Tuesday, September 27, 2016

Protective Order’s Special Handling Requirement for Confidential Information Not "Mere Boilerplate"

The court referred to the magistrate judge defendant's motion for an order of contempt for plaintiff's disclosure of defendant's highly confidential information in open court. "By long tradition, when a lawyer wishes to reveal in open court information whose disclosure is restricted by a protective order, the lawyer must first explain the restriction to the judge and (i) ask to seal the courtroom and transcript or (ii) hand up a copy of the restricted information to the judge. . . .The special handling required by protective orders is not mere boilerplate as respondents argue. The special handling is the quid pro quo for gaining access to sensitive information. Those who need to maintain their information in privacy will resist even court orders to allow discovery if the lawyers who want access can brush off the special handling as boilerplate. . . . All that remains is the desire by movant to be reimbursed for expenses of an earlier motion to seal. To get there, movants want a finding of contempt of court. That seems heavy handed, perhaps even vindictive, when all that remains at stake is a few dollars in an ocean of money spent on this case. Everyone involved is hereby referred to [the magistrate judge] . . . to settle the balance of this motion, failing which the Court will resolve it."

Oracle America, Inc. v. Google Inc., 3-10-cv-03561 (CAND September 23, 2016, Order) (Alsup, USDJ)

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