Court Won’t Interpret Ambiguous Protective Order

Posted on | March 20, 2008 | No Comments

2008-1230 Smithkline Beecham v. Synthon
MD/NC 1:00-CV-01179

Synthon appeals Mag. Judge Eliason’s order denying its motion to allow its in-house counsel to see the case’s confidential documents.   The parties  litigated a patent case many years ago, and entered into a  May 2001 Joint Stipulated Protective Order under which certain specified in-house counsel could see the file.  The Protective Order did not, however, restrict use of the material to that specific suit.  The matter was settled in 2003, and the Protective Order allowed each side to maintain  one copy of the case file.

Since then, one of Synthon’s outside counsel (with access to the materials) has gone in-house, and would like to continue to have access to the files to generally consult in connection with advice to Synthon in other disputes with Smithkline.

The court saw this as a motion to have the Protective Order interpreted, much like an advisory opinion.  It noted that there was no request to modify the Protective Order, nor was there an actual alleged violation to assess.   Under Fourth Circuit law a court does not retain jurisdiction to enforce agreements, so the court found that there was no jurisdiction for it to rule. 

Further, the court found that the Protective Order was "not attentively drawn with respect to use of material" and that "the ambiguity of [the Protective Order] has not improved with age."  Because the language appeared ambiguous, it was not appropriate to render a summary decision.

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