Mad Catz Interactive, Inc. v. Razer USA, Ltd., No. 3:2013cv02371 - Document 51 (S.D. Cal. 2014)
Court Description: ORDER Granting 35 Mad Catz Interactive Inc.'s Motion to Modify the Protective Order. The parties shall submit a joint motion with a proposed amended protective order on or before August 29, 2014. Further, Whitney E. Peterson shall enter his appearance for this case with the CM/ECF system as soon as practicable. Signed by Magistrate Judge Jill L. Burkhardt on 8/19/2014. (srm)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 Mad Catz Interactive, Inc., vs. CASE NO. 13cv2371-GPC (JLB) Plaintiff, ORDER GRANTING MAD CATZ INTERACTIVE INC.’S MOTION TO MODIFY THE PROTECTIVE ORDER 14 15 Razor USA, Ltd., [ECF No. 35] 16 17 18 Defendant. This is a patent infringement case. Before the Court is Plaintiff Mad Catz 19 Interactive Inc.’s Motion to Modify the Protective Order (ECF No. 35) filed on May 20 13, 2014. The Motion seeks to modify the terms of the operative protective order 21 such that attorney Whitney E. Peterson, Mad Catz’s General Counsel and lead trial 22 attorney, can review and access documents and information that Defendant Razer 23 USA Ltd. or other parties in this case produced and marked as highly confidential. 24 On May 29, 2014, Defendant Razer filed its Opposition to the Motion. (ECF No. 25 36.) Then, on June 5, 2014, Plaintiff filed its Reply in support of the Motion. (ECF 26 No. 40.) The Court held oral argument on the Motion on July 10, 2014. (ECF No. 27 48.) Having considered the arguments and submissions of the parties, the Court 28 hereby GRANTS Plaintiff’s Motion for the reasons outlined below. -1- 13cv2371-GPC(JLB) 1 I. Factual Background Plaintiff, Mad Catz Interactive, Inc., filed suit against Defendant, Razer USA, 2 3 Ltd., for patent infringement. Plaintiff holds an exclusive license to, inter alia, 4 produce and sell certain computer gaming mice with an adjustable palm rest which 5 fall within the scope of Patent No. 6,175,370 (the ‘370 Patent). Plaintiff alleges 6 Defendant’s “Ouroboros” mouse falls within the scope of this Patent. Defendant 7 counterclaims that Plaintiff infringes on its Patent No. 8,605,063 (the ‘063 Patent) 8 which covers certain backlighting technology for gaming keyboards. The Court entered a protective order governing all document production on 9 10 May 8, 2014. As per the protective order, any documents considered to be most 11 sensitive by the producing party, such as documents reflecting trade secret or other 12 confidential research, development, financial, or other highly sensitive commercial 13 or business information, would be marked “HIGHLY CONFIDENTIAL – 14 DESIGNATED COUNSEL’S EYES ONLY.” (ECF No. 34 at 5.) Thus, only 15 “designated counsel” may access and review documents and information marked 16 “highly confidential.” According to the terms of the protective order, Mr. Peterson, Mad Catz’s 17 18 General Counsel and lead trial attorney for this case, has limited access to the 19 documents. The protective order defines who is included as “designated counsel.” 20 With respect to Mr. Peterson, the protective order provides that Mr. Peterson is 21 designated counsel, but “only with respect to documents and information produced 22 by third party Humanscale Corporation pursuant to a subpoena issued by Razer 23 USA, Ltd. and not with respect to any documents or information produced by Razer 24 USA, Ltd. or any other third party (unless such other third party agrees that Mr. 25 Peterson may have access to such documents or information).”1 (ECF No. 34 ¶4.) 26 27 28 1 The Protective Order reflects that this limitation was a compromise between the parties so as to get document production underway. Mad Catz retained its right to bring the instant motion to include Mr. Peterson as “designed counsel” without qualification. (ECF No. 28 n.1.) -2- 13cv2371-GPC(JLB) Plaintiff filed the instant motion seeking to amend the protective order to 1 2 remove the limitations placed on Mr. Peterson as designated counsel, thereby 3 providing him with authorized access to all documents and information produced in 4 this case. Defendant opposes the amendment sought by Plaintiff, arguing Mr. 5 Peterson is a competitive decision maker for Mad Catz and any inadvertent 6 disclosures of sensitive information could both irreparably harm Razer and provide 7 Mad Catz with an unfair competitive advantage. 