IN THE SUPREME COURT OF IOWA

No. 07–2063

Filed November 20, 2009

JOE COMES, RILEY PAINT, INC., an Iowa

Corporation, SKEFFINGTON’S FORMAL 

WEAR OF IOWA, INC., an Iowa Corporation, and

PATRICIA ANNE LARSEN,

Appellees,

vs.

MICROSOFT CORPORATION,

a Washington Corporation,

Appellant,

and

PRO-SYS CONSULTANTS, LTD., NEIL GODFREY,

K.L. & K. (London) LTD., MARIAN STARESINIC,

and MARC LEFRANCOIS,

Intervenors-Appellees.

Appeal from the Iowa District Court for Polk County, Scott D. 

Rosenberg, Judge.

Defendant appeals from the district court’s order modifying a 

protective order to allow Canadian intervenors access to discovery. 

AFFIRMED.

Brent B. Green and Kirk W. Bainbridge of Duncan, Green, Brown 

& Langeness P.C., Des Moines, David B. Tulchin, Joseph E. Neuhaus, 

and Sharon L. Nelles, of Sullivan & Cromwell LLP, New York, New York, 

and Richard J. Wallis and Steven J. Aeschbacher, Redmond, 

Washington, for appellant.
2

Mark L. Tripp of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des 

Moines, for intervenors-appellees.

Richard M. Hagstrom of Zelle, Hofmann, Voelbel, Mason & Gette 

LLP, Minneapolis, Minnesota, for appellees.
3

HECHT, Justice.

Parties to litigation pending against Microsoft in Canadian courts 

sought to intervene in this case for the purpose of obtaining access to 

documents and data produced pursuant to a protective order. The 

district court granted the Canadian plaintiffs’ motion to intervene and 

modified the protective order to allow the Canadians the access they 

requested subject to the order’s terms of confidentiality. Upon our review 

of the district court’s ruling, we affirm.

I. Background Facts and Proceedings.

Plaintiffs in Iowa (Iowa plaintiffs) filed a class-action, antitrust 

lawsuit against Microsoft Corporation (Microsoft) in February 2000. At 

the time, several other similar lawsuits were pending against Microsoft in 

various federal and state courts. The discovery in the other pending 

cases was coordinated and protected by a protective order. At the outset 

of this case, the Iowa plaintiffs and Microsoft agreed to continue to 

coordinate discovery with the plaintiffs in the other jurisdictions. The 

protective order entered in the federal multidistrict litigation (MDL) 

provided confidential information obtained through discovery could be 

disclosed to “counsel in any action arising out of the same facts and 

circumstances alleged in [the multidistrict litigation] provided he or she 

agrees” to be bound by the terms of the protective order. The Iowa PreTrial Procedures Order No. 1 provided for discovery in the Iowa case to be 

coordinated with the discovery in the federal MDL and in other state 

courts “so as to prevent duplication of effort and waste of private and 

judicial resources.”1

 1As a demonstration not only of the sheer breadth of discovery in this case, but 

of the extent and value of the benefit of the coordination of discovery, the parties 

estimate that about twenty-three million of the twenty-four million pages of discovery 
4

A stipulated protective order was entered in the Iowa case on 

January 23, 2003, providing that “certain documents and information 

produced or to be produced during discovery in this litigation should be 

kept confidential in order to protect the legitimate business interests of 

the parties.” The protective order limited the universe of persons to 

whom “confidential” and “highly confidential” documents could be 

disclosed and limited the use of such documents to the Iowa litigation. It 

further required the parties either return to the producing party or 

destroy all “confidential” or “highly confidential” documents within thirty

days of the termination of the Iowa litigation. However, the protective 

order did expressly anticipate its modification by a subsequent court 

order upon the request of “[a]ny party or third party.” 

In February 2007, Microsoft and the Iowa plaintiffs agreed to settle 

the case. The parties stipulated that 

[a]ll discovery materials and information . . . produced or 

provided by any of the parties or non-parties either before, 

on or after the date of this Settlement Agreement, whether 

produced or provided informally or pursuant to discovery 

requests, shall be governed by all Confidentiality/Protective 

Orders in force as of the date of this Settlement Agreement, 

subject to such modifications, if any, that the Court may 

make to such Confidentiality/Protective Orders as the result 

of any agreements between Lead Counsel for the Iowa Class 

and Microsoft or as the result of any future motions or 

proceedings. 

