       In the United States Court of Federal Claims
                                        No. 11-201 C

                    (E-Filed Under Seal: February 26, 2013)
                  (Reissued for Publication: March 13, 2013)1
________________________________________
                                              )
ROSS-HIME DESIGNS, INC.,                      )
                                              ) RCFC 26(c); Protective Order;
                  Plaintiff,                  ) Motion for Access to Protected
                                              ) Information; Proprietary
v.                                            ) Information; Competitive
                                              ) Decision-Maker; Restricted
THE UNITED STATES,                            ) Information; Export Controls
                                              )
                  Defendant.                  )
________________________________________ )

Vytas M. Rimas, Minneapolis, MN, for plaintiff.

Conrad J. DeWitte, Jr., Patent Attorney, with whom were Stuart F. Delery, Principal
Deputy Assistant Attorney General, and John Fargo, Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC, for
defendant. Kurt G. Hammerle, Intellectual Property Attorney, Office of the Chief
Counsel, NASA Johnson Space Center, Houston, TX, of counsel.

                                  OPINION AND ORDER

HEWITT, Chief Judge

I.     Background

       Ross-Hime Designs, Inc. (plaintiff or Ross-Hime), a Minnesota corporation
specializing “in the design and prototyping of humanoid robotic systems,” brings this suit
alleging that two robotic manipulators known as Robonaut 1 and Robonaut 2, which were
developed by the United States (defendant or the government) acting through the
       1
         This Opinion and Order was originally filed under seal. The parties were given until
March 12, 2013 to submit their requests for proposed redactions. Defendant filed a notice on
March 11, 2013 stating that no redactions were requested by the government. See Notice by
Def. Regarding Redactions of the Ct.’s Feb. 26, 2013 Op., Docket Number (Dkt. No.) 69. No
request for redactions has been received from plaintiff. Accordingly, the court reissues this
Opinion and Order for publication without any redactions.
National Aeronautics and Space Administration (NASA), infringe on its patents. Compl.,
Docket Number (Dkt. No.) 1, ¶¶ 1-7, 21-22, 25-26.

       This case is subject to a protective order, which categorizes protected information
as “restricted” (Restricted Information) or “proprietary” (Proprietary Information) or
both. See Order of Oct. 24, 2011 (Protective Order), Dkt. No. 14, ¶¶ 7-9. The Protective
Order defines Proprietary Information as information “that contains trade secrets,
technical know-how, commercial or financial information, other business data, or any
other information that at the time the information is requested is maintained in confidence
or in which the party or Supplying Owner maintains a proprietary interest.” Id. ¶ 8. The
Protective Order defines Restricted Information as information “of a sensitive but
unclassified nature in the possession of, or under the control of, the United States
Government, . . . which may not be accessed or disclosed except pursuant to federal law
and regulations.” Id. ¶ 7. Restricted Information, for example, includes “information that
may not be exported lawfully without approval, authorization, or license.” Id.

        Pursuant to the Protective Order, Mark E. Rosheim (Mr. Rosheim), the president
of Ross-Hime, may access only “Restricted Information that is not also identified as
Proprietary Information.” Id. ¶ 10. Plaintiff now seeks access for both Mr. Rosheim and
plaintiff’s outside draftsman, Michael Joachim (Mr. Joachim) to “accused structure
descriptions, drawing[s] and photographs” related to Robonaut 2 and identified by NASA
as both Restricted Information and Proprietary Information. Pl.’s Mot. for Relief from
Protected Info. Designation as to Def.’s Robonaut 2 Accused Structure Drawings &
Photographs (plaintiff’s Motion or Pl.’s Mot.), Dkt. Nos.2 45-46, at 1. In particular,
plaintiff requests that Mr. Rosheim be given access to certain protected CAD drawings
and photographs of Robonaut 2 because, plaintiff alleges, “Mr. Rosheim was not
provided with an opportunity to inspect [a display at the 2012 Institute of Electrical and
Electronics Engineers International Conference on Robotics and Automation (ICRA
2012) involving an assembly of the Robonaut 2 hand, referred to by the parties as the
hand-in-space or] the space hand.” Pl.’s Reply in Supp. of Mot. for Relief from Protected
Info. Designation as to Def.’s Robonaut 2 Accused Structure Drawings & Photographs
(plaintiff’s Reply or Pl.’s Reply), Dkt. No. 62, at 2. “Consequently, Mr. Rosheim seeks
the opportunity to inspect the CAD drawings and photographs of the accused structure in
lieu of the space hand model.” Id.
       2
         Because the documents submitted by the parties contain a number of exhibits, some of
the documents were too large to be filed as single docket entries. Appendix E of the Rules of the
United States Court of Federal Claims (RCFC), which governs electronic cases such as this one,
provides that an exhibit or attachment must be filed “electronically along with the main
document under one entry number,” unless the court orders otherwise. RCFC, App. E, ¶ 8(c)(i).
The court GRANTS leave for the documents submitted by the parties to be filed as submitted,
notwithstanding the fact that individual documents and their exhibits may span multiple docket
entry numbers.

                                                2
        Defendant responds that some public disclosures related to Robonaut 2 do not
preclude the existence of any Proprietary Information related to Robonaut 2 and
maintains that the disputed CAD drawings of Robonaut 2 produced for this litigation are
properly designated as Proprietary Information. Resp. to Pl.’s Mot. Challenging
Designation of Docs. Under Protective Order (defendant’s Response or Def.’s Resp.),
Dkt. Nos. 53-55, at 6-15. Defendant further objects to plaintiff’s request for access to
protected information related to Robonaut 2 on multiple grounds. First, defendant
contends that the access sought is prohibited by both the Protective Order and NASA’s
obligations pursuant to a joint development agreement with General Motors Corporation
(General Motors) regarding Robonaut 2 (the joint development agreement3). Def.’s
Resp. 2, 4-6. Defendant also objects to access to Proprietary Information for Mr.
Rosheim, specifically, because Mr. Rosheim is a competitive decision-maker for Ross-
Hime. Id. at 2, 15-23. Finally, defendant raises the issue that the protected information
sought is subject to export controls and suggests that, instead of obtaining access to
Restricted Information for Mr. Joachim, a United States citizen residing in Canada,
plaintiff identify another draftsman located in the United States to avoid necessitating
procurement of an export license. Id. at 2-4, 24-25.

       Before the court are: plaintiff’s Motion, filed December 4, 2012; defendant’s
Response, filed December 12, 2012; plaintiff’s Reply, filed January 2, 2013; and Sur-
Reply in Opposition to Plaintiff’s Motion Challenging Designation of Documents Under
Protective Order (defendant’s Sur-Reply or Def.’s Sur-Reply), Dkt. No. 67, filed
February 1, 2013 by leave of the court.

     For the following reasons, plaintiff’s Motion is GRANTED-IN-PART AND
DENIED-IN-PART.


       3
          The joint development agreement was executed on December 19, 2006. See Resp. to
Pl.’s Mot. Challenging Designation of Docs. Under Protective Order (defendant’s Response or
Def.’s Resp.), Dkt. Nos. 53-55, at Ex. B (original joint development agreement) 16, and was in
effect for a term of up to five years, see id. at 14. On October 15, 2010, an amendment to the
joint development agreement was executed, which replaced the original agreement and which
remains in effect until December 31, 2013. See id. at Ex. B (joint development agreement, as
amended) 41, 46. The relevant terms of each agreement are substantially similar, if not identical.
Unless otherwise stated, the court cites to the amended joint development agreement, which is
the agreement currently in effect, when discussing the joint development agreement. Both are
included in Exhibit B to defendant’s Response, along with an additional amendment to each
agreement, respectively. Neither of the additional amendments is relevant to the matters
addressed in this Opinion and Order. The court cites to Exhibit B using the page numbers
assigned by the court’s Case Management/Electronic Case Files system, which appear in the top
right corner of the document pages.


