Court grants motion for protective order on contracts; denies confidentiality for revenue figures

Last week, the record label plaintiffs in the Joel Tenenbaum case sought a protective order, seeking to prevent public disclosure of revenue information and contracts that prove the chain of title of the copyrights at issue in this case. (The information and documents would be disclosed to Tenenbaum; the only issue was whether it would be disclosed to the public.) Today Judge Nancy Gertner agreed that the contracts should remain confidential, but denied the protective motion as to the revenue figures:

Judge Nancy Gertner: Electronic ORDER entered granting in part and denying in part [870] Motion for Protective Order: The Plaintiffs' Motion for a Protective Order [870] is GRANTED in part and DENIED in part. The Proposed Protective Order (document # 870-2) sweeps far more broadly than the two categories of materials described in the Plaintiffs' motion: (1) the revenue figures ordered disclosed in the Court's June 30, 2009 Electronic Order; and (2) a small subset of contracts relating to the copyrights' chain of title. Indeed, the proposed order would permit either party to designate any materials disclosed in discovery in this case "Confidential" -- even retroactively. With respect to the revenue figures, the Court does not comprehend how disclosure would impair the Plaintiffs' competitive business prospects when three of the four biggest record labels in the world -- Warner Bros. Records, Sony BMG Music Entertainment, and UMG Recording, Inc. -- are participating jointly in this lawsuit and, presumably, would have joint access to this information. The Court declines to bring these materials within a protective order. It will, however, order the second set of documents, which implicate the business interests of third-party artist-owned companies, shielded from disclosure. These documents shall be marked "Confidential" by the Plaintiffs, shall be used solely for the purpose of preparation and trial of this litigation, and shall be disclosed only to the parties, counsel and their employees, actual or potential experts and consultants, and witnesses. They shall not be publicly disclosed, in whole or in part, by any means. (Gertner, Nancy)

I find Judge Gertner's reason for denying protection for the revenue figures -- that the plaintiffs "are participating jointly in this lawsuit and, presumably, would have joint access to this information" -- odd and troubling. The court cites no basis for its belief that any one plaintiff has access to financial information about any company other than itself. In my experience litigating multi-plaintiff copyright cases, each plaintiff would not have access to others' financial data, which is usually considered highly proprietary, and guarded jealously. In fact, protective orders typically would permit such information to be given to plaintiffs' outside counsel and to defendants, but not shared among the various plaintiffs themselves (i.e., there would be an "Outside Counsel Eyes Only" designation).

And the forced disclosure of such financial information is especially unjustified given that it is almost completely useless in this litigation. As I understand Judge Gertner's order compelling production of the financial data, the plaintiffs simply have to give "estimates" of "revenues generated" by each of the 30 songs at issue from 1999-present. So Tenenbaum will now know that in 2005, song X generated revenue of $2 million physical and $1 million digital, and in 2006 $1.5 and $750,000, and so on. Well, so what? Those numbers alone tell you very little. They don't tell you profit, and they don't tell you what the numbers would have been absent piracy (Tenenbaum's or in general). Tenenbaum may be able to argue "See, they make lots of money!" But that's not really probative of the actual issues involving fair use or damages.