If you visit the front page of our fair Northern District’s web site, you’ll find “Proposed Modifications to the District Court’s Model Protective Order.”
Model protective orders aren’t exactly the stuff of titillation. They’re used when computer code or other confidential information must be exchanged in disputes, most often between tech companies. But if you think that not a soul will comment on the proposed order before the March 29 deadline, think again. Michael Barclay, a recently retired IP lawyer from Wilson Sonsini, is readying his pen as I write this.
Let it be noted that Barclay hailed the addition of a model protective order for both simple and complex cases, which can be attributed to the work of a committee of local attorneys: Sarah Flanagan, Malcolm Heinicke, Jackie Nakamura, Joe Tabacco, Jayna Witt, Mallun Yen and chair Ed Reines.
“The good thing is that it’s taking the standard model protective, which was far too simplistic, and now we have one for complex litigation,” Barclay said.
But he still sees a problem with the proposal: the uncertainty about what the default protective order covers in patent cases. Barclay said that the order, as it stands, has blanks and options that must be filled out to designate who can see the confidential information: experts, in-house lawyers, outside lawyers, etc. That means if you start discovery without filling out the form, a party won’t know for sure who’s looking at their secret info, Barclay said. A solution, he said, is that the default protective order should be more restrictive, as it was before the new local patent rules went into effect in 2008.
“Anybody in a patent case should be worried about the disclosure of their confidential information if they don’t fix patent local rule 2-2,” he said.
So read it. Get your comments in. And thank the lawyers who put it together because you didn’t have to.