WATERMAN, Justice.
In this case involving claims for misappropriation of trade secrets, we have before us an interlocutory appeal on a discovery issue. In particular, the plaintiffs ask us to review a district court order requiring the redesignation of the plaintiffs' standard operating procedures (SOPs) from "attorneys' eyes only" to "confidential." The underlying protective order allowed each party to designate highly sensitive proprietary or trade-secret information whose disclosure to another party in the case would cause severe competitive damage as "attorneys' eyes only." Under this designation, only court personnel, attorneys, and outside experts could review the material. The district court removed the "attorneys' eyes only" designation for any of plaintiffs' SOPs alleged to have been misappropriated, converted, or used without authorization by the defendants. With the modification, these materials would remain confidential and not disclosed to the public, but would be disclosed to the defendants themselves.
Plaintiffs urge that the district court abused its discretion in issuing the order. On appeal, we agree that the court abused its discretion. The defendants did not argue below that the plaintiffs improperly designated materials under the order and did not provide any basis for modifying the order other than conclusory assertions and a statement that they, unlike the plaintiffs, had elected not to hire an expert in order to save money. On this record, these grounds are not enough. We conclude that while the district court may have had other valid grounds for ordering redesignation, this is not apparent from the terms of the order, and therefore, we must reverse and remand. In short, removing the "attorneys' eyes only" designation may be appropriate, but the court's rationale for doing so is insufficient. Accordingly, we reverse the district court's ruling and remand for further consideration in light of a number of factors discussed in this opinion, including (1) the standards set forth in the stipulated protected order for designation of material as "attorneys' eyes only"; (2) the need for defendants, in addition to their attorneys and experts, to have access to the materials to properly defend the plaintiffs' claims; and (3) the potential harm to the plaintiffs that would result from disclosure of the materials to the defendants.
This litigation involves a battle between the two domestic producers of chondroitin sulfate, Sioux Pharm, Inc. and Eagle Laboratories, Inc., and other individuals and entities named in the litigation, hereinafter referred to collectively as Sioux Pharm and Eagle Labs, respectively.
Chondroitin sulfate is a component of dietary supplements for joint health. Sioux Pharm, located in Sioux Center, makes the product from bovine trachea and other ingredients. Its manufacturing
Robert Den Hoed and Dana Summers are former employees of Sioux Pharm. Den Hoed left his job with Sioux Pharm in 2001 and launched Eagle Labs in 2003. Den Hoed is the president, CEO, and majority owner of Eagle Labs. Summers left his position with Sioux Pharm in 2003 and became the secretary for Eagle Labs. Eagle Labs began producing chondroitin sulfate in 2005 and is Sioux Pharm's only domestic competitor.
Eagle Labs is a small business with no more than four employees, including Den Hoed and Summers, operating out of a small building behind Den Hoed's family home. By contrast, Sioux Pharm occupies a 40,000-square-foot facility and estimates that its operation is ten times larger than Eagle Labs'.
On March 1, 2012, Summers contacted Sioux Pharm and asked to visit the plant, but his request was refused. Two nights later, Sioux Center police received a call reporting a suspicious red truck parked by the Sioux Pharm facilities. Officers investigating the call found the truck outside and an exterior door propped open with a wrench. The officers caught Summers breaking into Sioux Pharm. Summers had a set of six keys to Sioux Pharm in his pocket, including a master key, and the officers found another master key in the parking lot near Summers's truck. The officers searched Summers's truck and found a white binder that turned out to be an SOP manual. After changing his story several times, Summers admitted that he had stolen the manual that night. He was charged with burglary in the third degree in violation of Iowa Code sections 713.1 and 713.6A (2011). Sioux Pharm alleges that the break-in was an act of deliberate corporate espionage, while Eagle Labs claims that Summers acted on his own, without its knowledge or authorization.
