Modern Font Applications LLC v. Alaska Airlines Inc., No. 21-1838 (Fed. Cir. 2022)
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The District of Utah uses a “Standard Protective Order.” Pursuant to that order, Alaska designated certain source code files as “CONFIDENTIAL INFORMATION – ATTORNEYS’ EYES ONLY,” which precluded MFA’s in-house counsel from accessing those materials. MFA challenged Alaska’s designations and moved to amend the Standard Protective Order, seeking to permit its in-house counsel to access “all disclosed information,” including documents designated Attorneys’ Eyes Only, and to add additional designations to the Standard Protective Order specific to source code.
The magistrate granted Alaska’s motions to maintain its protective order designations and denied MFA’s motion to amend, finding that Alaska had established that its source code contained trade secrets and merited “heightened protection.” The magistrate concluded that MFA’s in-house counsel was a “competitive decisionmaker” because of his licensing activities and because MFA’s “entire business model revolves around the licensing of patents through litigation with the assistance of its in-house counsel.” The district court affirmed, explaining that MFA had failed to support its argument that it should not bear the burden of proof to modify the Order and that the magistrate had appropriately cited cases “for their relevance to in-house counsel’s involvement in licensing making it a competitive decisionmaker.” The Federal Circuit rejected an interlocutory appeal for lack of jurisdiction under the collateral order doctrine. It is reviewable after a final judgment.
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