District Court Refuses to Amend Protective Order to Permit Expert, Who Was Former Employee of Competitor, to Review Confidential Documents


Jeffer Mangels Butler & Mitchell LLP

In this patent infringement action, the defendant, High 5 Games ("High 5"), moved for an order overruling the plaintiff's, Konami Gaming, Inc. ("Konami"), objection to an expert witness viewing confidential information. In the alternative, High 5 moved to amend the stipulated protective order signed by the parties.

As explained by the district court, the stipulated protective order entered into by the parties stated that for purposes of access to confidential documents, an "expert" is "a person with specialized knowledge or experience in a matter pertinent to the litigation who . . . is not a past or current employee of a Party or of a Party's competitor."

High 5 Mark Nicely to testify as an expert witness. Mr. Nicely is a former employee of International Game Technology ("IGT"), one of Plaintiff's competitors. Konami refused to give Mr. Nicely access to its confidential information based on the provision reference above in the parties' protective order.

The district court stated that the crux "of the issue is therefore whether the Court should amend the order such that Mr. Nicely qualifies as an 'expert' for purposes of access to confidential information."

Rather than cite authority as to whether the district court should amend the order, High 5 cited various cases involving the exclusion of expert testimony and expert witnesses' qualifications under the Federal Rules of Evidence. High 5 also argued that, because it did not object to Plaintiff's chosen expert, John Acres, Konami had no right to object to Mr. Nicely.

In response, Konami cited authority that a negotiated stipulated protective order is a contract that must be applied according to its plain meaning and also noted that the parties had negotiated the language of the protective order in the case for over a month before agreeing on it. Konami argued that the language in the order supported its decision to withhold confidential information from Mr. Nicely. Konami also noted that its expert, John Acres, is a former business associate of IGT, not a former employee.

The district court agreed with Konami. "The Court cannot amend the order simply because Defendant feels that, in hindsight, it should have negotiated different terms. See, e.g., Docket No. 75 at 5 ('[W]hen the parties negotiated the order, High 5 did not appreciate the significance' of the definition at issue). Therefore, the Court will apply the plain meaning of the language in the protective order when analyzing it. There is no dispute that Mr. Nicely is a former 'employee' within the order's meaning. Thus, Mr. Nicely does not qualify as an 'expert' for purposes of access to confidential information."

Accordingly, the district court declined to overrule the objection or amend the protective order.

Konami Gaming, Inc. v. High 5 Games, LLC, Case No. 2:14-cv-01483-RFB-NJK (D. Nev. Sept. 29, 2016)

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