IN THE OREGON TAX COURT REGULAR DIVISION Corporation Excise Tax
APPLE INC. AND U.S. SUBSIDIARIES ) ) Plaintiff, ) TC 5471 v. ) ) DEPARTMENT OF REVENUE, ) State of Oregon, ) ORDER GRANTING AND DENYING IN ) PART PLAINTIFF’S MOTION FOR Defendant. ) PROTECTIVE ORDER
This matter, involving several substantial income apportionment issues, is before the
court on Plaintiff’s Motion for a Protective Order (Motion), and Defendant’s response, relating
to Defendant’s documentary discovery requests. 1 After negotiations, the parties have agreed on
nearly all the terms of the proposed protective order filed by Plaintiff with its motion. The
parties disagree on the three issues stated below, which are raised in sections 7.d. and 11 of
Plaintiff’s proposed order (Sections 7.d. and 11). Defendant has presented its own proposed
versions of those sections. The parties’ competing versions are reprinted side by side in
Appendix A of this order.
This order provides the court’s reasoning for modifications to Plaintiff’s proposed
Sections 7.d. and 11. The document referred to by the court as the instant protective order is
1 The court also allows and considers Plaintiff’s reply filed November 14, 2025, and Defendant’s filing of November 24, 2025.
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 1 of 18 Plaintiff’s proposed protective order, after interlineation by the court to include the
modifications, which the court will issue today.
I. ISSUES
A. The terms of permitted retention of electronic copies of Confidential Documents 2 by Defendant and its counsel and agents following conclusion of this case (Section 7.d., Part I); 3
B. What notifications, if any, Defendant must provide to other tax bodies, and to Defendant’s agents, that receive electronic copies of Confidential Documents from Defendant pursuant to ORS 314.840(2)(c), (d), or (e) (Section 7.d., Part II); 4 and
C. Whether and how the rights of either party to seek an additional protective order, or a modification of the instant protective order, should be restricted (Section 11).
II. SUMMARY
Tax Court Rule (TCR) 36 C 5 requires a showing of “good cause” for entry of a protective
order, and a showing that “justice requires” the specific terms of the order. Here, the parties
agree that good cause exists for a protective order. 6 The court must decide whether justice
requires the three terms Plaintiff seeks. In doing so, the court has discretion to weigh the
protective benefits of the terms against the burden the terms would impose on the party seeking
discovery.
2 Capitalized terms not defined in this order have the meanings assigned in the instant protective order. 3 Part I of Section 7.d consists of the first two sentences of Plaintiff’s proposal.
Part II of Section 7.d. consists of the last sentence of Plaintiff’s proposal. “Other tax bodies” is defined 4
below. References to the Oregon Revised Statutes (ORS) are to the 2025 edition unless otherwise stated. 5 All references to the TCR are to the 2025 edition unless otherwise stated. 6 Plaintiff’s unrefuted evidence includes testimony that “Apple operates in an extremely competitive business environment. The value of its hardware and software products and services are substantially derived from their innovative and proprietary nature as well as Apple’s carefully developed marketing strategies. The disclosure and dissemination of Apple’s trade secrets, and other sensitive, nonpublic business and financial documents and information, could cause the company substantial financial and commercial harm.” (Ptf’s Decl of Berwick at 2, ¶7.)
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 2 of 18 As to issue A, the court will reject Plaintiff’s proposed text for Section 7.d., Part I, which
proposes that all electronic copies of Confidential Documents be deleted or destroyed within 30
days after conclusion of this case (including any appeal), except for a single copy held by
Defendant on a server and certain backups. The court is persuaded by Defendant’s unrefuted
evidence, consisting of declarations describing the security standards and practices used by
Defendant and its counsel, that Plaintiff’s copy destruction proposal would provide no
appreciable additional security benefit to Plaintiff but would impose an undue cost burden on
Defendant and its counsel. The court will adopt a modified version of the second of Defendant’s
two alternative counterproposals, which requires deletion or destruction only of Confidential
Documents not stored by Defendant or its counsel on a secure server.
