McAirlaids, Inc. v. Kimberly-Clark Corp.

299 F.R.D. 498, 2014 U.S. Dist. LEXIS 30848, 2014 WL 904717
CourtDistrict Court, W.D. Virginia
DecidedMarch 7, 2014
DocketNo. 7:13-CV-193
StatusPublished
Cited by3 cases

This text of 299 F.R.D. 498 (McAirlaids, Inc. v. Kimberly-Clark Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McAirlaids, Inc. v. Kimberly-Clark Corp., 299 F.R.D. 498, 2014 U.S. Dist. LEXIS 30848, 2014 WL 904717 (W.D. Va. 2014).

Opinion

ORDER

ROBERT S. BALLOU, United States Magistrate Judge.

The Court entered a protective order in this patent infringement case on December 17, 2013. Dkt. No. 58. The protective order was proposed by defendants Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, LLC (“Kimberly-Clark”), and was identical to that used by the parties in McAirlaids, Inc. v. Kimberly-Clark Carp., et al, 7:12-cv-00578 (W.D.Va.), a related trademark infringement case. Plaintiff McAirlaids, Inc. (“MeAirlaids”) filed a Response to the Protective Order, objecting to the terms that restrict the use of information designated as confidential and attorney eyes only. Specifically, McAirlaids claims that the current Protective Order prevents its decision-makers from reviewing a majority of the discovery materials exchanged in the case and evaluating and understanding their legal position. MeAirlaids proposed an alternative protective order that would allow the parties to designate two employees as “technical advisors” who can access the other party’s confidential and attorney eyes only information. Kimberly-Clark objects to McAirlaids’ alternative protective order, because it would permit McAirlaids’ competitive decision-makers to access Kimberly-Clark’s confidential information. The court held a hearing on this issue on February 25, 2014. Having considered the proposed protective orders, the parties’ briefs and oral argument, and for the reasons set forth below, I find that the current Protective Order entered by the Court should not be amended.

I.

The parties agree that a protective order should be entered in this case to protect [500]*500confidential information exchanged during discovery. The parties do not agree on how confidential information should be disseminated under the protective order; and specifically, whether MeAirlaids’ competitive decision-makers should be permitted to access Kimberly-Clark’s information designated “confidential” and “attorney eyes only.”

The current Protective Order sets forth a two tier designation for protected information as “confidential” or “attorney eyes only.” Attorney eyes only information may be viewed by litigation counsel and approved independent experts and consultants. Confidential information may be accessed by litigation counsel, approved independent experts and consultants, and up to five employees of each party, so long as the employees are not involved in competitive decision-making.

MeAirlaids claims that the current Protective Order prevents its decision-makers from reviewing confidential discovery in the case, assisting counsel with technical and scientific matters, and properly evaluating each party’s position. MeAirlaids asserts that it has only a handful of employees with technical expertise, who are also involved in competitive decision-making. Thus, MeAirlaids proposes an alternative protective order that allows each party to designate two competitive decision-makers within the company as “technical advisors,” who would have access to all information exchanged between the parties, including that information marked as confidential and attorney eyes only. At the hearing on this issue, MeAirlaids proffered that its “technical advisors” would be MeAirlaids’ president, and either its owner and patent inventor, or chief operating officer. These individuals, MeAirlaids readily admits, are responsible for the daily operations of the company and decisions relating to marketing and its competition in the marketplace.

MeAirlaids argues that allowing such technical advisors to access Kimberly-Clark’s confidential documents is necessary for its employees to make an educated business decision with regard to the litigation. Kimberly-Clark strenuously objects to this proposal, due to the potential for misuse of its confidential information by MeAirlaids, a direct competitor in the absorbent pad market. Meanwhile, MeAirlaids asserts that any potential harm from its proposed approach is minimized because the technical advisors must sign a form agreeing not to misuse confidential or attorney eyes only information, and agree to submit to the jurisdiction of the court for enforcement of the protective order.1

The weight of judicial precedent does not favor MeAirlaids’ position. A party seeking a protective order carries the burden of showing good cause for its issuance. See Fed. R. Civ. P. 26(c); In Re Deutsche Bank Trust Co. Americas, 605 F.3d 1373, 1378 (Fed.Cir.2010). When issuing a protective order, the court must balance the goal of full disclosure of relevant information against reasonable protection from economic injury. In re Deutsche Bank Trust Co. Americas, 605 F.3d at 1380. Courts presiding over patent cases have often crafted protective orders that address the need to limit access to protected technical information. See Safe Flight Instrument Corp. v. Sundstrand Data Control, Inc., 682 F.Supp. 20, 22 (D.Del.1988) (collecting cases). “Courts dress technical information with a heavy cloak of judicial protection because of the threat of serious economic injury to the diseloser of scientific information.” Id.

In United States Steel Corp. v. United States, the Federal Circuit explained that the relevant determination for denial of access under a protective order is “[w]hether an unacceptable opportunity for inadvertent disclosure exists.” 730 F.2d 1465, 1468 (Fed. Cir.1984). The court further noted that the determination often turns on the extent to which the person to whom the information is disclosed is involved in “competitive decision-making” with the client. Id. Thus, courts have routinely allowed disclosure of confiden[501]*501tial information to in-house counsel and experts, upon the premise that those individuals are segregated from the competitive day-to-day business decisions of the company. Id.; see also Ross-Hime Designs, Inc. v. U.S., 109 Fed.Cl. 725, 74344 (Fed.Cl.2013); Safe Flight Instrument Corp., 682 F.Supp. at 22-23; E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 219 U.S.P.Q. 37, 39 (D.Del.1982).

Here, McAirlaids asks the Court to allow disclosure of Kimberly-Clark’s confidential information directly to its competitive decision-makers, including its president, owner and patent-holder, and chief operating officer. McAirlaids’ proposal would create exactly the unacceptable opportunity for inadvertent disclosure warned against in U.S. Steel. See Hitkansut LLC v. United States, 111 Fed.Cl. 228, 239 (Fed.Cl.2013); Ross-Hime Designs, Inc. v. United States, 109 Fed.Cl. 725, 742-44 (Fed.Cl.2013); Safe Flight Instrument Corp., 682 F.Supp. at 22-23; Northbrook Digital, LLC v. Vendio Servs., Inc., 625 F.Supp.2d 728, 742-43 (D.Minn.2008); R.R. Donnelley and Sons Co v. Quark, Inc., No. CIVA 06-032, 2007 WL 61885, at *1-3 (D.Del.2007); Tailored Lighting, Inc. v. Osram Sylvania Prods., Inc., 236 F.R.D. 146, 147-48 (WD.N.Y.2006); cf. Medtronic Sofamor Danek, Inc. v. Michelson, No. 01-2373-GV, 2002 WL 33003691, at *34 (W.D.Tenn. Jan. 30, 2002)(distinguishing Safe Flight

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299 F.R.D. 498, 2014 U.S. Dist. LEXIS 30848, 2014 WL 904717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcairlaids-inc-v-kimberly-clark-corp-vawd-2014.