United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR
PROTECTIVE ORDER AND GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on Defendant Crawl Space
Cleaning Pros' (“CSCP”) motion for protective
order, Dkt. 109, and Plaintiff Clean Crawl, Inc.'s
(“CCI”) cross-motion for protective order, Dkt.
113. The Court has considered the pleadings filed in support
of and in opposition to the motion and the remainder of the
file and hereby grants CSCP's motion in part and grants
CCI's motion in part and denies it in part for the
reasons stated herein.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
suit arises from copyright and trademark disputes between CCI
and CSCP, two businesses which clean attics and crawl spaces
and provide pest exclusion services for homes in the Western
Washington area. See Dkt. 48 at 7; Dkt. 39 at 2.
January 18, 2019, the parties filed a joint motion regarding
a protective order, which disputed whether both
“Confidential” and “Attorneys Eyes
Only” (“AEO”) levels of protection as set
out in this district's model protective order. Dkt. 68.
On January 21, 2019, CCI filed an additional reply. Dkt. 72.
On February 14, 2019, the Court denied the motion, finding
that “both parties' proposed submissions are
deficient because they fail to include separate levels of
protection for confidential documents.” Dkt. 76 at 1.
The Court directed the parties to agree on language for an
AEO level of protection and a “confidential level of
protection, ” and directed the parties to follow the
procedure outlined in the model protective order if one party
objects to the other's designation. Id. at 1-2.
30, 2019, CSCP filed a motion for a protective order. Dkt.
109. On June 5, 2019, CCI filed a response and cross-motion
for a protective order. Dkt. 113. On June 7, 2019, CSCP
replied. Dkt. 115.
parties continue to dispute the proper characterization of
confidential information and AEO information, the necessity
of a provision regarding disclosure of information to expert
witnesses or consultants, and the necessity of a provision
regarding third-party information. CSCP explains that the
parties have met and conferred in good faith and been unable
to come to an agreement on the terms of a protective order.
Dkt. 109 at 1.
Fed.R.Civ.P. 26(c), the Court, upon motion and a showing that
he parties have conferred in good faith, may issue a
protective order.” Avocent Redmond Corp. v. Rose
Electronics, 242 F.R.D. 574, 575 (W.D. Wash. 2007).
Under the Local Rules, parties are encouraged to use this
district's model protective order. Local Rules, W.D.
Wash. LCR 26(c)(2).
Confidential and AEO Designations
parties want to include a term defining the AEO category but
disagree on what that definition should be. The Court's
prior order directed the parties to negotiate an agreement on
the AEO and “confidential” category definitions,
Dkt. 76, but the parties were unable to do so. “The law
. . . gives district courts broad latitude to grant
protective orders to prevent disclosure of materials for many
types of information, including, but not limited to, trade
secrets or other confidential research, development or
commercial information.” Cabell v. Zorro
Productions, Inc., 294 F.R.D. 604, 610 (W.D. Wash. 2013)
(quoting Phillips ex rel. Estates of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1211 (9th Cir. 2002)).
suggests that technical specifications or schematics should
be designated confidential, and “(a) Non-public
customer information; (b) Customers and customer lists; (c)
Non-public arrangements and agreements with clients and
merchants; (d) Information regarding vendors, suppliers, and
pricing; (e) Information regarding current discussions with
third parties concerning potential joint ventures or other
strategic collaborations; (f) Marketing plans and techniques,
current or future business plans, forecasts, and strategies;
(g) Research and development materials concerning unreleased
products, services, or product development; (h) Unreleased
corporate and financial data (including sales, shipping,
profits, inventories, costs, taxes, and similar documents);
and (i) Trade secrets” be designated AEO. Dkt. 111 at
5. CCI counters that most of these categories should fall
under the “confidential” designation and should
not be designated AEO unless the producing party determines
in good faith that the document “contain[s] information
of a competitively or commercially sensitive, proprietary,
financial, or trade secret nature, or  involve[s] or
implicate[s] privacy interests” and also determines in
good faith that “disclosure of such information to
opposing parties may be detrimental to the producing
party's business interests.” Dkt. 113-1 at 6.
Court finds CSCP's proposed categories reasonable given
that the parties are direct competitors, provided that, as
another Washington district court wisely instructed:
“[t]he Court expects the parties to both use and
challenge AEO designations sparingly and only where necessary
in order to minimize onerous litigation.”
Cabell, 294 F.R.D. at 610. Even so, a more
restrictive protective order will provide confidence that
neither party is able to secure a greater competitive
advantage by obtaining its direct competitor's
confidential business information improperly or unfairly
through this litigation.