`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`§
`OCEAN SEMICONDUCTOR LLC,
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` Plaintiff,
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`v.
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`NXP USA, INC.,
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` Defendant.
`§
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`ORDER GRANTING MOTION TO MODIFY PROTECTIVE ORDER
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`W-20-CV-01212-ADA
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`Came on for consideration is Plaintiff’s Opposed Motion to Modify the Protective Order
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`to Allow Use of Third-Party Discovery in a Related Action (the “Motion”). ECF No. 112. After
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`careful consideration of the Motion and the applicable law, the Court GRANTS Plaintiff’s
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`Motion.
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`A. Western District of Texas Action
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`I. BACKGROUND
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`Plaintiff Ocean Semiconductor LLC (“Ocean”) filed its Original Complaint in this action
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`on December 31, 2020. ECF No. 1. Ocean alleged infringement of its patents for semiconductor
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`manufacture by Defendant NXP USA, Inc. (“NXP”). See ECF No. 1. Subsequently, the Parties
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`filed a Joint Motion for Entry of Protective Order on March 10, 2022. ECF No. 64. The Court
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`granted the joint motion and entered the order on March 29, 2022. ECF No. 65. The order
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`specified that materials designated for protection “shall be used by the Parties only in the
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`litigation of this Action and shall not be used for any other purpose.” ECF No. 65 ¶ 7.
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`On August 25, 2022, Ocean requested leave to file amended Final Infringement
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`Contentions. ECF No. 84. The Court granted in part and denied in part the motion. ECF No. 107.
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`On January 3, 2023, Ocean filed the Motion seeking “to use third-party discovery
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`obtained in this action in a” collateral action. ECF No. 112 at 4. On January 6, 2023, Ocean filed
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`Case 6:20-cv-01212-ADA-DTG Document 119 Filed 04/28/23 Page 2 of 13
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`a transcript from the collateral action supporting the Motion. ECF No. 113. On January 10, 2023,
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`Analog Devices, Inc. (“Analog”) filed a motion to intervene “for the sole and limited purpose of
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`opposing [Ocean’s]” Motion. ECF No. 115 at 5. On January 16, 2023, Ocean filed a reply in
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`opposition to Analog’s intervention in the Motion. ECF No. 116.
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`B. District of Massachusetts Action
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`Ocean filed its Original Complaint against Analog in the District of Massachusetts on
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`December 31, 2020. Ocean Semiconductors LLC v. Analog Devices Inc., Case No. 1:20-cv-
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`12310 (D. Mass.) (“Mass. Action”), ECF No. 1. As in the Western District of Texas action,
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`Ocean alleged infringement of its patents related to semiconductor manufacturing. Id. ¶ 1. On
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`April 26, 2021, Analog filed a motion to dismiss for failure to state a claim. See Mass. Actionat
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`ECF No. 17.
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`On August 31, 2021, Analog filed a motion to stay pending inter partes review of the
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`seven patents in suit. 1:20-cv-12310, ECF No. 30 at 1. On September 20, 2021, the court granted
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`“the motion to stay this case pending the decision on the institution of IPR proceedings on the
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`seven patents in suit.” 1:20-cv-12310, ECF No. 37 at 1. The court also found the pending motion
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`to dismiss for failure to state a claim would be mooted upon lift of the stay. 1:20-cv-12310, ECF
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`No. 38.
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`On June 30, 2022, Analog renewed its motion to dismiss for failure to state a claim. 1:20-
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`cv-12310, ECF No. 48. Ocean filed its response in opposition on August 4, 2022. 1:20-cv-12310,
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`ECF No. 59. Analog filed a corresponding reply in support of its motion on August 9, 2022.
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`1:20-cv-12310, ECF No. 62.
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`On August 5, 2022, Ocean amended its infringement claims in its First Amended
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`Complaint. 1:20-cv-12310, ECF No. 61. The court entered an order lifting the stay regarding
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`U.S. Patent No. 6,836,691 on August 10, 2022. 1:20-cv-12310, ECF No. 64.
