In the United States Court of Federal Claims

No. 15-501C

(Filed: July 15, 2021)

3RD EYE SURVEILLANCE, LLC and 

DISCOVERY PATENTS, LLC,

Plaintiffs,

v.

UNITED STATES,

Defendant,

and

ELBIT SYSTEMS OF AMERICA,

LLC, GENERAL DYNAMICS ONE 

SOURCE LLC, and NORTHROP 

GRUMMAN SYSTEMS 

CORPORATION,

Defendant-Intervenors.

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Patent case; order denying a nonparty 

access to sensitive confidential and 

proprietary information; RCFC 71; 

constraints of protective order

Steven A. Kennedy, Kennedy Law, P.C., Dallas, Texas, for the plaintiffs. 

James P. Hughes, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington, D.C., for defendant. With him on briefs were Sara 

Harrington, Deputy Assistant Attorney General, Civil Division, and Gary L. Hausken, Director, 

Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

D.C.

Kurt G. Calia, Covington & Burling LLP, Palo Alto, California, for defendant-intervenor 

Elbit Systems of America, LLC. 

Scott Andrew Felder, Wiley Rein, LLP, Washington, D.C., for defendant-intervenor 

General Dynamics One Source LLC.

Gregory H. Lantier, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for 

defendant-intervenor Northrop Grumman Systems Corporation.
2

Rena Andoh, Sheppard Mullin Richter & Hampton, LLP, New York, New York, for 

nonparty Science Applications International Corporation. With her was Daniel N. Yannuzzi, 

Sheppard Mullen Richter & Hampton LLP, San Diego, California, and Kelly McCullough, 

Sheppard Mullin Richter & Hampton LLP, New York, New York.

OPINION & ORDER

LETTOW, Senior Judge. 

In this complicated patent case involving security installations at a number of federal 

facilities, pending before the court is the government’s motion to permit nonparty Science 

Applications International Corporation (“SAIC”) to view and access sensitive confidential and 

proprietary materials submitted subject to the protective order previously entered. Def.’s Mot., 

ECF No. 499. The court earlier had ordered plaintiffs to designate eleven bellwether systems 

alleged to infringe the patent in suit “[i]n an effort to advance the case” and to “rein in its scope.” 

Order of July 28, 2000, ECF No. 381 at 1. The materials involved in the motion relate to 

Bellwether Systems 4 and 5, the government’s Barometric Entry/Exit Systems (“BEES”), 

deployed at two airports. SAIC operates Bellwether systems 4 and 5 but has opted not to 

intervene in this case. Id. at 1 n.1, 2. The government seeks to permit outside counsel for SAIC 

to access materials covered by the protective order both for the purposes of responding to 

plaintiff’s motion for partial summary judgment as to Bellwether systems 4 and 5 and in the 

future. Id. at 3-5. The court finds that the language of the protective order itself forecloses 

access to nonparties, particularly given the complex and sensitive nature of the confidential 

information covered by the protective order in this case. The government’s motion, therefore, is 

DENIED.

BACKGROUND

I. Protective Order

The court adopted a protective order on March 8, 2017. Protective Order, ECF No. 122. 

In addition to the government and plaintiffs, this initial protective order provided that persons 

who were qualified to access materials under the protective order included “the attorneys for any 

other entity that appears in this lawsuit as an intervenor or third party who are outside counsel . . 

. . [O]utside counsel are only Qualified Persons to receive Proprietary and Competition Sensitive 

Information from or belonging to 3rd Eye and Discovery Patents or the United States of 

America, and are not Qualified Persons to receive Proprietary or Competition Sensitive 

Information from or belonging to other intervenor-defendants.” Protective Order § 3(c).

In September 2020, plaintiffs filed a motion for clarification regarding the ability of 

outside counsel for the intervening defendants to view competition sensitive or proprietary 

information of other intervenors. Pl.’s Mot. for Clarification, ECF No. 401. Plaintiffs proposed 

three courses of action, including that “[d]ocuments marked as confidential . . . be restricted to 

counsel who have made an appearance in the case and are still actively representing parties in the 

litigation.” Id. at 3-4. Defendants largely agreed with this change and proposed changing 

paragraph 21 of the protective order and removing the above quoted language forbidding outside 

counsel for the third-party defendant intervenors from accessing other intervenors’ proprietary 
3

information. Def.’s Resp. to Pl.’s Mot. for Clarification, ECF No. 415. Defendants sought a 

solution that would “permit outside counsel, as defined in Section 3(c) of the Protective Order, 

for currently participating parties to view documents that contain competition sensitive or 

proprietary information.” Id. at 2. The court granted plaintiffs’ motion and adopted defendants’

proposed revisions. See Order of Nov. 2, 2020, ECF No. 441.

