Slip Op. 04-27 UNITED STATES COURT OF INTERNATIONAL TRADE BEFORE: GREGO RY W. CARMAN, J UDGE

: BASF CORPORATION, : : Plai ntiff, : : v. : : Court No. 02-00260 THE UNITED STATES, : : Defendant. : : [Defendant’s Motion for Leave to Show Confidential Documents to a Third Party [] Consultant is denied.] Dated: March 23, 2004

Barnes, Richardson & Colburn ( James S. O’Kelly , Frederic D. Van Arn am, Jr. , Kevin J. Sullivan ), New York, NY, for Plaintiff. Peter D. Keisler , Assistant Attorney Genera l; Barbara S. Williams , Acting Attorney in Charge , Inte

rnationa l Trade F ield Off

ice; Harry A. V

aletk , Trial Attorney, Commerc ial Litigation Branch, Civil Divi sion, Unite d States De partmen t of Justice , for De fendant

. O PINI ON CARMAN, Judge: Defendant seeks leave of Court to show confidential doc uments to a third-party consultant in ac cordance with the terms of the Stipulated Protective Order g ranted by this Court on November 6, 2003, pursuant to Rule 26(c) of this Court. For the reasons discussed below, this Court denies Defendant’s motion.Court No. 02-00260 Page 2
B ACKGROUND This motion involves a discovery dispute in a ca se challenging the United States Bur eau of Customs and Border Protection’s (“Customs”) denial of BASF’ s protest of the classification of seven entries, pursuant

to 19 U.S.C. § 1514(a

)(2). Th e importe d mercha ndise is PI

BA, also known as Puradd TM FD-100, “a clear, colorless, viscous liquid mixture consisting of polyisobuty

lene amine and several saturated hy drocarbons.” BASF Corp. v. United States, No. 02-00260 (Ct. Int’l Trade Aug . 7, 2002) (Compl. ¶ 4); (Pl.’s Opp’n to Def.’s Mot. for Le ave (“Pl.’s Opp’n”) at 3.) . “The starting mate rial for the manufacture of [PI BA] is a polyisobuty

lene (PIB) poly

mer containing an averag e of 25 repetitive, identical units of the monomer isobuty lene. The PI B is modif

ied in its a

lpha posit ion by the addit ion of a si ngle mon omine gr oup (Poly Isobuty lene Amine).” (Compl. ¶ 4) Customs classified the merchandise as “a prepared additive for miner al oils, spe cifical ly a s a gaso line dete rgent a dditive.” (Mem. in Su

pp. of De f.’s Mot. (“Def. ’s Mem.” ) at 2.) B ASF alle ges tha t Customs er

red in cl assify

ing the i mported me

rchandi se as a fuel additive because PI BA must undergo a significant amount of ble nding and processing with other compounds before it can be used as a fue l additive. (Compl. ¶¶ 9-11.) Defendant
argue s that Custo ms proper ly c lassifie d the mer

chandise ; or in the e

vent that the merc handise i s not a prepared additive as imported, it is an “unfinished prepar ed additive,” not classifiable under Plaintiff’s suggested subheading, 3902.20.50 of the Harmonized Tariff Schedule of the United States (“HTSUS”). (Def.’s Mem. at 2-3; Compl. ¶ 12.) The par ties stipul ated to a

protect ive orde r, which the Court g

ranted p ursuant t o Rule 26(c)(7) of this Court on November 6, 2003. BASF Corp. v. United States, No. 02-00 260 (Ct.
Int’ l Trade N ov. 6, 2003 ) (gra nting pr otective order) (“Stipula

ted Prote ctive Or

der”). ThisCourt No. 02-00260 Page 3

protective order contained the mutually agreed upon terms that would gover n the use of confidential documents and commercial information disclosed in this case. ( Id. ) The parties are
now eng aged in

discover y. On Decem

ber 9, 20 03, Defe

ndant re quested t

hat BASF consent t o its showing confidential documents obtained under the protective or der to Dr. John M. Larkin, a third-pa rty consulta nt selec ted by