                                                3
II.    Legal Standards

       A.      Protective Orders

       “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 such an
order to “limit[] the scope of disclosure,” to designate who may be present for discovery,
and to “requir[e] that a trade secret4 or other confidential research, development, or
commercial information not be revealed or be revealed only in a specified way.” Rules
of the United States Court of Federal Claims (RCFC) 26(c)(1);5 see also Forest Prods.
Nw., Inc. v. United States, 453 F.3d 1355, 1361 (Fed. Cir. 2006) (“Good cause requires a
showing that the discovery request is considered likely to oppress an adversary or might
otherwise impose an undue burden.”).

       4
          The United States (defendant or the government) and Ross-Hime Designs, Inc. (plaintiff
or Ross-Hime) disagree over the applicable trade secret law in this case. See Def.’s Resp. 7 n.6
(arguing that plaintiff’s assertion that “‘presumably’ Texas trade secret law would [apply]”
because the allegedly infringing technology “was developed at [the National Aeronautics and
Space Administration’s (NASA) Johnson Space Center] in Houston,” Texas may not be correct
because federal statute, Delaware trade secret law or Michigan trade secret law may apply
instead (quoting Pl.’s Mot. for Relief from Protected Info. Designation as to Def.’s Robonaut 2
Accused Structure Drawings & Photographs (plaintiff’s Motion or Pl.’s Mot.), Dkt. Nos. 45-46,
at 4)). Further, defendant argues that “[t]rade secret law is not necessarily dispositive” of any
determination of what constitutes proprietary information under the protective order in this case
(Proprietary Information) “because the protective order defines Proprietary Information to be
broader than trade secrets in that it also lists technical know-how and any other information that
at the time the information is requested is maintained in confidence or in which the party has a
proprietary interest.” Id. at 7 (citing Order of Oct. 24, 2011 (Protective Order), Dkt. No. 14, ¶ 8).
The court agrees with defendant. Because the scope of Proprietary Information is broader than
trade secrets alone, the court finds that it need not determine which jurisdiction’s trade secret law
applies to determine whether defendant’s designation of Robonaut 2 information as Proprietary
Information was proper under the Protective Order, particularly given that defendant does not
allege that the Robonaut 2 information designated as Proprietary Information contains trade
secrets. See infra Part III.A.1.a (discussing trade secrets as related to the Proprietary Information
designation).
       5
          The RCFC generally mirror the Federal Rules of Civil Procedure (FRCP). See
C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1541 n.2 (Fed. Cir. 1993) (stating that
“[t]he [RCFC] . . . generally follow the [FRCP]”); RCFC 2002 rules committee note
(“[I]nterpretation of the court’s rules will be guided by case law and the Advisory Committee
Notes that accompany the Federal Rules of Civil Procedure.”). Rule 26(c) of the RCFC is
substantially identical to Rule 26(c) of the FRCP. Compare RCFC 26(c), with FRCP 26(c).
Therefore, the court relies on cases interpreting FRCP 26(c) as well as those interpreting RCFC
26(c).

                                                 4
       The Protective Order filed in this case limits who may have access to information
designated as Proprietary Information or Restricted Information or both. See supra Part I.
Pursuant to the Protective Order, if the parties are unable to resolve a dispute with regard
to a protected information designation, “the objecting party may seek appropriate relief
from the Court, and the designating party shall have the burden of proving that its
Protected Information designation is proper.” Protective Order ¶ 31. Further, until the
protected information designation “has been removed by order of the Court or by written
consent of the designating party or Supplying Owner,” the information “shall nonetheless
be treated as Protected Information in accordance with” the Protective Order. Id. ¶ 32.

       The Protective Order may be amended by express order of the court. Id. ¶ 50.
“[I]n determining whether a protective order should be modified, the court must balance
the privacy interests of the parties against the public interest in access to discovery
information.” Baystate Techs., Inc. v. Bowers (Baystate), 283 F. App’x 808, 810 (Fed.
Cir. 2008) (per curiam) (unpublished decision) (applying Rule 26(c) of the Federal Rules
of Civil Procedure (FRCP) and First Circuit law); accord Albino v. United States, 93 Fed.
Cl. 405, 410 (2010).

       B.     Access to Proprietary Information

       Generally, a protective order may be issued for good cause to protect the
supplying owner of proprietary information from any competitive harm owing to the use
of such proprietary information outside of the litigation in which it was disclosed. See
Standard Space Platforms Corp. v. United States (Standard Space), 35 Fed. Cl. 505, 508-
10 (1996) (finding that the defendant failed to show good cause to exclude the plaintiff’s
president from protected information because such information was unlikely to be
misused in light of the facts that the plaintiff company was defunct and the plaintiff’s
president had left the industry). Information that is “public knowledge” is not subject to
such protection. Protective Order ¶ 23.

       In particular, competitive harm may result when the person accessing the
proprietary information is involved in competitive decision-making. See, e.g., U.S. Steel
Corp. v. United States (U.S. Steel), 730 F.2d 1465, 1468 (Fed. Cir. 1984) (stating that, in
a case in which in-house counsel were involved in competitive decision-making, the
court may need to deny them access to proprietary information, depending on the
circumstances); accord In re Deutsche Bank Trust Co. Americas (Deutsche Bank), 605
F.3d 1373, 1377-78 (Fed. Cir. 2010) (extending to patent attorneys). The United States
Court of Appeals for the Federal Circuit (Federal Circuit) has defined “competitive
decisionmaking” as “advice and participation in any or all of [a business’s] decisions
(pricing, product design, etc.) made in light of similar or corresponding information about
a competitor.” U.S. Steel, 730 F.2d at 1468 n.3; accord Deutsche Bank, 605 F.3d at
1378; see also Matsushita Electric Indus. Co. v. United States, 929 F.2d 1577, 1580 (Fed.

                                             5
Cir. 1991) (stating that “the standard is not regular contact with other corporate officials
who make policy, or even competitive decisions, but advice and participation in
competitive decisionmaking” (internal quotation marks omitted)).

        Further, in the context of patent cases, the Federal Circuit has stated that
“information related to new inventions and technology under development, especially
those that are not already the subject of pending patent applications,” is particularly
sensitive proprietary information. Deutsche Bank, 605 F.3d at 1381. Nevertheless,
information contained in an issued patent “is ordinarily regarded as public.” On-Line
Techs., Inc. v. Bodenseewerk Perkin-Elmer GMBH, 386 F.3d 1133, 1141 (Fed. Cir.
2004) (citing Restatement (Third) of Unfair Competition § 39 cmt. f (1995)
(“[I]nformation that is disclosed in a patent or contained in published materials
reasonably accessible to competitors does not qualify for protection [as a trade secret].”));
cf. Protective Order ¶ 23 (stating that information that is public knowledge is not subject
to “[t]he restrictions and obligations relating to Proprietary Information”). However,
“information and improvements made after a patent application has been filed” “may be
separately patentable.” Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1244 (Fed. Cir.
1989) (applying 9th Circuit law), abrogated on other grounds by eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388 (2006). Such information and improvements,
therefore, “may be preserved in confidence” as proprietary information, subject to a
confidentiality agreement or protective order. See id.

       C.      Export Controls and Access to Restricted Information

       Items with both commercial and military applications, that is, “dual-use” items,
and certain items with civil uses only are subject to export controls pursuant to the Export
Administration Regulations (EAR), 15 C.F.R. §§ 730.1-774.1 & supps. (2012),
promulgated pursuant to the Export Administration Act of 1979, Pub. L. No. 96-72, 93
Stat. 503 (codified as amended at 50 U.S.C. app. §§ 2401-20 (2006)).6 See 15 C.F.R. §

       6
         Although the Export Administration Act of 1979 (EAA), Pub. L. No. 96-72, 93 Stat.
503 (codified as amended at 50 U.S.C. app. §§ 2401-20 (2006)), was scheduled to expire in
2001, see 50 U.S.C. app. § 2419 (providing a termination date of August 20, 2001), and has not
been renewed by Congress, the EAA has nonetheless been extended since 2001 by executive
order, see Continuation of the National Emergency with Respect to Export Control Regulations,
77 Fed. Reg. 49,699 (Aug. 15, 2012) (“Because the [EAA] has not been renewed by the
Congress, the national emergency declared on August 17, 2001, must continue in effect beyond
August 17, 2012. Therefore, in accordance with . . . the National Emergencies Act (50 U.S.C.
[§] 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order
13222”); Exec. Order No. 13,222, 66 Fed. Reg. 44,025 (Aug. 17, 2001) (stating that the EAA
“shall be carried out under this order so as to continue in full force and effect” and that “[a]ll
rules and regulations issued or continued in effect by the Secretary of Commerce under the
authority of the [EAA] . . . shall . . . remain in full force and effect”).

