Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, 2006 WL 1994541 (N.D. Ill. July 13, 2006) (Moran, J.).

Ruling on several motions for protective orders, Judge Moran provided insight into the increasing use of multi-tiered confidentiality designations. Before the Court were numerous cases that originated before different judges, all involving Trading Technologies International, Inc. as either Plaintiff or Defendant-Counterclaimant. Before consolidation, differing protective orders were entered in several of the cases. Some of the orders provided for relatively simple two-tier designations ("CONFIDENTIAL" and "HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY"), but others provided an additional designation for documents related to patent prosecution which were even more limited than the Highly Confidential documents. Documents with this designation were to be restricted to outside counsel, as well as a limited number of identified inside counsel and business persons who are not directly or substantially involved in the party’s patent prosecution activities.

The Court ultimately allowed a third designation ("HIGHLY CONFIDENTIAL — PATENT PROSECUTION") for "particularly sensitive product design information which is of the type that can be included in a patent application and form the basis, or part of the basis for a patent claim or claims." See Docket No. 365, Ex. B #3 (the Court’s rulings at *2 are best understood by referencing this chart prepared by Defendant FuturePath Trading LLC).

This case is notable not just for the Court’s willingness to allow a third tier of designation, but also for the Court’s statements that it believes that attorneys take their confidentiality obligations seriously and that the restrictions detailed in protective orders are generally followed. That has generally been my experience (with some exceptions), but it is good to see that a court has found the same thing.