The settlement agreement was approved by the district court on 

August 31, 2007. 

At the time the settlement agreement was reached, several 

antitrust suits were still pending against Microsoft in Mississippi, 

Arizona, British Columbia, Quebec, and Ontario. According to Microsoft, 

____________________________

produced in the Iowa action were initially produced in similar lawsuits in other 

jurisdictions.
5

plaintiffs in those cases requested discovery from Microsoft after the 

settlement agreement was reached but before it was approved by the 

district court in this case.2 On September 25, 2007, Microsoft filed a 

motion requesting modification of the protective order to permit Microsoft 

to retain the documents from the Iowa action until the suits in 

Mississippi, Arizona, and Canada were resolved. The next day, the 

plaintiffs in the Canadian actions3

The district court granted Microsoft’s motion to modify the 

protective order on October 16, 2007, allowing Microsoft to retain the 

discovery documents until the litigation in Canada, Arizona, and 

Mississippi is resolved. Six days later, the Iowa plaintiffs moved the 

court to make the modification of the protective order mutual, permitting 

the Iowa plaintiffs to retain discovery documents in their possession until 

the termination of the lawsuits in Canada, Mississippi and Arizona. On 

December 3, the district court granted both the Canadian intervenors’ 

and the Iowa plaintiffs’ motions. Microsoft appealed.

filed a motion in the district court 

seeking to intervene in the Iowa action to gain access to the Iowa 

discovery. 

II. Scope of Review.

A trial court has wide discretion to enter a protective order 

pursuant to Iowa Rule of Civil Procedure 1.504.4

 2In addition to the discovery request, counsel in the Mississippi litigation sent 

Microsoft a letter demanding all discovery in the Iowa case be preserved and alleging 

any willful destruction of the documents would be deemed spoliation. Iowa plaintiffs 

allege this demand was later withdrawn. 

 See Farnum v. G.D. 

3The “Canadian actions” consist of Pro-Sys Consultants Ltd. v. Microsoft 

Corporation, Supreme Ct. No. L043175, British Columbia, Canada; K.L. & K. (London) 

Limited v. Microsoft Corporation, Sup. Ct. Justice File No. OS-CV-4308, Ontario, 

Canada; and Marc Lefrancois v. Microsoft Corporation, Supreme Ct. No. 06-000087-075, 

Quebec, Canada.

4Iowa Rule of Civil Procedure 1.504 was previously Rule 123.
6

Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983). We review the district 

court’s decisions regarding discovery for an abuse of discretion. Id.; 

Mediacom Iowa, L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 66 (Iowa 

2004). 

III. Discussion.

Microsoft does not appeal the district court’s decision to allow the 

Canadian plaintiffs to intervene in the Iowa case. Microsoft contends the 

district court abused its discretion by modifying the protective order to 

allow the Canadian plaintiffs access to the discovery documents and to 

allow the Iowa plaintiffs to maintain the discovery documents until the 

litigation in Mississippi, Arizona, and Canada is resolved.

A. Iowa Rule of Civil Procedure 1.504. Iowa Rule of Civil 

Procedure 1.504 addresses the availability of protective orders during 

discovery in civil litigation. Upon a showing of good cause, the district 

court 

a. [m]ay make any order which justice requires to 

protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense, including one or 

more of the following: 

. . . .

(7) [t]hat a trade secret or other confidential research, 

development, or commercial information not be disclosed or 

be disclosed only in a designated way.

Iowa R. Civ. P. 1.504(1)(a). 5

____________________________

 

5The language of Iowa rule 1.504(1)(a) is virtually identical to its federal 

counterpart. Federal Rule of Civil Procedure 26(c) provides a party from whom 

discovery is sought may move for a protective order. 