                                                 6
730.3 (discussing “dual-use” items and the scope of the EAR); id. § 732.2 (describing
steps for determining whether a particular item is subject to EAR); id. pt. 732 supp. 2
(illustrating the steps in a flow chart). Obligations under the EAR are determined by first
classifying an item for export by locating the item on the Commerce Control List to
determine the item’s Export Control Classification Number (ECCN) and then checking
for licensing requirements for the item’s ECCN relative to the country of destination. Id.
§ 732.1(b)(1)-(2); see id. pts. 738 supp. 1 (Commerce Country Chart), 774 supp. 1
(Commerce Control List). Certain general prohibitions may also necessitate a license
under the EAR. Id. § 732.1(c); see id. § 736.2(b) (describing the ten general
prohibitions). For some ECCNs, a license exception may be available to overcome a
licensing requirement. Id. § 732.1(e); see id. § 740.1(a) (describing potential license
exceptions, generally). To the extent that information is subject to the EAR and requires
an export license, it is Restricted Information pursuant to the Protective Order. See
Protective Order ¶ 7 (stating that Restricted Information includes “information that may
not be exported lawfully without approval, authorization, or license”).

        Articles and services that have been designated by the president of the United
States as “defense articles and defense services” by inclusion on the United States
Munitions List (U.S. Munitions List) are subject to a different set of export controls
pursuant to the International Traffic in Arms Regulations (ITAR), 22 C.F.R. §§ 120.1-
130.17 (2012), promulgated pursuant to the Arms Export Control Act of 1976, Pub. L.
No. 94-329, 90 Stat. 734 (codified as amended, in relevant part, at 22 U.S.C. § 2778
(2006)). 22 C.F.R. § 120.2; see id. § 121.1 (U.S. Munitions List). Generally, an article
may be designated as a defense article only if it “[i]s specifically designed, developed,
configured, adapted, or modified for a military application, and” either “[d]oes not have
predominant civil applications, and . . . [d]oes not have [a] performance equivalent . . . to
those of an article or service used for civil applications; or . . . has significant military or
intelligence applicability,” necessitating control under ITAR. Id. § 120.3. Unless an
exemption applies, items designated as defense articles require approval for export by the
Directorate of Defense Trade Controls, which is generally in the form of a license. See
id. § 123.1. Therefore, defense articles requiring a license or other approval for export
are Restricted Information pursuant to the Protective Order. See Protective Order ¶ 7
(stating that Restricted Information includes “information that may not be exported
lawfully without approval, authorization, or license”).

        Defense articles on the U.S. Munitions List are regulated under ITAR by the
Department of State, as distinguished from items on the Commerce Control List, which
are regulated under the EAR by the Department of Commerce. See 22 C.F.R. § 120.5.
Defense articles subject to ITAR are not subject to EAR. See 15 C.F.R. § 734.3(b)(1)(i)
(stating that defense articles subject to ITAR are “exclusively controlled for export” by
the Department of State).


                                               7
       D.      Space Act and the Joint Development Agreement

        Pursuant to the National Aeronautics and Space Act (Space Act), Pub. L. No. 111-
314, 124 Stat. 3328 (2010) (to be codified in relevant part at 51 U.S.C. §§ 20101-64),
NASA is authorized to enter into such agreements and transactions “as may be necessary
in the conduct of its work and on such terms as it may deem appropriate.” 51 U.S.C.A.7
§ 20113(e) (West 2012). The joint development agreement between NASA and General
Motors is such an agreement, referred to as a Space Act agreement. See Def.’s Sur-Reply
4.

      Trade secrets or confidential information resulting from Space Act agreements
may be protected “for a period of up to 5 years after the development of” such
information. 51 U.S.C.A § 20131(b).

       E.      Interpretation of Contract Terms

       Contracts to which the government is a party are subject to the general rules of
contract interpretation. Lockheed Martin IR Imaging Sys., Inc. v. West, 108 F.3d 319,
322 (Fed. Cir. 1997). Pursuant to these rules, “[c]ontract interpretation begins with the
language of the written agreement.” Coast Fed. Bank, FSB v. United States, 323 F.3d
1035, 1038 (Fed. Cir. 2003) (en banc) (citing Foley Co. v. United States, 11 F.3d 1032,
1034 (Fed. Cir. 1993)). Contract provisions that are “clear and unambiguous . . . must be
given their plain and ordinary meaning.” McAbee Constr., Inc. v. United States, 97 F.3d
1431, 1435 (Fed. Cir. 1996) (internal quotation marks omitted); accord Barsebäck Kraft
AB v. United States, 121 F.3d 1475, 1479 (Fed. Cir. 1997).

III.   Discussion

      Plaintiff’s Motion states that plaintiff8 seeks “relief from Protected Information
Designation[s]” as to defendant’s “Robonaut 2 accused structure descriptions, drawing[s]

       7
          The National Aeronautics and Space Act (Space Act), Pub. L. No. 111-314, 124 Stat.
3328 (2010) (to be codified in relevant part at 51 U.S.C. §§ 20101-64), was enacted “to codify
certain existing laws related to national and commercial space programs as a positive law title of
the United States Code” at title 51. Space Act § 2(a), 124 Stat. at 3328. The United States Code
is published every six years by the Government Printing Office. Because the 2012 edition is not
yet available and the 2006 edition does not include the Space Act, the court cites to the Space
Act as it appears in the United States Code Annotated (U.S.C.A.), which is current through
December of 2012.
       8
         Defendant notes that plaintiff’s request for access is confusing because “both plaintiff’s
motion and reply at first state that ‘it,’ i.e.[,] the corporate plaintiff Ross-Hime Designs, Inc.,
seeks access to the disputed [Robonaut 2] proprietary information.” Sur-Reply in Opp’n to Pl.’s

                                                 8
and photographs.” Pl.’s Mot. 1. The court construes plaintiff’s request as a challenge to
the government’s Proprietary Information designations pursuant to paragraph 31 of the
Protective Order. See Protective Order ¶ 31 (describing procedure for challenging
protected information designations); see also infra Part III.B (explaining that plaintiff
does not appear to challenge defendant’s Restricted Information designations). Plaintiff’s
Motion also states that plaintiff seeks “full access” to defendant’s “Robonaut 2 drawings
and photographs” for Mr. Rosheim and Mr. Joachim. Pl.’s Mot. 1. Therefore, to the
extent that defendant’s protected information designations are proper, the court also
considers whether amendment of the Protective Order is warranted to permit such access.
See Protective Order ¶ 50 (providing for amendment of the Protective Order by the
court).

