Intellectual Property Law

Courts Here Don't Rubber Stamp Stipulated Motions for a Protective Order

By Michael Atkins

It happens every so often in these parts — the court denies a stipulated protective order. Suffice it to say, courts around here don’t rubber stamp litigants’ attempts to privatize court proceedings. A case in point from a Western District trademark infringement suit last week:

“The parties request an expansive protective order for all confidential information that may be disclosed during the discovery phase of this proceeding. The parties have agreed to designate as ‘CONFIDENTIAL MATERIAL …. any trade secret or other confidential research, design, development, financial, or commercial information.’ The parties have also agreed to designate as ‘ATTORNEYS ONLY MATERIAL’ any material that ‘is entitled to a higher level of protection due to its commercial sensitivity.’

“The Court need not enter the stipulation as an order of the Court because (1) the proposed order contains provisions that are more appropriate for an agreement between the parties instead of an expansive protective order and (2) the attorneys for both parties have executed the agreement. Moreover, the parties have already been ordered to redact dates of birth, social security numbers, and financial accounting information pursuant to the General Order of the court regarding Public Access to Electronic Case Files. As outlined in the Stipulated Protective Order, if a party chooses to submit confidential documents to the Court, the party may file a motion to seal the material pursuant to Local Rule CR 5(g) and note the motion according to Local Rule CR 7(d)(2). ‘The law requires, and the motion and the proposed order shall include, a clear statement of the facts justifying a seal and overcoming the strong presumption in favor of public access.’ If the party that chooses to submit the material is not the party that designated the material ‘confidential,’ it may state so in the motion to seal and, in the response, the designating party may articulate facts in support of sealing the submitted material.”

The case cite is G. Loomis, Inc. v. Gary A. Loomis, et al., No. 09-5236 (W.D. Wash. Sept. 9, 2009) (Settle, J.).

Full post as published by Seattle Trademark Lawyer on September 15, 2009 (boomark / email).