The court may, for good cause, issue an order to protect a party or 

person from annoyance, embarrassment, oppression, or undue burden 

or expense, including one or more of the following:

. . . .
7

Although the district court has wide discretion to fashion an 

appropriate protective order, a protective order is not entered lightly. We 

have previously discussed the good cause showing required to obtain a 

protective order: “We . . . insist[] on ‘a particular and specific 

demonstration of fact, as distinguished from stereotyped and conclusory 

statements in order to establish good cause.’ ” State ex rel. Miller v. Nat’l 

Dietary Research, Inc., 454 N.W.2d 820, 823 (Iowa 1990) (quoting 

Farnum, 339 N.W.2d at 389). A district court should consider three 

criteria when evaluating the factual showing establishing good cause: 

(1) whether the harm posed by dissemination will be substantial and 

serious; (2) whether the protective order is precisely and narrowly drawn; 

and (3) whether any alternative means of protecting the public interest is 

available that would intrude less directly on expression. Nat’l Dietary 

Research, 454 N.W.2d at 823. “ ‘[T]hese criteria 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.’ ” Id. (quoting Farnum, 339 N.W.2d at 390).

In this case, there is no indication that any factual showing of good 

cause was made to the Iowa district court when the protective order was 

initially obtained. Instead, the protective order was agreed upon by the 

parties as a means to expedite and simplify what they correctly 

anticipated would be an extraordinary discovery process. The order is 

____________________________

(G) requiring that a trade secret or other confidential research, 

development, or commercial information not be revealed or be revealed 

only in a specified way[.]

Fed. R. Civ. P. 26(c)(1). 
8

adapted from the one used in the federal MDL action then pending 

against Microsoft.6

Although the district court has wide discretion to enter protective 

orders, when reviewing district courts’ decisions entering or declining to 

enter protective orders, we have scrutinized the record to determine 

whether the need for secrecy was justified. In Farnum, we affirmed the 

district court’s decision denying the request for a protective order despite 

the defendants’ concern that the discovery would be “traffick[ed] . . . 

among attorneys for use in other litigation,” because the defendant had 

not made a particularized showing of harm and the protective order was 

not narrowly drawn. 339 N.W.2d at 388, 391; see also Mediacom Iowa,

682 N.W.2d at 68 (holding the district court abused its discretion by 

entering a protective order because the defendant city had not presented 

any evidence that the information sought constituted a trade secret); 

Nat’l Dietary Research, 454 N.W.2d at 824 (holding the district court 

abused its discretion by entering a protective order because defendants 

had not made a showing that the protected information actually qualified 

as a trade secret or confidential information or that disclosure would 

cause them harm). 

 

B. Standard for Modifying Protective Orders. Although our 

decisions clearly require a showing of “good cause” when a party seeks 

an order protecting sensitive information, we have not previously been 

 6Unlike the Iowa protective order, the MDL protective order allowed counsel in 

any actions “arising out of the same facts and circumstances alleged” in the MDL action 

to obtain access to the “confidential” and “highly confidential” MDL discovery 

documents if counsel agreed to the terms of the MDL protective order and submitted to 

the jurisdiction of the MDL court for enforcement of the order. Additionally, before 

counsel in any collateral action could further disclose the MDL confidential discovery, a 

no-less-restrictive protective order was required to be entered in the collateral litigation. 

Accordingly, the Iowa protective order was consistent with the requirements of the MDL 

protective order. 
9

asked to determine the standard to be applied when an intervenor 

involved in similar litigation in another jurisdiction seeks to modify a 

protective order to gain access to discovery in this jurisdiction. 

Microsoft urges that our earlier decision in Tratchel v. Essex Group, 

Inc., 452 N.W.2d 171 (Iowa 1990), answers the question. We are not 

convinced. In Tratchel, at the beginning of litigation, the parties entered 

into a “Stipulation of Nondisclosure” prohibiting the disclosure of 

documents identified by the defendant as trade secrets or confidential 

information. 452 N.W.2d at 181. The district court issued a protective 

order consistent with the parties’ stipulation. Later, at the close of the 

trial, the plaintiffs requested the protective order be lifted, but the district 

court ordered compliance with the order. Id. The plaintiffs appealed the 

ruling, contending there was no reason to maintain trade secrets 

because the defendant no longer manufactured the product at issue and 

the documents should be available for use by other potential plaintiffs. 

Id. In summary fashion, with no articulated analysis, we noted the 

district court “carried out the agreement of the parties,” and the 

“[p]laintiffs have not demonstrated extraordinary circumstances, a 

compelling need to prevent the enforcement of their agreement nor 

shown that the trial court abused its discretion.” Id. 