On March 8, Sioux Pharm filed this civil action claiming trade-secrets violations against Eagle Labs, Bio-Kinetics Corporation, Summers, Den Hoed, and John Ymker, a partner in Eagle Labs. Sioux Pharm's petition alleged that Eagle Labs misappropriated trade secrets, intentionally interfered with contracts and prospective business advantage, and engaged in civil conspiracy. In later amendments to the petition, Sioux Pharm added claims of unfair competition.
With respect to its trade-secret claims, Sioux Farm broadly alleged in Count I that it
Sioux Pharm further alleged that the above trade secrets were the result of significant efforts and expenditures by the plaintiffs, they provide substantial advantages over competitors, and plaintiffs own the trade secrets. According to the petition, Sioux Pharm undertook "very deliberate steps" to ensure that outsiders such as the defendants had no access to Sioux Pharm facilities and SOPs, including limiting access to the facilities and requiring plaintiffs' employees to sign confidentiality agreements. The petition alleged that the defendants obtained the trade secrets through physical intrusion into the plant and through theft/review of Sioux Pharm's SOP manual and trade secrets.
Upon the filing of the petition, Sioux Pharm obtained an ex parte order from the district court authorizing Sioux Pharm to seize the computer and telephone equipment of Eagle Labs and to engage in a walk-through of the Eagle Labs facility. Pursuant to the court order, Sioux Pharm seized the equipment, engaged in the "walk through," and took various photographs on March 13, 2012. In its answer, Eagle Labs specifically denied all of Sioux Pharm's allegations relating to trade secrets.
The parties also filed discovery motions. First, Eagle Labs sought a protective order on March 15 to protect any trade-secret information acquired during the walk-through. The district court ruled that all such information could only be reviewed by attorneys for the parties working together. Sioux Pharm, in turn, filed a motion on June 4 seeking greater access to the material, but agreeing that a protective order was necessary to protect the trade secrets of each party. The parties subsequently agreed to, and the district court entered, a stipulated protective order on August 6.
The stipulated protective order allows each party to designate materials as "confidential" or "attorneys' eyes only" (AEO):
Under the terms of the order, confidential information may be disclosed only to attorneys, court personnel, parties, experts, and witnesses — with the latter three groups required to execute a prior agreement to be bound by the terms of the order. AEO material — unlike confidential material — may not be disclosed to the parties themselves. The order also restricts use of confidential and AEO "to the purposes of this litigation and ... not ... any other purpose."
The stipulated protective order defines AEO information as follows:
Additionally, the stipulated protective order allows any party to challenge an AEO or confidential designation and seek redesignation. The party must first ask the producing party in writing to redesignate. If that request is not granted within five days, the requesting party may seek redesignation from the court. The order states, "In connection with any such motion, the burden shall be [on] the Producing Party to defend the appropriateness of the designation as Confidential or Attorney's Eyes Only. Any such objections to such designations shall be made in good faith." The order further provides:
The stipulated protective order also contains a general provision allowing amendments:
The district court entered a scheduling order that required Sioux Pharm to designate experts no later than 210 days before trial or by March 15, 2013, and Eagle Labs to designate experts no later than 150 days before trial or by May 17, 2013. Trial was scheduled for October 15, 2013.
Sioux Pharm's petition initially alleged that Eagle Labs misappropriated trade secrets solely in the break-in of March 3, 2012. Eagle Labs chose not to designate any experts, concluding that Den Hoed and Summers could adequately explain the origin of their SOPs and no experts were necessary to defend the allegations based on the break-in. Both parties produced their SOPs under the AEO designation, and Sioux Pharm heavily redacted portions of its SOPs.
On May 10, 2013, Eagle Labs moved for leave to file counterclaims against Sioux Pharm. Eagle Labs asserted that Sioux Pharm trespassed on its property when its representatives entered the property of Eagle Labs pursuant to an ex parte temporary restraining order issued in the case. According to Eagle Labs, while the court authorized a "short walk-through," the Sioux Pharm representatives, including its principal officers, trespassed on the property by engaging in an examination of
On June 7, the district court ordered two separate trials — one for Sioux Pharm's trade-secrets claim and one for its unfair competition claim. The unfair competition component of the case is not at issue in this appeal.
