Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 1399; Susan Getzendanner, Judge. Original Opinion June 22, 1984.
William J. Bauer, Circuit Judge, Harlington Wood, Jr., Circuit Judge, Jesse E. Eschbach, Circuit Judge.
On consideration of the petition for rehearing, and in light of the amendment ordered below, and all of the judges on the original panel having voted to deny a rehearing,
IT IS ORDERED that CDI's petition for rehearing be, and the same is hereby, DENIED.
IT IS FURTHER ORDERED that the opinion in the above-entitled opinion, released June 22, 1984, be amended as follows:
1. Sections IV. and V. on pages 17-24 are deleted.
2. In lieu of the deleted sections, the following material is inserted:
Because we agree with the district court's determination that the Model CDI was substantially like the MPG, we need not reach the issue whether the Model CDI embodied confidential and/or proprietary Motorola information. While we do not pass judgment on the district court's resolution of this issue, we must discuss it briefly in order to decide CDI's "Motion And Memorandum In The Nature Of A Rule 60(b) Motion Requesting An Order That The District Court Grant A Trial On the Single Issue Of Whether The MDS (DS) Monitor Was In The Public Domain By February 28, 1981."
The confidentiality issue was not raised in Motorola's motion for a rule to show cause -- that motion was limited to the question whether the Model CDI monitor was in essence the MPG monitor. At the continuation of the October 1 hearing on Motorola's motion, CDI explicitly objected to any broadening of the scope of the contempt proceedings. Tr. 232. The district court noted the objection, but did not rule on it. Instead, the court stated, "When we get to that evidence, let's see what it is and talk about it again." Tr. 233. The court also requested that Motorola's counsel "highlight" the introduction of this evidence so that a ruling could then be made. Tr. 234. Motorola's counsel did not "highlight" the evidence and no motion was ever made to broaden the scope of the proceedings. Given CDI's view of the scope of the hearing, it is entirely possible that it did not present, or even attempt to obtain, all of the relevant evidence that it might have wished to present with respect to this issue. We are not in a position to make this determination. We leave it to the district court, therefore, to decide in the first instance whether more evidence on this issue is appropriate. Accordingly, we deny CDI's motion without prejudice to its renewal in the district court.
For the reasons expressed above, the district court's finding of contempt is affirmed.