8 II. 9 Legal Standard Parties seeking discovery are generally entitled to all information “reasonably 10 calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 11 26(b)(1). “On the other hand, responding parties are entitled to protection from 12 undue burden in discovery, including protection from misuse of trade secrets by 13 competitors.” Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th 14 Cir. 1992); Fed. R. Civ. P. 26(c)(1)(G). A court reviewing a protective order 15 dispute must balance these interests. 16 In this case, these interests must be balanced to determine whether Defendant 17 Razer is entitled to the continued protection provided by the operative protective 18 order insofar as it restricts attorney Peterson’s access to highly confidential 19 information produced in this litigation. Here, because the parties stipulated to the 20 protective order, it was entered by the Court without a finding of good cause. (ECF 21 Nos. 33, 34.) As such, Defendant bears the burden of showing good cause exists for 22 the continued protection it seeks. In re Roman Catholic Archbishop of Portland in 23 Oregon, 661 F.3d 417, 424 (9th Cir. 2011) (“When the protective order ‘was a 24 stipulated order and no party ha[s] made a ‘good cause’ showing,’ then ‘the burden 25 of proof . . . remain[s] with the party seeking protection.’”); Phillips v. Gen. Motors 26 Corp., 307 F.3d 1206, 1210-11, n.1 (9th Cir. 2002) (“the burden of proof will 27 remain with the party seeking protection when the protective order was a stipulated 28 order and no party had made a ‘good cause’ showing.”). -3- 13cv2371-GPC(JLB) Further, the Ninth Circuit has developed a balancing test to determine when a 1 2 protective order restricting an attorney’s access to highly confidential information 3 may be appropriate. See Brown Bag, 960 F.2d at 1470. A court must weigh the 4 prejudice to the party whose attorney is being denied access to protected documents 5 against the risk of inadvertent disclosure of highly confidential information and the 6 potential harm of inadvertent disclosure to the party wishing to maintain the 7 protective order. Id. In doing so, the Court is to “examine factually all the risks and 8 safeguards surrounding inadvertent disclosure” and factor in “the nature of the 9 claims and of a party’s opportunity to develop its case through alternative discovery 10 procedures.” Id. This analysis “must be determined . . . by the facts on a counsel- 11 by-counsel basis.” U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 12 1984). 13 III. Analysis A. 14 Harm to Razer from Modifying Protective Order 1. 15 Risk of Inadvertent Disclosure Defendant Razer argues that “[a]s a competitor of Razer in the field of 16 17 computer gaming peripherals, Mad Catz threatens unfair competitive harm to Razer 18 by demanding its business insider and fiduciary, Mr. Peterson, have unfettered 19 access to Razer’s competitive information.” (ECF No. 36 at 5.) In contrast, 20 Plaintiff Mad Catz argues that there is no risk of harm through inadvertent 21 disclosure because Mr. Peterson does not engage in competitive decision making on 22 behalf of Mad Catz.2 The Court is persuaded that the record before the Court shows 23 Mr. Peterson is not significantly involved in Mad Catz’s competitive decision 24 making as it concerns Razer’s business; that there are safeguards in place at Mad 25 Catz to prevent the inadvertent disclosure of Razer’s highly confidential 26 27 28 2 The parties agree that the Court’s analysis of risk should focus on inadvertent disclosure, as Razer does not argue Mr. Peterson would intentionally disclose Razer’s highly confidential information. -4- 13cv2371-GPC(JLB) 1 information to others; that there is little to no risk of inadvertent disclosure; and that 2 Razer has not shown significant harm would likely result from an inadvertent 3 disclosure. Therefore, Defendant fails to meet its burden of showing good cause 4 exists for the continued protection it seeks. 