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`On August 19, 2022, Analog withdrew its renewed motion to dismiss (1:20-cv-12310,
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`ECF No. 66) and filed a new motion to dismiss for failure to state a claim (1:20-cv-12310, ECF
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`No. 67). Ocean filed its response on September 2, 2022. 1:20-cv-12310, ECF No. 75. A further
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`reply was filed by Analog on September 16, 2022 (1:20-cv-12310, ECF No. 84), and a sur-reply
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`submitted by Ocean on September 23, 2022 (1:20-cv-12310, ECF No. 87).
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`On September 6, 2022, the court entered a protective order on the action. 1:20-cv-12310,
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`ECF No. 78.
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`On October 13, 2022, the Parties filed a joint motion to lift the stay pertaining to U.S.
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`Patent Nos. 6,660,651 and 7,080,330. 1:20-cv-12310, ECF No. 90. The court entered an order
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`endorsing the joint motion on October 14, 2022. 1:20-cv-12310, ECF No. 92.
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`On October 27, 2022, Analog filed a motion to dismiss First Amended Complaint with
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`respect to the ’330 patent. 1:20-cv-12310, ECF No. 95. Ocean filed its response in opposition on
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`December 2, 2022. 1:20-cv-12310, ECF No. 108.
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`On December 6, 2022, Analog filed a motion to quash all third-party subpoenas, or in the
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`alternative for a protective order, and to stay discovery in the action. 1:20-cv-12310, ECF No.
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`109. On December 20, 2022, Ocean filed its response in opposition. 1:20-cv-12310, ECF No.
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`116. The court entered a stay pending resolution of the motion to dismiss on December 21, 2022.
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`1:20-cv-12310, ECF No. 117.
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`On February 14, 2023, Analog filed a notice of the final decision by the Patent Trial and
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`Appeal Board in the inter partes review. 1:20-cv-12310, ECF No. 124. The decision found all
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`challenged claims of U.S. Patent Nos. 6,725,402, 6,907,305, 6,968,248, and 8,676,538 to be
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`unpatentable. 1:20-cv-12310, ECF No. 124 at 1.
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`On March 28, 2023, the court granted Analog’s motion to dismiss for failure to state a
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`claim without prejudice. 1:20-cv-12310, ECF No. 126. Ocean may still replead “in 30 days if
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`there is a factual basis for alleging that Analog infringed claims 4 and 5.” 1:20-cv-12310, ECF
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`No. 126 at 19.
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`C. Ocean’s Discovery
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`Ocean has sought discovery from various third-party manufacturers of semiconductor
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`manufacturing tools. ECF No .112 at 4-5. It alleges that those tools are then used for
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`infringement of its patented processes. ECF No. 112 at 5. Ocean obtained material from some
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`subpoenaed third parties. ECF No. 112 at 5. Relevant third-party information was obtained from
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`“Applied Materials, Inc., Infinicon, Inc., TSMC, camLine, and Hitachi High-Tech America,
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`Inc.” ECF No. 112 at 5. Ocean seeks permission to use those materials against Analog in the
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`1:20-cv-12310 action. ECF No. 112 at 6. TSMC and camLine have granted Ocean permission to
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`use produced documents in the 1:20-cv-12310 action. ECF No. 112 at 6. Ocean received
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`permission to use discovery from third parties in this action as evidence “to supplement its
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`complaint in the Ocean v. ADI action.” ECF No. 112 at 6.
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`The joint protective order entered by the Parties prohibits Ocean from using discovery
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`productions in the 1:20-cv-12310 action. ECF No. 112 at 6. Ocean alleges that early cooperation
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`from Applied Materials, Inc., Infinicon, Inc., and Hitachi High-Tech American, Inc. ended “after
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`they were contacted by counsel for Analog. ECF No. 112 at 6. Ocean now seeks permission from
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`the court to modify the protective order allowing the use of the produced documents in the 1:20-
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`cv-12310 action. ECF No. 112 at 4. Additionally, Analog has sought intervention to prevent
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`modification of the protective order, alleging that Ocean is pursuing no more than a “fishing
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`expedition against Analog.” ECF No. 115 at 6.
