Monday, April 24, 2006, 4/24/2006 01:12:00 PM

"Bring Out Your Dead . . . ."

By Todd
The authors of this blog are fans of Monty Python. You might recall in "The Holy Grail" the cart master who walked through town ordering those victimized by the plague to "bring out your dead!" We love that scene.

Seeking a protective order from a court in a trade secrets case is alot like needing to "bring out your dead" - if you want the state's help, you've gotta put the goods on the cart master's cart. Alright, alright . . . it's a strained analogy. But regardless, when seeking a protective order you can't just say "we have trade secrets that are implicated by the other side's discovery request," you have to SHOW that you need the court's assistance.

The defense attorneys in Autotech Technologies L.P. v., Inc., et al., 2006 WL 1046957 (April 20, 2006 N.D. Ill.) needed to do this in their 3 page motion seeking a protective order precluding discovery of their customer list but didn't. In Magistrate Judge Cole's opinion and order forcing the defendant to produce the customer list but subject to certain restrictions that the Court would later review if and when submitted as a consent order by the parties, the Court went out of its way to say that defense counsel had better spend a little more time and effort developing these arguments in the future if it really needs the Court's assistance.

We think the Court's conclusion is worthy of a reprint here: "This case, like so many, deals with a clash of pretending absolutes; ADC insists that its customer identities and related information are not discoverable under any circumstances, which Autotech insists it is entitled to the unrestricted access to the information. Both contentions are unpersuasive; customer lists are relevant and must be hedged with appropriate restrictions. It is not desirable for a court to fashion such an order in the first instance, but for the parties, if they can. They are in the best position to structure a meaningful order that sensitively deals with the particulars that confront them and that are, at this early juncture, and given the specifics of their businesses not fully perceived by a court."

Guess the attorneys for both sides had better get their ninepence out because the cart master's cart is coming around again Thursday . . . .


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