We are not persuaded the standard applied in Tratchel should 

apply in this case.7

 7

We also note the plaintiffs in Tratchel sought to have the protective order lifted 

entirely and the protected documents and data made available to any other party who 

might wish to use it for purposes of litigation. 452 N.W.2d at 181. Here, specific, 

identifiable plaintiffs with nearly identical, currently pending claims against Microsoft 

seek access to documents and data while agreeing to be bound by the terms of the 

existing protective order. The Canadian plaintiffs do not claim the documents and data 

which Microsoft seeks to protect do not qualify as trade secrets nor do they seek the 

release of the information to the general public. However, despite these factual 

distinctions between Tratchel and this case, we still think it prudent to revisit the issue 

 We shall examine the issue anew and conduct a full 
10

analysis of the appropriate standard to apply when the court is requested 

to modify a protective order under the circumstances presented here.

The standard we referenced without explanation or elaboration in 

Tratchel, and the standard Microsoft urges is controlling in this case, was 

articulated by the Second Circuit Court of Appeals in Martindell v. 

International Telephone & Telegraph Corp., 594 F.2d 291, 296 (2d Cir. 

1979). In Martindell, the federal government intervened in a stockholder 

derivative lawsuit seeking access to transcripts of pretrial depositions. 

Id. at 292–93. The depositions had been taken pursuant to a courtapproved stipulation requiring the depositions be treated as confidential 

and be used solely for the prosecution or defense of the civil action. Id.

at 293. The government sought the depositions because it speculated 

that the testimony might be relevant to its investigation of perjury 

charges against some of the defendants in the Martindell case and hoped 

to avoid any potential invocation of Fifth Amendment rights by the 

defendants. Id. The federal district court declined to modify the 

protective order and denied the government access to the depositions. 

Id. The government appealed. Id. at 292. The Second Circuit Court of 

Appeals concluded that 

absent a showing of improvidence in the grant of a Rule 26(c) 

protective order or some extraordinary circumstance or 

compelling need, none of which appear here, a witness 

should be entitled to rely upon the enforceability of a 

protective order against any third parties, including the 

Government, and that such an order should not be vacated 

or modified merely to accommodate the Government’s desire 

to inspect protected testimony for possible use in a criminal 

investigation, either as evidence or as the subject of a 

possible perjury charge.

Id. at 296. 

____________________________

of the appropriate standard to apply when modifying a protective order because of the 

lack of analysis in the Tratchel decision.
11

Although the language quoted above, and much of the rest of the 

opinion, suggests the stringent “extraordinary circumstances” test 

applies only when the government seeks to circumvent the Fifth 

Amendment rights of suspects in a criminal investigation by accessing 

confidential depositions taken in a civil case, the Second Circuit has 

since made clear it will apply the same standard in other contexts as 

well. See S.E.C. v. TheStreet.com, 273 F.3d 222, 229 n.7 (2d Cir. 2001) 

(affirming that although some courts have incorrectly concluded the 

Martindell rule applies only when the government seeks modification of a 

protective order, the Martindell “extraordinary circumstances” test 

applies when any third party seeks to modify a protective order).8

Other circuits that have considered the issue have applied 

standards more amenable to modification of protective orders. The 

Seventh Circuit Court of Appeals was faced with a factual and procedural 

scenario strikingly similar to this case in Wilk v. American Medical Ass’n, 

635 F.2d 1295 (7th Cir. 1980). In Wilk, five chiropractors filed suit 

against the American Medical Association (AMA) and others alleging a 

nationwide conspiracy to eliminate the chiropractic profession. 635 F.2d 

at 1296. Numerous lawsuits were filed against the AMA in other 

jurisdictions including the State of New York, alleging essentially the 

same facts. Id. Discovery consisting of over 100,000 documents had 

been produced in the Wilk case, and over one hundred witnesses had 

been deposed. Id. New York intervened in the Wilk litigation and 

 

