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 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 Certain Deposition Transcripts and Exhibits [ECF No. 406] (“Motion to De-Designate”) referred to United States Magistrate Judge Paul D. Stickney. See Electronic Order Referring Mot. [ECF No. 420]. Upon consideration, the Motion to De-Designate [ECF No. 406] is DENIED. In the Motion to De-Designate, Plaintiffs argue that Oculus VR, LLC (“Oculus”), Palmer Luckey (“Luckey”), and Facebook, Inc. (“Facebook”) (collectively, “Defendants”) have misused the Protective Order by designating as confidential documents and information that are not within the categories of confidential information contemplated by the Protective Order. See Mot. to De-Designate [ECF No. 406 at 1]. Plaintiffs argue that Defendants’ misuse prejudices them, because it prevents them from consulting with their counsel regarding critical evidence and by restraining them from investigating Defendants’ misconduct. See id. [ECF No. 406 at 1]. Plaintiffs contend that Defendants have flatly refused to vacate any of the confidentiality designations that Plaintiffs have called to their attention. See id. [ECF No. 406 at 1]. Plaintiffs contend that Defendants have designated as “confidential” or “highly confidential” substantial portions of the depositions of certain key witnesses in this action and the associated deposition exhibits that do not relate to confidential, proprietary, and competitively sensitive information belonging to Defendants. See id. [ECF No. 406 at 2]. Rather, Plaintiffs contend that these materials relate to, among other things: (1) acts of misconduct by Defendants’ high level employees that may be embarrassing to Defendants but are not subject to any legitimate claims of confidentiality; (2) Plaintiffs’ business affairs, which include Plaintiffs’ dealings with their own employees; and (3) Facebook's acquisition of Oculus. See id. [ECF No. 406 at 2]. In addition, Plaintiffs state that Defendants even asserted confidentiality over a publicly available magazine article and documents filed publicly with the U.S. Securities & Exchange Commission (“SEC”). See id. [ECF No. 406 at 5]. In their Opposition, Defendants argue that Plaintiffs’ Motion to De-Designate should be denied, because they failed to comply with Paragraph 5 of the Amended Protective order which requires them to “particularly identity” the material that they contend “is not confidential or restricted and the reasons supporting” such contentions. See Opp'n [ECF No. 452 at 5]. Rather, Defendants argue that Plaintiffs rely on boilerplate assertions, ignore Defendants’ request for further specificity, and refuse to meet and confer. See id. [ECF No. 452 at 5]. Defendants argue that Plaintiffs are asking the Court to wade through more than 3,000 pages of deposition transcripts and exhibits and that the Court should deny Plaintiffs’ motion and order them to engage in a good faith meet and confer. See id. [ECF No. 452 at 5]. In addition, Defendants contend that they are willing to allow Plaintiffs’ counsel to share the confidential information with up to four of Plaintiffs’ employees to assist in trial preparation, thereby resolving Plaintiffs’ only legitimate need to share the discovery information. See id. [ECF No. 452 at 5]. Furthermore, Defendants state that the Forbes magazine article Plaintiffs reference was designated as “highly confidential” by Plaintiffs and that they are willing to remove their confidentiality designation over some of the deposition materials, such as an agreement attached to a public filing with the SEC. See id. [ECF No. 452 at 11, 19]; Def.’s Ex. [ECF No. 453 at 1-65]. Defendants point out that Plaintiffs cite no other legitimate need to alter the designations of any testimony. See Opp'n [ECF No. 452 at 5]. Defendants argue that they properly designated the materials confidential pursuant to the Amended Protective Order and that there is no compelling need for the public to have access to the materials Plaintiffs seek to de-designate. See id. [ECF No. 452 at 10, 23]. Defendants argue that Plaintiffs’ true motive in seeking de-designation is to damage the reputation of the witnesses and litigate this case in the media. See id. [ECF No. 452 at 5]. *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]. As Defendants have pointed out, the public is not entitled to have access to discovery materials. See Opp'n [ECF No. 452 at 23]; 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, the Court's good cause consideration under Federal Rule of Civil Procedure (“Rule”) 26(c) when issuing a protective order has included media attention in a case involving high profile individuals. 