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`II. LEGAL STANDARD
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`A. Intervention
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`Rule 24 provides parties a route to intervene in an action before the court. Fed. R. Civ. P.
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`24. It affords either intervention as a matter of right or permissive intervention. Fed. R. Civ. P.
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`24(a), 24(b). The Fifth Circuit set forth a four-factor test for intervention as a matter of right
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`pursuant to Rule 24(a). Field v. Anadarko Petroleum Co., 35 F.4th 1013, 1017 (5th Cir. 2022).
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`[An] intervenor must show that “(1) the application . . . [was] timely”; (2) that it
`has “an interest relating to the property or transaction which is the subject of the
`action”; (3) that it is “so situated that the disposition of the action may, as a
`practical matter, impair or impede [its] ability to protect that interest”; and,
`finally, (4) that its interest is “inadequately represented by the existing parties to
`the suit.”
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`Id. (quoting DeOtte v. State, 20 F.4th 1055, 1067 (5th Cir. 2021)). Similarly, permissive
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`intervention may be granted where “an applicant’s claim or defense and the main action have a
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`question of law or fact in common.” Fed. R. Civ. P. 24(b)(2). This Court has previously stated
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`that permissive intervention “ ‘is wholly discretionary.’” Nat’l Press Photographers Ass’n v.
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`McCraw, 594 F. Supp. 3d 789, 812 (W.D. Tex. 2022).
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`The Fifth Circuit addressed the intervention factors in Field. Field, 35 F.4th at 1017–20. It
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`stated that acting to intervene “as soon as an intervenor realizes its interests are not adequately
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`protected” will be timely. Id. at 1018. An intervenor must show a legally protectable interest in
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`the action, not merely a preference for an outcome thereof. Id. at 1018. An intervenor’s interest
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`may be insufficient where “too far removed from the dispute,” purely economic, or require
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`separate legal action, making the interest too indirect. Id. at 1018–19. Intervenors with an actual
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`interest can show a practical risk of impairment when it may be impaired without intervening. Id.
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`at 1020. Last, an intervenor may show inadequate representation by “at least establish[ing]
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`‘adversity of interest, collusion, or nonfeasance on the part of the existing party’ that ‘has the
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`same ultimate objective’ for the lawsuit as the partying seeking to intervene.” Id.
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`B. Modification of a Protective Order
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`Rule 26 grants district courts the right, for good cause, to restrict the disclosure of
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`material from matters before it through a protective order. Fed. R. Civ. P. 26(c). A district court
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`has the discretion to enter and modify a protective order, even after the dismissal of the
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`underlying suit. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir.
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`1990); Raytheon Corp. v. Indigo Sys. Corp., No. 4:07-cv-109, 2008 U.S. Dist. LEXIS 70934, at
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`*6 (E.D. Tex. Sept. 18, 2008). The Court has the discretion to modify protective orders by parties
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`to the action or by non-parties through Rule 24 intervention. Peoples v. Aldine Indep. Sch. Dist.,
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`No. 06-2818, 2008 U.S. Dist. LEXIS 47946, *5 (S.D. Tex. June 19, 2008).
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`The Southern District of New York developed much of the modern doctrine for the
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`modification of protective orders in a pharmaceutical patent dispute. See generally, Bayer AG v.
