Chief Judge Stark Provides Joint Defense Group Access to Plaintiff’s Confidential Information and Equates Plaintiff’s Settlement Counsel with Defendants’ In-House Counsel

January 5, 2016

Publication| Intellectual Property

During a discovery dispute teleconference in Elm 3DS Innovations, LLC v. Samsung Electronics Co., Ltd., et al., C.A. Nos. 14-1430-LPS-CJB, 14-1431-LPS-CJB, 14-1432-LPS-CJB (D. Del. Dec. 4, 2015), Chief Judge Stark ruled on two protective order disputes. First, he ruled that defendants, who were operating as a joint defense group, could share plaintiff’s confidential information and processes within the group. Chief Judge Stark ruled for defendants, stating that “plaintiff’s proposal would burden the defendants in their ability to efficiently use a joint defense group which they are otherwise permitted to do” and that “[i]f the plaintiff is at all suspicious that defendants are abusing or misusing what Judge Burke set as limits in the scheduling order on certain discovery techniques, you should raise that suspicion with the defendants.” Second, the Court ruled that plaintiff’s settlement counsel, allegedly a competitive decision maker involved in sales of patent portfolios and licensing, should be treated the same as in-house counsel for defendants. Chief Judge Stark ruled that plaintiff’s settlement counsel “should be treated comparable to in-house counsel for defendants” and “the protective order [he] sign[s] is going to need to treat him as if he is effectively in-house counsel for the plaintiff, and he should have all the same rights that in-house counsel for defendants have, no greater and no lesser.”

Analysis: Chief Judge Stark’s rulings evidence a concern for imposing burden on discovery and litigation on the merits by overly restrictive protective orders.

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