Although both sides produced SOPs under the AEO designation, Eagle Labs contests the trade-secret status of Sioux Pharm's SOPs. In particular, Eagle Labs contends at least some of Sioux Pharm's SOPs lack trade-secret status based on disclosures made and positions taken by plaintiff Sioux Biochemical, Inc. in prior litigation against Cargill, Inc.
On September 3, Eagle Labs filed a motion to have Sioux Pharm's SOPs redesignated from AEO to confidential. In its motion, Eagle Labs said it would be "impossible for Defendants to adequately prepare their case for trial unless the above-referenced information [i.e., the SOPs] is redesignated from AEO to `confidential.'" Eagle Labs added that redesignation "would permit Defendants' counsel the opportunity to share this information with their clients so that evidence can be developed to address the allegations being made by Plaintiffs." In the same motion, Eagle Labs also offered to redesignate its own SOPs (which it had previously designated AEO) from AEO to confidential. Eagle Labs did not submit any affidavit or other evidence in support of its motion.
Sioux Pharm filed a resistance to Eagle Labs' motion for redesignation. Sioux Pharm's resistance also was not supported by any affidavit or other evidence specific to the motion. The resistance made the point that Eagle Labs was not contesting the AEO designation under the protective order. According to Sioux Pharm, since the materials had been properly designated, and the defendants had stolen from Sioux Pharm, the protective order should
Following hearings, the district court granted both motions by an order entered September 23. The order required Sioux Pharm to identify which specific SOPs have been misappropriated and produce unredacted copies of those SOPs designated "confidential" rather than AEO. The court's order stated:
Sioux Pharm filed an application for interlocutory appeal and request for immediate stay as well as a motion for reconsideration on September 27. On September 30, the district court denied Sioux Pharm's motions for a stay and for reconsideration, pointing out that Sioux Pharm "made several recent efforts to clarify and (in the court's opinion) efforts to expand the scope of discovery beyond the pleadings that would add issues and result in trial being continued." The district court ordered Sioux Pharm to produce unredacted copies of every SOP it claimed Eagle Labs misappropriated, without the AEO designation. This would allow Den Hoad and Summers to review them. The district court explained:
On October 31, we granted Sioux Pharm's application for interlocutory appeal, which placed its disclosure obligations on hold. We retained the appeal.
As a general proposition, we review a district court's discovery ruling for abuse of discretion. Mediacom Iowa L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 66 (Iowa 2004). A district court abuses its discretion "when the grounds underlying a district court order are clearly untenable or unreasonable." Id. "`"A ground or reason is untenable ... when it is based on an erroneous application of the law."`" Office of Citizens' Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa 2012) (quoting In re Gianforte, 773 N.W.2d 540, 544 (Iowa 2009)).
To the extent this is an argument against producing unredacted SOPs, we are not persuaded. Sioux Pharm must produce complete, unabridged versions of the SOPs to allow the defendants to defend the case fairly. Because Sioux Pharm contends its case turns at least in part on similarities between each party's SOPs in content, font, margins, and formatting, counsel for Eagle Labs cannot fairly prepare a defense without seeing the SOPs allegedly misappropriated. When claims hinge on a close textual comparison of each side's SOPs containing detailed technical information and alleged trade secrets, there is simply no alternative to the production of unredacted SOPs. Although both sides apparently made redactions, the stipulated protective order makes no provision for redaction of documents produced with the AEO designation. Redactions under these circumstances violate the basic principle that "our discovery rules are to be liberally construed to effectuate the disclosure of relevant information." Farnum v. G.D. Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983).
We now turn to the fighting issue on appeal: whether the district court abused its discretion in ordering the SOPs (which
Iowa Code § 550.7. Nevertheless, "a trade secret must and should be disclosed if the disclosure is relevant and necessary to the proper presentation of a plaintiff's or defendant's case." Mediacom Iowa, 682 N.W.2d at 66.