Defend ant. (De f.’s Mem. at 3.) De fendant provided BASF with Dr. Larkin’s resume a nd the confidentiality ag

reement executed by

Dr. Larkin, indicating that he would abide by the terms of the protective order. ( Id. at 6; Exs. B and C.) On December 17, 2003, BASF notified Defendant that it would “exercis[e] its rights under parag raph six of the protective order” to object to Defendant’s sha ring confidential information with Dr. L arkin. ( Id. Ex. D; L etter fr

om Pl.’s Coun sel to Def

.’s Counse l of 12/17/

03, at 2.)BASF expl ained tha t, upon review of Dr. La

rkin’s resume, it is of the view that Dr. La rkin is not independent from BASF’s competitors. (

Id. ) Dr. Larkin’s re sume states, in pertinent part, that he is “retained by Huntsman [a producer of a fuel additive that involves similar manufacturing processes as the imported merchandise] as a part-time consultant in [the] area of fuel additives . . . [and has] acted
as a g asoli

ne ad ditiv e con sulta

nt for one o ther [unide ntifi ed] cl ient c ompa

ny .” (D ef.’ s Mem. Ex. B.) Defend

ant has now filed a

motion for

leave to show Dr. L

arkin confidentia

l documen

ts which it received from BASF under the pr otective order. Defendant asserts that disclosure to Dr. Larkin is consistent with the terms of the protective or der. BASF opposes disclosure of the confidential information to Dr. Larkin, c hallenging his independence fr om BASF’s competitors.Court No. 02-00260 Page 4
P ARTIES ’ C ONTENTI ONS I. Defendant’s Contentions Defendant seeks leave of Court to disclose confidential infor mation to Dr. Larkin, the third-party consultant it has sele cted to assist it in preparing its defense, because B ASF opposes disclosure to this particular expert based on its assertions that Dr. La rkin is not independent from BASF’s competitors and that BASF would be harme d by this disclosure. (Def .’s Mem. at 6.) Defend ant arg ues that B ASF has o ffere d only “broad a llegat ions of ha rm about w

hat could happen if its information fell into the hands of its competitors.” ( Id. (emphasis in original).) Defend ant asse rts that “ this Court h as alre ady

examined a

scenar io in which

an importe

r failed to articulate specific damages or harm that will be allegedly suffered as a result of the disclosure of confidential information to third party inde pendent experts, and held against any restriction that would unnecessarily

hamper the discovery

process.” (

Id. (disc ussi ng National Hand Tool, Corp. v. United States, 14 Ct. I

nt’l Tra de 490 (1 990)).)Defend

ant conte nds that B ASF’s cl aims that i t would suffer injury by

disclosure of the confidential information to Dr. L arkin are unfounded. ( Id. at 7.) As t

o BASF’ s concer

n based u pon the sim

ilarities in produc tion proc esses use d to manufacture poly

ether amines (“PEA”), a product manufa ctured by Huntsman, a

nd PIBA, the product manufactured by BASF, D efenda

nt states t hat “Dr. Lar

kin has expl ained . . . that ther e is no overla p betwee n the prod

uction of PEA . . . an

d PIB A . . . that

would allow Huntsma

n to improve the production of PEA, or to alter its manufacturing proc esses to produce a form of PIBA that would compete with BA SF in the marketplace.” ( Id. ) Defend ant also h ighlig hts the fa ct that Dr . Lar

kin has sig

ned a co nfidentia

lity agree ment, in which he agreed to be bound by the terms of the protective order, and that BASF has presentedCourt No. 02-00260 Page 5

1 BASF sta

tes that th e confid

ential do cuments a

nd inform ation tha

t it has pro vided to Defendant include: (1) the proc ess by which the imported product – [PIBA] - is manufactured a nd the ingred ients that go into the manufacture of PI BA; (2) the product specifications for PIBA; (3) the identity of B ASF AG’s customers fo r PIBA; (4 ) the chemical composition and formula of PIBA; ( 5) BASF’s U.S. production p rocess for the manufacture of d

eposit control additive packages (DCAP) in the United States; (6) the DCAP produ

ct speci fication s requir

ed of BA SF b y its customers; and (7) the results of vario

us industr

y- wide test s r

un on the imported PIBA showing the unsuitability of it for use as a g asoline additive in its imported condition. ( Id. at 3 (footnote omitted); Ex. A.) no reason why