Issue B involves Defendant’s authority under ORS 314.840(2)(c), (d), and (e),
respectively, to disclose confidential documents to the Internal Revenue Service, other states and
localities, and the Multistate Tax Commission, “for tax administration and compliance
purposes.” (The court refers to these potential recipients as other tax bodies.) Plaintiff does not
dispute Defendant’s authority to disclose Confidential Documents to other tax bodies during the
life of this case, but Plaintiff’s Section 7.d., Part II would require Defendant to notify them of an
obligation to destroy the Confidential Documents following conclusion of this case. Defendant’s
proposal would eliminate any restriction on retention by other tax bodies. The court concludes
that justice does not require Plaintiff’s proposed time limit because the legislature enacted
ORS 314.840(2)(c), (d), and (e) as part of a reciprocal federal, state, and local government
arrangement to facilitate each recipient tax body’s administration of its own tax laws, regardless
of the end date of a case in the state that discloses the confidential material. However,
Defendant’s proposal is not supported by evidence that the security standards and practices of a
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 3 of 18 recipient tax body are such that destruction of electronic copies would unduly burden the
recipient tax body without an appreciable additional security benefit to Plaintiff. The court
resolves this issue by substituting provisions that require Defendant to notify other tax bodies
that they may retain Confidential Documents after conclusion of this case by intervening in this
case and making an appropriate showing in this court. The court will apply the same provisions
to agents of Defendant described in ORS 314.840(2)(g) (employees of other Oregon agencies
performing services for Defendant under contract) and (h) (other persons performing services for
Defendant).
Finally, as to issue C, the court concludes that justice does not require restricting either
party’s right to seek a new protective order or a modification of the instant protective order. In
any deliberations, the court can consider any reliance interest of Plaintiff in the terms of the
instant protective order.
III. APPLICABLE LAW
TCR 36 C (emphases added) provides:
“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or (9) that to prevent hardship the party requesting discovery pay to the other party reasonable expenses incurred in attending the deposition or otherwise responding to the request for discovery.”
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 4 of 18 In keeping with the court’s organic statute, the text is substantially the same as Oregon Rules of
Civil Procedure (ORCP) 36 C; therefore, the court looks to ORCP 36 C for guidance, including
any case law interpreting the rule or any related adoption history. 7 See TCR Preface (“To the
extent that the wording of a TCR is the same as that of an ORCP, cases interpreting the ORCP
may be looked to as authority for interpreting the TCR.”); ORS 305.425(3) (requiring Regular
Division’s rules to “conform, as far as practical to the rules of equity practice and procedure in
this state.”).
If the requirements in TCR 36 C are met, the court has discretion to enter a protective
order. C.f. State ex rel Anderson v. Miller, 320 Or 316, 320, 882 P2d 1109 (1994) (noting that
“ORCP 36 C vests discretion in the trial court to issue an order denying [the discovery
requested], but only if the order is justified by the standards set forth in that rule.”); I. H. v.
Ammi, 370 Or 406, 412, 520 P3d 877 (2022) (“The decision of whether to [grant a protective
order] is discretionary.”). A decision to vacate a protective order is similarly within the court’s
discretion. See Doe v. Corp. of Presiding Bishop, 352 Or 77, 86, 280 P3d 377 (2012) (“The
issuance and vacation of protective orders are matters of a trial court's discretion.”). A party has
a right to otherwise permissible discovery unless the discovery “would result in annoyance,
embarrassment, harassment, oppression, or undue burden or expense to the party or deponent
opposing” the discovery. State ex rel Anderson, 320 Or at 322. The burden is on the moving
party “to establish that any requested limitations or conditions on discovery are supported by
good cause.” Lindell v. Kalugin, 353 Or 338, 357, 297 P3d 1266 (2013).
7 The court observes the following non-substantive differences between TCR 36 C and ORCP 36 C, which do not affect the court’s analysis: (1) TCR 36 C begins with, “Upon motion by a party” while ORCP 36 C states “On motion by a party” (2) TCR 36 C allows the court to “make any order which justice requires” while ORCP 36 C allows the court to “make any order that justice requires”; (3) Provisions within TCR 36 C are numbered, while ORCP 36 C provisions are unnumbered.
