Crosby Legacy contracted with FMC, a predecessor of TechnipFMC to provide quality management consulting services that included the provision of copyrighted and trademarked materials. The agreement prohibited use of these materials should a change of control occur. When FMC merged with Technip to create TechnipFMC and continued to use the materials, Crosby filed suit, asserting trademark and copyright infringement and breach of contract, among other state law claims.
Judge Boal granted Crosby Legacy’s motion that the protective order in the case allow for a single designated individual to review documents designated as “Highly Confidential – Outside Counsel Only.” This designation is reserved for information that would give the opposing party, usually a competitor, an unfair advantage through disclosure, which would constitute the “good cause” necessary to have a court protect the information from disclosure. Under such a designation, no one working for a party company would typically be allowed to view information designated as Highly Confidential. Here, Crosby Legacy asserted that its President and CEO needed to review the specialized technical information of TechnipFMC to help Crosby prepare its case and rebut TechnipFMC’s defenses. Judge Boal agreed, noting that TechnicFMP had not shown how disclosure to the CEO would put the information in jeopardy or would potentially harm TechnipFMC. TechnipFMC had not asserted that Crosby was a competitor, and had made no specific showing of potential harm. Judge Boal also noted that the CEO had been able to access TechnipFMC’s confidential information during the time that the consultancy was in effect. Judge Boal also granted Crosby’s request for the collection of electronically stored information from ten custodians, rather than the five suggested by TechnipFMC, because Crosby needed the broader discovery to prove the wide-spread dissemination of Crosby information that it alleged in the complaint.
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