       Plaintiff’s Reply states that there are nine categories of descriptions, drawings and
photographs related to Robonaut 2 as to which plaintiff seeks access for Mr. Rosheim and
Mr. Joachim. Pl.’s Reply 1-2. Plaintiff appears to represent that the government does not
dispute greater access to categories (1)-(5), which include four categories of publicly
disclosed information and, in category (5), documents designated as Restricted
Information. See id. The government does not state in its briefing that it opposes access
by either Mr. Rosheim or Mr. Joachim to these categories, except to the extent that it
opposes access by Mr. Joachim to category (5), Restricted Information. See Def.’s Resp.
24-25; Def.’s Sur-Reply 18. Access to category (7), documents that lack a restrictive
legend, Pl.’s Reply 2, also does not appear to be disputed.9 The court, therefore,


Mot. Challenging Designation of Docs. Under Protective Order (defendant’s Sur-Reply or Def.’s
Sur-Reply), Dkt. No. 67, at 1. Defendant further notes that plaintiff, “th[r]ough its attorneys and
independent expert, already has access to all documents produced, including” protected
information. Id. The court construes plaintiff’s request as a request for access to Proprietary
Information for plaintiff’s principal, Mark E. Rosheim (Mr. Rosheim), and a request to allow
plaintiff’s draftsman, Michael Joachim (Mr. Joachim), to be a “Proprietary Person” under the
Protective Order, that is, a person who “may have access to both Proprietary and Restricted
Information.” Cf. Pl.’s Mot. 4 (arguing that “[t]he United States cannot continue to restrict [Mr.
Rosheim and Mr. Joachim] from accessing NASA[-]produced discovery relating to Robonaut 2);
Protective Order ¶¶ 10 (granting Mr. Rosheim access to Restricted Information only), 11
(describing a “Proprietary Person”).
       9
         Pursuant to the Protective Order, any document containing protected information is to
be labeled with a restrictive legend, marking the document as containing “PROPRIETARY
INFORMATION or RESTRICTED INFORMATION.” Protective Order ¶ 17. In order to be
treated as Restricted Information, documents must be “so designated or identified with restrictive
markings.” Id. ¶ 7. Similarly, except with respect to certain limited circumstances surrounding
inspections by people with access to Proprietary Information, see id. ¶¶ 19-20, “[t]he restrictions
and obligations relating to Proprietary Information shall not apply to any information that is not
so marked,” id. ¶ 23. Therefore, under the terms of the Protective Order, drawings and

                                                 9
addresses only the disputed categories, that is categories (6) and (8)-(9), which include
drawings and photographs created for this litigation and drawings and photographs older
than five years or that lack a date, as well as category (5), Restricted Information, as to
Mr. Joachim. Cf. id. (describing categories (5)-(6) and (8)-(9)); Protective Order ¶ 31
(stating that the parties may seek relief from the court only if they cannot resolve a
dispute over a protected information designation on their own). In addition to these
numbered categories, plaintiff states in its Reply that the access sought includes
“photographs and CAD drawings of the [Robonaut 2] hand and forearm that have been
produced in discovery.” Pl.’s Reply 2 (citing Pl.’s Reply Exs. 18-20 (Robonaut 2 CAD
drawings and a CAD blueprint)). The court addresses these documents, as well.

       A.      Access to Proprietary Information: Mr. Rosheim

       1.      Challenge to Proprietary Information Designation

        Defendant has the burden of showing that the disputed Robonaut 2 information
was properly designated as Proprietary Information and that such protection was not
waived by public disclosure. See Protective Order ¶¶ 23 (excluding public knowledge
from protection), 31 (providing that “the designating party shall have the burden of
proving that its Protected Information designation is proper”). Defendant argues that
“non-public documents that involve [Robonaut 2] technology” are properly designated as
Proprietary Information because the joint development agreement between NASA and
General Motors obligates NASA “to protect [Robonaut 2] technology from disclosure.”
Def.’s Resp. 6; see also id. at 5 (“As part of the [joint development] agreement, NASA is
to maintain in confidence ‘data’ that it produces in carrying out the joint development of
[Robonaut 2].”). In response to plaintiff’s argument that Mr. Rosheim should have
access to Robonaut 2 information that “corresponds with the access Defendant has
authorized Mr. Rosheim to . . . NASA Robonaut 1” information, Pl.’s Mot. 1, defendant
states that Mr. Rosheim’s access to Robonaut 1 and Robonaut 2 are different because
Robonaut 1 was developed using public funds, but Robonaut 2 was developed in
collaboration with General Motors and is subject to the obligations of the joint
development agreement, Def.’s Sur-Reply 17. Plaintiff maintains that the joint
development agreement creates “no restriction” because it “specifically excepts out
documents produced pursuant to a court order.” Pl.’s Reply 6 (capitalization and
emphasis omitted) (citing Def.’s Resp. Ex. B (joint development agreement)).

      Plaintiff also argues that Mr. Rosheim should have access to “NASA[-]produced
discovery relating to Robonaut 2, because NASA has public[ly] disclosed and

photographs that lack a restrictive legend are neither Restricted Information nor Proprietary
Information, and neither Mr. Rosheim nor Mr. Joachim is denied access to such documents.


                                                10
repeated[ly] published the accused structure in technical publications, public displays and
models, on its website and in over 40 patents and patent applications.” Pl.’s Mot. 4; see
also id. at 2-3 (listing specific disclosures related to Robonaut 2);10 Pl.’s Reply 4-6
(same). Defendant responds that NASA has not “waived its right to identify any
[Robonaut 2] technology as Proprietary Information . . . simply by virtue of public
disclosure of some information about” Robonaut 2. Def.’s Resp. 9. Indeed, defendant
contends that publicly disclosed information about Robonaut 2 does not go beyond the
information made public in patent applications. Id. at 14; see id. at 9-10 (arguing that the
“[Robonaut 2] technology that is Proprietary Information . . . has not been disclosed to
the public”). In support of its position, defendant asserts that publicly disclosed
information about Robonaut 2 differs from the Proprietary Information with respect to
Robonaut 2, as to which plaintiff seeks greater access, because such Proprietary
Information “includes dimensions, tolerances, material specifications, commercial part
selections, surface finishe[s], and kinematic information,” which it describes as “know-
how that has been developed and refined over several years.” Id. at 14.

        The court considers whether defendant has met its burden of demonstrating that
its Proprietary Information designation was proper with respect to each of (1) drawings
and photographs created for this litigation, (2) photographs and CAD drawings of the
Robonaut 2 hand and forearm produced in discovery, and (3) drawings and photographs
that are more than five years old or lack a date.

       a.     Drawings and Photographs Created for This Litigation

       The parties have identified the Proprietary Information designation as disputed
with respect to the following drawings created for this litigation: the documents
contained in Exhibits 15 and 16 to plaintiff’s Reply,11 see Pl.’s Reply 3-4; Def.’s Sur-

       10
          Although plaintiff’s Motion also discusses disclosures related to Robonaut 1, see Pl.’s
Mot. 2, plaintiff’s Motion does not appear to seek redesignation of information related to
Robonaut 1, see Pl.’s Reply in Supp. of Mot. for Relief from Protected Info. Designation as to
Def.’s Robonaut 2 Accused Structure Drawings & Photographs (plaintiff’s Reply or Pl.’s Reply),
Dkt. No. 62, at 1 (clarifying that plaintiff’s Motion “sought de-designation of only a subset of
Proprietary designated document production from the United States, namely Robonaut 2 accused
structure descriptions, drawings and photographs”). Accordingly, the court does not address
whether any protected information designations with respect to information related to Robonaut
1 were proper.
       11
           Plaintiff lists Exhibits 15-21 as examples of “documents that NASA prepared for this
litigation.” Pl.’s Reply 6. Exhibit 17, a CAD drawing of Robonaut 1, is not disputed and so is
not discussed further by the court. See supra note 10. Whether Exhibits 18, 19 and 20 were
created for this litigation is unclear. Defendant excludes them from its list of “examples of
[Robonaut 2] CAD drawings created specifically for this litigation.” See Def.’s Sur-Reply 8 n.6.

                                               11
Reply 8 n.6, and six series of CAD drawings created in response to plaintiff’s production
requests related to Robonaut 2, see Mot. for Approval of Proposed Schedule of CAD
Produc. (CAD Produc. Mot.), Dkt. No. 44, at 1-2 (stating that plaintiff made six requests
for production related to Robonaut 2 and describing why each request required a series of
drawings); Def.’s Sur-Reply Exs. K-1 to K-5 (series responsive to plaintiff’s third
production request related to Robonaut 2); see also Pl.’s Mot. 3 (describing NASA’s
designation of Proprietary Information with respect to the series responding to plaintiff’s
third request as the “culmination of reasons for Plaintiff’s instant Motion”).