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 5 of 18 When a court “concludes that a party or person is entitled to a protective order, it has the
authority to protect that party or person in any way that justice requires.” Carton v. Shisler, 146
Or App 513, 516, 934 P2d 448 (1997) (emphasis in original). The rule’s reference to “justice”
implies that the court may weigh the degree of protective benefit to the movant and the burdens
on the non-movant when fashioning terms. See R. M. v. McNeer, 341 Or App 425, 431, 575 P3d
137, rev den, 374 Or 421 (2025) (“When issuing a protective order and defining the appropriate
terms, the court may consider the factual circumstances and context of the proceeding.”).
IV. ANALYSIS AND CONCLUSIONS
A. Defendant’s Retention of Electronic Copies (Section 7.d., Part I)
Plaintiff’s proposed Section 7.d., Part I, would require that all electronic copies of
Confidential Documents be irretrievably destroyed within 30 days after conclusion of this case,
except that Defendant could retain a single copy on a secure server, plus additional copies as part
of Defendant’s backup and data security procedures. Plaintiff’s premise is that “[i]t does not
require an expert to know that the more copies there are of a document, whether in paper or
electronic form, the greater the risk is of unauthorized disclosure. That is simply common sense.”
(Ptf’s Reply at 20.) 8 Defendant objects that the destruction requirement imposes costs (including
to destroy equipment) that are unduly burdensome, while adding no appreciable measure of
security beyond that afforded by the data security standards and practices employed by
Defendant and its counsel. Defendant proposes replacing Plaintiff’s text with text identified as
Alternative 1 or Alternative 2. (See Def’s Response at 23-24.)
8 Plaintiff also cites numerous news articles about cyberattacks at Oregon state and local agencies, as well as a vendor to Defendant. (See Def’s Second Decl of Gadon, ¶¶ 3-21, Exs 11-29). Defendant cites public information about cyberattacks on businesses, including Plaintiff. (See Def’s Response to Ptf’s Motion for Leave to File a Reply at 3-6.) These materials do not aid the court in determining whether justice requires the particular provisions requested.
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 6 of 18 Defendant has put forth declarations from the Information Technology Operations
Manager for Defendant’s counsel (Judah Kelber of the Oregon Department of Justice) and
Defendant’s Network Engineering Team Lead (Brian Schiffer), describing each agency’s current
standards and practices to safeguard taxpayer information, the additional burdens that would be
imposed on the agencies by Plaintiff’s proposed Section 7.d., and the absence of any appreciable
additional benefit to Plaintiff if Defendant and its counsel were to apply Plaintiff’s proposal.
Kelber’s declaration states that all tax information stored electronically by DOJ is subject
to rigorous security standards including IRS Publication 1075 and Criminal Justice Information
Services standards. (See Def’s Decl of Kelber at 1 ¶ 3). Those standards are continually
evolving and currently require the encryption of information, use of securely configured servers
and systems, multi-factor authentication, and role-based access. (See id. at 1-2, ¶¶ 3, 6, 7, 9).
Those protections limit the potential for disclosure of Plaintiff’s information in the event of
unauthorized access. (Id. at 3, ¶¶ 8, 9.)
Schiffer’s declaration details security provisions at Defendant, which closely mirror those
employed by its counsel. Defendant secures “both core tax systems and the servers,
workstations, and endpoints that handle confidential or other sensitive data are secured to
National Institute of Standards and Technology (NIST) 800-53r5 (Moderate) standards, which
are commonly prescribed for state and federal systems that handle sensitive data.” (See Def’s
Decl of Schiffer at 1, ¶ 3.) “DOR personnel receive regular training on tax confidentiality
requirements and disclosure laws. All DOR employees and contractors that may have access to
DOR data are required annually to sign secrecy certificates informing them of relevant state and
federal laws concerning tax confidentiality and the penalties for unlawful disclosure. * * *
Access to DOR’s tax systems on which confidential tax information is stored requires
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 7 of 18 authenticated access to DOR’s network, which can be accessed only from DOR facilities or over
a virtual private network and secured by multi-factor authentication.” (Id. at 2, ¶¶ 4-5.)
