FALL 2010

Trade Secrets

 

Course No. 9200-704 (& 804)-801

ID No. 85737 & 85736

Time:  W 6:30 - 9:30 p.m.
Room:  W-215
Professor Jay Dratler, Jr.
Room Across from 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2002, 2003, 2006, 2008, 2010   Jay Dratler, Jr.   For permission, see CMI.

Federal Rules of Civil Procedure, Rules 26(c), 37(a)(5)


Rule 26(c).  Protective Orders.

(1)  In General.  A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.  The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.  The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
    (A)  forbidding the disclosure or discovery;

    (B)  specifying terms, including time and place, for the disclosure or discovery;

    (C)  prescribing a discovery method other than the one selected by the party seeking discovery;

    (D)  forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

    (E)  designating the persons who may be present while the discovery is conducted;

    (F)  requiring that a deposition be sealed and opened only on court order;

    (G)  requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

    (H)  requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
(2)  Ordering Discovery.  If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

(3)  Awarding Expenses.  Rule 37(a)(5) applies to the award of expenses.


Rule 37(a)(5).   Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(a)  Motion for an Order Compelling Disclosure or Discovery.
    (1)  In General.  On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.  The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
* * *

    (5)  Payment of Expenses; Protective Orders.

      (A)  If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing).  If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.  But the court must not order this payment if:

        (i)  the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

        (ii)  the opposing party's nondisclosure, response, or objection was substantially justified; or

        (iii)  other circumstances make an award of expenses unjust.

      (B)  If the Motion Is Denied.  If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.  But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

      (C)  If the Motion Is Granted in Part and Denied in Part.  If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
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