Free Motion to Strike - District Court of Delaware - Delaware

Case 1 :05-cv-OO300—JJF Document 81 Filed 05/O4/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Creedon Controls, Inc., a Delaware corporation, )
) C. A. No. 05CV300 (JJF)
Plaintiff, )
)
v. )
)
Banc One Building Corporation, an Illinois )
corporation; and Forest Electric Corporation, a )
New York corporation, ) »
) .
Defendants. )
PLAINTIFF’S MOTION TO STRIKE THE DESIGNATION OF
"I-HGHLY CONFIDENTIAL" FROM DISCOVERY DOCUMENTS, AND/OR
REAFFIRMATION OF THE STIPULATION AND ORDER GOVERNIN G THE
PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION
COMES NOW, Plaintiff, Creedon Controls, Inc. ("CCI"), by and through its undersigned
attorneys, and respectfully moves this Court for an order, striking the designation by Banc One
Building Corporation ("BOBC”) of discovery doctunents as "Highly Confidential" and/or
reaffirming the Stipulation and Order Governing the Production and Exchange of Confidential
Information ("Confidentiality Order") entered by this Court on December 6, 2005. The basis of
this motion is as follows:
1. After consideration of all of the relevant issues, counsel for CCI, BOBC, and
Forest Electric Corporation ("FEC") entered into a Stipulation regarding the appropriate
governance of any confidential information or doctunentation to be disclosed, as part of this
litigation. Such Stipulation was entered as an Order of the Court on December 6, 2005
(hereinafter "Confidentiality Order”). A copy of that Confidentiality Order is attached hereto as
Exhibit "1."
2. Such Confidentiality Order provided, among other things, for the handling of
discovery doctunents that were determined to be confidential. The parties and their respective

Case 1:05-cv-OO300—JJF Document 81 Filed 05/O4/2006 Page 2 of 3
· counsel recognized there may be certain materials that are confidential, but which much be
disclosed as part of the discovery process, and which materials are necessary for the parties- and
their respective counsel, to reasonably conduct this litigation. Thus, the agreed upon
Confidentiality Order provided for the limited dissemination of those materials. The parties and
their respective counsel specifically agreed (at Paragraph 4(e), that ". . .directors, officers, and
employees of Plaintiff and Defendants, or any subsidiary or affiliate thereof, who are assisting
the parties in this litigation, or who appear as witnesses. . ." may receive and review documents.
3. As a party to the Confidentiality Order (at paragraph 13), the parties further
agreed that its terms would ". . .absent written permission of the Producing Party or further order
of the Court, continue to be binding throughout and after the conclusion of this litigation. . ."
Despite this agreement, and in an effort to further thwart reasonable progress of this litigation
and the ability of CCI to consider, review, and use discovery information; and, rather than apply
to the Court for a modification of the Order, BOBC has now unilaterally determined that
documents may be marked “Highly Confidential," a new category of document not referred to in
the Confidentiality Order. Further, by citing D.Del.L.R. 26.2, BOBC insists counsel for CCI
shall not share documents so marked with principal representatives of CCI, including its
President and major shareholder, or principle employees who have knowledge of the subject
construction project.
4. BOBC has proposed that CCI’s retained experts be permitted to see the -
documents claimed to be confidential. That option is simply too costly, and is a' transparent effort
by BOBC to increase the cost of litigation for CCI, so that it is unable to proceed with this
litigation. That proposal has understandably been rejected by CCI; but, as a result, CCI has been
unable to review these documents. I

Case 1:05-cv-OO300—JJF Document 81 Filed 05/O4/2006 Page 3 of 3
5. As set forth in the attached Affidavit of Patricia Creedon (Exhibit "2"), President
of CCI, the proposed review by experts only is not a cost-productive or reasonable approach, and
prevents her from effective participation in this litigation.
6. It is anticipated BOBC may argue that receipt of information claimed to be
confidential, may give CCI some competitive advantage over BOBC and its contractors, or
broach the security of BOBC. First, it is not anticipated that BOBC has any of its own
proprietary information in the data marked as "Highiy Confidential." Second, as set forth in the
Affidavit of Patricia Creedon, the information does not provide any competitive advantage or is
stale information at this time, after the passage of two to three years. Third, arguments regarding
a breach of security make no sense, since the drawings or data at issue have been disseminated to
virtually contractor provide the opportunity to work or bid on this Project.
7. D.Del.L.R. 26-2 provides, "If any document is deemed confidential by the
producing party and the parties have not been able to agree upon an appropriate protective order,
until a protective order is in effect. . ." the review of documents is limited to the attorneys
[Emphasis Added]. A protective order is in effect, and BOBC should not be permitted to
‘ continue to dictate what discovery can effectively occur in this litigation, or what documents
CCI personnel can review.
WHEREFORE, it is respectfully submitted that the Court vacate the designation of
"Highiy Confidential" documents, and allow documents so submitted to be treated as
"Confidential" under this Court’s prior Confidentiality Order.
( COHEN, SEGLIAS, PALLAS, GREENHALL
` _ ,.,
— —».» .... n,
A Edward Seglias, Esq. (I.D. No. 2822)
Robert K. Beste, Jr., Esq. (I.D. No. 154)
[ 1007 Orange Street, Nemours Bldg., Suite 205
/ _ I Wilmington, DE 19801 Phone: (302) 425-5089
Date: Q / fl wt Attorneys for Plaintiff, Creedon Controls, Inc.