ZENIMAX MEDIA, INC. and ID SOFTWARE, LLC, Plaintiffs, v. OCULUS VR, LLC, et al., Defendants No. 3:14-CV-1849-K (BF) United States District Court, N.D. Texas, Dallas Division Signed June 02, 2016 Counsel Phillip Brett Philbin, Michael Daley Karson, Haynes & Boone LLP, Theodore Stevenson, III, McKool Smith, Dallas, TX, Brent Douglas McCabe, Haltom & Doan, Plano, TX, Christopher A. Lisy, Pro Hac Vice, Skadden Arps Slate Meagher & Flom LLP, Boston, MA, Christy Samansky Hawkins, Josh R. Thane, Jennifer H. Doan, Haltom & Doan, Texarkana, TX, James Y. Pak, Pro Hac Vice, Kurt Wm. Hemr, P. Anthony Sammi, Rachel R. Blitzer, Scott Michael Flanz, Pro Hac Vice, Stacey Lauren Cohen, Skadden Arps Slate Meagher & Flom LLP, New York, NY, Josh Budwin, McKool Smith PC, Austin, TX, William J. Casey, Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto, CA, for Plaintiffs. Richard A. Smith, Richard Smith, P.C., Elizabeth Y. Ryan, Eric W. Pinker, Patrick Brett Disbennett, Lynn Pinker Cox & Hurst, LLP, Brett Stephen Rosenthal, James C. Ho, Russell H. Falconer, William B. Dawson, Gibson, Dunn & Crutcher LLP, Dallas, TX, Benjamin B. Au, Pro Hac Vice, Ragesh Kumar Tangri, Pro Hac Vice, Durie Tangri LLP, Matthew D. Caplan, Pro Hac Vice, Michael G. Rhodes, Patrick Gunn, Cooley LLP, San Francisco, CA, Beth A. Wilkinson, Brant W. Bishop, Julie B. Rubenstein, Kosta S. Stojilkovic, Wilkinson Walsh + Eskovitz LLP, Howard S. Hogan, Pro Hac Vice, Theodore B. Olson, Pro Hac Vice, Gibson Dunn & Crutcher LLP, Stephen R. Smith, Pro Hac Vice, Cooley LLP, Washington, DC, Elizabeth Lee Stameshkin, Pro Hac Vice, Heidi Keefe, Mark Randolph Weinstein, Pro Hac Vice, Cooley LLP, Palo Alto, CA, Janet L. Cullum, Pro Hac Vice, Cooley LLP, New York, NY, Joseph B. Woodring, Pro Hac Vice, Cooley LLP, Santa Monica, CA, Robert Thomas Cahill, Jr., Pro Hac Vice, Cooley LLP, Reston, VA, for Defendants. Stickney, Paul D., United States Magistrate Judge ORDER *1 Before the Court is ZeniMax Media, Inc. (“ZeniMax”) and id Software, LLC’s (“id Software”) (collectively, “Plaintiffs”) Motion to De-Designate Zuckerberg Deposition Transcript and Exhibits [ECF No. 427] (“Motion to De-Designate”) referred to United States Magistrate Judge Paul D. Stickney. See Electronic Order Referring Mot. [ECF No. 431]. Upon consideration, the Motion to De-Designate [ECF No. 427] is DENIED. In the Motion to De-Designate, Plaintiffs argue that Defendants have abused the Protective Order in this case by designating the entire deposition transcript of Mark Zuckerberg as “highly confidential.” See Mot. to De-Designate [ECF No. 427 at 1]. Plaintiffs argue that Defendants’ designation purports to shield testimony and documents that are neither competitively sensitive nor otherwise within the categories of confidential information contemplated by the Protective Order. See id. [ECF No. 427 at 1]. Further, Plaintiffs point out that the Amended Protective Order states that “[t]he Parties acknowledge that this document does not confer blanket protections on materials within the scope of this Protective Order, and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles.” See id. [ECF No. 427 at 2]; Am. Protective Order [ECF No. 412 at 2]. Plaintiffs contend that the designation restrains Plaintiffs’ counsel from disclosing any portion of the deposition materials to Plaintiffs and obstructs counsel’s efforts to discuss litigation strategy with their client, because discovery material designated as highly confidential is very strictly limited, and access is given primarily only to the parties’ outside counsel and experts. See Mot. to De-Designate [ECF No. 427 at 2]. In their Opposition, Defendants state that they are willing to allow Plaintiffs’ counsel to share the deposition materials with up to four of Plaintiffs’ employees to assist in trial preparation, thereby removing Plaintiffs’ only valid need for access to this information. See Opp’n [ECF No. 475 at 5]. Defendants point out that Plaintiffs seek to de-designate the entire deposition transcript and related materials, which include, among other things, Mr. Zuckerberg’s email address and the email addresses of individuals not involved in this case and their communications. See id. [ECF No. 475 at 10, 12-13]; Pl.’s App. [ECF No. 433 at 102, 