Laatz v. Zazzle, Inc.

Background

Nicky Laatz and defendants Zazzle, Inc. and Mohamed Alkhatib asked the court to resolve a discovery dispute about the terms of a blanket protective order. A protective order controls how information exchanged during discovery may be used and disclosed. The parties proposed using the district’s two-level model order, which allows discovery materials to be designated either “Confidential” or “Highly Confidential—Attorneys’ Eyes Only” (AEO).

Disputed AEO Terms

Laatz proposed additional language barring an AEO designation for information about Zazzle’s profits, revenues, and costs connected with products using the Blooming Elegant Trio fonts, as well as information about how and to what extent Zazzle implemented the font software on its website. Zazzle opposed that language because the documents had not yet been produced and the proposed restriction would limit its ability to designate financial and other documents as AEO.

The court explained that discovery materials are generally presumed accessible unless a court finds good cause for protection. It also explained that some financial information might meet the standard for AEO treatment, but that the court could not decide the issue without knowing which specific documents were actually disputed. The court therefore adopted Zazzle’s AEO definition without Laatz’s additional restrictions. It emphasized that a party designating material AEO must limit the designation to specific material that meets the applicable standard and may not make mass, indiscriminate, or routine designations.

Disputed Expert Definition

Zazzle proposed the expert definition in the district’s two-level model order. That definition covers a person with specialized knowledge or experience who has been retained as an expert witness or consultant, is not a past or current employee of a party or its competitor, and meets the model order’s other requirements. Laatz proposed a definition that did not exclude past or current employees of a party or its competitors.

Zazzle argued that Laatz’s definition could allow her to retain former, current, or anticipated future employees of Zazzle or its competitors and disclose Zazzle-designated information, including AEO material, to them. Laatz was concerned that Zazzle’s proposal could prevent her from retaining experts in what she described as a very small industry in which Zazzle was the dominant player.

The court found Zazzle’s proposed expert provision appropriate to protect against improper disclosure. The court stated that Laatz could seek relief if she had difficulty identifying an expert who needed access to Confidential or AEO material. It also expected Zazzle to identify its principal competitors to Laatz well before the deadline for expert disclosures.

Disposition

The court ruled that it would enter Zazzle’s proposed protective order, with additional modifications the court customarily makes to such orders. The order adopted Zazzle’s proposed AEO definition without Laatz’s additional language and adopted Zazzle’s proposed expert provision. The opinion does not decide whether any particular document should receive an AEO designation.

Judge Virginia K. DeMarchi signed the order on September 29, 2023.