       In determining whether the drawings created for this litigation were properly
designated as Proprietary Information because the joint development agreement requires
them to be maintained in confidence, the court turns first to the plain language of the
agreement. Cf. Coast Fed. Bank, FSB, 323 F.3d at 1038 (“Contract interpretation begins
with the language of the written agreement.”). The joint development agreement
provides that, in the event that General Motors requests that “Data first produced by
NASA12 . . . be maintained in confidence, and to the extent NASA determines that such
Data would be Proprietary Data if it had been obtained from [General Motors], NASA
will mark such Data with a restrictive notice and will maintain such marked Data in
confidence for five (5) years after development of the Data.” Def.’s Resp. Ex. B (joint
development agreement) 36 (footnote added). “Data” is defined as “recorded
information” and includes “data of a scientific or technical nature.” Id. at 34.
“Proprietary Data” is “Data embodying trade secrets or comprising commercial or
financial information that is privileged or confidential.” Id. at 35. Therefore, for

The court addresses Exhibits 18, 19 and 20 in Part III.A.1.b-c. Exhibit 21 contains a drawing
that was part of the series of drawings produced in response to plaintiff’s third production
request with respect to Robonaut 2, and so is addressed in the discussion of the six series of CAD
drawings. See Def.’s Request to File a Sur-Reply to Pl.’s Mot. Challenging Designation of
Docs. Under the Protective Order, Dkt. No. 63, at 1-2; cf. Def.’s Sur-Reply Exs. K-1 to K-5
(entire series).
       12
          To the extent that defendant suggests that the provision of the joint development
agreement applicable to data first produced by General Motors governs confidentiality
obligations instead of the provision applicable to data first produced by NASA, see Def.’s Sur-
Reply 4-5, defendant’s suggestion is inapt. The alternative provision obligates NASA to keep
confidential certain Data that “is furnished to NASA” after it is “first produced by [General
Motors] in carrying out [its] responsibilities under [the joint development agreement
agreement].” Def.’s Resp. Ex. B. (joint development agreement) 36. Here, despite the joint
development of the underlying Robonaut 2 technology, cf. Def.’s Sur-Reply 4-5, NASA has
created the drawings at issue; they have not been furnished by General Motors, see Def.’s Resp.
26 (describing creation of CAD drawings by NASA for this litigation). Accordingly, the
provision governing “Data” first produced by NASA is applicable. Cf. Def.’s Resp. Ex. B (joint
development agreement) 34 (defining “Data” as “recorded information, regardless of form, the
media on which it may be recorded, or the method of recording”).

                                               12
drawings and photographs to be protected on the basis that they must be maintained in
confidence pursuant to the joint development agreement, defendant must show that: (1)
General Motors has requested that they be maintained in confidence and (2) if General
Motors had produced the drawings and photographs, they would “embody[] trade secrets
or commercial or financial information that is privileged or confidential.” See id. at 34-
36.

        With respect to the first requirement, defendant does not mention in its briefing
that General Motors requested that any of the disputed drawings created for this
litigation, specifically, be maintained in confidence but repeatedly states that “NASA and
[General Motors] confer before disclosing any technical information about [Robonaut 2]
to make sure that any disclosure conforms to the agreement.” See Def.’s Resp. 5, 12, 14.
With respect to the second requirement, defendant does not make the argument that the
disputed drawings contain trade secrets, only that such an argument is not foreclosed.
See Def.’s Resp. 8-9 (discussing why Texas trade secret law does not support plaintiff’s
Motion with respect to public disclosures); Def.’s Sur-Reply 12-14 (arguing that some
public disclosures of Robonaut 2 technology do not waive trade secret protection for all
Robonaut 2 technology). Instead, defendant argues--without further explanation--that the
drawings can be protected as commercial information because General Motors “expended
a great deal of money to create the disputed [Robonaut 2] proprietary information,”
Def.’s Sur-Reply 12, and that some of the drawings disclose Robonaut 2 “technical and
financial information,” id. at 1. The court is not persuaded that defendant has sufficiently
shown that, under the terms of the joint development agreement, defendant was required
to maintain the disputed drawings created for this litigation in confidence. Cf. Def.’s
Resp. Ex. B (joint development agreement) 34-36.

        Nevertheless, the court finds that defendant’s Proprietary Information designation
with respect to the disputed drawings created for this litigation is supported because
General Motors maintains a proprietary interest in the drawings. Cf. Protective Order ¶ 8
(stating that Proprietary Information includes information “in which the party or
Supplying Owner maintains a proprietary interest”). “Proprietary interest” is not defined
in the Protective Order. Black’s Law Dictionary contains an entry for “proprietary
interest,” which refers the reader to the second definition of “interest”: “[a] legal share in
something; all or part of a legal or equitable claim to or right in property <right, title, and
interest>.” Black’s Law Dictionary 885, 1339 (9th ed. 2009). Pursuant to the joint
development agreement, “title to patentable inventions made . . . as a result of activities
performed under [the agreement] will remain with the respective inventing party(ies).”
Def.’s Resp. Ex. B (joint development agreement) 39. The court therefore finds that
General Motors has a proprietary interest in non-public Robonaut 2 technology because
such technology could lead to patentable inventions owned in whole or in part by General
Motors, constituting a legal share or property right. Cf. Richardson, 868 F.2d at 1244
(stating that “information and improvements made after a patent application has been

                                              13
filed” “may be separately patentable” and “may be preserved in confidence”); Black’s
Law Dictionary 885 (defining “interest”).

         Further, to the extent that any of the drawings created for this litigation contain
technical details, characterized by defendant as “know-how,” see Def.’s Resp. 14, such
details are properly designated as Proprietary Information, cf. Protective Order ¶ 8
(including “technical know-how” in its definition of Proprietary Information). Based on
the court’s comparison of the CAD drawings and corresponding JPEGs created for this
litigation, see Pl.’s Reply Exs. 15, 16 (examples of Robonaut 2 CAD drawings created for
this litigation); Def.’s Sur-Reply Exs. K-1 to K-5 (same), with other publicly available
CAD drawings cited by plaintiff, see, e.g., Pl.’s Reply 4-6; see also Pl.’s Mot. Exs. 6
(patent for grasp assist device, technology related to Robonaut 2), 8 (patent application
for robotic finger assembly, technology related to Robonaut 2); Pl.’s Reply Ex. 22
(Robonaut 2 Overview), the court is persuaded by defendant’s argument that “[t]here are
millions of dollars of value that exist in the [Robonaut 2] CAD models and drawings that
one of ordinary skill in the art could and would need to reproduce to go from the
published [Robonaut 2] patent applications, patents, or papers to a working [Robonaut
2],” Def.’s Resp. 17 (citing Def.’s Resp. Ex. A (Declaration of Myron A. Diftler, Ph.D.) ¶
22)); see also CAD Produc. Mot. 2 (stating that the CAD drawings created for this
litigation “had to be created using the existing [Robonaut 2] CAD model” because “these
CAD views did not already exist”). The court agrees with defendant that disclosure of
these models and detailed drawings may jeopardize General Motors’s investment and any
competitive advantage to be gained from General Motors’s interest in the joint
development of Robonaut 2. Cf. Def.’s Resp. 18 (“To release the models and detailed
drawings would be to give away [General Motors’s] investment and competitive
advantage.”).

