Local Access, LLC v. Peerless Network, Inc.

Filing 963

ORDER denying 946 Peerless Network, Inc.'s Motion to Modify Protective Order. Signed by Magistrate Judge Embry J. Kidd on 4/24/2023. (RMN)

Case 6:17-cv-00236-WWB-EJK Document 963 Filed 04/24/23 Page 1 of 4 PageID 21822

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LOCAL ACCESS, LLC,
Plaintiff,
v.

Case No: 6:17-cv-236-WWB-EJK

PEERLESS NETWORK, INC.,
Defendant.
ORDER
This cause comes before the Court on Peerless Network, Inc.’s Motion to
Modify Protective Order [ECF 44] (the “Motion”) (Doc. 946), filed March 31, 2023.
Local Access responded in opposition. (Doc. 947.) The Court then allowed additional
briefing. (Docs. 957, 960.) The Motion is now ripe for review. Upon consideration, it
is due to be denied.
Peerless seeks to modify the Protective Order (Doc. 44) in this case to permit
the disclosure of Litigation Material, as that term is defined, to (1) Peerless’s corporate
parent, Infobip, Inc. (“Infobip”), and its attorneys, and (2) Infobip’s outside auditors.
(Doc. 946.) Specifically, Peerless requests that the Court modify the Protective Order
to permit Infobip to receive Confidential or Highly Confidential materials to the same
extent as a “party.” (Doc. 946 at 1.) Additionally, Peerless informs the Court that
Infobip’s outside auditors are in the process of conducting a regularly scheduled
annual audit of Infobip and have requested the disclosure of information regarding this
case. (Doc. 946 at 2.) To that end, Peerless requests that Infobip’s outside auditors be

Case 6:17-cv-00236-WWB-EJK Document 963 Filed 04/24/23 Page 2 of 4 PageID 21823

allowed to receive and use Litigation Material designated as Confidential or Highly
Confidential to the extent reasonably necessary for the auditors to complete their audit.
(Id.)
Local Access responded that it had no objection to Peerless sharing Confidential
information with Infobip’s directors, officers, and employees, provided they require
such information to perform their responsibilities in connection with this case and they
have executed an “Exhibit A” acknowledgment of the Protective Order. (Doc. 947 at
2.) As to Infobip’s attorneys, Local Access stated that, if Infobip’s attorneys are
directors, officers, or employees, then they may see protected information in
accordance with the restrictions noted above. (Id.) Local Access did not agree to share
Confidential information with outside counsel of Infobip. (Id.) Local Access also did
not agree to disclose Confidential or Highly Confidential information to Infobip’s
auditors. (Id. at 2–3.)
Following the filing of the Motion, the parties continued to confer and partially
resolved their dispute, which they set forth in greater detail in their Reply and SurReply. Local Access has confirmed that it agrees that, subject to the limitations of the
Protective Order, including the requirement of executing Attachment A, 1 (a) Infobip’s
officers, employees, and directors can receive Confidential material produced and so
designated by Local Access; and (b) Infobip’s inside and outside counsel can receive
1

Local Access states that it agrees to the form that Peerless previously used, attached
as Doc. 960-1, as an acceptable form of “Attachment A,” since the Protective Order
referenced but did not contain a form of an Attachment A and the parties never
subsequently agreed to a specific form.

-2-

Case 6:17-cv-00236-WWB-EJK Document 963 Filed 04/24/23 Page 3 of 4 PageID 21824

Highly Confidential material produced and so designated by Local Access. (Docs. 957
at 1; 960 at 2.) As the parties have stipulated to this agreement between themselves,
the Court sees no need to amend the Protective Order. The Court will enforce the
Protective Order, and this stipulation, to the extent necessary. (See Doc. 916 at 4) (“The
Court will enforce stipulated and signed confidentiality agreements.”).
Local Access, however, objects to any amendment to the Protective Order that
would allow Infobip’s officers, employees, directors, or attorneys to view Confidential
or Highly Confidential material produced by third parties. (Doc. 957 at 2.) Local Access
argues that third parties produced information in this litigation “with the expectation
that their disclosures would be restricted to the recipients under the terms of the
Protective Order in effect at the time those third-parties designated and produced their
proprietary information.” (Doc. 960 at 4.) The Court finds this argument persuasive.
While Peerless claims that not amending the Protective Order to allow this change will
somehow prohibit its communication with Infobip during mediation, the undersigned
fails to see how this would be the case, and without more, is not persuaded by this
argument. Additionally, the Court finds that Peerless’s assertion that it will be
overburdened by this arrangement falls short. Simply because it will need to keep two
sets of records and will have to review Litigation Materials to see if they were produced
by nonparties is not good cause to justify amending the Protective Order.
As to the auditors, Peerless has not convinced the Court that Infobip’s auditors
need the Litigation Materials for their audit, and as Local Access points out, the
Protective Order specifically contemplates that any use of Litigation Materials for

-3-

Case 6:17-cv-00236-WWB-EJK Document 963 Filed 04/24/23 Page 4 of 4 PageID 21825

auditing is a prohibited business use. For that reason, the Court will deny Peerless’s
request.
Accordingly, it is ORDERED that Peerless Network, Inc.’s Motion to Modify
Protective Order [ECF 44] (Doc. 946) is DENIED.
DONE and ORDERED in Orlando, Florida on April 24, 2023.

-4-