In Bell N. Res., LLC v. ZTE Corporation, No.: 18cv1786-CAB(BLM), 2019 WL 1590472 (S.D. Cal. April 12, 2019) (Major, USMJ), ZTE sought a protective order that would prevent BNR's expert witness from testifying to information that ZTE and its lawyer declared confidential under ZTE's employment contract with BNR's expert. Confused yet?
First, ZTE retained the person who would later become BNR's expert witness in a lawsuit that BNR would later file against ZTE. The employment contract contained a confidentiality provision.
Next, BNR sued ZTE and BNR proffered the same person as its expert witness.
Then, ZTE filed what it called a motion for protective order, along with its lawyer's declaration testifying on behalf of ZTE, to prevent the expert witness from testifying to anything deemed "confidential" under the confidentiality provision in its contract with the expert.
Got it? Okay. So, ZTE was asking the federal court to enforce the confidentiality provision in its contract with the person whom BRN proffered as BNR's expert against ZTE.
A magistrate judge in California agreed to do that. The California magistrate judge granted ZTE's motion and barred the witness from testifying to anything that ZTE and its lawyer deemed "confidential" under the witness's prior employment contract with ZTE.
Under this reasoning, no whistle-blower could ever testify in a civil action against her former employer if the whistle-blower would testify to anything the employer deemed "confidential" and if there was a confidentiality provision in the employment contract, which of course there usually is. Confidential information is the whole reason for the whistle-blower testifying in the first place, so this holding would really prevent the whistle-blower's testimony.
What a ruling. How fortunate ZTE seems to have been in drawing this ruling.
How unfortunate for the public who deserve to hear the whole story, and how unfortunate for whistle-blowers who want to tell the whole story in their testimony in court.
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