Dr. Larkin would violate the protec tive order. (

Id. at 7-8.) Defendant concludes by s tating that it would

be “undu ly prejudic ed if it is not allowe d to use Dr . Lar kin’s impe ccable expertise in defending Customs’ decision in this case [because] Dr. L arkin is a fuel additive expert with 30 years of e

xperience in the fuel additive industry .” ( Id. at 8.) Underscoring the fact that Dr. Lar

kin is only a part-time consultant to Huntsman, Def endant asserts that it has spent a considerable amount of time try ing to find an expert with sufficient experience in the fuel additives sub-field of the fuel industry and that it is difficult to find experts who are not employed by

or affiliated with a direct competitor of BASF. ( Id. )
II. Plaintiff’s Contentions BASF opp oses disc losure of informat ion obtain ed under

protect ive orde r to Dr. Larkin because Dr. L arkin is not indepe

ndent of B ASF’s co mpetitors . (Pl.’s Op p’n at 1.) BASF stresses that “this is not a situation where it . . . is seeking to prevent or suppress disclosure of material documents and information to its adversary ”; rather, BASF asserts that is had produce d the confidential documents and information 1 request ed by Defend ant to be u sed consi stent with the terms of the protective order. ( Id. ) BASF adds that it does not oppose disclosure of confidential documents and commercial information to an independent third-party consultantCourt No. 02-00260 Page 6

expert or consultant. (

Id. at 6, 12.) BASF notes that, by its terms, the protective order provides that Def endant ma

y show the confidentia

l documen

ts produc ed to “ind

epende nt, third p arty consultants and experts.” ( Id. at 2 & n.3 (citing Stipulated Protective Order ¶ 6.) B ASF argues that Dr. L arkin, “ by h is own ac knowledg

ment is a pa

id consult ant to a di rect co mpetitor o f BASF and . . . has been a past consultant to [at least one] other compan[y ] that may have been, c ould be, or [is] BASF’s competitor[].” ( Id. ) BASF asserts that it has reasonably exercised its right, as provided by the prote ctive order, to object to Dr. La rkin’s access to confidential documents and information in this case. ( Id. ) BASF submits the affidavit of Susan Gardell, BASF’s Ma rketing Manager, Fuel Additives for NAF TA Region, to support BASF’s assertion that Dr. L arkin is not independent of BASF’s competitors. ( Id. at 3-4; Ex. B, Gardell Aff.) The affidavit states that “Huntsman is a direct competitor of BASF Corp. in the ga soline additive marketplace [because] Huntsman i s the main t

oller for [PEA, ] . . . a product th at BASFalso prod uces.” ( Ex. B, Gar

dell Aff. ¶¶ 3, 5.) The

affida vit explains

that, in a ddition to PE

A being a product produce d by

both Huntsman and BASF, “[t]he reduction amination process used for producing PEA is the same as that used to produc e [PIB A]. If

Dr. L arkin we

re to ac quire [and share w ith Huntsma

n] the BASF proprietary

method for producing PIB A, . . . [then] Huntsman could use this information to refine the methods and processes by which it manufactures PEA [or] use [the information] in the manufacture of PIB A.” ( Id. ¶ 6.) The

affida vit adds th at Huntsma

n is a suppl ier of “

products to the marketers of gasoline additive packa ges. These [marketers] directly compete with BASF.” ( Id. ¶ 7.) BASF notes that it does not object to Dr. L arkin’s participation in this case as an advisor t o Defen dant. (Pl. ’s Opp’n

at 11.) B ASF seeks only to limit Dr. Lar

kin’s ac cess to specific confidential documents that BASF has identified. ( Id. ; Ex. A, “BASF Confidential Info.Court No. 02-00260 Page 7

