Proposed Disclosure Objection Procedure for Protective Order Rejected as Revealing Counsel's Work Product

The court denied defendant's motion to include an objection procedure for disclosure of confidential material to foreign counsel in the protective order because such provision would reveal counsel's work product. "[Defendant] proposed the addition of Paragraph 7.5(b), which the parties now dispute: 'Prior to disclosure of Protected Material to Designated Foreign Counsel, the Party seeking disclosure shall provide written notice to the Producing Party identifying (i) the names of the Designated Foreign Counsel and (ii) the specific Protected Material sought to be disclosed to the Designated Foreign Counsel.'. . . The procedure described in Paragraph 7.5(b) would reveal which documents are important to Plaintiffs, and therefore disclose information that is considered work product. . . . [Defendant] argues that Paragraph 7.5(b) is modeled after a provision in [another case's] protective order. However, the [other order's] provision upon which Paragraph 7.5(b) is modeled relates to the use of documents in foreign actions. Whereas, in the present case, there is no pending request to use the documents in foreign litigation."

Boston Scientific Corporation et al v. Edwards Lifesciences Corporation, 1-16-cv-00275 (DED December 27, 2016, Order) (Fallon, MJ)