In what may reveal itself to be a landmark discovery-related case, the Fourth District (per curiam, Farmer dissenting) upheld a protective order which prevented plaintiff’s counsel from sharing confidential trade-secret related information with “at least 20 other law firms” who were interested in the material despite not having any relevant pending litigation. The case is Cordis Corporation and Johnson & Johnson of New Jersey v. Sean O’Shea.

The underlying dispute involves a medical products liability case over the CYPHER drug-eluting stent implant. The plaintiff requested contracts, manufacturing information, marketing information, sales force training/education and other information. The parties entered into an agreed protective order on “trade secrets and confidentiality.”

This appeal arose since plaintiff’s counsel sought a disputed order which would include a “sharing provision” to allow counsel to provide this information to other lawyers who were interested but who were not involved in “collateral litigation.” Presumably, although the decision does not mention it, counsel was involved in plaintiff lawyer associations which routinely share information. Counsel brought this to the court’s attention and said that the lawyers who would get the “shared” information would agree to abide by the confidentiality terms.

The defendant contended that it was in a highly competitive market and the innovations were the core of its business. Arguably, there is a “cat out of the bag” argument to be made here but, as we see it from the sidelines, the defendant’s opposition to broad disclosure is more of a method to prevent other plaintiff lawyers from having easy access to information which might fuel lawsuits – or, because of the cooperative nature of plaintiff lawyer association networks, might fuel class action cases against the defendant. Both the majority and dissenting opinion touch on this issue, but we see a difference between a “trade secret” and information which (perhaps correctly) is “confidential” since it is listed on the internal documents of a private company.

The Court noted that a party seeking confidential information must show a need for that information which outweighs the opposing party’s need to keep the information secret. The Court then discussed some persuasive federal court cases which granted or, conversely, restricted dissemination of comparable discovery to collateral litigants.

The Court voiced concern that allowing these sharing provisions might provide a mechanism for lawyers in other jurisdictions to use Florida courts to get information which their home jurisdiction’s narrower discovery rules might not allow.

Getting back on track, the Fourth DCA noted that discovery is for the preparation of trial or reaching a settlement. While broad sharing might encourage settlement and discourage repeated discovery, the Court held that the plaintiff did not show a need to broadly share the confidential information with counsel not of record and not involved in collateral litigation.

This is a fascinating issue and the majority opinion did test out different theories and considerations. That said, the dissent did raise some good points taking the majority to task for not having enough information to rule.

We do question why the Court did not stay on target with the focal issue that the parties initially put the label “confidential” on the materials. Thereafter, to then spread that information to others (whoever they may be) for reasons that are not squarely related to this particular case seems to go against the original, agreed concept that these materials were “confidential.” It also seems contrary to the 2007 Fourth DCA cases cited as authority on the standard to overcome confidentiality. Whether the Court made the right or wrong decision remains to be seen but – again from the sidelines – some linear connecting of the dots might have efficiently reached the same conclusion.