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Judge Andrews resolves protective order dispute regarding disclosure of confidential information to consulting expert

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In a recent Order, Judge Richard G. Andrews denied plaintiff Ansell Healthcare Products LLC’s (“Ansell”) request that defendant Reckitt Benckiser LLC (“Reckitt”), be precluded from disclosing Ansell’s Protected Information, as defined in the parties’ Protective Order, to Reckitt’s consulting expert, Dr. William H. Potter, until after he testifies in a parallel proceeding in Australia involving the parties. Ansell Healthcare Products LLC v. Reckitt Benckiser LLC, C.A. No. 15-915-RGA, D.I. 82 (D. Del. Oct. 5, 2016); see also id., D.I. 76, 81. Although acting as only a consulting expert in the instant action, Ansell explained that Dr. Potter would testify as to noninfringement and invalidity in the Australian action, which is set to go to trial in mid-December 2016. (D.I. 76 at 1-2.) Ansell noted that far more confidential and highly confidential documents were produced in the instant action as compared to the Australian action, and Ansell questioned Dr. Potter’s “ability to separate the information that he may gain from Ansell’s Protected Information produced in this case from the information properly available in the Australian proceeding.” Id. at 1-3. Ultimately denying Ansell’s request, Judge Andrews observed:

The Court’s main concern, based on comity, would be not to do something that would interfere with the Australian proceedings, including circumventing Australian discovery limitations. Like everyone else, I take Dr. Potter’s honesty as a given. I recognize that it is hard for one person to segregate information in the person’s own mind. Regardless of how successful Dr. Potter is at doing this, any danger of inadvertent violation of the protective order is minimized since the documents provided to him in connection with this litigation will not be available in the Australian proceedings. I do think Defendant needs its expert to be fully informed if he is to be of maximum utility to it. Plaintiff has not shown good cause for preventing the disclosure.

To the extent Dr. Potter needs to sign a different acknowledgement form than the one he has already signed, he needs to do that before any “highly confidential – attorneys’ eyes only” documentation is provided to him.

D.I. 82 at 1 n.1 (citations omitted).

Ansell Healthcare Products LLC v. Reckitt Benckiser LLC, C.A. No. 15-915-RGA (D. Del. Oct. 5, 2016);

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