Dual-Deck Video Cassette Recorder Antitrust Litigation, In re, DUAL-DECK

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: KLEINFELD
• Citation: 10 F.3d 693
• Parties: 1993-2 Trade Cases P 70,431, 27 Fed.R.Serv.3d 465 In reVIDEO CASSETTE RECORDER ANTITRUST LITIGATION., an Arizona Corporation, Plaintiff-Appellant, v. The MOTION PICTURE ASSOCIATION OF AMERICA, Victor Company of Japan, Ltd., Sony Corporation, et al., Defendants, and Matsushita Electrical Industrial Co., Ltd., Defendant-Appellee.
• Docket Number: DUAL-DECK,GO-VIDE,INC,No. 92-15967
• Decision Date: 02 December 1993

Page 693

10 F.3d 693 1993-2 Trade Cases P 70,431, 27 Fed.R.Serv.3d 465 In re DUAL-DECK VIDEO CASSETTE RECORDER ANTITRUST LITIGATION.
GO-VIDEO, INC., an Arizona Corporation, Plaintiff-Appellant,
v.
The MOTION PICTURE ASSOCIATION OF AMERICA, Victor Company of
Japan, Ltd., Sony Corporation, et al., Defendants,
and
Matsushita Electrical Industrial Co., Ltd., Defendant-Appellee. No. 92-15967. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Nov. 3, 1993.
Decided Dec. 2, 1993.

Page 694

Joseph M. Alioto, The Law Firm of Joseph M. Alioto, San Francisco, CA, Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, MN, for plaintiff-appellant.

Debra J. Pearlstein, A. Paul Victor, and Jay N. Fastow, Weil Gotshal & Manges, New York City, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: ALARCON, LEAVY and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

The district court held Go-Video in contempt for using discovery from its earlier lawsuit to support a later lawsuit, in violation of a protective order. We reverse.

I. Facts

Go-Video sued Matsushita and other defendants for antitrust violations in 1987. As is common now in business litigation, the parties signed a stipulation for a very broad protective order prohibiting use of disclosure of material obtained in discovery. The stipulation approved by order consists of ten single spaced pages plus signatures, and limits use of materials obtained in discovery to the action in which the order was issued.

All information produced in discovery, including, but not limited to, "Confidential Information" shall be used solely in the preparation for trial and/or trial of this action, shall not be used at any time for any other purpose whatsoever and shall not be disclosed to or made accessible to any person who is not a party to this action and/or a "Qualified Person."

During discovery, Go-Video obtained information which it claimed would show other antitrust violations in addition to those already alleged in its second amended complaint. After the court denied Go-Video leave to amend its complaint to include the new claims, Go-Video filed a second lawsuit in January of 1990.

Three acts were the basis for the contempt order. First, in the 1990 complaint, Go-Video averred that the defendants had entered into agreements "described more fully in the 'statement of specific facts relied upon by Go-Video, Inc., in opposition to motions of defendants for summary judgment on antitrust issues' " in the first Go-Video action. Second, in the 1990 case, Go-Video moved for an order prohibiting destruction of evidence, and under seal referenced discovery from the 1987 case. Third, Go-Video made a discovery request in the 1990 case, which referred to discovery obtained in the 1987 case.

The defendants have not claimed that Go-Video disclosed confidential information. They make no claim that the stated purposes of the order were violated, ¹ or that any competitor or anyone else learned anything inappropriate from Go-Video's use of discovery. The contempt was based on a violation of the term of the order prohibiting any use "whatsoever"

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of information obtained in discovery except for preparation and trial of "this action."

II. Analysis

We have jurisdiction to decide this matter pursuant to 28 U.S.C. Sec. 1291, because the order...