Judge: Michael Schneider
Holding: Order On Joint Motion To Amend Protective Order
Somehow a post with the word "Calypso" sounds appropriate on this chilly Friday afternoon as we all stagger toward the approaching weekend. Don't get your hopes up - the subject matter is not warm and inviting as a Caribbean beach, I'm afraid...
Orders resolving disputes on protective orders are relatively rare, as usually either the parties submit completely agreed orders, or courts enter orders resolving disputed provisions without providing substantive rulings as to why the court chose one provision over another. Thus there is a relatrive paucity of actual opinions resolving even the most common p.o. disputes.
This case was an exception in that the parties submitted three disputed provisions, and Judge Schneider entered an opinion explaining his rationale for the rulings on the three topics.
First issue was the defendants' request that any printing or duplication of its source code be done on colored paper, as opposed to a simple marking of the pages as confidential. Judge Schneider denied the defendants request. Notably, at this point Judge Schneider observed in a footnote that the parties inability to reach “reasonable agreements on even the most straightforward issues in this case” conflicts with both his expectations and the local rules, and may be grounds for disciplinary action under local rule AT-2 & 3. (Okay, I know this kind of blows the tropical beach feel, but stay with me - we may learn something here).
The second issue involved the plaintiffs proposed requirement that the producing party deliver printed source code material within two business days – defendant wanted five days and the option to file a motion for protective order raising objections to the production of some or all of the printed and marked pages, with no obligation to deliver the printed pages until the court orders otherwise. “While the producing party may object to production if reasonable insufficient grounds exist,” Judge Schneider wrote, “the court is not inclined to delay discovery pending resolution of any motions for protective order.” The court noted the obligation to comply in good faith with the meet and confer requirement, which the court noted is “even more substantial” for discovery–related matters. Again, the court noted that failure to comply with these rules is ground for disciplinary action. (Again, that beach is getting chilly this afternoon, isn't it?) Judge Schneider denied the request for the clause providing the option to delay delivery pending resolution of the potential motion, but did extend the delivery to 5 days in order to allow the party sufficient time to meeting confer.
The final issue raised was whether the order should include a presumptive consecutive page limitation that would presume to be excessive any printed portion of source code that is more than 50 pages. Judge Schneider concluded that any page limitation that is chosen in a vacuum would be arbitrary, and concluded that the meet and confer requirement would address this issue. Accordingly, the requested additional clause for a presumptive page limitation of 50 pages was denied.