5 Whether there is an acceptable risk of inadvertent disclosure turns on the 6 extent to which Mr. Peterson is involved in competitive decision making as it 7 concerns Razer’s business. See Brown Bag, 960 F.2d at 1470. The phrase 8 “competitive decision making” is “shorthand for a counsel’s activities, association, 9 and relationship with a client that are such as to involve counsel’s advice and 10 participation in any or all of the client’s decisions (pricing, product design, etc.) 11 made in light of similar or corresponding information about a competitor.” U.S. 12 Steel Corp., 730 F.2d at 1468 n.3. “[T]he standard is not ‘regular contact’ with 13 other corporate officials who make ‘policy,’ or even competitive decisions, but 14 ‘advice and participation’ in ‘competitive decisionmaking.’” Matsushita Elec. 15 Indus. Co., Ltd. v. United States, 929 F.2d 1577, 1580 (Fed. Cir. 1991). 16 In examining whether an attorney’s role at a company creates an unacceptable 17 risk of disclosure to a competitor company, courts analyze whether providing an 18 attorney with access to highly confidential information would place that attorney “in 19 the ‘untenable position’ of having to refuse his employer legal advice on . . . 20 competitive [] decisions lest he improperly or indirectly reveal” another company’s 21 highly confidential information. Brown Bag, 960 F.2d at 1471. Although a finding 22 that counsel is a competitive decision maker is a critical factor, it is not dispositive. 23 See ST Sales Tech Holdings, LLC v. Daimler Chrysler Co., No. 07cv346, 2008 WL 24 5634214, at *3 (E.D. Tex. Mar. 14, 2008); see also Fairchild Semiconductor Corp. 25 v. Third Dimension Semiconductor, Inc., No. 08cv158, 2009 WL 1210638, at *9 (D. 26 Me. Apr. 30, 2009). 27 28 Defendant Razer argues that Mr. Peterson is a competitive decision maker for its competitor, Mad Catz. In support, Razer cites Mad Catz’s “Investor Relations” -5- 13cv2371-GPC(JLB) 1 page which states Mr. Peterson is responsible for all corporate opportunities at Mad 2 Catz and has negotiated numerous license and other agreements within the video 3 game industry.” (ECF No. 36-1 at 3.) Razer also states that Mr. Peterson is the 4 second-largest shareholder listed on Mad Catz’s “Investor Relations-Ownership 5 Summary webpage. (Id. at 4.) Razer also provides an article by the San Diego 6 Source, The Daily Transcript which states “Mr. Peterson works closely with the 7 CEO and CFO to provide advice and counsel on a host of business issues.” (Id.) 8 The Court finds this evidence unpersuasive. Mr. Peterson has three different roles at Mad Catz: (1) General Counsel; (2) 9 10 Corporate Secretary; and (3) Vice President of Business Affairs. First, he serves as 11 the General Counsel. As General Counsel, Mr. Peterson’s duties are to: (a) advise management and the Board of Directors on the best methods and manner to minimize legal risks to Mad Catz; (b) manage Mad Catz’s intellectual property portfolio and to advise as to the legality of intellectual property issues; (c) conduct and lead all litigation matters in state and federal courts; (d) review contracts and advise as to their enforcement and/or modification; (e) draft contracts using already-negotiated contract terms supplied by Mad Catz managerial and sales staff; (f) prepare documents and correspondence on employment matters; (f) [sic] review insurance policies and file claims with insurance companies; and (g) ensure Mad Catz’s compliance with all applicable laws and regulations. 12 13 14 15 16 17 (ECF No. 35-2 ¶15.) 