113, 120, 122-24, 129-30, 132]. Defendants ask the Court to deny Plaintiffs’ motion and order Plaintiffs to engage in a good faith meet and confer, rather than waste the Court’s time with examinations of hundreds of pages of deposition materials. See Opp’n [ECF No. 475 at 5]. Defendants argue that Plaintiffs have not provided a sound reason why these discovery materials should be made available to the public, and that their justifications for de-designating these materials are largely nonsensical. See id. [ECF No. 475 at 5-6]. Defendants state that Plaintiffs’ primary argument is that the confidential negotiations regarding the acquisition of Oculus discussed in the deposition should be made public, because the acquisition was public. See id. [ECF No. 475 at 6]. Defendants argue that just because the public knows that Facebook acquired Oculus does not make the discussions, communications, and negotiations regarding the acquisition non-confidential. See id. [ECF No. 475 at 6]. Defendants contend that they are willing to work with Plaintiffs’ counsel to negotiate reasonable terms that would allow Plaintiffs to view designated discovery materials, and that the Court should be wary of Plaintiffs’ continued pursuit of de-designations in the face of Defendants’ willingness to give Plaintiffs access to the materials. See id. [ECF No. 475 at 9]. Defendants point out that Plaintiffs have used the same rules to designate as confidential or highly confidential substantial portions of the deposition transcripts of their own high-ranking employees and argue that such use undermines their assertion that the deposition materials of Defendants’ employees do not warrant similar protections. See id. [ECF No. 475 at 10 n.2]. *2 In their Reply, Plaintiffs argue that, while Defendants are actively promoting a self-serving and false narrative of the founding, growth, and acquisition of Oculus, Defendants are asking this Court to “gag” Plaintiffs from discussing deposition testimony and exhibits regarding the same events. See Reply [ECF No. 479 at 1]. Plaintiffs contend that, while Defendants were preparing their Opposition to Plaintiffs’ Motion to De-Designate, Defendants were also providing CNN a one-sided and false story of the founding and acquisition of Oculus. See id. [ECF No. 479 at 1]. Plaintiffs argue that if Defendants chose not to speak about the founding, growth, and acquisition of Oculus, they might plausibly argue that Plaintiffs should be restrained from speaking on that subject, but that Defendants are seeking to suppress any use of testimony and documents that would contradict the story Defendants have chosen to publicize. See id. [ECF No. 479 at 3]. Plaintiffs further argue that Defendants’ complaint that Plaintiffs refused to confer is without merit. See id. [ECF No. 479 at 7]. Rule 26(c) states that the Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” FED. R. CIV. P. 26(c). [T]he burden is upon [the party seeking the protective order] to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int’l, 134 F.3d 302, 306 (5th Cir. 1998) (citation omitted). The Court finds that Defendants met their burden of demonstrating that the deposition materials at issue are entitled to protection. As Defendants point out, the public is not entitled to have access to discovery. See Opp’n [ECF No. 475 at 16]; United States v. $9,041,598.68, 976 F. Supp. 654, 659 (S.D. Tex. 1997) (“[T]h[e] right to inspect and copy public documents does not extend to discovery which is not a matter of public record.” (citing In re Alexander, Grant & Co. Litig., 820 F.2d 352, 355 (11th Cir. 1987); Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986))); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)(“[D]iscovery material ... are neither public documents nor judicial records.” (citation omitted)). In addition, according to Plaintiffs’ Reply, it appears that Plaintiffs seek de-designation of these materials in order to use them to rebut statements Defendants have made in the media. See Reply [ECF No. 479 at 3]. However, this is not a legitimate use of discovery materials. See Stern v. Cosby, 529 F. Supp. 2d 417, 422-23 (S.D.N.Y. 2007) (“Videotaped depositions are permitted to facilitate the presentation of evidence to juries; they are not intended to provide ‘vehicle for generating content for broadcast and other media.’ ”) (quoting Paisley Park Enters., Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 349 (S.D.N.Y. 1999))). Furthermore, Defendants agree to allow Plaintiffs’ counsel to share the information with up to four of Plaintiffs’ employees to assist in trial preparation. Plaintiffs may also seek assistance from the Court should Defendants refuse to permit disclosure of these materials to any individuals necessary for Plaintiffs to prepare their case. The Court finds that there is no need to subject Mr. Zuckerberg to any embarrassment or annoyance associated with public scrutiny of the deposition materials in a case that has garnered media attention when there is no need to give the public access to these discovery materials. See Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2015 WL 5165344, at *2 (N.D. Tex. Sept. 3, 2015) (“Grammer contends that she anticipates producing documents and communications that contain personal and sensitive information, including private communications with family and friends, much of which is highly personal in nature; that she is the former spouse of television personality Kelsey Grammer, and is herself an occasional reality television personality, and, as a result, interest in this case, and in its underlying facts, has been the subject of attention in various media .... The court concludes that Grammer has demonstrated good cause[.]”). *3 The deposition materials contain information that “is highly personal, extremely commercially sensitive or proprietary, or information that could be used by a competitor to gain a business advantage.” See Am. Protective Order [ECF No. 412 at 4]. Plaintiffs point out that the Amended Protective Order provides that “[t]he Parties acknowledge that this document does not confer blanket protections on materials within the scope of this Protective Order, and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles.” See Mot. to De-Designate [ECF No. 427 at 2]; Am. Protective Order [ECF No. 412 at 2]. The Court finds that good cause considerations under Rule 26(c) permit the Court to order that the entirety of the documents at issue maintain their confidentiality designations. See Word of Faith World outreach Ctr. Church, Inc. v. Morales, 143 F.R.D. 109, 112-13 (W.D. Tex. 1992) (“There is no question that the Tiltons were subjected to annoyance and embarrassment, and allegedly further harassment .... Given the potential harm, which has now occurred, and the limited scope of protection which would have been granted, this Court would certainly have acted within its legal authority by issuing a protective order prohibiting release of Mr. Tilton’s videotape deposition to the media and limiting use of the tape to legitimate litigation purposes.” (quoting Seattle Times v. Rhinehart, 467 U.S. 20, 33 (1984))). Plaintiffs argue that the 1970 advisory committee’s note to Rule 26(c) states that the Court must “weigh[ ] the[ ] claim to privacy against the need for disclosure” when analyzing whether good cause exists to issue a protective order. See Reply [ECF No. 479 at 6]. The advisory committee’s note Plaintiffs reference states in part as follows: “The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection.” FED. R. CIV. P.60(b) advisory committee’s note to 1970 amendment. Defendants are not seeking here to keep from disclosure any trade secrets, but a deposition transcript and related materials. Therefore, the 1970 advisory committee’s note to Rule 26(c) does not direct the Court to weigh the claim to privacy against the need for disclosure of the deposition transcript and related materials. Nevertheless, even if the Court weighs the claim to privacy against the need to disclose these discovery materials, such an analysis weighs in favor of preserving the privacy of the deponent. As previously discussed, the public is not entitled to have access to discovery. In addition, public disclosure of this information is not necessary in order for Plaintiffs to discuss the materials with their counsel and investigate this case. Therefore, there is no need to disclose these materials, which would be outweighed by any claim to privacy. SO ORDERED, this 2 day of June, 2016.