and Docs. Disclosed to the Gov’t During Discovery in Ct. No. 02-00260.”) BASF challeng es Defe

ndant’s a ssertion t

hat it has t

o show “g ood caus e” in obje cting to
Dr. L arkin’s

access to the con fidentia

l informa tion. (Pl.’ s Opp’n a

t 4.) BASF

asserts t hat a Rule 26(c)(7) of this Court requires a showing of “ good cause” when a par ty seeks a prote ctive order. ( Id. at 5.) In this case, howeve r, a protective order has alrea dy been g ranted. ( Id. ) BASF a sserts that, contrary

to the issues in the cases cited by Defendant to support its argument, it is not attempting to prevent disclosure of confidential information or pre vent Defendant from showing confidential information to any inde pendent third-party

expert. ( Id. at 4-6.) BASF argues that the issue before the Court is the “express languag e of the stipulated protective order”; specifically, the

use of confidential information to a manner consistent with the mutually -agreed upon terms of the order. ( Id. ) BASF contends that, given the fact that a protective order is already in place, Defendant bears the burden of establishing that “its need to disclose B ASF’s confidential information and documents to Dr. Larkin is releva nt and necessary

to the prosecution of this case, and that this necessity outweig

hs the harm disclosure will cause BASF.” ( Id. at 6-7 (citing 8 C HARLES A LAN W RIGHT , A RTHUR R. M ILLER & R ICHARD L. M ARCUS , F EDERAL PRACTICE AND
P ROCEDURE § 2043 (2d. Ed 1994) (additional citations omitted).) BASF asserts that Defenda nt has failed to meet this burden. ( Id. at 7.)
BASF ar gues tha t, even if Defend ant has ma

de a prop er showin

g of ne cessity

, “court s have hist orically found tha

t the irre parable harm tha t can be s uffere d by

the disclo sing par

ty w ill outweigh the need to disclose confidential information to a competitor.” ( Id. at 7 (citations omitted).) BASF notes that courts have declined to permit disclosure of c onfidentialCourt No. 02-00260 Page 8

information to a party’ s competitor and to the in-house counsel of a party ’s competitor based on the possibility of “[i]nadvertant or accidental disclosure [which] may or may

not be predictable.” ( Id. at 7-9 (quot ing U.S. Steel Corp. v. United States , 730 F.2d 1465 (Fe d. Cir. 198 4).) BA SF asserts that Defendant’s motion should be denied based upon the following : (1) Dr. Larkin’s ongoing affiliation with a BASF competitor; (2) the nature of the confidential documents and information already

disclosed to Defendant; (3) Defendant’s fa ilure to establish that it will be prejudiced by Dr. Larkin being de nied access to the confidential information, particularly , given that Dr. L arkin ha s not been

identifie d as an expe

rt witnes s; and (4)

Defend ant’s fa ilure to identify the specific

documents that Dr. Larkin would nee d to review. ( Id. at 9-15.)
D ISCU SSI ON Rule 26(c) of this Court provides that the Court, “[u]pon motion by a party . . . from whom discovery is soug

ht . . . and for good cause shown, the court may make any or

der which justice requires to protect a party . . . from annoya

nce, embarrassment, oppression, or undue burden or expense, including . . . the following: . . . that a trade se cret or other confidential research, development, or commercia l information not be revealed or be reveale d only in a designated way .” USCIT R. 26(c)(7). Because the languag e of Rule 26(c)(7) of this Court and Rule 26(c)(7) of the Federal Rules of Civil Procedure is fundamentally the same, the Court may look to case s which have interpreted and applied the Federa l Rules of Civil Procedure for guidance. See Nat’l Hand Tool , 14 Ct . Int’l T rade at 492-4 93 (ci ting A. Hirsh, Inc. v. United States, 657 F. Supp. 1297, 1303 n.15 (Ct. I nt’l Tra de 1987) ); F ED
. R. C IV
. P. 26(c)(7). It is well established tha t “under Rule 26(c)(7), the trial court has broad discretion to determine whether a protective order is warranted, and theCourt No. 02-00260 Page 9

