Magistrate Judge Fallon Denies Request to Exclude In-House Counsel from Accessing Certain Discovery Material.

September 7, 2022

Publication| Intellectual Property

In Sight Sciences, Inc. v. Ivantis, Inc., No. 21-1317-VAC-SRF (Aug. 16, 2022) (oral order), a patent case, Magistrate Judge Fallon denied the plaintiff’s request to exclude in-house counsel from having access to discovery designated attorneys’ eyes only, which would have prevented an in-house attorney of the defendant from viewing such discovery.  According to the court, a protective order serves “to guard against inadvertent disclosure of the producing party’s material to a competitor’s decision maker which would place it at a competitive disadvantage.”  Judge Fallon stated that the defendant’s in-house attorney had responsibility for managing litigation, not competitive decision making, noting further that other courts had found likewise and granted similar access to this attorney. 

Because the in-house attorney was not a competitive decision maker, the court ruled that the need for him to perform his oversight responsibilities as to the litigation outweighed any interest in preventing his access to discovery material.  Judge Fallon further noted that the in-house attorney would be bound not only by the terms of the protective order but also by his ethical obligations as an attorney.

Key Point:  Magistrate Judge Fallon stated that the relative size of the parties or of their in-house legal departments (if any) was immaterial to the analysis.

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