Often, in trade secrets and other types of commercial litigation, the courts will enter protective orders so that the parties can exchange trade secret or proprietary information without losing the “secret” nature of the information.  This exchange of information is generally necessary so that the parties can understand the nature of the dispute.  For instance, if the claim is that a competitor misappropriated a customer list, the plaintiff might have to produce the customer list that it claims was misappropriated.  Additionally, the parties often exchange confidential financial information in order to prove their damages.

The court’s protective order protects this exchange of information by placing limits on who can see the information, how many copies can be made of the information, or how the information can be used in open court or at deposition.  The degree of these restrictions often depends on whether the information is classified as “Confidential” or as “Confidential – Attorneys’ Eyes Only.”  “Confidential – Attorneys’ Eyes Only” information generally has the most restrictions.  This designation typically means that only the attorneys can view the information and not the parties themselves.  It is generally reserved for the most sensitive information in the case.

However, in In re Commercial Metal Company, No. 05-16-01214-CV, 2017 WL 3712169 (Tex. App.—Dallas Aug. 29, 2017), the Dallas Court of Appeals acknowledged that sometimes “Attorneys’ Eyes Only” doesn’t mean “Attorneys’ Eyes Only.”  In In re Commercial Metal Company, the trial court entered a protective order that allowed “Attorneys’ Eyes Only” information to be disclosed not only to litigation counsel but also to the three in house counsel of Defendant.  Plaintiff, however, did not have any in house counsel, but the Court’s order still allowed one of Plaintiff’s three owners to view the “Attorneys’ Eyes Only” information.  Despite Defendant’s complaints, the Dallas Court of Appeals found that the protective order was an appropriate balancing of both parties concerns because the owner was prohibited from participating in customer bids for a certain amount of time and because Plaintiff was required to “place reasonable protections and restrictions so that no ‘Confidential—Attorney Eyes Only Material’ may be disseminated to anyone [else] at the company . . . .”  Thus, just because you have sensitive material in the case, it does not necessarily mean that the material will be off limits to your client representative—or to the other side’s client representative.