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[.]”). The Amended Protective Order provides that the parties may designate as “highly confidential” 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]. The Amended Protective Order also provides that the parties may designate as “confidential” “[a]ll non-public ... information ... that qualify for protection under Rule 26(c).” See id. [ECF No. 412 at 4]. 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 has broad discretion in determining whether to grant a motion for a protective order.” Gaedeke Holdings, VII, Ltd. v. Mills, No. 3:15-MC-36-D (BN), 2015 WL 3539658, at *3 (N.D. Tex. June 5, 2015) (citing Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985)). 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 deposition transcripts and related materials. Therefore, the 1970 advisory committee's note to Rule 26(c) does not direct the Court to weigh the claims to privacy against the need for disclosure of the deposition materials. Nevertheless, even if the Court weighs the claims to privacy against the need to disclose these discovery materials, such an analysis weighs in favor of preserving the privacy of the deponents. 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 claims to privacy. The Court finds that there is no need to subject the deponents to any embarrassment or annoyance associated with public scrutiny of their deposition materials in a case that has garnered media attention when there is no need to give the public access to these discovery materials. Plaintiffs also appear to argue that the information at issue has been made public by Defendants’ discussion of it in the media, and therefore, the information does not qualify as non-public information under the terms of the Amended Protective Order. See Reply [ECF No. 7 at 13]. While Defendants may have discussed the information at issue in some general sense to the media, it would be illogical for Defendants to seek to maintain confidential or highly confidential designations over the same information that they disclosed on CNN or some other news outlet. *3 In consideration of the foregoing, the Court finds that the deposition materials at issue shall not be de-designated, because: (1) the public is not entitled to have access to discovery materials; (2) giving the public access to these materials is not necessary for Plaintiffs to investigate the relevant issues and discuss them with their counsel; (3) Section 10(a) of the Amended Protective Order gives access to the confidential materials to the officers, directors, and employees of the receiving party to whom disclosure is reasonably necessary for this litigation, as well as various third-parties, such as independent experts, jury study groups, trial consulting services, and document management services; (4) Defendants state in their Opposition that they agree to allow Plaintiffs’ counsel to share the information with up to four of Plaintiffs’ employees to assist in trial preparation; (5) should Defendants not agree to allow disclosure of the information to any persons that Plaintiffs seek to disclose it to for the purpose of preparing their case, they can seek assistance from the Court; (6) the deposition materials contain highly personal, extremely commercially sensitive or proprietary, or information that could be used by a competitor to gain a business advantage; and (7) due to the high profile nature of this case, giving the public unfettered access to these discovery materials can lead to annoyance or embarrassment for the deponents, and Defendants met their burden of showing good cause by raising the relevant facts and case law to the Court's attention. Plaintiffs have pointed out in a separate motion to de-designate 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. [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) (“Not only would this Court have issued a protective order, but Rule 26 and the Supreme Court case of Seattle Times v. Rhinehart both support a finding that this Court had full authority to do so.... As pointed out by the Supreme Court in Seattle Times v. Rhinehart, ‘pretrial depositions ... are not public components of a civil trial,’ and restraining the dissemination gathered therein does not require ‘exacting First Amendment scrutiny.’ ... [T]his 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’ Reply does not dispute Defendants’ contention that Plaintiffs seek to provide information from the depositions to the media. Rather, Plaintiffs argue that “[i]t is entirely improper for Defendants to seek to enlist the Court in gagging Plaintiffs from speaking” while “Defendants have been vigorously arguing their case in the press for the past two years.” See Reply [ECF No. 479 at 5]. For the reasons argued by Defendants, the Court finds that the deposition materials shall be limited to legitimate litigation purposes. SO ORDERED, this 2nd day of June, 2016.