1

 The court issued the amended 

protective order on November 24, 2020. See Am. Protective Order, ECF No. 447.

II. SAIC’s Involvement in Litigation

Throughout the course of litigation, the government has filed numerous motions to 

provide notice to interested parties. These actions have resulted in ten third-party defendants 

intervening in the case.

2

 Most recently, on September 9, 2020, the government filed a motion to 

notify Unisys Corporation and SAIC. See ECF No. 404. Both entities were the awardees of 

procurements related to Bellwether systems 4 and 5. Id. The court granted the motion, see 

Order of Sept. 14, 2021, ECF No. 412, and the notices were issued on September 28, 2020, see 

ECF No. 426. Pursuant to Rule 14 of the Rules of the Court of Federal Claims (“RCFC”), if 

SAIC wished to file a complaint or answer, it had to do so within 42 days after service of the 

notice. RCFC 14(c).3 SAIC did not file a response or otherwise intervene in the case. Counsel 

for SAIC has since confirmed that SAIC did not seek to intervene. See Hr’g Tr. 18:13-17 (May 

4, 2021) (Counsel for SAIC: “SAIC declined to participate in the case when we were noticed . . . 

[;] we declined to intervene in the action when we were noticed.”).

On February 12, 2021, plaintiffs filed a motion for contempt against SAIC. See ECF No. 

465. Plaintiffs alleged that SAIC failed to produce documents responsive to plaintiffs’ subpoena. 

Id. SAIC objected to plaintiffs’ motion and filed a cross-motion for fees and costs. See ECF No. 

472. The motions were fully briefed, Pls.’ Reply & Resp., ECF No. 474; SAIC’s Reply, ECF 

No. 476, and the court denied both motions but scheduled a hearing to address discovery 

shortcomings outlined by the parties in their motions, see Order of April 27, 2021, ECF No. 484. 

On April 1, 2021, prior to the court’s denial of the motions, outside counsel for SAIC 

filed applications for access to protected materials for four individuals. See ECF Nos. 479-82. 

The court terminated those motions on April 5, 2021, without granting access under the 

protective order. The court held the discovery hearing on May 4, 2021. During the hearing, 

1 Plaintiffs additionally requested that the court direct the parties to confer regarding 

protocols for addressing materials subject to International Traffic in Arms Regulations (“ITAR”). 

Pl.’s Mot for Clarification at 4. Defendants instead requested an amendment to the protective 

order regarding procedures for managing ITAR information. Def.’s Resp. to Pl.’s Mot for 

Clarification at 3-4. Although plaintiff objected to the request absent a conference among the 

parties, see Pl.’s Reply at 2-3, ECF No. 425, the court adopted the ITAR language proposed by 

defendants, see Order of Nov. 2, 2020.

2 Several of these intervenors have since been dismissed from the case.

3 Counsel of Unisys entered an appearance for the purposes of seeking an extension of 

time to file an answer to plaintiffs’ amended complaint, see ECF Nos. 448-50, but ultimately 

withdrew, see ECF No. 457. 
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counsel for SAIC requested access to pertinent protected information under the protective order. 

Hr’g Tr. 30:11-20 (May 4, 2021). The court informed SAIC that “the Court only admits to the 

protective order parties,” and that SAIC, as a nonparty, would need to file a motion to amend the 

protective order to be permitted to access information subject to the protective order. Hr’g Tr. 

30:21 to 32:4.

On May 27, 2021, plaintiffs filed a motion for partial summary judgment as to Bellwether 

Systems 4 and 5. See ECF No. 495. The government sought an extension of time to respond and

filed a motion to permit SAIC to access information filed under the protective order on June 22, 

2021. See Def.’s Mot. The government argues that the language of the protective order permits 

outside counsel for nonparties to access information. Id. at 2-3. The government further asserts 

that the government requires SAIC to have access to the sealed filings for the government “to 

provide the most fulsome and comprehensive opposition possible to [plaintiffs’] Summary 

Judgment Motion.” Id. at 4. SAIC filed a notice of joinder in the motion. See SAIC’s Notice of 

Joinder to the Govt.’s Mot., ECF No. 501. Plaintiffs filed a response opposing the motion, Pls.’ 

