Precedential Federal Circuit Opinions  

1.  STATIC MEDIA LLC v. LEADER ACCESSORIES LLC [OPINION] (2021-2303, 6/28/22) (Dyk, Reyna, Taranto)

Dyk, J. Reversing district court’s contempt finding and award of sanctions and attorney’s fees for alleged violation of protective order by disclosing confidential documents to counsel for a defendant in a separate action. Both Leader and OJ Commerce had been sued by Static in separate actions and entered into a joint defense group governed by a joint defense agreement for the purpose of a common defense. After OJ Commerce’s counsel signed onto the protective order in Leader’s action, agreeing to “not . . . use [protected] information . . . except for the purposes of [Leader’s] action,” Leader’s counsel disclosed protected information from Leader’s action to OJ Commerce’s counsel, who in turn used it in settlement negotiations with Static for OJ Commerce’s action. The majority found that because the protective order exists to prevent injury, damage, or competitive disadvantages resulting from public disclosure of the information, a “use” entirely internal to protective order signatories—developing a joint defense strategy—would not violate its terms, even though the information would be used to develop a strategy beneficial to both actions. This interpretation is supported by decisions holding that the use of information gained by an attorney under a protective order in one case may appropriately be used by the same attorney to develop a strategy applicable to a second action, despite the second action being a separate action from the one governed by the protective order.

Reyna, J. dissenting. Because the disclosure was for the purpose of formulating a joint defense strategy to be used in both cases, it violated the protective order requiring any use be “solely” for the purpose of Leader’s action.