In this long standing litigation between Oracle and Google, a dispute arose over the protective order and whether the disclosure of certain information violated the terms of the protective order when it was disclosed in open court. The district court explained that "[b]y long tradition, when a lawyer wishes to reveal in open court information whose disclosure is restricted by a protective order, the lawyer must first explain the restriction to the judge and (i) ask to seal the courtroom and transcript or (ii) hand up a copy of the restricted information to the judge."
The district court then acknowledge that this practice "is not explicitly stated in our model protective order (or in the similar protective order adopted in this case), but this practice necessarily flows from the restrictions that are explicit, namely a limited list of allowed recipients that plainly omits the public. Of course, 'the court and its personnel' are usually allowed recipients but that phrase does not mean 'the court, its personnel, and the public.' Otherwise, the recipe for Coca-Cola or any other highly private information could be blurted out in open court. No one has ever claimed otherwise -- until this case."
The district court also rejected the argument that the special handling requirements were mere boilerplate. "The special handling required by protective orders is not mere boilerplate as respondents argue. The special handling is the quid pro quo for gaining access to sensitive information. Those who need to maintain their information in privacy will resist even court orders to allow discovery if the lawyers who want access can brush off the special handling as boilerplate. We must honor our word that the information will be kept secure."
Nonetheless, the district court was not persuaded that a finding of contempt of court was the appropriate remedy. "All that remains is the desire by movant to be reimbursed for expenses of an earlier motion to seal. To get there, movants want a finding of contempt of court. That seems heavy handed, perhaps even vindictive, when all that remains at stake is a few dollars in an ocean of money spent on this case."
As a result, the district court ordered both sides to hold a conference before a Magistrate Judge to attempt to resolve the issue.
Oracle America, Inc. v. Google Inc., Case No. C 10-03561-WHA (N.D. Cal. Sept. 23, 2016)