 8We can find no instance in which the Second Circuit Court of Appeals has been 

faced with circumstances such as are presented here—an intervening plaintiff seeking 

access to millions of pages of documents and data under the terms of an existing 

protective order so as to avoid the burdens of time and expense associated with 

rediscovering and reorganizing the same information in collateral litigation against the 

same defendant. Even though the “exceptional circumstances” test is a stringent one, it 

is possible the Second Circuit would conclude intervenors such as the Canadian 

plaintiffs in this case would meet that strict standard. 
12

requested the court modify the extant protective order to allow the state 

access to the discovery materials on the same terms as the Wilk 

plaintiffs. Id. at 1297. The district court applied an “exceptional 

circumstances” test, giving great weight to the interests of the Wilk

defendants in maintaining the protective order and concluding most of 

the Wilk discovery was irrelevant to the New York litigation. Id. at 1297–

98. The district court denied New York’s motion without prejudice, 

allowing the state to make later motions for access to specific discovery 

relevant and discoverable in the New York action. Id. at 1298. 

On appeal, the Seventh Circuit Court of Appeals considered the 

standard articulated in Martindell, but concluded it was not appropriate 

to require a collateral plaintiff to demonstrate “exceptional 

circumstances” to gain access to protected discovery. Id. at 1299–1300. 

Balancing the interests at stake, the Court of Appeals noted that

[p]articularly in litigation of this magnitude, we . . . are 

impressed with the wastefulness of requiring the State of 

New York to duplicate discovery already made. . . . We 

therefore agree with the result reached by every other 

appellate court which has considered the issue, and hold 

that where an appropriate modification of a protective order 

can place private litigants in a position they would otherwise 

reach only after repetition of another’s discovery, such 

modification can be denied only where it would tangibly 

prejudice substantial rights of the party opposing 

modification. Once such prejudice is demonstrated, 

however, the district court has broad discretion in judging 

whether that injury outweighs the benefits of any possible 

modification of the protective order.

Id. at 1299 (citations omitted).

The Seventh Circuit Court of Appeals acknowledged the concern 

that a collateral litigant might exploit another’s discovery by filing a 

frivolous lawsuit only for the purpose of gaining access to the sealed 

discovery in the first case and emphasized that federal discovery is not to 
13

be used “merely to subvert limitations on discovery in another 

proceeding.” Id. at 1300. The court concluded, however, that there was 

“no suggestion that New York is anything but a bona fide litigant who 

needs access for bona fide litigation purposes” and that most of the Wilk

discovery would be discoverable in the New York action. Id. The court 

was not persuaded by the AMA’s argument that allowing New York 

access to the Wilk discovery might encourage litigation by other plaintiffs 

in hopes of obtaining access to the same discovery material.

There is no merit whatever to this argument. A bona fide

litigant is entitled to his day in court. That the expense of 

litigation deters many from exercising that right is no reason 

to erect gratuitous roadblocks in the path of a litigant who 

finds a trail blazed by another. Any legitimate interests in 

secrecy can be accommodated by amendment of the 

protective order to include the new litigants within its 

restrictions, rather than simply vacating it. 

Id. at 1301. 

The court concluded that the district court’s decision to deny New 

York unlimited access to the Wilk discovery but allow New York to move 

for access for specific discovery demonstrably relevant to the New York 

action was of little value. “If counsel for New York knew exactly what 

documents were relevant to that suit, he would not have needed to 

request modification of the Wilk protective order at all; he could simply

have made a discovery request for those documents before the New York

court.” Id.

Other jurisdictions, both federal and state, have rejected the strict 

Martindell standard and favored approaches similar to Wilk when 

determining whether a collateral plaintiff should have access to protected 

discovery. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 790 (3d 

Cir. 1994) (holding that when determining whether to modify protective 

orders, courts should apply same balancing test used initially to 
14

determine whether to enter a protective order but also consider the 

party’s reliance on the protective order); Pub. Citizen v. Liggett Group, 

Inc., 858 F.2d 775, 791 (1st Cir. 1988) (rejecting Martindell standard in 

favor of less restrictive standard to modify protective order when party 

seeking modification can point to some relevant change in 

circumstances); Wolhar v. Gen. Motors Corp., 712 A.2d 464, 469 (Del. 

1997) (adopting Pansy standard for modification of protective orders);

Krahling v. Executive Life Ins. Co., 959 P.2d 562, 568 (N.M. Ct. App.