         With respect to whether the information contained in the disputed drawings
created for this litigation has been previously disclosed, defendant asserts that the
drawings “show details and view angles not discernible from the [Robonaut 2] technical
information that is public[ly] available” and that the corresponding JPEG files have a
higher resolution than any that are publicly available. Def.’s Sur-Reply 13-14. Based on
the court’s comparison, the court agrees with defendant that the Robonaut 2 CAD
drawings and corresponding JPEG files created for this litigation contain greater or
different technical details than other publicly disclosed Robonaut 2 information and,
therefore, are not public knowledge. Compare, e.g., Pl.’s Reply 4-6 (reprinting publicly
disclosed CAD drawings), with Pl.’s Reply Exs. 15-16 (reprinting CAD drawings created
for this litigation that were designated as Proprietary Information), and Def.’s Sur-Reply
Exs. K-1 to K-5 (same). The court is also persuaded by defendant’s argument that
“plaintiff’s continuing call for defendant to produce more . . . CAD drawings” belies
plaintiff’s position that the information contained in the disputed drawings created for
this litigation is already publicly available. Cf. Def.’s Resp. 25. Indeed, if all of the

                                            14
information to which greater access is sought were public, plaintiff would not need to
request access to Proprietary Information for Mr. Rosheim, nor would plaintiff need CAD
drawings created in the first place. Accordingly, the court finds that the drawings created
for this litigation and discussed above were not precluded from protection as Proprietary
Information pursuant to paragraph 23 of the Protective Order. Cf. Protective Order ¶ 23
(excluding public knowledge from protection).

        With respect to photographs taken for this litigation at ICRA 2012, see supra Part
I--during partial disassembly of the space hand for a private inspection by plaintiff’s
counsel and technical expert, Theodore F. Neils (Mr. Neils), which Mr. Rosheim was not
permitted to attend13--there appears to have been some confusion about whether a
protected information designation was made. Although defendant argued that the
photographs were properly designated as Proprietary Information because they “are not
photographs that the public would have been able to take during a public viewing,” Def.’s
Resp. 10-12; see also id. at 10 n.8 (describing conditions of the inspection), defendant
later conceded in its Sur-Reply that photographs and videos taken during the space hand
inspection at ICRA 2012 “were not identified as protected information under the
protective order, so Mr. Rosheim is able to view these photographs and videos,” Def.’s
Sur-Reply 16-17; see also supra note 9 (stating that information lacking a restrictive
legend is not treated as protected). Because the parties do not identify any other
Robonaut 2 photographs created for this litigation to which plaintiff seeks greater access,
and, because the issue no longer appears to be disputed with respect to the photographs
and videos taken at ICRA 2012, the court does not address further the designation of
photographs created for this litigation.

       b.      Photographs and CAD Drawings of the Robonaut 2 Hand and Forearm
               Produced in Discovery

       Plaintiff has identified three additional documents produced in discovery as to
which it challenges defendant’s Proprietary Information designation. Pl.’s Reply 2; see
also supra note 11 (identifying Exhibits 18-20 to plaintiff’s Reply as documents that were
produced in discovery but not claimed to be created for this litigation). These documents
were submitted to the court as Exhibits 18, 19 and 20 to plaintiff’s Reply. See Pl.’s
Reply Exs. 18-20. Exhibit 18 is an undated CAD drawing of the Robonaut 2 hand. See
Tbl. of Reply Exs., Dkt. No. 62-1; Pl.’s Reply Ex. 18. Exhibit 19 is a CAD blueprint of
the Robonaut 2 thumb base mount, dated November 29, 2007. See Tbl. of Reply Exs.;
       13
          Defendant states that, contrary to plaintiff’s assertion, Mr. Rosheim could have visited
NASA’s booth at the conference as a member of the public; however, Mr. Rosheim was not
permitted to attend plaintiff’s private inspection during the partial disassembly of Robonaut 2
“because its entire purpose was the disclosure of Proprietary Information.” Def.’s Resp. 11; cf.
Pl’s. Mot. 2-3.


                                                15
Pl.’s Reply Ex. 19. Exhibit 20, which is undated and labeled “R2 Hand_Forearm,” is a
series of sixteen slides detailing the Robonaut 2 hand and forearm through CAD
drawings, diagrams and descriptions. See Tbl. of Reply Exs.; Pl.’s Reply Ex. 20. The
court limits its discussion of documents produced in discovery to those specifically
identified by plaintiff and submitted to the court because the court must be able to make a
document-specific determination about whether such documents were properly
designated as Proprietary Information.

        Defendant argues that Exhibits 18-20 disclose “technical and financial
information.” Def.’s Sur-Reply 1 (including Exhibits 18-20 in a list of documents that
allegedly disclose such information). Plaintiff argues that Exhibits 18-20 “do not include
the technical details sought to be protected by the United States, such as dimensions,
tolerances, material specifications and the like.” Pl.’s Reply 4. Defendant responds that
plaintiff’s assertion is “clearly wrong,” pointing to Exhibit 19 as an example of a
document that “actually does contain a number of dimensions throughout, along with
information descriptive of ‘fabrication tolerances.’” Def.’s Sur-Reply 13.

        The court cannot discern any financial information in the content of these
documents, nor does defendant provide any support for this assertion. Nevertheless, the
court finds, based on its inspection of the documents, that all three contain different or
greater technical details than other publicly disclosed drawings cited by plaintiff--details
that may constitute technical know-how or information in which General Motors
maintains a proprietary interest. Cf. Protective Order ¶¶ 8 (defining Proprietary
Information), 23 (excluding public knowledge from Proprietary Information). Compare
Pl.’s Reply Exs. 18-20, with Pl.’s Mot. Exs. 6 (patent for grasp assist device, technology
related to Robonaut 2), 8 (patent application for robotic finger assembly, technology
related to Robonaut 2), and Pl.’s Reply Ex. 22 (Robonaut 2 Overview). Specifically,
Exhibits 18 and 20 appear, based on the court’s inspection, to “show details and view
angles not discernible from [Robonaut 2] technical information that is public[ly]
available” and to do so at a higher resolution than publicly available information, cf.
Def.’s Sur-Reply 13-14. Compare, e.g., Pl.’s Reply 4-6 (reprinting publicly disclosed
CAD drawing), with Pl.’s Reply Exs. 18, 20 (reprinting CAD drawings produced in
discovery that were designated as Proprietary Information). Exhibit 19 does, as
defendant claims, include information about dimensions, materials, and tolerances. See
Pl.’s Reply Ex. 19. The court is persuaded that the information contained in the
Robonaut 2 CAD drawings represents millions of dollars in value and would be
necessary, in addition to the publicly available information, to create a working Robonaut
2, see supra Part III.A.1.a, and that Exhibits 18-20, in particular, contain technical know-
how, cf. Protective Order ¶ 8 (including “technical know-how” in its definition of
Proprietary Information). Further, the court has recognized that General Motors has a
proprietary interest in the joint development of Robonaut 2 technology that may be
jeopardized by disclosure of such drawings, see supra Part III.A.1.a; cf. Protective Order

                                            16
¶ 8 (stating that Proprietary Information includes information “in which the party or
Supplying Owner maintains a proprietary interest”).

       c.      Drawings and Photographs Older than Five Years or That Lack a Date

       In its Reply, plaintiff states without elaboration that drawings and photographs that
are older than five years or that lack a date are included in the subset of accused structure
descriptions, drawings and photographs related to Robonaut 2 as to which its Motion
challenged the Proprietary Information designation. See Pl.’s Reply 2. The court
construes the protected information designation challenge in plaintiff’s Motion as to
“Robonaut 2 accused structure descriptions, drawing[s] and photographs” broadly enough
to encompass drawings and photographs related to Robonaut 2 that are older than five
years or that lack a date. Cf. Pl.’s Mot. 1. Defendant argues that “[t]he disputed
[Robonaut 2] proprietary information should be kept non-public for at least five years
from the end of the [joint development] agreement.” Def.’s Sur-Reply 6 (emphasis
omitted).

