United States District Court, D. Maine
ORDER ON MOTION TO OVERRULE CONFIDENTIALITY
DESIGNATION AND MOTION TO ALLOW DISCLOSURE OF CONFIDENTIAL
AND HIGHLY CONFIDENTIAL INFORMATION TO DEFENDANTS'
C. NIVISON U.S. MAGISTRATE JUDGE.
discovery, pursuant to the Consent Confidentiality Order
entered in this case (Order, ECF No. 44), Plaintiffs and
Defendants have designated certain documents as either
“confidential” or “highly
confidential.” The designations limit the parties'
use of and ability to disclose the documents and the
information in the documents.
motion, Plaintiffs ask the Court to reduce Defendants'
designation of Defendants' experts' opinions from
“highly confidential” to
“confidential” (Plaintiffs' Motion, ECF No.
380); Defendants request authority to disclose information
designated by Plaintiffs as “confidential” to one
of its expert witnesses, Ronald Hardy, Ph.D. (Defendants'
Motion, ECF No. 382).
a review of the relevant portions of the record, and after
consideration of the parties' arguments, the Court grants
party seeking to maintain its confidentiality designation
“has the burden to show good cause” for the
designation. Consent Confidentiality Order, ¶
8(c); Sea Hunters, LP v. S.S. Port Nicholson, No.
2:08-cv-272-GZS, 2014 WL 2117358 (D. Me., May 21, 2014).
“A finding of good cause must be based on a particular
factual demonstration of potential harm, not on conclusory
statements.” Anderson v. Cryovac, Inc., 805
F.2d 1, 7 (1st Cir. 1986).
ask the Court to reduce from “highly
confidential” to “confidential” certain
portions of the designated expert witnesses' opinions
regarding royalty base and total damages, which opinions are
included as exhibits to Plaintiffs' motion. (ECF Nos.
381-2, 381-3, 381-4, 381-5.) Plaintiffs' counsel seeks
the modified designation in order to share the opinions with
their clients to allow their clients “greater ability
to participate in [the] management of this case, including
formulating a settlement offer.” (Plaintiffs'
Motion at 2.) Under the terms of the Consent Confidentiality
Order, “confidential” information may be shared
with “in-house personnel” (i.e., client
representatives), while “highly confidential” may
not be shared with “in-house personnel.”
Confidentiality Order, ¶ 5. Defendants contend
the “highly confidential” designation is
appropriate and should remain particularly given that the
information includes the number of fish raised by
a court assesses whether to issue or modify a confidentiality
order, the court must balance one party's need for
certain information to prosecute or defend a case with
legitimate concerns about the disclosure of proprietary
information. Silversun Indus., Inc. v. PPG
Indus., Inc., 296 F.Supp.3d 936, 944 (N.D. Ill.
2017). Here, Plaintiffs do not seek to remove the
confidential designation entirely. Rather, Plaintiffs'
counsel asks the Court to reduce the designation on certain
portions of the opinion evidence in order to share the
information with their clients. First, while the opinions are
informed by confidential and perhaps proprietary information,
the actual opinions are not proprietary. Furthermore, a
party's ability to make fundamental decisions in the
defense or prosecution of a claim is unquestionably
compromised if the party is unable to review the expert
opinions upon which the parties rely to support their
respective positions. The Court, therefore, is unpersuaded by
Defendants' contention that the “highly
confidential” designation for the expert opinions is
request an order that permits the disclosure of documents
designated by Plaintiffs as “highly confidential”
and “confidential” to one of Defendants'
expert witnesses, Ronald Hardy, Ph.D. Citing what Plaintiffs
describe as Dr. Hardy's continuing relationships with
“multiple fish feed manufacturers and feed ingredient
suppliers, ” Plaintiffs contend the disclosure would
generate the risk of inadvertent disclosure or inadvertent
misuse of the information by Dr. Hardy. (Plaintiffs'
Response at 2, ECF No. 396.)
District of Vermont effectively summarized a court's
obligation when determining whether confidential information
should be disclosed to experts.
To resolve a dispute over disclosure of confidential
information to experts, courts “balance the
movant's interest in selecting the consultant most
beneficial to the case, considering the specific expertise of
this consultant and whether other consultants possess similar
expertise, against the disclosing party's interest in
protecting confidential commercial information from
disclosure to competitors.” BASF Corp. v. United
States,321 F.Supp.2d 1373, 1378 (C.I.T. 2004);
accord Rice v. United States, 39 Fed.Cl. 747, 750
(1997) (court must “balance the need of one litigant to