Disclosure of Apple’s Confidential Licensing Information Warrants Additional Discovery into Possible Protective Order Violation

The court ordered additional discovery and briefing on plaintiff's motion for sanctions to address allegations that defense counsel violated a protective order by disclosing plaintiff's confidential licensing information to defendant's employees. "Time and again in competitor patent cases, parties resist producing confidential information to their adversaries’ lawyers. They fear, among other things, that the lawyers will insufficiently shield the information from the competitors that they represent. Yet time and again, the court assuages these fears with assurances that a protective order will keep the information out of the competitors’ hands. A casual observer might reasonably wonder what magic a protective order works that allows outside counsel access to confidential information to advance the case without countenancing untoward uses by the client. The answer is not a magical one at all: confidential information remains confidential because counsel and clients alike follow court orders. If parties breach this basic rule, the court’s assurances become meaningless. There is reason to believe the rule has been breached in the present case. . . . During the massive fact discovery in this case . . . [plaintiff] produced copies of a number of its patent license agreements, including a June 2011 license between [plaintiff] and Nokia. . . . [Defendant's] outside counsel sent [defendant] a draft expert report . . . that should have been fully redacted of that information before it was sent. However, intentionally or inadvertently, it was not. The report as distributed included key terms of [four of plaintiff's] license agreements. . . . The information was then sent, over several different occasions, to over fifty [of defendant's] employees, including high-ranking licensing executives." The court ordered defendant to produce several categories of relevant documents and up to seven witnesses for deposition to determine the facts surrounding the disclosure. Apple Inc. v. Samsung Electronics Co. Ltd., et. al., 5-11-cv-01846 (CAND October 2, 2013, Order) (Grewal, M.J.)