In a recent Minnesota Litigator profile, lawyer/poet Tim Nolan said of writing poetry:
There is a real virtue in poetry to being stupid. What I mean by that is being unassuming, open. The effect of that, of practicing that in writing, is that you meet the reader at the exact same place they’re at because the reader is stupid too when he comes in to a poem; he doesn’t know what to expect.
I see his point, and I raise him. In fact, I am all in. I would go so far as to say, “There is a real virtue IN LIFE to being stupid. What I mean by that is being unassuming, open…”
And this, in turn, is why I not very comfortable “attorneys’ eyes only” (“AEO”) confidentiality designations. We all fully understand and appreciate why it is essential to certain kinds of litigation. When commercial competitors fight about their secret methods or technologies, one can hardly require that each side share its secrets with the other side to figure out what, exactly, the other side is up to and whether it implicates one’s own company’s secrets. (Fortunately, the AEO designation is practically non-existent in my practice.)
But limiting information to the stupid lawyers really must take a toll in a great deal of litigation where there is the AEO confidentiality designation. The complexity of the subject matter would seem to almost require that clients are “in the loop.”
But what if having your smart clients “in the loop” with their stupid lawyers (you) simply cannot be? What then? (Below, I reveal the answer to this riddle.) And what about the risk that a company could engage in “litigation by designation,” using the AEO designation to hobble the other side’s ability to litigate the case (whether prosecuting it or defending against it)?
In the Unitherm v. Hormel case, previously discussed here, that is, the bacon battle, Unitherm has accused Hormel of “litigation by designation.”
Hormel seems to me to get the better of the argument, however, in its response (here).
In negotiating the protective order that implements the AEO designation, Unitherm argued that there should be a carve-out, an exception, for any Hormel documents that include the words “Unitherm” or “Howard” (the name of Unitherm executive, David Howard). Unitherm lost that argument when the court issued its protective order providing for the AEO designation. Now, on the threshold of Mr. Howard’s deposition, Unitherm lawyers would like to share some of these documents with their client, Mr. Howard, in advance of the deposition.
I expected that Unitherm would lose this round for these reasons: (1) As Hormel points out, the urgency and the timing of the motion seems to be Unitherm’s self-inflicted emergency; and (2) The suggestion that the inclusion of “Unitherm” or “Howard” in a document means that the document does not contain highly sensitive, confidential, and proprietary information does not seem reasonable to me.
But it all comes down to what is in the documents themselves, as Unitherm recognized:
Unitherm has … taken care to not disclose the actual contents of any of the documents since they are currently designated as AEO. If the Court wishes to review the documents, Unitherm will gladly make them available to the Court under seal or in person at the August 20, 2015 hearing on the Motion.
It would be pretty tough to judge the AEO designation without seeing how it is applied, no matter how smart you are, right? Except, wasting no time, U.S. Mag. Judge Becky R. Thorson (D. Minn.) decided the matter against Unitherm late Friday afternoon purely based on the timing of the motion. No need for her to see the documents (yet).
(What would it be like to review documents that you, the lawyer, can see but your client cannot and having a sense (or the fear) that your client could get slammed in his deposition with information that you have learned from documents but that you cannot disclose to your client? To suggest such a scenario in Unitherm v. Hormel is pure speculation on my part. Nevertheless, one has to wonder why Unitherm’s lawyers interrupted their deposition preparation to run to court (metaphorically) to get permission to share more documents with the witness in depo prep.)
[Post-script: The answer to this riddle: Often when forced to deal with AEO designations, smart lawyers (that is, lawyers who know they are probably stupid when it comes to their client’s highly sensitive, confidential, and proprietary information) hire consulting experts, essentially to function as proxies for their clients, for help with highly secret technologies, techniques, innovations, etc. This raises the cost of litigation a lot. But if your clients’ or your adversary’s confidential information is not extremely valuable (thus, justifying the high cost of one or more consulting experts), maybe the whole lawsuit is misguided.]