Avago Technologies Fiber IP (Singapore) PTE. Ltd. v. IPtronics Inc. et al

Filing 349

ORDER GRANTING-IN-PART MOTION TO DE-DESIGNATE AND MODIFY THE PROTECTIVE ORDER by Judge Paul S. Grewal granting in part and denying in part 221 Motion for de-designation of product samples and modification of protective order (psglc1, COURT STAFF) (Filed on 1/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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AVAGO TECHNOLOGIES FIBER IP
(SINGAPORE) PTE. LTD.,
Plaintiff,
v.

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IPTRONICS, INC. and IPTRONICS A/S,
Defendants.

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Case No.: C 10-CV-02863 EJD (PSG)
ORDER GRANTING-IN-PART
MOTION TO DE-DESIGNATE AND
MODIFY THE PROTECTIVE ORDER
(Re: Docket No. 221)

On April 6, 2012, Plaintiff Avago Technologies Fiber IP (Singapore) Pte. Ltd. (“Avago”)

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filed an administrative motion to de-designate certain product samples marked highly confidential
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by Defendant IPtronics, Inc. and IPtronics A/S (“IPtronics”) and to modify the court’s protective

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order. IPtronics opposes the motion.
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IPtronics argues that Avago improperly filed an administrative motion to resolve a
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substantive dispute. IPtronics is right. Civil Local Rule 7-11 is reserved for “miscellaneous

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administrative matters, not otherwise governed by a federal statute, Federal or local rule or
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standing order of the assigned judge,” including but not limited to “motions to exceed otherwise
applicable page limitations or motions to file documents under seal.” A motion for administrative
relief “is not the appropriate vehicle for resolution of the substantive arguments raised by the

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Case No.: C 10-02863 EJD (PSG)
ORDER

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parties.”1 As IPtronics correctly noted, the de-designation of product samples and modification of

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the parties’ stipulated protective order are substantive issues. These issues are not suitable for

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filing under the shortened time and briefing requirements of Civil Local Rule 7-11.2

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Despite Avago's procedural violation, in light of its own delay in resolving this dispute and

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its understanding of the parties' arguments, the court will proceed to consider the merits of the

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dispute.
The parties’ dispute centers around what Avago views as overly broad restrictions on

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discovery. Avago first seeks modification of the prosecution bar in the protective order,

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complaining the language is overbroad. However, Avago wrongly suggests that it had no role in

United States District Court
For the Northern District of California

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urging this language upon the court. In fact, the parties negotiated at length before they jointly

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submitted the language of the stipulated protective order to the court.3 If Avago is unhappy with

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the consequences of the language it agreed upon, those consequences are of its own making, and

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there is no reason to alter it at this late stage.
Regarding IPtronics’ designation of certain products as “Highly Confidential – Attorney’s

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Eyes Only,” the court agrees that this higher level of confidentiality is unwarranted. The

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designating party bears the burden of showing its designation is correct.4 Under the stipulated

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protective order, the standard for “Highly Confidential – Attorney’s Eyes Only” is “extremely

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sensitive” information, “disclosure of which… would create a substantial risk of serious harm that

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could not be avoided by less restrictive means.”5 The standard dictates that the information cannot

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be disclosed to the receiving party itself, but only to the receiving party’s outside counsel and other

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Hess v. Astrazeneca Pharmaceuticals, L.P., Case No. 06-0572 PJH, 2006 WL 2092068, at *1
(N.D. Cal. July 26, 2006).
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See Civ. L.R. 7-11 (limiting motions and oppositions to five pages each and requiring oppositions
to be filed no later than four days after the filing of the motion).

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See Docket No. 77; See also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th
Cir. 2003).
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See Docket No. 77; Docket No. 227 ¶ 4.

See Docket No. 77.
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Case No.: C 10-02863 EJD (PSG)
ORDER

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select individuals who agree to be bound by the prosecution bar.6 Avago has shown that IPtronics

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has distributed the products at issue only under the label of “Confidential,” or “treated and

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maintained as confidential by the receiving party.”7 IPtronics relied on this lower, not higher, level

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of confidentiality in distributing the products to a third-party (but Avago-related) entity, Avago

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Technologies U.S., Inc.8 IPtronics cannot now claim that the lower level of confidentiality is

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insufficient to protect their products when they have previously distributed products to customers

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under only that level of confidentiality. If the lower level of confidentiality was sufficient outside

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of this litigation, it will be sufficient inside of it.
Avago’s motion to modify the protective order is DENIED. Avago’s motion to re-

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United States District Court
For the Northern District of California

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designate certain samples under the lower standard of “Confidential” is GRANTED.

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IT IS SO ORDERED.

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Dated: January 2, 2013

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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See Docket No. 77.

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See Docket No. 222 ¶¶ 10-11, Ex. G.

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See Docket No. 226 ¶ 8.

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Case No.: C 10-02863 EJD (PSG)
ORDER