The Kelber and Schiffer declarations also provide factual support for Defendant’s
contention that complying with Plaintiff’s proposed protective order provision allowing
Defendant to retain only a single copy and necessary backup copies would be unduly
burdensome and expensive for Defendant and its counsel. (See Def’s Decl of Kelber at 4, ¶ 16
(“With respect to DOJ workstations (laptop or desktop computers), DOJ Information Services
staff would need to do a full wipe and rebuild of each DOJ-owned laptop or desktop computer
used by the Assistant Attorneys General, DOJ staff, and DOJ supervisory personnel who open
any files with Confidential Documents. For each machine, I estimate it would take 6 to 8 hours
to perform the wipe and another 2 to 3 hours to rebuild the machine. DOJ alternatively could
securely shred the hard drive and install a new one before rebuilding the workstation. That
alternative would impose additional costs and also take significant time for both DOJ
Information Services staff and the employees whose workstations are affected. Under either
alternative, it would take several days of DOJ Information Services staff time and be temporarily
disruptive to the DOJ employees whose workstations’ hard drives needed to be wiped or
replaced and restored.”); id. at 5, ¶ 17 (“With respect to DOJ-issued iPhones that may have been
used to view Confidential Documents, DOJ likely would have to destroy the devices and
purchase new ones. This process would take 1 to 2 hours per device to reconfigure the new
devices, in addition to the time it would take to securely destroy the devices.”)
Defendant’s declarations also support a conclusion that the additional measures in
Plaintiff’s proposal would offer little additional protection of Plaintiff’s confidential information.
(Id. at 5, ¶ 18 (“In my judgment, wiping and rebuilding DOJ workstations would offer no
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 8 of 18 meaningful additional protection to plaintiff against unauthorized disclosure. Information stored
on DOJ workstation hard drives is encrypted. If Confidential Documents were deleted and
emptied from the Windows recycle bin by the user, then, after 30 days, the only way to recover
the encrypted data would be if the person both had a forensic tool to recover deleted files and a
DOJ admin account to gain access. In addition, workstations are periodically upgraded and
replaced, at which time the old workstations’ hard drives are securely shredded.”).) By
comparison, Kelber’s declaration states that the version of Section 7.d. proposed by Defendant
“is drastically less onerous than under the version of Section 7(d) contained in Apple’s Proposed
Order because defendant’s version would require deletion only from any affected workstations
and iPhones and would not require DOJ Information Services staff to perform the exhaustive
search and deletion procedures for DOJ-managed servers and systems described above with
respect to Section 7(d) under Apple’s Proposed Order.” (Id. at 8, ¶ 26; accord Def’s Decl of
Schiffer at 2-3, ¶¶7-9.)
Plaintiff’s evidence fails to address Defendant’s representations regarding the
burdensomeness of Plaintiff’s proposed protective order. Declarations of Plaintiff’s Tax Project
Manager establish the confidential nature of Plaintiff’s proprietary information and the economic
importance to Plaintiff of its continued protection, and the seriousness with which Plaintiff
protects its own confidential information, but they do not put forth any facts demonstrating how
the safeguards of Defendant and its counsel are insufficient to protect that information. (See
Ptf’s Decl of Berwick at 2, ¶ 7; see generally Ptf’s Second Decl of Berwick, Nov 10, 2025.) The
court finds Defendant’s detailed factual evidence more persuasive than Plaintiff’s appeal to
common sense.
///
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 9 of 18 The court will amend Section 7.d. of Plaintiff’s proposed order, replacing the first two
sentences of Plaintiff’s Section 7.d. with Defendant’s proffered “Alternative 2,” as modified to
remove references to Defendant’s “agents" for the reasons explained in the next section.
B. Notification to Third Parties to Destroy Documents Under ORS 314.840 (Section 7.d., Part II)
In Section 7.d., Part II, Plaintiff requests that the Protective Order require Defendant,
after the conclusion of this case, to
“(i) notify other state and federal state agencies to whom Defendant has provided copies of Confidential Documents, and (ii) persons/entities to whom the court, on Defendant’s motion, has permitted Defendant to disclose Confidential Documents, that the case has been closed and of their obligation to destroy any copies of Confidential Documents that Defendant disclosed to them.”