18 19 20 21 22 23 24 25 26 27 At oral argument, Mr. Peterson represented that, in his role as General Counsel, Mr. Peterson focuses on litigation and overarching corporate legal matters, such as advising on SEC compliance matters and creating legal safeguards for fraud prevention. Mr. Peterson regularly interacts with Plaintiff Mad Catz’s Chief Executive Officer and Chief Financial Officer, but not with respect to competitive decision making. Mr. Peterson does not regularly interact with Plaintiff’s Chief Operating Officer, Vice President of Sales or the Vice President of Marketing. With respect to Mr. Peterson’s involvement in licensing, Mr. Peterson maintains that he does not set the business terms of the deals but rather focuses on the legal matters only. 28 -6- 13cv2371-GPC(JLB) 1 Defendant Razer is particularly concerned that Mr. Peterson’s role in the 2 negotiation of licensing agreements makes him a competitive decision maker for 3 Mad Catz. According to Razer, Mr. Peterson’s involvement in licensing 4 negotiations creates an unacceptable risk that Razer’s highly confidential 5 information may be disclosed. Specifically, Razer points to Mr. Peterson’s 6 involvement in securing a license from Humanscale regarding the ‘370 Patent as 7 evidence that he is a competitive decision maker who should be denied access to 8 Razer’s highly confidential information. 9 The Court is not persuaded that the evidence of Mr. Peterson’s involvement 10 in licensing agreement negotiations is sufficient to show Mr. Peterson engages in 11 competitive decision making regarding keyboard and mouse products or 12 technology. Mr. Peterson does not negotiate the terms of the licensing agreements 13 but rather takes the terms from the sales and management teams from Mad Catz and 14 “fit[s] them into the context of a legal agreement.” (See ECF No. 35-2 ¶17.) In 15 addressing the Humanscale licensing deal, Mr. Peterson addressed the unique facts 16 underlying that deal (which arose out of litigation) and represented that after the 17 management team and sales people came up with the terms for the licensing 18 agreement with Humanscale, he “parroted” the terms to Humanscale to close the 19 deal. The Court finds Mr. Peterson’s representations regarding his role in licensing 20 negotiations to be credible and concludes that Mr. Peterson’s involvement in Mad 21 Catz’s licensing agreements does not constitute competitive decision making that 22 would create an unacceptable risk of disclosure to Razer. 23 Second, in his role as Corporate Secretary, Mr. Peterson’s duties are limited 24 to keeping minutes for the Board of Directors meetings and calling out agenda 25 items. (See ECF No. 35 ¶16.) Mr. Peterson represents that he acts as a “mute 26 stenographer” in his role as Corporate Secretary and has never been asked for input 27 regarding business matters. 28 -7- 13cv2371-GPC(JLB) 1 Third, in his role as Vice President of Business Affairs, Mr. Peterson 2 supervises and manages Saitek brand products for Mad Catz which are Mad Catz’s 3 flight simulator related products. (ECF No. 35 ¶17.) He is also in charge of 4 overseeing corporate opportunities for Mad Catz including mergers, acquisitions 5 and strategic partnerships. (Id.) Mr. Peterson papers the deals after the business 6 people at Mad Catz decide on which corporate opportunities to pursue. 7 In his role as Vice President, it appears Mr. Peterson does make competitive 8 decisions for Mad Catz’s flight simulation business. However, Razer has not 9 established that Mr. Peterson’s responsibilities with respect to the flight simulation 10 business create an unacceptable risk to Razer from the disclosure of sensitive 11 information regarding Razer’s mouse and keyboard business. Razer and Mad Catz 12 are not competitors with respect to the flight simulation business. Razer has not 13 established that Mr. Peterson’s participation in making competitive decisions on one 14 line of products increases the risk that confidential information regarding another 15 line of products will be inadvertently disclosed. Thus, Mr. Peterson’s involvement 16 in Mad Catz’s flight simulation business does not constitute competitive decision 17 making that would create an unacceptable risk of disclosure to Razer. 18 Regardless of which of the three roles he is serving in at Mad Catz, Mr. 19 Peterson represents that his office at Mad Catz is private and secure. (ECF No. 35-2 20 at 7 n.2.) His office is kept locked at all times when not occupied. Mr. Peterson 21 maintains his confidential legal files in his secure office or on restricted (to in-house 22 counsel only) computer drives at all times. (Id.) Accordingly, there are safeguards 23 in place to ensure highly confidential information is not accessed by other Mad Catz 24 employees. 