At least without evidence to support an untimely request, the District Judge ruled in TrueNorth Cos., LC v. TruNorth Warranty Plans of N. Am., LLC, No. C17-31-LTS, 2018 WL 6438370 (N.D. Iowa December 7, 2018). The case involved substantive claims of trademark infringement, mark dilution, false designation of origin, mark infringement under Iowa law, false advertising, and unfair competition. TrueNorth Cos., LC v. TruNorth Warranty Plans of N. Am., LLC, No. C17-31-LTS, 2018 WL 6438370, at *1 (N.D. Iowa December 7, 2018).
In TrueNorth v. TruNorth, the parties entered into a Stipulated Protective Order. We know very little about the stipulated protective order from the District Judge's opinion except that it "describes two levels of confidentiality -- 'confidential' and 'highly confidential,' which is limited to review by counsel, including in-house counsel." TrueNorth Cos., LC v. TruNorth Warranty Plans of N. Am., LLC, No. C17-31-LTS, 2018 WL 6438370, at *12 n.9 (N.D. Iowa December 7, 2018).
Although it was not otherwise summarized in the District Judge's opinion, a review of the court file on PACER shows that the stipulated protective order in this case is a pretty standard stipulated secrecy order. You can read it for yourself here from the court file: Download TrueNorth Cos. LC v. TruNorth Waranty Plans of N. Am. LLC Stipulated Protective Order Doc. NO.. 36 filed 08.16.17 (N.D. Iowa Case No. 17.31.LTS; order s by Chief USMJ 08.16.17).
As the District Court informed us in its opinion, the stipulated secrecy order already concealed information that was marked "confidential and "highly confidential" by counsel in the case. The defendant belatedly filed a motion to amend the previously stipulated protective order to add another category of concealed information which it called "Highly Confidential Plus Material." (Emphasis added.)
This category would allow disclosure only to litigating counsel of evidence produced under this proposal and prohibit "disclosure to the non-producing party and in-house counsel of the non-producing party." To put it differently, under the defendant's proposal to amend the secrecy order "certain information could be designated in such a manner as to prevent its disclosure to the receiving party's in-house counsel." TrueNorth Cos., LC v. TruNorth Warranty Plans of N. Am., LLC, No. C17-31-LTS, 2018 WL 6438370, at *13 (N.D. Iowa December 7, 2018) (emphasis added).
This was a secrecy order gone too far, at least in the TrueNorth v. TruNorth case. The District Judge rejected this proposal and denied the defendant's motion to amend the stipulated protective order accordingly.
The Court pointed out that the defendant's motion was untimely, but the fact that the defendant failed to support its request with evidence was more likely what determined the outcome in this case (i.e., that the defendant failed to support its request for further protection with a showing of good cause for its request, although the Court itself apparently never mentioned "good cause" or a lack of it in its decision denying the defendant's request in this case). See TrueNorth Cos., LC v. TruNorth Warranty Plans of N. Am., LLC, No. C17-31-LTS, 2018 WL 6438370, at *16 (N.D. Iowa December 7, 2018) ("Instead, TN Warranty engaged in extra-judicial self-help, taking it upon itself to decide what information to disclose while holding other evidence hostage in an effort to force TrueNorth to agree to its terms.").
Whether and to what degree this decision will influence the development of stipulated secrecy orders along the lines proposed by the defendant in this case, remains to be seen.
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