(Ptf’s Motion at 16 (emphases added).) Plaintiff argues that, because any disclosure of
Confidential Documents will occur only as a result of discovery in this case, the retention rights
of a taxing authority not involved with this case should be no greater than the rights of Defendant
and its counsel. (See Ptf’s Motion at 18.) Plaintiff also argues that there is no undue burden on
Defendant to comply with Plaintiff’s proposal because Defendant will know the identities of the
persons to whom it has provided copies of Confidential Documents, and the proposal merely
requires Defendant to notify those persons of their obligation; the proposal does not require
Defendant to monitor or certify that those persons have complied. (See Id. at 18-19.)
Defendant objects on the ground that limitations on other governments would violate the
legislature’s intention in adopting ORS 314.840(2):
“The purpose of assisting the IRS or another state with tax administration and compliance under ORS 314.840(2)(c), (d), and (e) does not end once the current litigation ends. The IRS or other state may still be conducting its audit of plaintiff, or it still may be engaged in litigation with plaintiff based in part on its review of the Confidential Documents received in the exchange permitted by ORS 314.840(2). The IRS or other state still must comply with IRC § 6103 or the other state’s law prohibiting redisclosure regardless of when the current litigation is over. Similarly, the IRS or other state may happen to
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 10 of 18 request the documents only after the current litigation is over, for purposes of tax administration and compliance that are just as valid after the end of this case as before.”
(Def’s Response at 26.) Defendant’s proposal would not impose any requirements on the
duration or manner of the storage of copies, or on the number of copies, of Confidential
Documents by other tax bodies, nor would it require Defendant to communicate with other tax
bodies about the conclusion of this case. (See Appendix A, Def’s Section 7.d., Part II.)
The court first observes that each party appears to have made substantial effort to meet
legitimate concerns of the other. Plaintiff does not seek to limit, during the pendency of this
case, Defendant’s disclosure to, or the storage or use by, other tax bodies of electronic copies of
Confidential Documents for “tax administration and compliance purposes.” Defendant, for its
part, has taken seriously Plaintiff’s concerns about data security by spelling out Defendant’s own
data security standards and practices and those of its counsel as to documents within their
control.
Nonetheless, the court finds that justice is not sufficiently served by either party’s
proposal to address indefinite-term retention of electronic copies by other tax bodies. Plaintiff’s
proposal fails because the court readily agrees with Defendant that another tax body’s retention
of Confidential Documents for some period beyond the duration of this case may be necessary to
achieve the “purposes” of “administration and compliance” of the tax laws over which the other
tax body has jurisdiction. 9 However, the record contains no factual basis to conclude that
9 The court is satisfied that, in enacting ORS 314.840(2), (c), (d), and (e), the Oregon legislature intended to facilitate the recipient’s tax administration as part of a reciprocal intergovernmental system of disclosure that also benefits Oregon. An analysis under State v. Gaines supports this conclusion. 346 Or 160, 164, 206 P3d 1042 (2009). Nothing in the text of ORS 314.840(2) suggests an intention to temporally limit Defendant’s authority to disclose information. Other statutes provide context showing that the federal government and other states and localities authorize disclosure of otherwise confidential information to Oregon and other states for tax administration purposes, provided the recipient adopts laws protecting the confidentiality of the information. See, e.g., IRC § 6103(p)(8)(A) (disclosure to states prohibited “unless such State adopts provisions of law which protect the confidentiality of the * * * Federal return information.”). Legislative testimony of Defendant’s attorney adds further support. See Testimony, Ted DeLooze, Senate Revenue and School Finance, Tape 8 Side 1, Feb 7, 1979, at 20:00- ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 11 of 18 allowing other tax bodies to store multiple copies of Confidential Documents electronically
indefinitely will not appreciably increase the risk of improper disclosure. Defendant’s
declarations as to the protections afforded by Defendant’s and its counsel’s data security
standards and practices say nothing about the standards and practices of other tax bodies. For
that reason, the court also cannot accept Defendant’s proposal, which leaves that issue wholly
unaddressed.
