Trade Secrets from the Journalistic Point-of-View

Lawyers know we can use protective orders to keep trade secrets under wraps during litigation. What we do not know so much about is how journalists view these protective orders. Which is why Protective Orders in Pretrial Discovery Phase Keep Journalists Unplugged caught my attention.

"In September 2006, Delaware District Court Judge Joseph Farnan Jr. approved a protective order in AMD v. Intel, a long-running case in which the computer hardware behemoth Intel is being sued by its chief microprocessor rival over alleged anti-trust practices. With the protective order, Farnan effectively vaulted vast portions of evidence in the case. Predicting that 'hundreds of millions of pages of documentation' would accumulate, Farnan moved to safeguard the companies' trade secrets, and make discovery documents easier to produce to the litigants.

Two years later, some reporters and lawyers say it's one of the most sweeping protective orders they've seen. So much so that many basic details of the allegations against Intel are still scant - even though AMD filed suit against Intel in 2005, and two foreign trade commissions have ruled against Intel in the last several years for violating antimonopoly or antitrust regulations."

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The protective order was issued under Federal Rule of Civil Procedure 26, which allows discovery documents to be sealed or restricted when a court finds good cause to protect a party or person from annoyance, embarrassment, or undue burden or expense. The rule also specifies that courts are allowed to seal documents to protect trade secrets.

Between the protective order and the limited information from the foreign commissions that dealt with Intel on similar claims, several reporters said they're hamstrung covering the AMD case. For instance, under Farnan's order, documents that are filed publicly often come heavily redacted. Reporters describe sections of court papers that begin to talk about allegations against Intel and then go blank right as they delve into specifics.