Resp., ECF No. 503, and the government filed a reply, Def.’s Reply, ECF No. 504. 

STANDARDS FOR DECISION

It is a fundamental principle of federal courts that rulings of the court do not, by default, 

bind nonparties to the litigation. See, e.g., In re Trans Texas Holdings Corp., 498 F.3d 1290, 

1297 (Fed. Cir. 2007) (noting that, for res judicata, “the presumption that nonparties are not 

bound by a judgment can only be rebutted in limited circumstances.” (citations and internal 

quotation marks omitted)). There are few instances where a court can bind a nonparty. See 12 

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3033 (3d ed.) 

(discussing the instances when nonparties can be bound by a court’s order). Under such a 

circumstance, Rule 71 of the Rules of the Court of Federal Claims provides that “[w]hen an 

order . . . may be enforced against a nonparty, the procedure for enforcing the order is the same 

as for a party.” RCFC 71. This rule, adopted to align with Rule 71 of the Federal Rules of Civil 

Procedure, is generally used to enforce subpoenas against nonparties to a proceeding. See RCFC 

71, Rules Committee Note.

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The court’s ability to enter protective orders stems from the “inherent equitable powers of 

courts of law over their own process, to prevent abuses, oppression, and injustices.” Seattle 

Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984) (citations and internal quotation marks omitted). 

“The unique character of the discovery process requires that the trial court have substantial 

latitude to fashion protective orders,” which includes “broad discretion . . . to decide when a 

protective order is appropriate and what degree of protection is required.” Id. at 36; see also In 

re Zyprexa Injunction, 474 F. Supp. 2d 385, 413 (E.D.N.Y. 2007) (“Courts are endowed with 

broad discretion to tailor protective orders to the circumstances of a particular litigation.”)

(citation omitted). Further, trial courts are best positioned to interpret the language of their own 

orders, including protective orders. See Home Port Rentals, Inc. v. Ruben, 957 F.2d 126, 131 

4 For example, “[u]nder Rules 30(d) and 37(a)(5) a person not a party may be held liable 

for expenses and attorney’s fees in connection with discovery.” Wright and Miller, Federal 

Practice and Procedure § 3033.
5

(4th Cir. 1992) (“It is peculiarly within the province of the district court . . . to determine the 

meaning of its own order.”) (citation omitted).

ANALYSIS

Given the language of the protective order, the sensitive nature of the confidential 

information related to the federal security installations at issue in this case, and the concerns 

raised by the parties surrounding adoption of the protective order, the court finds that outside 

counsel for nonparties are not “qualified persons” under the definition provided in Section 3(c). 

Included within the definition of “qualified persons” are “attorneys for any other entity that 

appears in this lawsuit as an intervenor or third party who are outside counsel.” Am. Protective 

Order § 3(c). The government suggests that outside counsel for SAIC meets the definition of

qualified persons because SAIC is a third party whose counsel has entered an appearance in this 

case, Def.’s Mot. at 2, albeit as counsel for another entity that was an intervening defendant but 

was later dismissed from this case. Under the government’s reading of the protective order, 

outside counsel for any nonparty who enters an appearance could access protected information. 

The court emphatically disagrees. In the court’s view, “intervenor or third party” refers 

exclusively to a defendant-intervenor or third-party defendant to the litigation, not to any 

nonparty who enters an appearance for any purpose. SAIC is not a third-party defendant and 

therefore its outside counsel is not a qualified person under the protective order. Additional 

sections of the protective order bolster this interpretation. For example, section 4 defines the 

term “party” to include “3rd Eye, Discovery Patents, the [g]overnment, and any other entity that 

appears in this lawsuit as an intervenor or third party,” Am. Protective Order § 4, indicating that 

nonparties, such as SAIC, would be excluded from the definition of a party for purposes of the 

protective order. Section 1(b) similarly lists nonparties as distinct from third parties. Id. § 1(b). 