Similarly, the court sees no basis in the record to assume that the standards and practices
of Defendant’s “agents” would protect Plaintiff’s Confidential Documents indefinitely, as
Defendant’s declarations refer only to Defendant itself and its counsel. Defendant clarifies in
briefing that it intends “agents” to mean persons employed by Oregon state agencies other than
Defendant or its counsel, or other persons under contract with Defendant to provide services,
pursuant to ORS 314.840(2)(g) and (h), respectively. (See Def’s Response at 15 n 7.) The court
will treat persons described in ORS 314.840(2)(g) or (h) in the same manner as other tax bodies.
The court will insert the following provision in lieu of Section 7.d., Part II:
“Defendant shall notify persons described in Section 4 of their obligation to comply with the requirements of this Section 7,
(i) “provided, however, that Defendant has no obligation to notify any person described in Section 4(d), Section 4(g), or, unless the court’s order described in Section 4(h) specifically requires notification to be provided pursuant to this Section 7(d), a person described in Section 4(h); (ii) “provided further that when disclosing any Confidential Document to a person described in ORS 314.480(2)(c), (d), (e), (g), or (h), Defendant shall notify the recipient that (A) the recipient’s retention of Confidential Documents is subject to this Protective Order; (B) nothing in this Protective Order limits the protections
27:00 (in support of Or Laws 1979, ch 690, § 2 (SB 168) (amending ORS 314.840) (“If all states have an exchange program for information, income tax information, now federal has come into the picture and there’s the possibility that federal information may be exchanged also. We are putting a limitation on that exchange so that those states have to have a confidentiality provision which meets the federal requirements * * *.”); see also Testimony, Ted DeLooze, Senate Revenue, Tape 6, Side 1, Jan 30, 1973, at 54:00-57:00 (in support of Or Laws 1973, ch 106, § 1; amending ORS 314.840) (discussing adoption of MTC joint audit program as “representing the ways we already can give information to other states” under existing confidentiality provisions).
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 12 of 18 against disclosure of taxpayer information under any federal, state, or other law; (C) nothing in this Protective Order requires any person to delete or destroy information in violation of law; (D) nothing in this Protective Order limits the recipient’s retention or use of Confidential Documents for tax administration and compliance purposes before Defendant transmits to the recipient notice that this case has been finally resolved; and (E) within 30 days after the Case Resolution Date, Defendant shall notify each recipient that this case has been finally resolved, with reference to this Protective Order and to the requirement in paragraph (iii); and (iii) “provided further that within 60 days after receiving notice under paragraph (ii)(E), a recipient shall either (1) certify to Defendant that all copies of Confidential Documents stored electronically have been irretrievably destroyed, or (2) move to intervene in this court for a modification to this Protective Order to allow retention of Confidential Documents beyond the Case Resolution Date, including, without limitation, on the basis that the recipient’s data management systems provide adequate protections against impermissible disclosure.
Stipulated amendments to the foregoing text are a proper subject for reconsideration under TCR
64.
C. Whether Defendant May Seek to Modify the Protective Order
Plaintiff’s proposed Section 11 would allow a future protective order if (1) sought by a
party resisting discovery of Confidential Documents (2) of a “highly proprietary or sensitive
nature,” if (3) the party determines that the protections in the instant protective order are
“insufficient.” While acknowledging that “[t]he court has the inherent right to modify a
protective order,” Plaintiff appears to interpret its proposal as an implicit bar against a party
seeking a future order or modification if the three criteria are not satisfied, citing a need for
“baseline protections” upon which it can rely. (See Ptf’s Motion at 7 & text at n 4; id. at 20
(“Defendant insists that, as a condition to Apple having the ability to seek additional protections,
Defendant should have the ability to reopen the entire protective order. That makes no sense.”).)
Defendant’s proposed Section 11 would allow Plaintiff to seek an additional protective
order if Plaintiff satisfies the conferral requirement in TCR 14 (C)(1), without any further
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 13 of 18 restriction, and without limiting either party’s right to seek a modification of the instant
protective order. Defendant argues:
“[T]he department does not disagree that plaintiff will have reliance interests and that those interests would be relevant if defendant or a third party ever sought modification of the protective order. The problem with plaintiff’s argument is that plaintiff’s reliance interest is not the only interest at stake. If the department or a third party ever requested the court to modify the protective order, the importance of plaintiff’s interest relative to those other interests would need to be evaluated by the court at that time based on whatever modification was being proposed and the reasons for the proposed modification.”