        The five-year time frame referenced by the parties derives from a federal statute,
in effect until 2010 at 42 U.S.C. § 2454 and to be codified under the Space Act at 51
U.S.C. § 20131, see supra note 7, which provides that information resulting from Space
Act agreements that would be trade secrets or “commercial or financial information that
is privileged or confidential under the meaning of section 552(b)(4) of title 5” if it had
been obtained by a non-federal party may be protected “for a period of up to 5 years after
the development of [such] information,” 51 U.S.C.A. § 20131(b); cf. Freedom of
Information Act, 5 U.S.C. § 552(b)(4) (2006) (exempting “trade secrets and commercial
or financial information . . . [that is] privileged or confidential” from disclosure
indefinitely). After the five-year period ends, the information “shall be made available
for public inspection,” unless federal statute provides otherwise or the information is
classified to protect national security. 51 U.S.C.A. § 20131(a). The statutory provision is
echoed in the joint development agreement. See Def.’s Resp. Ex. B (joint development
agreement) 36 (providing for five years of protection for information first produced by
NASA under the joint development agreement and as to which General Motors desires to
be maintained in confidence). Plaintiff, therefore, appears to seek access to any
photographs and drawings that, pursuant to the Space Act, must now be made available
for public inspection because the relevant five-year restricted period has expired.14 See
Pl.’s Reply 2.
       14
          Plaintiff also appears to seek access to the original joint development agreement on the
same grounds. See Pl.’s Reply 6 n.4 (arguing that the original joint development agreement
should be “de-designated” as Proprietary Information, “given that it is more than 5 years old”
(citing 42 U.S.C. § 2454 (2006))). However, plaintiff’s request is untimely because plaintiff’s
Motion challenged defendant’s protected information designations only with respect to
“Robonaut 2 accused structure descriptions, drawing[s] and photographs”--not with respect to

                                               17
        Defendant suggests, without explaining its position, that “it would be appropriate
for the five-year time period to commence at the expiration of the [joint development]
agreement,” on December 31, 2013. Def.’s Sur-Reply 7. With respect to documents that
lack a date, defendant argues that the five-year period should be “measured from the date
of production of each document to plaintiff.” Id. at 7-8. Defendant explains that this
“would not penalize NASA and [General Motors] for not placing a creation date on each
document . . . , a requirement that is not included in the [joint development] agreement,”
and that it “would also be more practicable for the United States to implement because
the date of production of a document to plaintiff is clear, whereas the date a document
was created may not be clear.” Id. at 8. Defendant’s position with respect to the start of
the five-year period is contradicted by both the Space Act and the joint development
agreement: both are clear that the five-year period begins to run after the development of
the protectable information. See 51 U.S.C.A. § 20131(b) (providing for protection “for a
period of up to 5 years after the development of information”); Def.’s Resp. Ex. B. (joint
development agreement) 36 (providing for protection “for five (5) years after
development of the Data”).

       Indeed, defendant concedes that the Space Act and joint development agreement
could also be interpreted to mean that “the time period [would] commence at the creation
or completion of the technical information in question.” Def.’s Sur-Reply 7. The court
finds this interpretation to be consistent with the Space Act and the joint development
agreement. Cf. 51 U.S.C.A. § 20131(b); Def.’s Resp. Ex. B. (joint development
agreement) 36. Nonetheless, defendant expresses concern that “the timing of such
creation or completion may not be readily discernible.” Def.’s Sur-Reply 7; see also id.


the original joint development agreement. See Pl.’s Mot. 1. In other words, plaintiff’s request is
untimely because the issue was first raised in a reply brief. Cf. United States v. Ford Motor Co.,
463 F.3d 1267, 1276-77 (Fed. Cir. 2006) (“Arguments raised for the first time in a reply brief are
not properly before this court.”); Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir.
2002) (“Raising the issue for the first time in a reply brief does not suffice; reply briefs reply to
arguments made in the response brief--they do not provide the moving party with a new
opportunity to present yet another issue for the court’s consideration.”). The court, therefore,
treats the argument as waived. Cf. Corus Staal BV v. United States, 502 F.3d 1370, 1378 n.4
(Fed. Cir. 2007) (“[The plaintiff] did not raise that argument in its opening brief, however, and
we therefore treat that argument as waived.”); Novosteel SA, 284 F.3d at 1274 (stating that when
an argument is raised for the first time in a reply brief, “[a]s a matter of litigation fairness and
procedure,” the argument must be treated as waived). To the extent that Mr. Rosheim may be
able to access the agreement as a member of the public under the Space Act or the Freedom of
Information Act, 5 U.S.C. § 552 (2006), he can request access from NASA through its
administrative process, see 14 C.F.R. § 1206.200(c) (2013) (stating that certain agency records
can be obtained for public inspection by request and that NASA’s electronic reading room
records shall include a guide for requesting records or information from NASA).


                                                 18
at 8 (same concerning documents without dates). However, this is a question of fact; the
court cannot disregard the requirements of the Space Act or the terms of the joint
development agreement because difficult factual findings may be necessary. Defendant
also expresses concern that “this interpretation would devalue any improvements made
during the course of the agreement.” Id. at 7. The court is not persuaded by this
argument and notes that, to the extent that an improvement constitutes new Data under
the agreement and new protectable information under the statute, protection would still
be available from the date of creation of such an improvement. Cf. 51 U.S.C.A. §
20131(b); Def.’s Resp. Ex. B (joint development agreement) 36.

       Plaintiff has not identified any specific photographs or drawings that are allegedly
older than five years or that lack a date as to which it seeks access for Mr. Rosheim.
Because the age of such documents is a question of fact specific to each document, the
court considers only whether disputed documents submitted to the court should be
disclosed on this basis.

        First, with respect to drawings created for this litigation, see supra Part III.A.1.a,
Exhibits 15 and 16 to plaintiff’s Reply are not dated, see generally Pl.’s Reply Exs. 15-
16. However, both parties appear to identify the two exhibits as drawings created for this
litigation, see Pl.’s Reply 6; Def.’s Sur-Reply 8 n.6; see also Pl.’s Reply 3-4 (citing Order
of Dec. 16, 2011, Dkt. No. 26 (ordering defendant to produce CAD drawings of
Robonaut 1 and Robonaut 2 “to plaintiff’s counsel on a rolling basis as they become
available”)), that is, after the Complaint was filed on April 1, 2011, see generally Compl.
Therefore, the court finds that Exhibits 15 and 16 to plaintiff’s Reply are still within the
five-year period and are not subject to disclosure on that basis. Cf. 51 U.S.C.A. §
20131(b); Def.’s Resp. Ex. B (joint development agreement) 36. Each of the six series of
CAD drawings created in response to plaintiff’s production requests related to Robonaut
2 was also created within the last five years. See CAD Produc. Mot. 1 (describing series
of such CAD drawings produced on November 13, 2012 after being created for this
litigation and stating that additional CAD drawings responsive to the remaining five
production requests related to Robonaut 2 would be created and produced by February
15, 2013). Therefore, they are also not subject to disclosure at this juncture on the basis
of being more than five years old. Cf. 51 U.S.C.A. § 20131; Def.’s Resp. Ex. B (joint
development agreement) 36.

       With respect to photographs and drawings produced in discovery, see supra Part
III.A.1.b, Exhibits 18 and 20 to plaintiff’s Reply are not dated, and defendant did not
address when these documents were created in its Sur-Reply. Exhibit 19 is dated
November 29, 2007, making it more than five years old. See Pl.’s Reply Ex. 19.
Therefore, Exhibit 19, to the extent that it was “obtained or developed by the [NASA]
Administrator in the performance of the Administrator’s functions,” is outside the five-
year period during which confidential information can be protected from public

                                             19
disclosure pursuant to the Space Act and “shall be made available for public inspection.”
Cf. 51 U.S.C.A. § 20131. Defendant SHALL FILE a supplemental brief, as further
provided in Part IV, addressing when Exhibits 18 and 20 were created, whether each of
Exhibits 18-20 was obtained or developed by the NASA Administrator, and whether
being subject to public inspection under the Space Act brings the documents to public
knowledge within the meaning of paragraph 23 of the Protective Order. Plaintiff SHALL
FILE a supplemental reply brief to defendant’s supplemental brief as further provided in
Part IV.