specific restrictions that should be imposed.” Nat’l Hand Tool , 14 Ct. Int’l Trade at 492 (citation omitted); see also , Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992). “In the e xercise of its discretion, and in determining the scope of a protective or der, the trial court ‘must be guided by the liberal fe deral principles favoring disclosure, kee ping in mind the need to safeguard confide ntial information tr

ansmitted within the

discover y pr ocess fr om disclosu

res har mful to business interests.’” Nat’l Hand Tool , 14 Ct. Int’l Trade at 493 (citation omitted). It is well established that the party seeking a protective order be ars the burden of demonstrating the ‘good cause’ to support the issuanc e of such an order. See id. at 493 (quoting Reliance Ins. Co. v. Barron’s, 428 F. Supp. 200, 202 (S.D.N.Y. 1977).). “Furthermore, whe n a party asser

ts that the discovery proc ess will cause competitive injury be cause it will result in the revela tion of tra de secr ets, the p arty

cannot r ely solely upon conc lusory

statemen ts, ‘but mus t present evidence of specific damag e likely to result from disclosure.’ ” Id. (quot ing Culligan v. Yamaha Motor Corp., USA , 110 F.R.D. 122, 125 (S.D.N.Y. 1986)). After a protective order issues, the court will balanc e the interests of the parties, in the event that the party

in receipt of confidential information under that order see ks to utilize the information in a manner that is opposed by the producing party

. See Telular Corp. v. VOX2, Inc ., 2001 U.S. D ist. LE

XIS 74 72, at *3 (

N.D. I ll. 2001); Advanced Semiconductor Materials Am., Inc. v. Applied Materials, Inc. , 1996 U.S. D ist. LE XIS 21 459, at * 8 (N.D. Ca l 1996); see also, 8 C HARLES A LAN W RIGHT , A RTHUR R. M ILLER & R ICHARD L. M ARCUS , F EDERAL PRACTICE
AND P ROCEDURE § 2043. Whe n, as is the

issue her e, disclo sure of c onfident ial infor mation to a third-party c onsultant is opposed by the disclosing par ty, this court will balance the mova nt’s interest in selec ting the

consulta nt most ben eficial

to its case , conside

ring the specific expertiseCourt No. 02-00260 Page 10

of this consultant and whether other consultants possess similar expertise, against the disclosing party’s intere st in protecting confidential commercial information from disclosure to compe titors. See Telular , 2001 U.S. Dist. LEXIS 7472, at * 3; Advanced Semiconductor, 1996 U.S. D ist.
LEXI S 21459, at * 8. This Court f

inds that D efenda

nt has fa iled to est ablish tha t its need t

o use Dr. Lar

kin in preparing the defense of this ca se outweighs BASF’s interests in keeping confidential

commerc ial infor

mation fr om a compe

titor. This

Court den

ies Defe ndant’s motion for

leave to show confidential documents and information to Dr. La rkin. It is un disp uted t hat th ere is a prot ectiv e order in pl ace in t his ca se and that t he lan guage of the protective order was mutually agreed-upon by

the parties. ( See Stipulated Protective Order. ) The re levant portion of the protec tive orde r states: Confidential Documents may be shown to third

party consultants and exp erts, who sign a certification stating they are independ

ent of al l manufacturers or vendors of com peti tive merc

handise , who are retained for the purpose of assisting in the preparation of this action on the condition that , before making d

isclosure , defend

ant must obtain anagreement in writing to be bound by the provisions of

this Order (in the form of Exhibit A hereto) from such consultant, expert or other third party. Confidential Doc uments may be

shown to third party consulta nts and expe

rts w ho ar e a ff il ia te d w it h, em pl oye d b y, or consulta

nts to ma

nufac turers or vendors of competitive merchandise, only

wit h prior written consent of plaintiff, or upon order of the Court. (Stipulate d Protect

