Clayton Corporation v. Momentive Performance Materials, Inc. et al

Filing 96

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that, within fourteen (14) days of the date of this Order, Plaintiff and Defendants Altachem and Lindall shall confer in good faith, in accordance with Local Rule 37-3.04, to attempt to agree on an amendment to the protective order that addresses all parties concerns. IT IS FURTHER ORDERED that by August 15, 2014, the parties shall fileeither (1) a Joint Motion for Amendment to the Protective Order, or (2) a Notice advising the Court that the parties wer e unable to reach an agreement regarding an amendment to the protective order, in which case the Court will address Defendants motion for amendment to the protective order (Doc. No. 83). Response to Court due by 8/15/2014. Signed by District Judge Audrey G. Fleissig on 7/24/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CLAYTON CORPORATION,
Plaintiff,
v.
MOMENTIVE PERFORMANCE,
MATERIALS, INC., et al.,
Defendants.

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Case No. 4:12CV01349 AGF

MEMORANDUM AND ORDER
This patent infringement case is before the Court on the motion (Doc. No. 83) of
Defendants Lindal North America, Inc., (“Lindal”) and Altachem NV (“Altachem”)
(collectively, “Defendants”) to amend the protective order. The Court has reviewed
Defendants’ motion, which asks the Court to reconsider its May 14, 2013 Memorandum
and Order (Doc. No. 49), in which the Court denied without prejudice Defendants’
request for the inclusion of a two-year patent prosecution bar because Defendants did not
meet their burden of showing good cause for entry of such a bar. Specifically,
Defendants offered no specific evidence that Plaintiff’s trial counsel was engaged in
“competitive decision making related to the subject matter of the litigation so as to give
rise to a risk of inadvertent use of confidential information learned in litigation.” In re
Deutsche Bank Trust Co. Am., 605 F.3d 1373, 1381 (Fed. Cir. 2010).
In their current Motion for Amendment to the Protective Order, Defendants put
forth new evidence that appears to raise genuine concerns with respect to the role of

Plaintiff’s trial counsel in matters that are likely to implicate competitive decision
making. In light of this new evidence, Defendants seek to amend the protective order to
include a revised, three-year patent prosecution bar. In response, Plaintiff argues that the
current protective order provides adequate protection for the parties’ confidential
information and that the imposition of Defendants’ proposed patent prosecution bar will
interfere with Plaintiff’s ability to engage counsel of its choice. Although the Court
appreciates Plaintiff’s concerns in preserving its access to the advice of counsel of its
choice, Plaintiff’s response does not address Defendants’ new evidence with sufficient
detail or supporting evidence to give the Court comfort that Defendants’ confidentiality
concerns are unfounded or adequately protected.
Accordingly,
IT IS HEREBY ORDERED that, within fourteen (14) days of the date of this
Order, Plaintiff and Defendants Altachem and Lindall shall confer in good faith, in
accordance with Local Rule 37-3.04, to attempt to agree on an amendment to the
protective order that addresses all parties’ concerns.
IT IS FURTHER ORDERED that by August 15, 2014, the parties shall file
either (1) a Joint Motion for Amendment to the Protective Order, or (2) a Notice advising
the Court that the parties were unable to reach an agreement regarding an amendment to

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the protective order, in which case the Court will address Defendants’ motion for
amendment to the protective order (Doc. No. 83).

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 24th day of July, 2014

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