Despite what lawyers may promise their clients, lawyers cannot guarantee confidentiality in litigation.
Much time and effort is spent negotiating “protective orders” (a stipulation filed by the parties and “entered” as an order by the court). Usually the “PO,” as its called, provides for three designations: “attorney’s eyes only,” “confidential” and non-confidential. “Attorney’s eyes only” usually covers attorneys and experts retained by a party, but not the executives or employees of the party itself.
Lawyers work hard to make sure they follow the dictates of a PO. Most embarrassing for lawyers is when they mistakenly “under-designate” a group of documents (“oops, those documents should have been attorney’s eyes only, not simply confidential. Can we agree to redesignate them? You haven’t shown them to your client yet, have you?”). Usually this isn’t a problem (after all, there but for the grace of God …), but sometimes it is, requiring a motion and decision by the judge on how to treat the “mistake.”
Not infrequently, one side will claim the other side has “over-designated” documents: “that shouldn’t be attorney’s eyes only, will you agree to redesignate it a confidential? If you won’t, I’ll file a motion . . ..”). And so on.
However, when the case gets to trial all bets are off. Judges are loath to clear the courtroom every time confidential documents or topics are discussed. They don’t want to give their clerks and the clerks office the responsibility of maintaining documents in secret, especially when the presumption is that courthouse filings are public. And, in the eyes of many judges claims of confidentiality are often greatly overblown. So, depending on the judge, the documents the parties try to keep from each other leading up to trial become exhibits at trial, where anyone can look at them.
Usually, no one is interested, but in Apple v. Samsung, in trial in federal court in California, many people are interested. A telling example of how this can play out is Apple Exhibit 44, a 2010, 131 page translation of a Samsung document titled, “Relative Evaluation Report on S1, iPhone.” Although Samsung followed protocol and stamped each page of this document “Highly Confidential – Attorneys’ Eyes Only” during pretrial discovery, that protection proved good only until trial, at which point the judge refused to keep the document a secret, and it was made available to the world without restriction. It was promptly picked up by the press, and from there replicated all over the internet. A copy is embedded below.
The Report consists of dozens of side-by-side comparisons of the interface of the Samsung Galaxy S and the iPhone, and the Samsung phone rarely comes out on top. The judge’s decision to make this a public document seems right-on. The document may be embarrassing to Samsung, but it’s not clear why it qualifies as “attorney’s eyes only,” or even “confidential.” However, it shows just how closely Samsung examined the iPhone and sought to imitate its superior interface, which plays poorly for Samsung in the eyes of the press (i.e, the jury of the fourth estate). Of course, whether the courtroom jury will see it that way remains to be seen.