ive Orde r ¶ 6 (first emphas is added) .) It is also und

isputed th at the doc

uments Defendant seeks to show Dr. L arkin are confidential and that Huntsman is a fuel additives manufacturer. ( See Def.’s M ot. Exs. B a nd D; Pl.’s O

pp’n Exs. A a

nd B.) A dditionall

y, t here is no dispute

that Dr. L

arkin ma intains a r elationsh ip with Hun

tsman as a

retaine d, part- timeCourt No. 02-00260 Page 11

consultant, acting as a liaison between Huntsman’s fuel a dditive research team and Huntsman’s fuel additive customers. (Def.’s Mot. Ex. B; Pl.’s Opp’n Ex. B.) BASF contends, and D efendant does not expressly deny

, that Huntsman is a direct competitor of BASF in the fuel additive market. ( See gen erally , Pl .’ s O pp ’n at 15 , E x. B, Ga rd el l A ff ¶ 3 ; D ef .’ s M em . a t 8 .) Se em in gl y, Dr. Larkin will remain on reta iner to Huntsman during the course of this case and the reafter. The agreed-upon lang

uage of the protective order includes precautions intended to protect BASF from possible competitive injury . ( See Stipulated Protective Order ¶ 6.) BASF is seeking to exercise that precaution. Accordingly , the Court will balance Defendant’s interest in selecting the consultant it believes will be the most useful to its case, against BASF’s intere st in protecting its trade secrets and confidential information from disclosure to its competitors. See Telular , 2001 U.S. D ist. LE

XIS 74 72, at *3; Advanced Semiconductor, 1996 U.S. L EXIS 21459, at * 8. Defendant relies on Rule 26(c)(7) and c ases addressing whether the issuance of a protective order is proper to assert that BASF is attempting to prevent disclosure of relevant confidential information and that BASF must show good cause a s to why the confidential documents should not be provided to Dr. Larkin. ( See Def.’s Mem. at 5-8.) The Court, however, finds that Defendant has not framed the issue acc urately. The

cases upon which Defendant relies, particularly , National Hand Tool , address issues involving broad prevention of disclosure of confidential information to any third-party consultant or e xpert. Specifically, the “major dispute” before the court in National Hand Tool “pertain[ed] to [a paragraph] of plaintiff’s proposed protect ive orde r, which preclud [ed] confid

ential inf ormation f

rom being

shown to anyone other

than counsel for the defendant, counsel’s support staff , and government employ ees assisting counsel in the conduct of the action.” Nat’l Hand Tool , 14 Ct . Int ’l T rad e at 493 . InCourt No. 02-00260 Page 12

National Hand Tool , the defendant’s proposed protective order contained essentially ide ntical language as para

graph six of the Stipulated Protected Order in this case. Compare id . with Stipulated Protective Order ¶ 6. The court in National Hand Tool found that the plaintiff’s attempt to prevent disclosure to any third-party consultant or e xpert was based upon “broad allegations of harm, rather than a pa rticularized showing of injury .” Id. at 494 (internal citation and quotation marks omitted). Contrary to Def endant’s reading of National Hand Tool , the court did not “[hold] against any restriction that would unnec essarily hamper the discovery pr

ocess.” (Def.’s Mem. at 6.) I

n fact, the court noted with approval that “the defe ndant has taken
precau tions in its proposed p

rotectiv e order

to protect plaintif

f from possible

competitive injury,” by including lang

uage that permitted free disclosure of confidential information “ only to experts who are independent of all manufacturers of competitive merchandise” and language that required the plaintiff’s consent prior to disclosure of information to experts who may be affiliated with plaintiff’s competitors. Nat’l Hand Tool , 14 Ct. Int’l Trade at 494 (emphasis added). The court adopted the defendant’s proposed lang uage for the protective orde r, finding that the provision “with precautions, permits the disclosure of plaintiff’s confidential information to third party consultants and e

xperts.” Id. As an initial matter, the Court finds that Dr. Larkin is not independent fr om BASF’s competitors. I