25 Having reviewed and analyzed the record and arguments of counsel, the 26 Court is not persuaded that Mr. Peterson’s roles at Mad Catz give rise to an 27 unacceptable risk of disclosure such that he should be denied access to Razer’s 28 highly confidential information. -8- 13cv2371-GPC(JLB) 2. 1 Potential Harm from Inadvertent Disclosure to Defendant Defendant Razer argues that a disclosure of its highly confidential 2 3 information would give Mad Catz an unfair competitive advantage. Razer depicts 4 its highly confidential documents as containing information about its: research, design, development, configuration, function, assembly, testing, manufacture, components, operation, marketing, business and strategic plans, third-party agreements, sale, and/or revenues for Razer’s Ouroboros mouse (the Razer product Mad Catz alleges infringes the ‘370 patent) and/or Lycosa keyboard (which Razer alleges practices some of the claims of the ‘063 patent). 5 6 7 8 (ECF No. 35 at 8.) Counsel for Razer argues that Razer would be especially harmed 9 by disclosure of its pricing and revenue information. 10 Although the modification of the protective order sought by Mad Catz would 11 provide Mr. Peterson access to this sensitive information, Defendant Razer has not 12 persuasively explained how inadvertent disclosure would likely harm Razer. As an 13 initial matter, Razer no longer makes the keyboard that utilizes the ‘063 Patent. 14 Further, while the financial documents at issue concern Razer’s gaming mice and 15 keyboards, Mr. Peterson does not interact with any personnel from Sales or 16 Marketing regarding competitive keyboard or mouse issues, nor does he interact 17 with the COO (who would be the individual in charge of managing Mad Catz’s 18 engineers and design plans for keyboards and mice). Mr. Peterson is not involved 19 in Mad Catz’s competitive decision making as it concerns competition with Razer’s 20 business. 21 The Court concludes that Razer fails to meet its burden to show that specific 22 prejudice or harm will result if the protective order is modified to allow Mr. 23 Peterson access to the highly confidential documents produced in this case. 24 Specifically, the Court is not persuaded on the current record that the potential harm 25 to Razer would be irreparable or result in a significant competitive advantage to 26 Mad Catz. 27 /// 28 -9- 13cv2371-GPC(JLB) 1 B. Harm to Plaintiff from Leaving Protective Order Unmodified 2 In contrast, the Court concludes that Plaintiff Mad Catz will continue to 3 suffer actual prejudice until its lead trial counsel, Mr. Peterson, is provided access to 4 the highly confidential information produced in this litigation. 5 Under Brown Bag, the risk of disclosure of confidential information to 6 competitors must be weighed against the risk of actual prejudice – that protection of 7 this information will impair the prosecution or defense of the parties’ claims. 8 Brown Bag, 960 F.2d at 1470. A showing that the protective order increases the 9 difficulty of managing litigation, without more, does not constitute actual prejudice. 10 Intel Corp. v. VIA Technologies, Inc., 198 F.R.D. 525, 529 (N.D. Cal. 2000). 11 However, a party can show actual prejudice where “the present litigation is 12 extremely complex and at an advanced stage” so that relying on newly retained 13 counsel “would create an extreme and unnecessary hardship.” U.S. Steel Corp., 730 14 F.2d at 1468; see also CytoSport, Inc. v. Vital Pharm., Inc., No. 08cv2632, 2010 15 WL 1904840 at *2 (E.D. Cal. May 10, 2010) (“Courts have found actual prejudice 16 where a party has shown that the use of in-house counsel was necessary due to the 17 specialized expertise of the counsel, required in order to maintain a company’s 18 financial stability or essential to its prosecution or defense of an action due to 19 outside counsel’s incompetency or lack of sufficient time to present the client’s best 20 case.”). Further, financial hardship is a factor when evaluating the balancing test, 21 but it is not dispositive. RPA Int’l Pty Ltd. v. Compact Int’l, Inc., No. 06cv1147, 22 2007 WL 4105725 at *3 (S.D. Cal. Nov. 16, 2007). 