This interpretation aligns with concerns raised by the government and intervenors 

regarding prohibiting outside counsel for an intervening party from accessing proprietary 

information of other intervenors. Prior to the amendment, the protective order stated that outside 

counsel were “only Qualified Persons to receive Proprietary or Competition Sensitive 

Information from or belonging to 3rd Eye and Discovery Patents or the United States of 

America” but not such information “from or belonging to other intervenor-defendants in the 

matter.” Protective Order § 3(c). Defendant and intervenors “propose[d] that the Protective 

Order include provisions stating that the proprietary or competition sensitive information 

procured by a particular third-party defendant need not be shared with litigation counsel 

representing other third-party defendants.” Opp’n & Cross-Mot. to Pls.’ Mot. for Protective 

Order, ECF No. 116. This recitation confirms that outside counsel for nonparties would not be 

included within the definition of “intervenor or third party” as provided in Section 3. Should 

defendants have believed that Section 3(c) included nonparties such as SAIC, the court would 

have expected defendants to suggest this interpretation during recent briefing surrounding 

clarification of the protective order. Instead, defendants sought to modify access for “outside 

counsel . . . for currently participating parties,” Def.’s Resp. to Pls.’ Mot. for Clarification, and 

made no reference to outside counsel for nonparties.

Further, concerns regarding the court’s ability to bind nonparties to orders issued in this 

litigation counsel against granting the motion. This case does not present one of the limited 

circumstances when a nonparty can be bound, such as when a nonparty is in privity with a party 
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or otherwise benefits from the litigation. See In re Trans Texas Holdings Corp, 498 F.3d at 

1297. The government states that plaintiffs will not be prejudiced by permitting outside counsel 

for SAIC to access protected information. Def.’s Mot. at 4. The court’s concern, however, rests 

not with plaintiff but with the harm or prejudice to any party or nonparty who has provided 

proprietary or confidential information in discovery or otherwise in the litigation. This case 

presents a complex landscape of information pertinent to federal security installations involving

multiple entities, only some of which are before the court. Plaintiffs acknowledge, and the court 

agrees, that fact witnesses provided confidential documents in response to subpoenas under the 

terms of the protective order which did not permit outside counsel for nonparties to access that 

information. See Pls.’ Resp. at 8. While the government indicates that the defendant-intervenors 

have consented to their information being accessible to SAIC, see Def.’s Mot. at 4 (“Counsel for 

the other Defendant-Intervenors in this litigation . . . have consented to the Government’s 

request”), consent of some of the parties does not alleviate the court’s concerns. This case 

provides a complicated situation requiring specific tailoring to ensure that all entities’ 

confidential materials remain protected. This court has adopted and amended the protective 

order in a manner that it believes appropriately meets the circumstances of this case. See In re 

Zyprexa Injunction, 575 F. Supp. 3d at 413.5

SAIC had the opportunity to intervene in the litigation, be bound by the orders of the 

court, and advocate its position or support for the government’s defense but chose not to 

intervene. SAIC is not now entitled to circumvent the intervention process by accessing 

protected information and informally participating in the case as a nonparty who cannot be 

bound by the court’s orders or judgments. This decision does not bar the government from 

following a normal discovery process to obtain information necessary to defend against the 

plaintiffs’ claims as to Bellwether systems 4 and 5. The government can depose witnesses from 

SAIC as it could from any other nonparty with information pertinent to the claims against the 

government. Counsel of SAIC indicated that she is unaware of any restriction barring SAIC 

witnesses from providing testimony about the operations of the systems in question if 

subpoenaed. Hr’g Tr. 22:16 to 23:6 (May 4, 2021). Such depositions can both provide the 

government with the necessary information to support its arguments without running afoul of the 

protective order as it currently stands.

CONCLUSION

For the reasons outlined above, the government’s motion is DENIED. Outside counsel 

for nonparty SAIC shall not be permitted access to confidential or proprietary information under 

the protective order. 

5 The government additionally asserts that plaintiffs should have objected to SAIC’s 

Applications for Access on or before April 5, 2021. Def.’s Mot. at 5. While the government is 

correct that plaintiffs did not object, the court does not deem any objection necessary because, as 

explained above, SAIC’s applications were improper under the terms of the protective order and 

were not honored.
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It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Senior Judge