(Def’s Resp Ptf’s Mot Reply at 9.)
The court agrees with Defendant. The court cannot foresee all future circumstances that
may lead a party to request a new protective order or a modification of the instant protective
order. Other courts have recognized that protective orders often are necessarily overinclusive
such that subsequent modification is appropriate. See e.g. Pub. Citizen v. Liggett Grp., Inc., 858
F 2d 775, 790 (1st Cir 1988) (“Although such blanket protective orders may be useful in
expediting the flow of pretrial discovery materials, they are by nature overinclusive and are,
therefore, peculiarly subject to later modification.”). If a party requests a new protective order or
a modification of the instant protective order, the court may properly consider any reliance
interest of Plaintiff as part of its evaluation of the motion. See e.g. id. 858 F 2d at 791
(discussing reliance interest in a protective order). The court will adopt Defendant’s version of
Section 11. Now, therefore,
IT IS ORDERED that Plaintiff’s motion to enter a protective order is granted in part and
denied in part as addressed above. The court will enter Plaintiff’s form of Protective Order, as
submitted on September 22, 2025, with modifications shown by interlineation to reflect this
order.
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 14 of 18 IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave To File a Reply to
Defendant’s Response to Plaintiff’s Motion for Protective Order is granted without need for any
further filings. The court treats Plaintiff’s November 14, 2025, filing as the reply. The court
also takes full account of Defendant’s Response to Plaintiff’s Motion for Leave To File a Reply
dated November 24, 2025.
Dated this 23rd day of January, 2026.
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 15 of 18 APPENDIX A Comparison of Proposed Section 7.d., Part I, Section 7.d., Part II, and Section 11 (Adopted Text Shown in Shading)
Plaintiff’s Proposals Defendant’s Proposals See Proposed Protective Order See Defendant’s Response filed filed September 22, 2025 October 15, 2025, Exhibit A Plaintiff’s proposed Section 7.d., Part I Defendant’s proposed Section 7.d., Part I d. Any copies of Confidential Documents in (Alternative 1) digital or electronic form shall be deleted or d. After the case concludes, defendant and its destroyed (in such a manner that they cannot counsel must continue to take reasonable be retrieved or restored) within 30 days after precautions to keep any copies of Confidential the expiration of all periods to appeal the tax Documents kept in electronic form secure court judgment or appellate judgment (if using the same information security practices applicable) in this litigation, including any as are used with respect to other tax judgment on remand (the “Case Resolution information and “particulars” that are Date”); provided that Defendant may retain a protected from disclosure under ORS 314.835. single copy of each Confidential Document on a server that is subject to the same Defendant’s proposed Section 7.d., Part I information security practices as are used (Alternative 2) with respect to other tax information and d. Any copies of Confidential Documents that “particulars” that are protected from both (A) are stored in electronic or digital disclosure under ORS 314.835; provided form by Defendant, Defendant’s counsel, or further that additional copies required solely their agents, and (B) are not stored on a secure as part of the Defendant’s standard computer server operated by Defendant, Defendant’s file back-up and data security procedures, counsel, or their agents, shall be deleted or undertaken in the ordinary course of destroyed (in such a manner that they cannot Defendant’s regular business operations and be retrieved or restored) within 30 days protected from disclosure under ORS following the expiration of all periods to 314.835, are permitted. Nothing in this appeal the tax court judgment or appellate Protective Order requires any person to delete judgment in this litigation, including any or destroy information in violation of law. judgment on remand, if applicable. Nothing in this Protective Order shall require Defendant, Defendant’s counsel, or their agents to delete or destroy copies that are managed by the network or server and temporarily stored on laptops or similar devices if the same information security practices are used with respect to accessing other confidential tax information under ORS 314.835, nor shall anything in this Protective Order require any person to delete or destroy information in violation of law.