1998) (holding party opposing modification of the protective order must 

show good cause for continuation of a blanket protection order when 

plaintiff sought modification to share discovery with plaintiffs in other 

jurisdictions); Garcia v. Peeples, 734 S.W.2d 343, 348 (Tex. 1987) 

(applying a balancing test to conclude blanket protective order was 

overbroad and plaintiff should be allowed to share discovery with other 

similarly situated plaintiffs).

After considering the various approaches other courts have taken 

to address requests to modify protective orders, we conclude the 

soundest approach is to balance the interests at stake, taking into 

account the reasons for the issuance of the protective order in the first 

place and whether the legitimate interests of the parties can still be 

protected with the suggested modification. The court should also 

consider to what extent the party opposing modification has reasonably 

relied on the terms of the protective order and whether the party would 

have relied on the protective order had the suggested modification 

initially been included in it. In a case such as this one, the court should 

consider the value of the interests of the party seeking modification, as 

well as any public interest in judicial economy and public disclosure, if 

appropriate. The court should consider whether the party seeking 
15

modification is attempting to circumvent discovery or evidentiary 

restrictions in some other jurisdiction. Because each situation in which 

a party or third party seeks modification will be different, we will not try 

to list all the considerations the district court may take into account 

when making its decision, but the court should fully and fairly consider 

all the circumstances supporting the modification, as well as the

circumstances mitigating against it, and not employ any presumption for 

or against modification. To the extent that our decision in Tratchel 

implies there is a presumption against modification, we disavow it. 

C. Balancing the Interests. In this case, the district court’s 

order gave no indication of what factors it considered or what standard it 

applied when it modified the protective order to allow the Iowa plaintiffs 

to maintain possession of the discovery until the Canadian litigation was 

resolved and to allow the Canadian plaintiffs access to the Iowa discovery 

subject to the same restrictions as imposed on the Iowa plaintiffs and 

Microsoft. Accordingly, we are unable to discern precisely why the 

district court concluded modification of the order was justified. However, 

after balancing the interests at stake, we conclude the district court 

reached the correct result when it modified the protective order to extend 

the destroy/return deadline for the Iowa plaintiffs until the litigation in 

Arizona, Mississippi, and Canada is resolved. This modification 

maintains the status quo while the other lawsuits are pending. 

In determining whether the Canadian plaintiffs should be allowed 

access to the Iowa discovery on the same terms as the Iowa parties, we

are profoundly influenced by the extraordinary waste of time and 

expense that will result if the Canadian plaintiffs are forced to repeat the 

work already completed by the Iowa plaintiffs and Microsoft in this case. 

The parties estimate the documents and data at issue constitute 
16

approximately twenty-four million pages. Microsoft acknowledges that 

compliance with one particular discovery order, which required the 

production of seventeen million pages of discovery from other similar 

litigation, “was a huge undertaking. It was not a case of simply ‘pushing 

a button’ to quickly and easily copy and produce old productions.” To 

comply with that single discovery order in this case, Microsoft estimates 

its staff spent a total of 2700 hours during eighteen weeks locating, 

compiling, copying, and producing documents and duplicating and 

converting video items. Microsoft incurred fees of $5.56 million to 

comply with discovery requests from the Iowa plaintiffs during a fourmonth period. Microsoft estimates that a “team of attorneys, which at 

times exceeded 75 persons, worked full-time essentially continuously 

from November 16, 2005, through September 22, 2006,” to comply with 

discovery obligations in the Iowa lawsuit. These numbers are mind 

boggling when one considers they represent only part of the work done 

by Microsoft to address discovery requests in this case. When we add to 

the mix the time, money, and effort expended by counsel and support 

staff for the Iowa plaintiffs in organizing and analyzing the information 

after Microsoft produced it, the staggering cost of repeating the process 

in the Canadian litigation comes even more sharply into focus. 

“The enormous and escalating cost of civil litigation, in this case 

and many others, runs a great risk of placing redress in the . . . courts 

beyond the reach of all but the most affluent.” Jochims v. Isuzu Motors, 

Ltd., 148 F.R.D. 624, 632 (S.D. Iowa 1993). This danger can partially be 

averted by allowing for shared discovery among similarly situated 

plaintiffs.

[S]hared discovery makes the system itself more efficient. 

