The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
On August 23, 2004, plaintiff filed a motion to compel.
Reciting its version of recent history, it complained that
defendants wanted a protective order that required it to raise
objections to confidentiality designations and then justify them.
On September 7, 2004, the Reed defendants submitted their version
of recent history. It, wisely, withdrew from its prior position
that the party attacking confidentiality had the burden of
persuasion, but continued to believe that the party objecting to
a confidentiality designation should be the one to raise it with
the court. They also wished to preclude William P. Farrell, Jr.,
a partner in plaintiff's firm who is one of plaintiff's lawyers
in this case, from access to materials designated "highly confidential", which are "attorneys eyes only" trade secrets
materials. Attorney Farrell is the son of the present
vice-chairman of plaintiff's board and former president and CEO
and the brother of plaintiff's current president and CEO.
Accordingly, the defendants, attorney Farrell has long
represented plaintiff and advised the company respecting its
business plans and dealings. According to plaintiff he is not and
never has been an officer, director or in-house counsel of the
plaintiff; he is and has been a partner in the law firm. And
plaintiff in its reply, raises a new wrinkle. It contends that
material and information arising during the course of the parties
continued relationship cannot be confidential because they all
were privy to them.
The scope of the lawsuit remains in doubt. If it extends back
through the pre-release period, much of the materials may indeed
have been previously shared and, accordingly, not within the
ambit of "highly confidential". That does not necessarily mean,
however, that none of it is confidential. There are other
competitors out there. Nor are we persuaded that the party
seeking to maintain confidentiality must be the one to bring the
dispute to the attention of the court. That contemplates an extra
step: a party designates a document as confidential, opposing
party disagrees and so advises the designating party, and
sometime thereafter, before the opposing party discloses it,
seeks court protection. A more orderly procedure is for the party
who opposes the designation to seek to strike it. We are talking
only about a means of initiating a judicial resolution. Clearly,
the party seeking to maintain confidentiality has the burden of
Finally, we do not believe attorney Farrell should be precluded
from access. He is an officer of the court, subject to the
court's orders, and we have no reason to believe he would violate his professional obligations. At the same time, we note
that this case has been particularly contentious. Plaintiff's
legal team may be well advised to keep him out of the loop
respecting materials relating to defendant's future plans and
strategies unless his knowledge is necessary for the prosecution
of the case. But we leave that to them.
The parties shall submit a draft protective order conforming to
the above by September 28, 2004.
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