Apeldyn Corporation v. AU Optronics Corporation et al

Filing 714

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 687 Motion for Protective Order; adopting Report and Recommendations re 709 Report and Recommendations. Signed by Judge Sue L. Robinson on 6/20/2012. (fms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

APELDYN CORPORATION,
Plaintiff,
v.

AU OPTRONICS CORPORATION,
et al.,
Defendants.

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) Civ. No. 08-568-SLR
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ORDER
At Wilmington this 20th day of June, 2012, having reviewed the report and
recommendation of Special Master Vincent J. Poppiti (D.I. 709), the objections filed
thereto by plaintiff (D. I. 711) and defendants' responses to the objections (D. I. 712,
713);
IT IS ORDERED that the report and recommendation is adopted, the objections
overruled, and plaintiff's motion to modify the protective order (D.I. 687) denied, as
follows:
1. Plaintiff, in seeking a modification of the stipulated protective order in the
above captioned case, bears the burden of demonstrating good cause for the
modification. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 790 (3rd Cir. 1994) (the
court having identified the factors of the "good cause balancing test"). "[C)ourts have
discretionary authority to modify a stipulated protective order .... " Phillips Petroleum
Co. v. Rexene Products Co., 158 F.R.D. 43,46 (D. Del. 1994).

2. Consistent with the findings of the Special Master, although plaintiff has come
forward with a reason to modify the order (that is, allowing Messrs. Birdwell and
Rumbaugh to fully assist litigation counsel in the pending appeal), the balance of
interests weigh against modification.
a. First and foremost, the parties agreed to protect certain confidential
information without allowing access to such by any corporate representatives. 1 Plaintiff
only now seeks such designation during the pendency of the appeal.
b. Second, the court is not persuaded that Messrs. Birdwell and
Rumbaugh have such specialized knowledge that their access to defendants'
confidential information will add value to the appellate process when their participation
was not considered essential during the pretrial phase of the case.
c. With respect to the timing of plaintiffs request, the appellate record has
been established and plaintiffs appellate counsel has been retained. Such counsel
may confer with Messrs. Birdwell and Rumbaugh concerning those portions of the
record that have been made public via oral argument and the court's written decisions.
d. Finally, despite the fact that plaintiff is not a direct competitor of
defendants and the patent at issue has expired, plaintiff remains engaged in litigation
over the patent with direct competitors of defendants. As noted by the Special Master,
plaintiffs "'unfinished business' with defendants' direct competitors sets an environment
for the risk of inadvertent disclosure" which might result in competitive harm to

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The court generally allows one in-house corporate representative to have
access to confidential information to, e.g., promote settlement efforts and assist
litigation counsel.

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defendants. (D.I. 709 at 14)
3. For the reasons stated above, and having reviewed the report and
recommendation of Special Master Poppiti de novo, consistent with Fed. R. Civ. P.
53(f)(3) and (4), the court rejects the objections of plaintiff and adopts the
recommendation of the Special Master to deny plaintiff's motion to modify the protective
order.

United States

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1stnct Judge