The current discovery process forces similarly situated 

parties to go through the same discovery process time and 
17

time again, even though the issues involved are virtually 

identical. Benefiting from restrictions on discovery, one 

party facing a number of adversaries can require his 

opponents to duplicate another’s discovery efforts, even 

though the opponents share similar discovery needs and will 

litigate similar issues. Discovery costs are no small part of 

the overall trial expense.

Garcia, 734 S.W.2d at 347.

In addition to the overwhelming waste of private and judicial 

resources that would be avoided if the Canadian plaintiffs were allowed 

access to the Iowa discovery, we believe the sharing of discovery also 

advances the important objectives of disclosure and efficiency in the trial 

system. The goal of modern discovery rules is to “make a trial less a 

game of blind man’s buff and more a fair contest with the basic issues 

and facts disclosed to the fullest practicable extent.” United States v. 

Procter & Gamble Co., 356 U.S. 677, 682–83, 78 S. Ct. 983, 986–87, 2 

L. Ed. 2d 1077, 1082 (1958). However, this goal is often hindered by the 

adversarial nature of discovery and the gamesmanship of parties locked 

in litigation. Garcia, 734 S.W.2d at 347.

Shared discovery is an effective means to insure full and 

fair disclosure. Parties subject to a number of suits 

concerning the same subject matter are forced to be 

consistent in their responses by the knowledge that their 

opponents can compare those responses.

Id. 

We are mindful as well of Microsoft’s assertion that it provided 

these millions of pages of discovery in reliance on the protective order.9

 9However, during oral argument, Microsoft was unable to estimate exactly how 

many pages of the twenty-four million pages of discovery produced would not have been 

disclosed if not protected by the order. 

 

The purpose of the protective order is ostensibly to protect valuable 

business information and trade secrets from disclosure to competitors. 

However, the suggested modification of the protective order to allow the 
18

Canadian plaintiffs access to the Iowa discovery would continue to 

protect Microsoft’s trade secrets and confidential business information 

from disclosure to competitors or the public. The modification requested 

by the Canadian plaintiffs does not seek to lift the protective order 

entirely or release the confidential information to the public. Microsoft’s 

legitimate interest in protecting the value of its confidential information 

will be maintained as the Canadian plaintiffs will be bound by the 

protective order just as the Iowa plaintiffs are obligated by its terms.

Our decision is also influenced by the fact that the protective order 

provides for its modification. As we have already noted, Microsoft has 

sought and obtained a modification protecting its interests. To the 

extent that Microsoft disclosed documents and data to the Iowa plaintiffs 

in reliance on the protective order, it relied upon an order that was 

expressly made subject to modification upon proper motion. Any belief 

Microsoft might have entertained that the protective order was inviolate 

was therefore unreasonable.

Our decision in this case is also strongly influenced by the fact 

that most of the discovery in this case has already been shared with 

plaintiffs in several other federal and state lawsuits. There is no 

allegation that the coordination and sharing of discovery among parties 

in several different lawsuits in various jurisdictions has resulted in any 

harm to Microsoft or unauthorized disclosure of confidential information. 

We are not persuaded that a modification of the protective order allowing 

the Iowa plaintiffs to share the documents and data in their possession 

with the Canadian plaintiffs will jeopardize Microsoft’s legitimate 

interests. 

Additionally, given that the discovery in this case has been 

coordinated with discovery in similar lawsuits in other jurisdictions, 
19

Iowa’s limited judicial resources were conserved. It would be hypocritical 

and unreasonable if, after realizing the benefits of a shared discovery 

process, Iowa courts were to deny the same benefits to courts in British 

Columbia, Ontario, and Quebec. 

Microsoft’s main argument, and indeed the only argument against 

modification that gives us pause, is that the Canadian plaintiffs may not 

be entitled to any or all of the Iowa discovery. Microsoft points out the 

Canadian litigation is still in the preliminary stages and has not yet been 

certified as a class action. Indeed, a ruling entered by a Canadian court 

concluded the documents and data in the possession of the Iowa 

plaintiffs are not relevant at the certification stage. Pro-Sys Consultants 

Ltd. v. Microsoft Corp., 2007 BCSC 1663, [2008] 3 W.W.R. 761, 76 

B.C.L.R. (4th) 171, ¶¶25–28. Nonetheless the ruling expressly noted the 

Canadian court did not discourage the Canadian plaintiffs from pursuing 

efforts to gain access to the documents and data developed in the Iowa 

litigation. Id. at ¶31–32. We thus do not interpret the Canadian court’s 

ruling as an expression of the proposition that the documents and data 

in the possession of the Iowa plaintiffs will not be relevant under 

Canadian law at later stages of the litigation in that country.

