Opinion
Civil No. 2:02CV-0106S
December 2, 2003
ORDER REGARDING GATEWAY INC.'S EXPEDITED MOTION FOR SANCTIONS FOR VIOLATION OF PROTECTIVE ORDER
Pursuant to the Court's Notice of Hearing and Order dated September 9, 2003, Gateway's Expedited Motion for Sanctions for Violation of Protective Order, and for an Order Modifying the Stipulated Confidentiality Protective Order filed on September 3, 2003 came on for hearing on September 15, 2003. Plaintiffs Phillip M. Adams and Phillip M. Adams and Associates (collectively "Plaintiffs") were represented by Gregory D. Phillips of Howard, Phillips Andersen, and defendant Gateway, Inc. ("Gateway") was represented by David Connors of LeBoeuf, Lamb, Greene MacRae, LLP and by John Posthumus of Greenberg Traurig, LLP. In addition, the United States filed a Statement of Interest Regarding Defendant's Motion at Docket No. 81 on September 15, 2003.
Docket no. 81.
The Court considered the pending Motion, the Memoranda filed by the parties, the Statement of Interest filed by the United States, and the comments and arguments of counsel for Plaintiffs and Gateway, and made its ruling at the hearing, which is now written in this order. This order is entered after substantial discussion between counsel and a telephone hearing held December 2, 2003.
IT IS HEREBY ORDERED as follows:
1. Gateway shall serve a copy of this Order on Arnold M. Auerhan of the United States Department of Justice so that the United States will have an opportunity to intervene object to this Order.
2. Inasmuch as the issues in this case revolve around Plaintiffs' claims of infringement of patents pertaining to detection and resolution of defects in floppy disk controllers, and Plaintiffs do not claim that Defendant has infringed on its patents regarding the "any byte defect" as that defect was described in the deposition of Plaintiff Philip Adams, Plaintiffs shall not procure from Gateway or retain any document produced by Gateway referring to the any byte defect, and shall return to Gateway any document that Gateway has produced in this litigation referring to the any byte defect and shall destroy any notes or any other reference to such information or documents.
3. In this litigation, Gateway may withhold from production any information or portion of documents regarding or relating to the any byte defect. Information and portions of documents that do not refer to the any byte defect which are within the scope of requested discovery shall be produced.
4. Except as provided herein, Dr. Adams may continue to have access to the Gateway documents and information as set forth in the Stipulated Confidentiality Protective Order entered by the Court on April 30, 2003. Gateway's request that counsel for Plaintiffs immediately retrieve all copies of any "Protected Information" in Adams' possession is denied.
5. Dr. Adams shall not use any document produced by Gateway or information obtained from Gateway in this litigation to participate in evaluating, preparing, or investigating any federal or state qui tam lawsuit or class action.
6. Gateway's Motion that Adams appear and show cause why he should not be held in contempt for his violation of the Protective Order is denied.
7. Gateway's Motion for sanctions is also denied.
8. Gateway may file, if Gateway chooses, a motion to enjoin Plaintiffs from filing legal actions relating to the Any Byte Defect under the All Writs Act on or before September 19, 2003, and any extension agreed to by Plaintiffs, and Plaintiffs shall respond on or before September 26, 2003, and any extension agreed to by Gateway.
9. A hearing on Plaintiffs' Motion to Compel Documents Improperly Withheld on the Basis of Privilege shall be held at 1:30 p.m. on October 21, 2003.
SO ORDERED.