23 Razer argues that Mad Catz will not suffer actual prejudice under the current 24 protective order because this is a “straightforward patent case” in which the relevant 25 documents on the issues Razer deems to be central to the litigation are available to 26 Mr. Peterson. (ECF No. 36 at 10.) Mad Catz disagrees. Mad Catz argues that this 27 28 - 10 - 13cv2371-GPC(JLB) 1 is a complex and fact intensive patent case in which the critical documents are not 2 publicly available.3 In support, Mad Catz argues that its defense against Razer’s counterclaims 3 4 center around the conception and the reduction to practice of Razer’s ‘063 Patent.4 5 Indeed, Mad Catz alleges as an affirmative defense that the ’063 Patent is invalid 6 for “failure to comply with 35 U.S.C. § 102 as being anticipated by one or more 7 prior art references and/or because the alleged invention was known or used by 8 others or patented or described in a printed publication before the invention thereof 9 by the applicant for patent.” (ECF No. 21 at 7.) To prevail on this defense, Mad 10 Catz seeks to prove it “introduced its accused keyboard to the world months before 11 Razer filed its patent application and that Mad Catz conceived of its accused 12 keyboard before Razer even came into existence.” (ECF No. 40 at 12.) The Court 13 is persuaded that this is a complex and fact intensive patent case that may hinge on 14 Mad Catz’s evaluation of Razer’s highly confidential information. Razer also argues that Mad Catz will not suffer actual prejudice under the 15 16 current protective order because Mr. Marshall, the other in-house litigation counsel 17 for Mad Catz, can adequately litigate the portions of the case the require access to 18 highly confidential information. Razer provides examples of Mr. Marshall’s 19 competence in taking an important deposition and signing every pleading and 20 discovery paper for this case. Mad Catz argues that actual prejudice exists because 21 the current protective order effectively disqualifies Mr. Peterson as Mad Catz’s lead 22 trial attorney, leaving Mad Catz with only one, less experienced, litigator to analyze, 23 prepare, and present this complex patent case for trial or settlement. 24 3 25 According to Mad Catz, Razer marked approximately 84% of its documents as “highly confidential” in this litigation. (ECF No. 40 at 11.) 26 4 27 28 Conception is the “formation, in the mind of the inventor, of a definite and permanent idea of a complete and operative invention.” Solvay S.A. v. Honeywell Int’l Inc., 742 F.3d 998, 1000 (Fed. Cir. 2014). Reduction to practice is when the inventor has constructed an embodiment of the invention and the inventor has determined that the invention works for its intended purpose. See Cooper v. Goldfarb, 154 F.3d 1321, 1327 (Fed. Cir. 1998). - 11 - 13cv2371-GPC(JLB) The Court is persuaded that the current protective order effectively 1 2 disqualifies Mad Catz’s lead trial attorney, and under the facts of this case, impairs 3 Mad Catz’s prosecution if its claims and its defense against Razer’s claims. Here, 4 in contrast with the cases cited by Razer, there is no evidence in the record that Mad 5 Catz has outside litigation counsel who is already familiar with its patents and 6 technology.5 Instead, the record shows that Mad Catz maintains a two-person in- 7 house patent litigation team only. This team is maintained, in part, to keep legal 8 costs down. (ECF No. 35-1 at 14.) This team is comprised of Mr. Peterson and Mr. 9 Marshall only. 10 Further, Mad Catz selected Mr. Peterson to serve as its lead trial counsel for 11 all its litigation matters. (ECF No. 35-2 ¶15.) Mr. Peterson has twenty-four years 12 of substantial experience litigating cases, including trying five cases to verdict. 13 (ECF No. 40 at 8.) Mr. Peterson is assisted by Mr. Marshall, who is the only other 14 in-house litigator for Mad Catz who assists with patent litigation matters. The 15 record does not reflect that Mr. Marshall has comparable experience as a trial 16 attorney. 