Judge Stark Places One-Way Restrictions on In-House Access to Confidential Discovery Material

March 1, 2016

Publication| Intellectual Property

In Elm 3DS Innovations, LLC v. Samsung Electronics Co., C.A. No. 14-1430-LPS-CJB (D. Del. Feb. 11, 2016), Chief Judge Stark rejected plaintiff Elm 3DS Innovations, LLC’s (“Elm”) request to allow its settlement counsel to review defendants’ confidential information. Elm argued that defendants had a larger amount of confidential information than it, and as a result would have an advantage over Elm in assessing the strengths and weaknesses of the case. Defendants had concerns about the role of Elm’s settlement counsel in competitive decision making, including the licensing and brokerage of patents.

Judge Stark denied the request for access, noting that the disparity in confidential information “is not a situation of Defendants’ creation, and poses risks of unfair competitive harm to Defendants should a competitive decisionmaker affiliated with Plaintiff inadvertently use Defendants’ confidential information against them.” According to Judge Stark, Elm’s outside counsel would be sufficiently able to inform its settlement counsel about the strengths and weaknesses of the case. The Court also noted that defendants had offered to allow access to certain information for purposes of discussing settlement, and found that this proposal “promotes the important interest in fostering case resolution, while recognizing that other important interests are also implicated by the parties’ present dispute.”

Analysis: When considering restrictions on access to information, judges in the District of Delaware have taken into account the exact roles and responsibilities of persons who may receive access to confidential discovery material. This ruling is exemplary of the kind of inquiry litigants can expect.

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