Microsoft further suggests that if and when the class action is 

certified in Canada, discovery rules in British Columbia, Ontario, and 

Quebec may differ from discovery rules in Iowa. In this context, 

Microsoft posits the Canadian plaintiffs’ effort to gain unlimited access to 

the documents and data in the possession of the Iowa plaintiffs is 

calculated to circumvent more restrictive Canadian discovery rules. 

While we do not presume to interpret, and Microsoft has not cited, the 

law prevailing in British Columbia, Ontario, and Quebec on the proper 

scope of discovery in Canadian courts, Microsoft has not presented 
20

evidence tending to prove the Canadian plaintiffs are exploiting liberal 

discovery rules in Iowa in an effort to evade more restrictive Canadian 

rules. Further, the Ontario Superior Court has indicated that it is not 

offensive to Canadian discovery or evidentiary procedures for Canadian 

litigants to seek access to discovery materials produced in litigation in 

the United States. Vitapharm Canada Ltd. v. F. Hoffman-Laroche, Ltd.,

11 C.P.R. (4th) 230, 6 C.P.C. (5th) 245, [2001] O.J. No. 237, ¶50 (Ont.

S.C.J.) (affirmed on appeal, 18 C.P.R. (4th) 267, 20 C.P.C. (5th) 65, 

[2002] O.J. No. 1400 (Ont. Div. Ct.)). “A Canadian court generally will be 

reluctant to prevent someone from gathering evidence extraterritorially, 

as its ultimate admissibility in a Canadian proceeding will be determined 

by the Canadian courts.” Id. at ¶45.10

plaintiffs’ request for access to discovery evidence [in the 

United States] which they believe necessary to prepare their 

case in Canada, a request made through means lawful in the 

United States, does not violate the rules and procedure of 

this court. There is no consequential unfairness to the 

defendants in the Canadian class proceedings.

 Denying the motion of Canadian 

defendants to prevent Canadian plaintiffs from intervening in litigation in 

the United States to gain access to discovery already produced in the 

U.S. action, the Ontario Superior Court concluded 

Id. at ¶50. 

Thus, we conclude the Canadian plaintiffs are entitled to access to 

all of the documents and data produced in the Iowa litigation on the 

same terms as the Iowa plaintiffs. See Wilk, 635 F.2d at 1301; In re 

Linerboard Antitrust Litig., 333 F. Supp. 2d 333, 342–43 (E.D. Pa. 2004) 

 10In Vitapharm, several class actions were pending in both Canada and the 

United States alleging price fixing against various vitamin manufacturers. Vitapharm, 

at ¶¶6–18. Discovery was already underway in the United States litigation, id. at ¶16, 

but the Canadian class actions had yet to be certified. Id. at ¶13. Plaintiffs in the 

Canadian actions intervened in the federal MDL action in the United States and sought 

access to discovery covered by a protective order. Id. at ¶19. 
21

(concluding plaintiff in similar antitrust class action in Canada was 

properly granted access to discovery materials subject to a protective 

order in a federal antitrust action). The determination of which 

documents are relevant to and admissible in the Canadian litigation is 

preserved for the Canadian courts. 

IV. Conclusion.

Upon consideration of the arguments of the parties, and after 

balancing all of the interests at stake, we conclude the protective order 

was properly modified to allow the Iowa plaintiffs to maintain the 

discovery in their possession until the litigation against Microsoft in 

Arizona, Mississippi, and Canada is terminated. The Canadian plaintiffs 

shall be allowed access to the documents and data in the possession of 

the Iowa plaintiffs under the terms of the protective order. Microsoft’s 

important interest in confidentiality of the documents and data is 

preserved because the Canadian plaintiffs are bound by the terms of the 

protective order. The relevance of the documents and their admissibility 

in the Canadian litigation are matters properly reserved for the Canadian 

courts. 

AFFIRMED.

All justices concur except Appel, J., who takes no part.