n evalua ting inde pendenc e, the Cou

rt will con sider “the individu al’s rel ationship

to or s tatus with in th e recei ving p arty’s bu sines s, th e like liho od of t hat rel ation ship conti nuin g, and the feasibility of se

parating either the knowledge gained or the individual from future competitive endeavors.” Digital Equip. Corp. v. Micro Tech., Inc., 142 F.R.D. 488, 491 (D. Colo. 1992). Here, Dr. Lar kin maintains a relationship with Huntsman, a fuel additiveCourt No. 02-00260 Page 13

manufacturer and “a direct competitor of BASF Corp. in the gasoline additive marketplac e.” (Pl.’s Opp’n, Ex. B Gardell Aff. ¶ 3.) Although Def endant notes in its memorandum that Dr. Larkin is of the view that there is insuffic ient overlap in the manufacturing proce sses of Huntsman’s PEA product and BASF’s PI BA product, and, therefore, his possible disclosure of information to Huntsman would not improve Huntsman’s competitive position in the marketplace, the affidavit in support of BASF’ s opposition indicates otherwise. ( See Def.’s Mem. at 7; Pl.’s Opp’n Ex. B ¶¶ 6-7.) Nothing in the papers submitted to the Court indicates that Dr. Larkin’s rela

tionship with Huntsman will end during this proceeding or any time thereafter. See Advanced Semiconductor , 1996 U.S. Dist. LEXI S 21459, at *10-*11 (permitting disclosure to an expert who last consulted with the objecting party ’s competitor over four y ears preceding the litig ation and

had no exist

ing rel ationship

with the c ompetitor

). While in n

o way try ing to impugn Dr. Larkin’s c

haracter or his commitment to abiding by the terms of the protective order, this Court is concerned with Dr. Larkin a cquiring knowledge based upon B ASF’s confidential information that could be used to assist a BASF competitor at BASF’s e xpense. “It is very difficult for the human mind to compartmentalize and selectively suppress information once learned, no matter how well-intentioned the effort may be to do so.” A. Hirsh, Inc. , 657 F. Supp. at 1302. In particular, if Dr . Larkin were g ranted access to BASF’s confide ntial materials, he would most likely closely study BASF’s se

nsitive commercial information and this information would become a part of his genera l knowledge. This knowledge may be inadvertently disc losed to Huntsman during the course of Dr. L arkin’s on-going relationship with this BASF competitor. This Court finds that BASF could be commercially harmed by disclosure

of its confidential documents and information to Dr. Larkin.Court No. 02-00260 Page 14

Defend ant has no t demonstr

ated tha t its intere st in using

Dr. L arkin as

its third-party consultant outweighs the injury that BASF would likely suff er as a result of this disclosure. Defendant has not specified with particularity why Dr. Larkin’s expertise is critical for conducting its defense. (Def.’s Mem. a t 8.) Although Dr. Lar

kin has thirty y

ears of extensive experience in the fuel additive industry , it is not apparent that he “possesses qualifications to be an expert witness in this case which . . . other . . . experts may not possess.” Advanced Semiconductor, 1996 U.S. D ist. LE XIS 21 459, at * 8. Given the likelihood of inadvertent disclosure of highly confidential commercial informat ion to a dir

ect comp etitor of

BASF be cause of

Dr. L arkin’s

on-goin g rela tionship wi

th Huntsman and Defendant’s failure to establish that its need to use Dr. L arkin outweighs BASF’s interests in protecting against disclosure which will harm its commerc ial interests, the Court denies Defendant’s motion for leave to show BASF ’s confidential documents to Dr. Lar kin.
C ONCLUSI ON Upon cons ideration of Def endant’ s Motion fo r Le ave to Sho w Confide ntial Doc uments to a Third Party [] Consultant as Provided by the Terms of the November 6, 2003[,] Stipulated Protective Order and Plaintiff’s Opposition to Defendant’s Motion for L eave, Defendant’s motion is denied. /s/ GREGORY W. CARMAN Gregory W. Carman, Judge Dated: March 23, 2004 New York, New York