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`Barr Lab’ys, Inc., 162. F.R.D. 456 (S.D.N.Y. 1995) (considering the modification of a protective
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`order to allow in-house counsel of a party to attend depositions).1 The Bayer AG court first
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`distinguished the modification of a protective order by a party to the action or upon the request
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`of a non-party. Id. at 460. It recognized that the Second Circuit had already addressed
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`distinctions between non-party requests for access as a matter of public interest and those from
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`governmental entities. Id. The Tenth Circuit had previously outlined an additional non-party
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`1 While the Southern District of New York is certainly not controlling authority, the Western District of Texas has
`looked to Bayer AG v. Barr Lab’ys, Inc. for guidance in past disputes pertaining to protective orders. See generally,
`United States v. Carriles, 654 F. Supp. 2d 557 (W.D. Tex. 2009); Rodriguez v. Wal-Mart Stores, Inc., No. EP-18-
`CV-00356-MAT, 2019 U.S. Dist. LEXIS 226400 (W.D. Tex. May 2, 2019). It has also been cited by the Eastern
`District of Texas regarding protective order issues. See generally, Raytheon Co. v. Indigo Sys. Corp., No. 4:07-cv-
`109, 2008 U.S. Dist. LEXIS 70934 (E.D. Tex. Sept. 18, 2008).
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`request instance seeking access to discovery productions for use in a collateral action. United
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`Nuclear Corp., 905 F.2d at 1427–28.
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`The Southern District of New York outlined a four-factor balancing test for requests to
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`modify made by a party. Bayer AG, 162 F.R.D. at 462–63. Courts should balance the following
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`considerations:
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`(1) good cause – if good cause was shown for the original protective order, the
`burden is on the party seeking modification to show good cause for modification;
`if good cause was not shown for the original protective order, the burden of
`showing good cause is on the party seeking continued confidentiality protection;
`(2) the nature of the protective order (i.e., narrow vs. broad, court imposed vs.
`court approved upon stipulation of the parties); (3) the foreseeability at the time of
`the original protective order of the modification now requested; and (4) the
`parties’ reliance on the protective order.
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`Id.
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`The Bayer AG court found good cause for the stipulated protective order because of the
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`commercially-sensitive nature of the detailed information involved. Id. at 464. Additionally, the
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`court stated that the scope of the protective order might influence the good cause factor. Id. at
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`465. The Eleventh Circuit suggested that the good cause factor should be analyzed by
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`considering whether a specific and particular risk of injury exists, as opposed to mere “subjective
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`assertions of fear.” Carrizosa v. Chiquita Brands Int’l, Inc., 965 F.3d 1238, 1251 (11th Cir.
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`2020). Next, the nature of the protective order is considered by assessing the scope of the
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`protective order. Bayer AG, 162 F.R.D. at 465. The court classified the scope as being either
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`narrow, blanket, or umbrella orders. Id. A narrow protective order is directed to “specific,
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`identified information.” Id. Additionally, narrow protective orders may be a sufficient showing
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`of good cause when the specified material is reviewed by the court. Id. Blanket protective orders
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`increase the breadth of the order’s scope to “documents that they in good faith believe contain
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`trade secrets or other confidential commercial information.” Id. Blanket orders are typically
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`supported by good cause by the nature of their commercial importance and the good faith
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`designation of confidential material. Id. at 466. As an exception, a party seeking to modify a
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`protective order it had previously stipulated to must generally show good cause to avoid the prior
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`agreement. Id. Umbrella orders are the broadest in scope, covering all discovery material
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`“without any review or determination of ‘good cause.’” Id. at 465. For umbrella orders, the party
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`opposing modification of the order must show good cause for continued, indiscriminate
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`restriction. Id. The court should also “consider whether the protective order was court imposed or
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`court approved” with respect to the nature of the order factor. Id. The third factor, foreseeability,
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`turns on whether the parties should have reasonably known the order may need future
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`modification for probable circumstances. Id. at 466. Lastly, the court should assess how much
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`the resisting party relied on the protective order for discovery production. Id.
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`In United Nuclear Corp., the Tenth Circuit addressed modification of a protective order
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`to prevent duplicative discovery. See generally, United Nuclear Corp., 905 F.2d. The Tenth
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`Circuit noted that the circuits are divided on how their discretion is applied in balancing factors
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`for duplicative discovery-related requests. Id. at 1428. Siding with the Seventh Circuit, efficiency
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`and prejudice are balanced. Id. Modification to prevent duplicative discovery is favored unless it
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`creates substantial prejudice. Id. (citing to Wilk v. Am. Med. Ass’n, 635 F.2d 1295, 1299 (7th Cir.
