decisions. But I have also heard many times that lawyers believe that predictability in a judge is a really good thing. Thus, since it seems to me that the considerations here are no different than they were in the prior case, I should make the same ruling here.

IP/DE takes no official position as to which previous judge he may be referring...

His Ruling Was Also Worth Noting

The protective order dispute concerned cross-use by a plaintiff of defendants' confidential information in a multi-defendant ANDA action.

Plaintiff' proposal allowed …

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