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 16 of 18 Court’s adopted Section 7.d., Part I d. Any copies of Confidential Documents that both (A) are stored in electronic or digital form by Defendant or Defendant’s counsel and (B) are not stored on a secure server operated by Defendant or Defendant’s counsel shall be deleted or destroyed (in such a manner that they cannot be retrieved or restored) within 30 days following the expiration of all periods to appeal the tax court judgment or appellate judgment in this litigation, including any judgment on remand, if applicable. Nothing in this Protective Order shall require Defendant or Defendant’s counsel to delete or destroy copies that are managed by the network or server and temporarily stored on laptops or similar devices if the same information security practices are used with respect to accessing other confidential tax information under ORS 314.835, nor shall anything in this Protective Order require any person to delete or destroy information in violation of law.
Plaintiff’s proposed Section 7.d., Part II Defendant’s proposed Section 7.d., Part II Within 30 days after the Case Resolution Defendant shall notify persons described in Date, Defendant shall notify persons Section 4 of their obligation to comply with described in Section 4(a), (b), (c), (e), (f) and the requirements of this Section 7, except that (h) that the case has been finally resolved and Defendant has no obligation to notify the of their obligation to comply with the following: any person described in Section requirements of this Section 7. 4(d) or (g); any person described in ORS 314.840(2)(c), (d), or (e); and, unless the court’s order described in Section 4(h) specifically requires notification to be provided pursuant to this Section 7(d), a person described in Section 4(h).
Court’s adopted Section 7.d., Part II Defendant shall notify persons described in Section 4 of their obligation to comply with the requirements of this Section 7,
i. provided, however, that Defendant has no obligation to notify any person described in Section 4(d), Section 4(g), or, unless the court’s order described in Section 4(h) specifically requires notification to be provided pursuant to this Section 7(d), a person described in Section 4(h); ii. provided further that when disclosing any Confidential Document to a person described in ORS 314.480(2)(c), (d), (e), (g), or (h), Defendant shall notify the recipient that (A) the recipient’s retention of Confidential Documents is subject to this Protective Order; (B) nothing in this Protective Order limits the protections against disclosure of taxpayer information under any federal, state, or other law; (C) nothing in this Protective Order requires any person to delete or destroy information in violation of law; (D) nothing in this Protective Order limits the recipient’s retention or use of Confidential Documents for tax administration and compliance purposes before Defendant transmits to the recipient notice that this case has been finally resolved; and (E) within 30 days after the Case Resolution Date, Defendant shall notify each
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 17 of 18 recipient that this case has been finally resolved, with reference to this Protective Order and to the requirement in paragraph (iii); and iii. provided further that within 60 days after receiving notice under paragraph (ii)(E), a recipient shall either (1) certify to Defendant that all copies of Confidential Documents stored electronically have been irretrievably destroyed, or (2) move to intervene in this court for a modification to this Protective Order to allow retention of Confidential Documents beyond the Case Resolution Date, including, without limitation, on the basis that the recipient’s data management systems provide adequate protections against impermissible disclosure.
Plaintiff’s Proposed Section 11 Defendant’s Proposed Section 11 11. In the event that a party seeks discovery 11. Nothing in this Protective Order shall be of documents or information of a highly construed as preventing Plaintiff from seeking proprietary or sensitive nature, with respect to an additional protective order from the court which the party from whom discovery is under TCR 36, including an order limiting or sought determines that the protections in this prohibiting discovery, imposing further Protective Order are insufficient, the party restrictions on the use of documents or from whom discovery is sought shall have the information, or imposing further restrictions right to seek an additional protective order on storage or disclosure of documents or from the court, including an order limiting or information. Nothing in this Protective Order prohibiting discovery, restricting the use of shall be construed as the conferral required such documents or information, and/or under TCR 14 C(1) before Plaintiff files a providing additional restrictions on the motion for such an additional protective order. storage and disclosure of such documents or Nothing in this Section 11 should be information. The party seeking discovery construed as limiting the right of either shall have the right to oppose the motion in Plaintiff or Defendant to seek a modification accordance with Tax Court Rules. of this Protective Order under Section 14.
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION FOR PROTECTIVE ORDER TC 5471 Page 18 of 18