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`1980) (overturned on other grounds regarding intervenor standing requirements)).
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`A. Intervention
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`III. ANALYSIS
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`Analog filed a motion to intervene “as soon as it learned of Ocean’s” efforts to modify
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`the protective order. ECF No .115 at 6. Analog’s request was timely under the Field standard as
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`stated by the Fifth Circuit. Field, 34 F.4th at 1018. While this action may share common
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`questions of law and fact to the Massachusetts action, Analog has failed to demonstrate that it
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`has a protectable interest in the matter. All discovery in the Western District of Texas action has
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`occurred, and there is no further anticipated discovery set to occur—fishing expedition or not—
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`for it to have an interest in protecting against.. Accordingly, this Court declines to grant Analog’s
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`request for intervention. The Court notes that even if Analog were allowed to intervene, the
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`Court would reach the same conclusion regarding the modification of the protective order, which
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`is discussed below.
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`B. Modification of the Protective Order
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`The present dispute implicates some elements of both a party requesting modification and
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`a non-party seeking modification for duplicative discovery purposes. See generally, ECF No.
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`112; ECF No. 115. While sharing some similarities with the duplicative discovery situation of
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`United Nuclear Corp., the intervening party seeks to prevent modification here. ECF No. 115 at
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`5. In the present matter, the balance of the efficiency related to duplicative discovery and the lack
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`of prejudice to Analog weigh in favor of modification of the protective order.
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`1. Good Cause
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`The Parties stipulated to a blanket protective order. See generally, ECF No. 65. The
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`protective order allowed the Parties to designate materials for different levels of protection. ECF
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`No. 65. Moreover, the protective order was designed to protect from the “disclosure of trade
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`secrets, confidential business information, or other proprietary information[.]” ECF No. 65. But
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`the protective order also contemplates future modification by the Parties. ECF No. 65 ¶ 5. This
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`clause allows for modifications to be made upon the “consent of the designating Party, [or] upon
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`order of the Court . . . ”. ECF No. 65 ¶ 5. Additionally, Ocean seeks modification for judicial
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`efficiency by avoiding duplicative discovery. ECF No. 112 at7.
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`The Bayer AG court recognized the commercial importance of protective orders. See
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`Bayer AG, 162 F.R.D. at 465. Moreover, it suggested that most “blanket” protective orders for
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`such purposes would be entered with good cause. Id. Indeed, the court stated that a “party should
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`be held to its agreement and thus should have the burden of showing good cause for its
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`modification request.” Id. Conversely, the United Nuclear Corp. court suggests that avoiding
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`duplicative discovery is favored where it does not cause substantial prejudice. United Nuclear
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`Corp., 005 F.2d at 1428. Similarly, the Fifth Circuit stated, “that protective orders should
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`generally be modified to allow discovery in other actions[.]” Stack v. Gamill, 796 F.2d 65, 68
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`(5th Cir. 1986).
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`The Parties stipulated to a blanket protective order to protect their commercial interests.
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`ECF No. 65. This constitutes good cause for the protective order. Bayer AG, 162. F.R.D. at 465.
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`Ocean thus carries a burden of showing good cause for modifying the order. Id. Here, the Parties
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`provided for modifications, and the modification seeks to prevent duplicative discovery. See ECF
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`No. 112 at 5–7. Contrary to Fifth Circuit guidance in Gamill, Analog seeks to prevent
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`modification for any further discovery in any other actions. See ECF No. 115-2. While Analog
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`proposes that Ocean seeks a “fishing expedition” (ECF No. 115-2 at 8), “Ocean is not currently
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`seeking any discovery in that action.” ECF No. 116 at 4. Modification of the protective order
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`would prevent the need for duplicative discovery. Furthermore, the Court is reluctant to allow a
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`party to use the protective order as a shield to hide relevant facts (facts that Plaintiff is already
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`aware of) in any litigation. Accordingly, Ocean has demonstrated good cause weighing in favor
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`of modification.