Once a district court has found information sought in discovery is a trade secret, it must determine whether good cause exists for a protective order. Id. at 67. The court should employ three criteria:
Id. at 68 (quoting Farnum, 339 N.W.2d at 389-90). The district court is to "strike a balance between the policy favoring discovery and free expression on one side and a party's interest in avoiding commercial damage and preventing an abuse of discovery on the other." Farnum, 339 N.W.2d at 390. After the court has weighed the harm from disclosure against the need for the information, the court "must issue an appropriate protective order to safeguard the rights of the parties." Highway Equip. Co. v. Cives Corp., No. C04-0147, 2007 WL 1612225, at *3 (N.D.Iowa 2007). A court has broad discretion to craft the terms of the protective order under rule 1.504. Iowa R. Civ. P. 1.504(1)(a)(7) ("[The court] [m]ay make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including... [t]hat a trade secret ... not be disclosed or be disclosed only in a designated way.").
Litigation over protective orders arises in various contexts. Sometimes the issue is whether a protective order should be modified so that third parties may gain access to the material. In Comes v. Microsoft Corp, we considered a request by plaintiffs in a Canadian antitrust litigation against Microsoft to gain access to confidential materials from the Iowa litigation.
Id. at 309-10. We concluded by expressly disavowing any presumption against the modification of protective orders. Id. at 310.
Although the principles of Comes apply here, this case involves a different issue than the Comes case. Here, the question is whether materials that have been designated AEO under a stipulated protective order that permits this redesignation should be reclassified as confidential. We recognize that in trade-secret litigation, "courts often issue protective orders limiting access to the most sensitive information to counsel and their experts." Tailored Lighting, Inc. v. Osram Sylvania Prods., Inc., 236 F.R.D. 146, 148 (W.D.N.Y.2006); see also Safe Flight Instrument Corp. v. Sundstrand Data Control, Inc., 682 F.Supp. 20, 22 (D.Del.1988) (collecting cases). The United States Court of Appeals for the Tenth Circuit recently stated:
Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1202-03 (10th Cir.2014) (quoting In re City of New York, 607 F.3d 923, 935-36 (2d Cir.2010) (emphasis omitted) (citing Fed.R.Civ.P. 26(c)(1)(G))).
The main concern of parties seeking to impose AEO restrictions is fear that dissemination of sensitive information, particularly to decision-makers of its competitors, would threaten serious competitive harm. Even when the decision-makers of the opposing party act in complete good faith, courts assert that they will simply not be able to compartmentalize what they learn. See BASF Corp. v. United States,
On the other hand, the opposing party seeking disclosure, even if a competitor, may claim that disclosure of documents to its decision-makers is necessary to allow it to litigate effectively. For example, in In re Wilson, 149 F.3d 249, 252-53 (4th Cir. 1998), the Fourth Circuit upheld a bankruptcy court decision to allow at least some disclosure of protected trade secrets to high-level employees of the corporation's competitor, reasoning that though the plaintiff may suffer inevitable harm from disclosure, the defendant's need to understand the claim charged against him outweighed the potential harm of disclosing trade secrets to the competitor. In some contexts, the opposing party may assert, for instance, that its decision-makers have unusual expertise in the subject matter of the litigation that might not be available to outside experts. See 2 Hounds Design Inc. v. Brezinski, No. 3:13-CV101-RJC-DCK, 2013 WL 5938073, at *3-4 (W.D.N.C. Nov. 5, 2013); Frees, Inc. v. McMillian, No. 05-1979, 2007 WL 184889, at *5 (W.D.La. Jan. 22, 2007); MGP Ingredients, Inc. v. Mars, Inc., 245 F.R.D. 497, 499 (D.Kan.2007); Medtronic, 2002 WL 33003691, at *3-4; THK Am., Inc. v. Nippon Seiko K.K., 141 F.R.D. 461, 462 (N.D.Ill.1991); Bee Chem. Co. v. Serv. Coatings, Inc., 116 Ill.App.2d 217, 253 N.E.2d 512, 516-17 (1969). A naked contention, however, that access will affect the ability of the defendant to defend its case, without more, is not sufficient. See McAirlaids, 299 F.R.D. at 500-02 (court refused to modify existing protective order based on party's assertion that it needed its decision-makers to have access to documents to make an "educated business decision with regard to the litigation"). In order to evaluate the asserted need for further disclosure, the court must have a thorough understanding of the contested issues in the case, how the documents relate to the contested issues, and how the fact-finding process would be aided by disclosure of the documents to the persons seeking to view the documents.