17 Razer cites Carpenter Technology Corp. v. ARMCO, Inc., 132 F.R.D. 24 18 (E.D. Pa. 1990), for example, in support of its argument that Mr. Marshall, who 19 already has access to the protected documents, will provide adequate representation 20 for Mad Catz. In Carpenter, the Court denied the corporation’s Director of Law 21 (functionally the general counsel for the corporation) access to documents while 22 granting access to a senior staff attorney who was also in-house counsel for the 23 corporation. However, the Court found the staff attorney to be sufficient because 24 25 5 26 27 28 For example, in Brown Bag, at the time of the motion to amend the protective order, Plaintiff Brown Bag Software did not have outside counsel. However, the Court noted that Plaintiff Brown Bag previously had outside counsel and that “Brown Bag’s former outside counsel had already had over six months in which to study the trade secrets. Brown Bag knew of the court-ordered deadline for summary judgment motions, and had ample time to develop any admissible evidence it could from the trade secrets divulged to it.” Brown Bag, 960 F.2d at 1471. - 12 - 13cv2371-GPC(JLB) 1 Plaintiff also retained outside counsel. Id. at 28. In contrast here, Mad Catz does 2 not have, nor is it planning on retaining, outside counsel. 3 Unlike the senior staff attorney that oversaw outside counsel’s work in the 4 Carpenter litigation, Mr. Marshall would be actively handling all aspects of this 5 complex litigation, often without meaningful assistance on critical matters. For 6 example, Mr. Marshall would be precluded from seeking strategic advice or motion 7 drafting assistance from Mr. Peterson regarding Mad Catz’s conception and 8 reduction to practice arguments. Mr. Marshall also likely would have to attend 9 every deposition to account for the possibility that under the current protective order 10 Mr. Peterson may be required to excuse himself from portions of the depositions 11 that concern information contained in protected documents. Depriving Mr. Peterson 12 full access to the documents in this case substantially impairs every aspect of Mad 13 Catz’s presentation of its case, including settlement. 14 The record shows that Mr. Peterson has superior expertise in the field of 15 patent litigation and that Mad Catz heavily relies on Mr. Peterson in any litigation 16 and in settlement decisions. Razer has marked 84% of its documents as “highly 17 confidential,” including documents containing critical information on the 18 conception and reduction to practice of the keyboard technology at issue and 19 financial documents on Razer’s accused infringing product. In light of Mr. 20 Peterson’s important role in this litigation and the Court’s conclusion above that 21 there is little to no risk of inadvertent disclosure or irreparable harm to Razer, the 22 Court concludes that limiting Mr. Peterson’s access to highly confidential 23 documents creates an undue and unnecessary burden for Mad Catz in this case. 24 Plaintiff Mad Catz will continue to suffer actual prejudice until its lead trial counsel, 25 Mr. Peterson, is provided full access to the highly confidential information 26 produced in this litigation. Thus, having carefully considered and balanced the 27 parties’ interests, Defendant Razer has not shown good cause exists to restrict Mr. 28 - 13 - 13cv2371-GPC(JLB) 1 Peterson’s access to highly confidential information produced for purposes of this 2 litigation. 3 III. 4 Conclusion For the foregoing reasons, the Court hereby GRANTS Plaintiff’s Motion to 5 Modify the Protective Order (ECF No. 35). The parties shall submit a joint motion 6 with a proposed amended protective order on or before August 29, 2014. Further, 7 Whitney E. Peterson shall enter his appearance for this case with the CM/ECF 8 system as soon as practicable. 9 10 11 DATED: August 19, 2014 JILL L. BURKHARDT United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - 13cv2371-GPC(JLB)
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