Lumen View Technology LLC v. Findthebest.com, Inc

Filing 51

MEMORANDUM OPINION & ORDER re: 32 MOTION for Protective Order REGARDING SETTLEMENT INFORMATION. filed by Lumen View Technology LLC. The plaintiffs October 22, 2013 motion for a protective order is denied. (Signed by Judge Denise L. Cote on 11/12/2013) (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
Lumen View Technology LLC,
:
:
Plaintiff,
:
:
-v:
:
Findthebest.com, Inc.
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:
:
:
Defendant.
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:
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13 CIV. 3599 (DLC)
MEMORANDUM OPINION
& ORDER

APPEARENCES
For the plaintiff:
Damian Wasserbauer
Aeton Law Partners, LLP
101 Centerpoint Drive, Suite 105
Middletown, CT 06457
For the defendant:
Joseph Leventhal
Leventhal Law, LLP
600 West Broadway, Suite 700
San Diego, CA 92101

DENISE COTE, District Judge:
On October 22, 2013, the plaintiff filed a motion for a
protective order prohibiting the public dissemination of
settlement information in this case, pursuant to Federal Rule of
Civil Procedure 26(c).

The motion is denied.

BACKGROUND
This motion arises out of patent litigation between the
plaintiff Lumen View Technology (“Lumen View”) and the defendant
Findthebest.com, Inc (“Findthebest.com”).

The plaintiff alleges

that the defendant’s attorney shared settlement discussion
information with the CEO of the defendant company,
Findthebest.com, who then began “blogging details of the
settlement discussion

. . . [i]n an effort to taint the

public’s perception of the case and to paint Lumen View in a
negative light.”

The plaintiff contends that there was an oral

agreement between counsel for the plaintiff and the counsel for
the defendant not to disclose settlement discussion information.
The defendant denies the existence of any such agreement.

The

plaintiff argues that the defendant’s public dissemination of
settlement discussion information violates Federal Rule of
Evidence 408, and on October 22, 2013 moved for a protective
order prohibiting such dissemination.

DISCUSSION
Federal Rule of Evidence 26(c) provides that a court may
“for good cause, issue an order to protect a party of person
from annoyance, embarrassment, oppression, or undue burden or
expense.”

Although the plaintiff grounds this motion in Rule

26(c), the motion goes beyond seeking a protective order

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covering specific documents or communications produced in the
past and seeks a gag order prohibiting the defendant from
discussing settlement negotiations publically.

There is a

strong presumption against imposition of such an order:
An order that prohibits the utterance or publication of
particular information or commentary imposes a prior
restraint on speech. A prior restraint on constitutionally
protected expression, even one that is intended to protect
a defendant's Sixth Amendment right to trial before an
impartial jury, normally carries a heavy presumption
against its constitutional validity.
United States v. Salameh, 992 F.2d 445, 446-47 (2d Cir. 1993)
(citation omitted).
The plaintiff does not come close to carrying the burden of
justifying imposition of a gag order.

The plaintiff first

explains that its motion is predicated on Federal Rule of
Evidence 408, which restricts the admission of settlement
negotiations into evidence.
408 is a rule of evidence.

That argument is meritless.

Rule

It is inapposite where, as here, the

question is not whether material will be admitted into evidence
in court but whether a party may discuss certain matters in
public.

The plaintiff appears to concede this in its reply

brief, where it for the first time asserts that “Lumen View is
not taking the position that Rule 408 prevents a party to a
litigation (in this case, [Findthebest.com]) from providing
settlement discussions to the public.

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As such, it is unclear

what role Rule 408 is supposed to play in this motion practice
and why it figures so prominently in the plaintiff’s briefing.
The plaintiff next contends that there was an oral
agreement with the defense counsel, reached in a telephone
conversation of June 25, 2013, not to discuss settlement matters
in public.

The plaintiff argues as well that a prior

confidentiality agreement between the counsel for the parties
here in another case in which Lumen View was the plaintiff,
Lumen View v. Adicio, et al., 13 Civ. 3386 (DLC), supports a
finding that settlement discussions in this case were also to be
confidential, and that a protective order is consequently
justified.

As evidence for these assertions, counsel for Lumen

View submits a declaration in which he contends that such an
oral agreement was reached, copies of purported confidentiality
letters signed by both counsel here in the Adicio case, as well
as a confidentiality agreement which counsel for Lumen View
purportedly sent to counsel for Findthebest.com
contemporaneously with an offer of settlement, but which was not
signed by counsel for Findthebest.com.

In its reply brief, the

plaintiff emphasizes that its settlement offer was transmitted
to counsel for the defendant concurrently with the never-signed
confidentiality agreement, which purportedly further supports a
finding that the settlement agreement was meant to be kept
confidential.

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In opposing this motion, the defendant has submitted a
declaration denying that any oral confidentiality agreement was
reached.

The defendant contends that plaintiff’s counsel never

asked defendant’s counsel during the June 25 telephone call that
their discussions remain confidential and that defendant’s
counsel consequently never made any such agreement.

The

defendant has also asserted, and the plaintiff does not deny,
that in the more than 100 emails that plaintiff’s counsel sent
in the weeks that followed the June 25 telephone call,
plaintiff’s counsel made no reference to such a verbal agreement
until the time at which this motion was filed.
Given this record, the plaintiff has not submitted
sufficient evidence to show that any oral confidentiality
agreement was reached.

Moreover, a gag order implicates serious

constitutional issues.

Without opining as to what circumstances

might justify such an order, it is enough to note that they are
not present here.
Finally, in its reply brief, the plaintiff raises for the
first time the argument that a protective order is also
necessary because counsel for the defendant submitted as an
exhibit in this matter an un-redacted letter that was
purportedly subject to a confidentiality agreement in the Adicio
matter.

Any party seeking to file documents under seal or in

redacted form must follow the procedure set out in this Court’s

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Individual Practice Rules.

However, the exhibit to which the

plaintiff refers is not a document that this Court’s Individual
Practice Rules require to be filed under seal.

Accordingly, its

filing does not support the issuance of a protective order.

CONCLUSION
The plaintiff’s October 22, 2013 motion for a protective
order is denied.

Dated:

New York, New York
November 12, 2013
__________________________________
DENISE COTE
United States District Judge

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