There appears to be a prevailing view among courts addressing the issue that competitive decision-makers of direct competitors should be denied access to trade secrets in litigation. See Paycom Payroll,
In Safe Flight, plaintiff's president, Leonard Greene, asked to act as his own expert because of his position as a "preeminent aeronautic engineer, having received more than sixty aeronautic patents." 682 F.Supp. at 21. Greene argued that he was uniquely qualified and that without his review his attorneys would be unable to make the right decisions. Id. The court disagreed, noting that Greene would inevitably retain some of what he learned from the disclosures that would guide his future research, and he had not investigated using outside experts. Id. at 22. In a similar case, the plaintiff's president and inventor of the patent at issue, sought access to "highly confidential" material designated for attorneys' eyes only so he could testify as an expert. Tailored Lighting, 236 F.R.D. at 147. The court found the "substantial risk of competitive injury that attends disclosure of such trade secret information to the opposing party's president" outweighed the plaintiff's inconvenience and expense in hiring outside expert. Id. at 149.
The court in Safe Flight, however, did allow defendant to use in-house counsel to review confidential materials because those attorneys were "segregated" from competitive decision-making. 682 F.Supp. at 23. The court noted that lawyers are officers of the court and bound by obligations of professional responsibility preventing any misuse of the confidential information. Id. We, too, have recognized that "[a]lthough a strong tradition of loyalty exists between a lawyer and client, a lawyer is also an officer of the court who is bound by a code of professional conduct." Wemark v. State, 602 N.W.2d 810, 816 (Iowa 1999); see also State v. Walker, 804 N.W.2d 284, 294 (Iowa 2011) (quoting Wemark to uphold right of an inmate to private conference with attorney notwithstanding jail rules restricting access to prevent smuggling of contraband). Even when courts explicitly credit a party or in-house counsel with integrity and good faith, they recognize that human nature makes misuse of trade secrets by a competitor too tempting to risk. See Brown Bag, 960 F.2d at 1471 ("The magistrate had to consider, however, not only whether the documents could be locked up ..., but also whether Brown Bag's counsel could lock-up trade secrets in his mind, safe from inadvertent disclosure...."); U.S. Steel Corp., 730 F.2d at 1467 (claiming that trade-secret information is so potent that "its nature and volume place it beyond the capacity of anyone to retain in a consciously separate category" (internal quotation marks omitted)); Safe Flight, 682 F.Supp. at 22 (explicitly crediting Greene as a man of "great moral fiber").
THK America, Inc. likewise involved what the terms would be for an initial protective order, not the implementation or modification of a stipulated protected order that had previously been entered. 141 F.R.D. at 462. An American company and its Japanese parent company were suing the defendant for patent infringement. Id. There was no dispute that only persons employed by the American company could review the defendant's materials in question. Id. The issue was whether persons with a past or present affiliation with the Japanese parent company also could review the materials. Id. The court responded by fashioning a protective order that allowed certain key employees of the Japanese parent company also to view the materials because otherwise the litigation would become "one-sided." Id.
