Ivanti v. Staylinked Corporation

CourtDistrict Court, D. Utah
DecidedAugust 4, 2021
Docket2:19-cv-00075
StatusUnknown

This text of Ivanti v. Staylinked Corporation (Ivanti v. Staylinked Corporation) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ivanti v. Staylinked Corporation, (D. Utah 2021).

Opinion

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

MEMORANDUM DECISION IVANTI, INC., AND ORDER

Plaintiff, Case No. 2:19-cv-00075-RJS-JCB v.

STAYLINKED CORP., Chief District Judge Robert J. Shelby

Defendant. Magistrate Judge Jared C. Bennett

Before the court is Ivanti, Inc.’s (“Ivanti”) short form motion for a protective order in which it seeks to maintain a “Confidential—Attorney’s Eyes Only” (“CAEO”) designation for 734 documents that it produced in discovery to Staylinked Corp. (“Staylinked”) based on this court’s Standard Protective Order (“SPO”).1 On May 28, 2021, Ivanti submitted an Excel spreadsheet in native file format to the undersigned’s chambers after counsel for Staylinked had the opportunity to review it.2 On the spreadsheet, Ivanti listed the challenged documents and provided the reasons for its designation of CAEO. Staylinked provided counter- annotations on the spreadsheet opposing Ivanti’s proposed designations. Ivanti also submitted the documents to chambers for an in camera review of the CAEO designations.

1 ECF No. 69. 2 ECF No. 69-2. This court reviewed every document in camera and, on July 2, 2021, provided a tentative ruling on each by inserting a note on every line item in the spreadsheet that the parties previously submitted.3 The court’s tentative ruling also ordered simultaneous briefing, which the parties provided.4 The court held oral argument on July 27, 2021.5 After considering the information provided in the parties’ initial briefing, the court’s in camera review, the parties’ supplemental briefing, and oral argument, the court GRANTS IN PART AND DENIES IN PART Ivanti’s motion for protective order. To provide context for the court’s rulings on each document, the court first provides its view of the legal background for protecting documents. Thereafter, the court applies the legal background to the several categories of documents in the materials reviewed in camera. Next, the court explains the

terms that it uses in the spreadsheet to denote its specific rulings as to each document.6 Finally, the court discusses why it declines to award reasonable expenses under Fed. R. Civ. P. 37(a)(5)(C). LEGAL BACKGROUND

Because this dispute arises over a protective order, the court begins with the rule that governs protective orders: Fed. R. Civ. P. 26(c). Rule 26(c)(1) allows a court “for good cause”

3 ECF No. 74. 4 ECF Nos. 81, 82. 5 ECF No. 91. 6 A .pdf version of the spreadsheet will be attached to this document to memorialize the court’s rulings. However, the explanatory notes for each ruling are only available in the native file format for the spreadsheet, which will be distributed to the parties in a separate email since an Excel spreadsheet cannot be filed on CM/ECF. to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”7 As an example of this type of information, Rule 26(c)(1) provides that the court can order that “trade secret or other confidential research, development, or commercial information . . . be revealed only in a specified way.”8 Courts interpreting this provision under Rule 26 require that “[w]hen a party seeks such a protective order, it ‘must first establish that the information sought is a trade secret [or confidential information] and then demonstrate that its disclosure might be harmful.’”9 Based on Rule 26(c) and to make discovery more efficient, this court has adopted the SPO, which applies in every civil case that is filed in this district.10 The SPO requires disclosure of even confidential information in a “specified way.”11 Parties can designate discovery

“Confidential” or Confidential–Attorneys Eyes Only. To be CAEO, the discovery material must be “protected information,” (i.e., confidential or proprietary technical, scientific, financial, business, health, or medical information). Additionally, to warrant a CAEO designation, the “protected information” must be “past, current, or future” that includes five categories: (1) sensitive technical information; (2) sensitive business information; (3) competitive technical information; (4) competitive business information; and (5) “any other protected information the

7 Fed. R. Civ. P. 26(c)(1). 8 Fed. R. Civ. P. 26(c)(1)(G). 9 In re Cooper Tire & Rubber, Co., 568 F.3d 1180, 1190 (10th Cir. 2009) (citation omitted) (alteration added). 10 DUCivR 26-2(a)(1). 11 Fed. R. Civ. P. 26(c)(1)(G). disclosure of which to non-qualified people . . . would likely cause harm.”12 The wording of the

fifth category of CAEO information shows that categories (1)-(4) are also linked to Rule 26’s requirement to show “harm” to protect discovery material. Accordingly, based on Rule 26 and the SPO itself, to properly designate discovery material CAEO, the party seeking protection must establish that: (1) the material is “protected information”; (2) material falls into one of the five CAEO categories; and (3) releasing the protected information without the CAEO designation would cause harm to the releasing party.13 To determine whether discovery material is the type of protected information warranting protection, courts have considered multiple factors. For example, many courts have followed the Southern District of New York’s approach in United States v. International Business Machines,

Corp., 67 F.R.D. 40 (S.D.N.Y. 1975), which considered the following to determine whether a matter in discovery constituted a trade secret: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.14

12 SPO, ¶ 2(b) (emphasis added) (capitalization omitted). 13 Id. 14 67 F.R.D. at 47. Courts use these same factors to determine whether material contains confidential business, commercial, financial, or technical information.15 But even if the information qualifies as “protected information” in one of the five CAEO categories, the party resisting discovery “must do more than simply allege that the documents are proprietary and confidential.”16 In addition, the party seeking protection must “set forth specific facts showing good cause, not simply conclusory statements.”17 “‘Competitive disadvantage is a type of harm cognizable under rule 26.’”18 CATEGORIAL DETERMINATIONS

Over the course of the court’s in camera review, the court came across several recurring issues and offers its opinion on each. First, regarding emails—the bulk of the documents at issue—the court notes the SPO’s requirement that parties must “designate only that part of a document or deposition that is confidential information or confidential information — attorney’s eyes only, rather than the entire document or deposition.”19 This requirement is significant because the court has found very few email records in which every email in the chain is CAEO.

15 See, e.g., S. New England Tel. Co. v. Glob. Naps, Inc., No. 04-CV-2075, 2008 WL 11492786, at *3 (D. Conn.

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Ivanti v. Staylinked Corporation, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivanti-v-staylinked-corporation-utd-2021.