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In-House Employees and Access to Attorneys’ Eyes Only Information

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The analysis of whether in-house an employee should be granted full access to information labeled “attorneys’ eyes only” focuses on two things: the employee’s position in the company and the risks and safeguards of inadvertent disclosure. R.R. Donnelly & Sons, Co. v. Quark, Inc., C.A. No. 06-032, 2007 U.S. Dist. LEXIS 424 (D. Del. Jan. 4, 2007) (Farnan, J.).

In this case, plaintiff wanted its Chief Patent Counsel and President of Corporate Strategic Initiatives to have access to all discovery related information for case management purposes such as advising the client and managing outside counsel. The Court found that because the role of Chief Patent Counsel does not report directly to any business people involved in competitive decision-making and only deals with legal decision-making relating to the company’s patent portfolio, that he will be allowed access to “attorneys’ eyes only information.” On the other hand, the Court did not find that the President of Corporate Strategic Initiatives should have full access because his role in the company is to be directly involved in the competitive decision-making of the company and he interacts directly with the business people. Therefore, inadvertent disclosure with his role is much more likely than with the Chief Patent Counsel.

In a separate discussion, Judge Farnan addressed the scope of the prosecution bar covered by the Protective Order and because the plaintiff offered to amend the protective order to limit access to confidential and attorneys’ eyes only information to outside litigation counsel that have entered an appearance in this action there was no reason to broaden the scope of the prosecution bar to prevent their outside counsel firm from prosecuting any patents involving any aspect of the technology at issue.

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