In two additional cases Eagle Labs cites, the parties were not direct competitors. See MGP Ingredients, Inc., 245 F.R.D. at 502 ("Thus, the risk of anyone abusing his or her knowledge of confidential information appears to be small."); Medtronic, 2002 WL 33003691, at *3 ("Finally, unlike many of the cases relied upon by Medtronic, including Safe Flight, [defendants] are not directly in competition with Medtronic.").
Redesignation also should not be ordered merely because Eagle Labs chose not to retain an expert. See Tailored Lighting, Inc., 236 F.R.D. at 149 ("[T]he burden of that cost [of hiring an outside expert] simply does not outweigh the substantial risk of competitive injury that attends disclosure of such trade secret information to the opposing part[ies]...."). At a September 17 hearing, one of the defense counsel said:
At the September 23 hearing, one of the defendants' counsel stated, "Our clients specifically chose not to retain an expert to limit costs in this litigation." Eagle Labs did not argue that experts were unavailable;
So, the question becomes, what would be a good reason for redesignation. One obvious answer would be when the material does not qualify for AEO treatment under the existing stipulated order because it is not "confidential, non-public, and/or proprietary information containing highly sensitive proprietary, financial, or trade secret information, which would cause severe competitive damage if disclosed to another party to this action."
The parties' stipulated protective order expressly authorizes parties to make an objection to confidential or AEO designation and authorizes the court to resolve the objection, with the burden resting on the party claiming protected status "to defend the appropriateness of the designation."
However, in this case, Eagle Labs did not dispute below that the materials had been properly designated as AEO, and there was evidence in the record (such as the affidavit of Sioux Pharm's president and co-owner) supporting such a designation. Nor does the district court's order indicate that the court found the materials had been misclassified.
As we have already discussed here, and at more length in Comes, courts also have the authority to modify stipulated protective orders. In Comes, we explained that in deciding whether to modify an order "the court should fully and fairly consider all the circumstances supporting the modification, as well as the circumstances mitigating against it." 775 N.W.2d at 310. Obviously, two salient factors are the need for the defendants personally to have access to the materials to defend properly the plaintiffs' claims and the harm to the plaintiffs that would result from disclosure of the materials to the defendants. Another legitimate consideration, which may have entered into the district court's calculus,
The problem here is that the party seeking reclassification made only a conclusory argument for doing so, and the court did not set forth its reasoning for ordering reclassification in any detail. The district court cited its own "balancing of the various priorities" and found reclassification "necessary to do justice and to allow the defendants to appropriately understand and prepare their trial defense strategy." This language leaves it unclear whether the court ordered reclassification because it found the SOPs did not meet the protective order's standards for AEO treatment or because it was deciding to modify the protective order. Assuming the latter to be the case, this language also leaves unanswered whether the district court simply agreed with Eagle Labs' ipse dixit argument about the unfairness of requiring it to hire an outside expert or whether the court had other, more persuasive grounds for modifying the order.
A district court abuses its discretion when it exercises its discretion for reasons that are clearly untenable. See Mediacom Iowa, 682 N.W.2d at 66. Here, the party advanced only insufficient grounds for a course of action. Although the record may contain sufficient grounds, the district court did not specify its reasons for acting. In this situation, we are constrained to hold the court abused its discretion. For this reason, we must reverse and remand for further proceedings consistent with this opinion. On remand, the district court should first determine whether the SOPs qualify for AEO status under the protective order (unless Eagle Labs concedes
In this case, the district court stated that it engaged in a balancing, but did not expressly engage in the analysis of the risk of harm that might be caused by further disclosure or the impact that the failure to allow more disclosure would have on Eagle Labs' ability to litigate. The lack of a more detailed order makes it difficult for this court to engage in meaningful appellate review. Cf. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 789 (3d Cir. 1994) (emphasizing that in order "[t]o facilitate effective appellate review of a district court decision of whether to grant or modify an order of protection or confidentiality, a district court should articulate on the record findings supporting its judgment"); Mediacom Iowa, 682 N.W.2d at 68 (finding trial court abused its discretion when it made no factual findings regarding whether information sought constituted trade secrets). On remand, the district court should give due regard to the two competing considerations in this case that drive in the opposite direction.