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`2. Nature of the Protective Order
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`The Parties stipulated a protective order that allows them to designate materials for
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`different levels of protection. See generally, ECF No. 65. The Bayer AG court stated that such
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`protective orders fall under the “blanket” protective order classification. Bayer AG, 165. F.R.D.
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`at 465 (“ . . . a ‘blanket’ protective order that permits the parties to protect documents that they in
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`good faith believe contain trade secrets or other confidential information”). Accordingly, the
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`parties stipulated a blanket protective order and weighs against modification. Id. at 466.
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`3. Foreseeability
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`The protective order contains provisions for modification. ECF No. 65 ¶ 5. The Parties
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`may seek modification “upon order of the court” or through “consent of the designating Party”
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`for the additional disclosure. ECF No. 65 ¶ 5. Ocean filed the Massachusetts action prior to the
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`Western District of Texas action, making potential third-party discovery needs across the
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`collateral actions foreseeable. 1:20-cv-12310, ECF No. 1; ECF No. 1.
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`The Bayer AG court stated that this factor considers “whether the need for modification
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`was foreseeable at the time the parties negotiated the original stipulated protective order.” Bayer
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`AG, 165 F.R.D. at 466.
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`Here, the Parties should have foreseen the potential need for third-party production in the
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`collateral action because the Massachusetts action predated this dispute. 1:20-cv-12310, ECF No.
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`1; ECF No. 1. But the Parties provided a mechanism for the blanket protective order to be
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`modified. ECF No. 65 ¶ 5. The Parties allowing for the alteration of the protective order make
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`this dispute distinct from Bayer AG, which left no reasonable justification for modifying the
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`blanket protective order. Bayer AG, 165 F.R.D. at 466. Analog argues that this factor should
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`weigh against modification but seems to ignore the provision in the protective order that allows
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`for future changes as suggested by its cited authority. ECF No. 115-2 at 6. Accordingly, this
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`factor is neutral or favors modification slightly.
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`4. Reliance
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`Third parties produced discovery materials after the entry of the protective order,
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`providing a presumption of reliance. Indeed, Analog asserts that it “relied on the protective order
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`provision that expressly barred Ocean from obtaining confidential materials produced in this
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`action and using them in its case against Analog.” ECF No. 115-2 at 6. Ocean conceded this
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`reliance. ECF No. 112 at 6 (“While the third parties relied on the Protective Order in producing
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`confidential information in this action . . . ”).
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`The Bayer AG court stated that reliance upon the protective order by parties will
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`generally weigh against permitting modification. Bayer AG, 165 F.R.D. at 467.
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`Analog’s reliance would typically weigh against modification of the protective order in
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`accordance with the advice of Bayer AG. Ocean, though, raises a further consideration for this
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`factor in asserting that materials would remain protected. ECF No. 112 at 6. Ocean notes that a
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`protective order has also been entered for the Massachusetts action. ECF No. 112 at 6. The
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`Massachusetts action protective order is substantially the same as the present order. See 1:20-cv-
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`12310, ECF No. 78. As a result, the prejudicial risk with which reliance is normally concerned
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`does not arise. Accordingly, this factor is neutral.
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`IV. CONCLUSION
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`Here, Ocean has shown reasonable grounds for modification of the protective order. This
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`Court finds that the balance of the factors weighs in favor of modifying the protective order. It is
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`therefore ORDERED that Plaintiff’s Opposed Motion to Modify the Protective Order to Allow
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`Use of Third-Party Discovery in a Related Action is GRANTED.
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` SIGNED this 28th day of April, 2023.
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`DEREK T. GILLILAND
`UNITED STATES MAGISTRATE JUDGE
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