Cabell v. Zorro Productions, Inc. et al
Filing
173
Order re: 140 Discovery Dispute Joint Report #2 signed by Magistrate Judge Howard R. Lloyd on 7/5/2017. (hrllc3S, COURT STAFF) (Filed on 7/5/2017)
E-filed 7/5/2017
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
ROBERT W CABELL,
Plaintiff,
8
9
10
United States District Court
Northern District of California
11
12
v.
ZORRO PRODUCTIONS INC., et al.,
Case No.15-cv-00771-EJD (HRL)
ORDER RE: DISCOVERY DISPUTE
JOINT REPORT #2
Re: Dkt. Nos. 140, 169
Defendants.
Plaintiff Robert W. Cabell (“Cabell”) requests that the court enter a two-tiered protective
13
order providing him with limited access to “Highly Confidential—Attorneys’ Eyes Only”
14
documents. Dkt. No. 140. This access is necessary, he asserts, because these documents are
15
“critical to him making informed decisions regarding litigation and settlement.” Id. Defendants
16
Zorro Productions, Inc. and John Gertz (together, “ZPI”) request that the court enter a protective
17
order precluding Cabell from accessing Attorneys’ Eyes Only material, arguing that disclosure to
18
Cabell, a competitor of ZPI, would result in giving Cabell an unfair competitive advantage. Id.
19
ZPI also argues that this issue has already been decided in its favor earlier in this litigation, but
20
Cabell responds that the earlier protective order was limited to jurisdictional discovery. Id.
21
For good cause, the court may issue an order protecting a party from “undue burden or
22
expense” by requiring that confidential information “not be revealed or be revealed only in a
23
specific way[.]” Fed. R. Civ. P. 26(c)(1). In determining whether a protective order is warranted,
24
the court must weigh one party’s need for the information against the other party’s interest in
25
protection from undue burden, which could include competitive harm from disclosure. Brown
26
Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992). When reviewing which
27
individuals will be permitted access to documents pursuant to a protective order, courts consider
28
whether the individuals seeking access participate in making competitive decisions. Id., at 1470-
1
71; Intervet, Inc. v. Merial Ltd., 241 F.R.D. 55, 59 (D.D.C. 2007) (permitting disclosure to an
2
individual who was not a competitive decision-maker); Westbrook v. Sciara & Son Produce Co.,
3
Inc., No. 07-2657 Ma/P, 2008 WL 839745 (W.D. Tenn. Mar. 27, 2008) (“In general, courts utilize
4
‘attorneys’ eyes only’ protective orders when especially sensitive information is at issue or the
5
information is to be provided to a competitor.”).
6
Plaintiff’s Second Amended Complaint alleges that both Plaintiff and Defendants have
interests in producing and promoting, directly or through licenses, musicals involving the fictional
8
character Zorro. Dkt. No. 105. This suggests that Cabell competes with Defendants. Defendants
9
further contend that disclosure of their confidential information—including information related to
10
licenses and contracts—to Cabell would be “especially damaging,” in that it would give Cabell an
11
United States District Court
Northern District of California
7
unfair competitive advantage or enable him to disrupt Defendants’ relations with licensees. Dkt.
12
No. 34, ¶¶ 7, 8.
13
The court is not persuaded by Cabell’s argument that entering a two-tiered protective order
14
of the sort requested by Defendants—which is based on the court’s model order—would prejudice
15
him by ceding his ability to participate in making decisions in the litigation entirely to his counsel.
16
If this argument were persuasive, the court would never enter protective orders barring parties
17
from viewing the highly confidential information of their competitors. The court also observes
18
that the parties’ proposed protective order prohibits the indiscriminate designation of documents
19
and permits challenges to the designation of documents.
20
The court therefore agrees with Defendants that a protective order precluding Cabell from
21
accessing “Highly Confidential—Attorneys’ Eyes Only” documents is appropriate. The court will
22
enter a protective order, modified to comply with the undersigned’s Standing Order re: Civil
23
Discovery Disputes, following the entry of this order.
24
25
IT IS SO ORDERED.
Dated: 7/5/2017
26
27
HOWARD R. LLOYD
United States Magistrate Judge
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?