Our ruling should not be construed as criticism of the district court. From our review of the record, we are impressed by the court's careful, even-handed, hands-on management of the case. At the same time, both in seeking and in opposing the redesignation of Sioux Pharm's SOPs, the parties made generally conclusory arguments. As often happens, the arguments became more focused when the parties got to our court. Nevertheless, in trade-secret litigation between two direct competitors, the stakes are high, and any order regarding the confidentiality status of alleged trade secrets must be carefully drawn. That order should give due account to the terms of the protective order and the considerations set forth in Comes.
For these reasons, we reverse the district court's orders of September 23 and 30, 2013. We remand the case for further proceedings consistent with this opinion.
All justices concur except APPEL and WIGGINS, JJ., who concur specially, and HECHT, J., who takes no part.
APPEL, Justice (concurring specially).
I concur with the court's opinion.
On remand, the district court should give due regard to the two competing considerations in this case which drive in opposite directions: the risk of harm to Sioux Pharm that might be caused by additional disclosures and Eagle Labs' need for further disclosure to effectively defend its interests in the litigation.
As pointed out by the court, the district court and the parties on remand should avoid generalizations in favor of specific evidentiary showings and articulated reasoning. To some extent, the shortcomings in the district court's order may have been a result of sequencing. At this stage of the litigation, the trade secrets of the parties
The district court in this case, however, ordered Sioux Pharm to identify with particularity its Standard Operating Procedures (SOPs) that Eagle Labs allegedly misappropriated. If Sioux Pharm complies with this order first, the district court will then be in a better position to examine each identified SOP that is allegedly a trade secret misappropriated by Eagle Labs (and any other documents for which disclosure is sought) and make the necessary particularized findings with respect to the balancing of the parties' competing interests.
WIGGINS, J., joins this special concurrence.
As we have said, "`There can be no blinking the fact that there is a strong societal interest in public trials.'" Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 922-23 (Iowa 1983) (quoting Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 2907, 61 L.Ed.2d 608, 623 (1979)). Yet, our courts are required to "preserve the secrecy of an alleged trade secret by reasonable means, including but not limited to ... holding in-camera hearings." Iowa Code § 550.7. Protection of trade secrets at trial is entitled to great weight in this balancing approach. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 600 n. 5, 100 S.Ct. 2814, 2840 n. 5, 65 L.Ed.2d 973, 1005 n. 5 (1980) (Stewart, J., concurring in judgment).
We have limited access to judicial proceedings in appropriate cases. For example, juvenile court proceedings may be closed to the public upon the motion of any party or on the court's own motion. See In re A.M., 856 N.W.2d 365, 380 (Iowa 2014) (citing Iowa Code § 232.92). Witnesses are routinely sequestered during the testimony of other witnesses under Iowa Rule of Evidence 5.615. In trade-secret litigation, the parties can be excluded from the courtroom when the trade secrets are presented. See, e.g., Stamicarbon, N.V. v. Am. Cyanamid Co., 506 F.2d 532, 542 (2d Cir.1974) (allowing trade-secrets portion of a trial to be held in camera); Air Prods. & Chems., 442 A.2d at 1129 (allowing counsel and an expert to participate in hearing without the party); State ex rel. Ampco Metal, Inc. v. O'Neill, 273 Wis. 530, 78 N.W.2d 921, 926-27 (1956) (allowing the trade-secrets portion of the trial to proceed in camera). As a commentator observed, "It would be of little practical value to file a lawsuit to protect the confidentiality of a trade secret if the secret became part of the publicly available court record and was thereby lost." 1 Michael D. Scott, Scott on Computer Information Technology Law § 6.17, at 6-45 to 6-47 (3d ed.2015) (also noting court can restrict attendance at trial and seal transcript to protect trade secrets upon a proper showing).