       For the reasons stated, except with respect to Exhibits 18-20 to plaintiff’s Reply,
as to which the court withholds a decision pending further briefing, the court finds
defendant’s Proprietary Information designations proper, and plaintiff’s Motion is
DENIED with respect to its challenge to such Proprietary Information designations.

       The court next considers whether amendment of the Protective Order is warranted
to grant Mr. Rosheim access to properly designated Proprietary Information. Cf.
Protective Order ¶ 50 (providing for amendment of the Protective Order by court order).

       2.     Need for Amendment and Mr. Rosheim as a Competitive Decision-Maker

        Defendant argues that, balancing the need for discovery against the potential harm
to the disclosing party, Mr. Rosheim, as “an inventor and author in the field of robotics[]
and a competitive decision maker for plaintiff, . . . should not be allowed” access to
Proprietary Information. Def.’s Resp. 18 (emphasis omitted). In support of its position,
defendant asserts that, “[a]ccording to his website, Mr. Rosheim is the named inventor on
21 patents in the field of robot technology” and that “Mr. Rosheim is the only named
inventor on both of the patents that plaintiff alleges are infringed by NASA.” Id.
Defendant also states that, “according to public[ly] available [United States Patent and
Trademark Office] records, Mr. Rosheim has two active pending patent applications.” Id.
at 19. Defendant alleges that, “as a small inventor with his own company, it is likely that
Mr. Rosheim takes an active part in drafting his patent applications” and “[k]nowledge of
NASA’s or [General Motors]’s Proprietary Information could aid Mr. Rosheim in the
prosecution of his own patents.” Id.; see also id. at 21 (“Mr. Rosheim would not be able
to separate what he learns in the litigation from his other knowledge, and he could
personally utilize or disclose information gained through access to Proprietary
Information, even if only inadvertently.”). Plaintiff does not address defendant’s
argument directly but states that “NASA has previously public[ly] published CAD
drawings of its [Robonaut 2] hand, and its [Robonaut 1] hand, upon which the [Robonaut
2] hand is based. There is no reason to withhold similar information from Mr. Rosheim.”
Pl.’s Reply 4.



                                             20
       The law regarding access to protected information by attorneys who are likely to
be involved in competitive decision-making is instructive in this case. In the context of
patent cases, a situation often arises in which a trial lawyer privy to confidential
information during litigation may also occupy a role in patent prosecution or in otherwise
representing clients before the United States Patent and Trademark Office in which such
confidential information might provide a competitive edge. See Deutsche Bank, 605
F.3d at 1377, 1379. Therefore, protective orders in patent cases typically “include
provisions specifying that designated confidential information may be used only for
purposes of the current litigation.” Id. at 1378. Nonetheless, as the Federal Circuit
observed in Deutsche Bank, in certain circumstances, “even the most rigorous efforts . . .
to preserve confidentiality” may fail because “‘it is very difficult for the human mind to
compartmentalize and selectively suppress information once learned.’” Id. (alteration
omitted) (quoting FTC v. Exxon Corp., 636 F.2d 1336, 1350 (D.C. Cir. 1980)). In such
circumstances, it may be appropriate for protective orders to effect a patent prosecution
bar. See id. at 1379.

        A similar situation may also arise involving in-house counsel and access to
confidential information. See id. at 1378. For example, in U.S. Steel, the trial court
denied access to in-house counsel with respect to certain confidential information, given
its determinations that the information was “extremely potent” and that it would be
“humanly impossible to control the inadvertent disclosure of some of [the] information in
any prolonged working relationship.” U.S. Steel, 730 F.2d at 1466-67 (internal quotation
marks omitted). On appeal, the Federal Circuit vacated the trial court’s blanket
determination that in-house counsel, by virtue of occupying that general position, should
be denied access to such information and held that “the factual circumstances
surrounding each individual counsel’s activities, association, and relationship with a
party, whether counsel be in-house or retained, must govern any concern for inadvertent
or accidental disclosure.” Id. at 1468. The Federal Circuit further stated that, “[i]n a
particular case, e.g., where in-house counsel are involved in competitive decisionmaking,
it may well be that a party seeking access should be forced to retain outside counsel or be
denied the access recognized as needed.” Id.; see also Deutsche Bank, 605 F.3d at 1378
(stating, with respect to U.S. Steel, “[w]e went on to hold that the counsel-by counsel
determination should turn on the extent to which counsel is involved in ‘competitive
decisionmaking’ with its client”).

        In situations where confidential information disclosed to counsel in the course of
litigation may give rise to a later risk of inadvertent disclosure because of the attorney’s
role in competitive decision-making, the court employs a balancing test, weighing the
risk of inadvertent disclosure against the potential harm in denying the opposing party the
full benefit of its counsel of choice. Deutsche Bank, 605 F.3d at 1380 (citing, inter alia,
U.S. Steel, 730 F.2d at 1468); see also Levine v. United States, 226 Ct. Cl. 701, 704
(1981) (denying the pro se plaintiff, a patent attorney and holder of multiple patents,

                                            21
access to protected information in light of his “alleged statements that he might become a
competitor[] and his persistent efforts to gain personal access to any claimed confidential
materials, rather than contenting himself with access by another attorney representing
[him]”); cf. Baystate, 283 F. App’x at 810 (“[I]n determining whether a protective order
should be modified, the court must balance the privacy interests of the parties against the
public interest in access to discovery information.”); Albino, 93 Fed. Cl. at 410. “In
balancing these conflicting interests the [trial] court has broad discretion to determine
what degree of protection is required.” Deutsche Bank, 605 F.3d at 1380.

        As in the situations described in Deutsche Bank and U.S. Steel, plaintiff’s Motion
in the present case asks the court to decide whether a person who may obtain a
competitive advantage from access to proprietary information has a need for access that
outweighs the risk of disclosure. However, unlike those cases, the present case does not
involve access for a patent attorney or for in-house counsel at a competitive corporation
but for an officer of a competitive corporation--an area that the Federal Circuit has not
addressed directly. Nevertheless, a similar question was before this court in Standard
Space, in which the plaintiff company’s president and CEO--and co-inventor of the
spacecraft-related patents allegedly infringed by the government--sought access to
proprietary information. Standard Space, 35 Fed. Cl. at 508. The court in Standard
Space employed a balancing test, too, weighing the risk of inadvertent disclosure against
the harm in barring the plaintiff company’s officer from full participation in the
litigation.15 See id. at 509. In Standard Space, the plaintiff company had gone out of
business at the time of the litigation. Id. The president and CEO was no longer active in
the company except with respect to the litigation before the court and was employed as
an insurance salesman with no future plans for inventing any other spacecraft-related
technology. Id. at 509-10. It was on this basis that the court granted access to the
president and CEO, stating that “defendant has failed to show that there is any greater
risk that [the president and CEO] would misuse confidential information as compared to


       15
           Defendant argues in favor of a similar balancing test, stating that, in determining to
what extent confidential information should be disclosed, “a court must balance the need of one
litigant to access proprietary information in order to present his case, and the potential that
irreparable harm may be suffered by the disclosing party.” See Def.’s Resp. 16 (citing Am.
Standard, Inc. v. Pfizer, Inc., 828 F.2d 734, 741 (Fed. Cir. 1987) (applying Rule 26(c)(7) of the
FRCP, which has since been eliminated), Safe Flight Instrument Corp. v. Sundstrand Data
Control Inc., 682 F. Supp. 20, 21-22 (D. Del. 1988) (same), and Rice v. United States, 39 Fed.
Cl. 747, 750 (1997) (applying Rule 26(c)(7) of the RCFC, which has since been eliminated)).
The court notes that the balancing test articulated by defendant tracks language of the old Rule
26(c)(7) of the RCFC, which was substantially similar to the old Rule 26(c)(7) of the FRCP,
neither of which is currently in force. See RCFC 26(c) (not containing a subsection (7)); FRCP
26(c) (same).


                                                22
an aerospace or other technical expert” when “he is no longer active in the aerospace
field and simply sells insurance.” Id. at 509.

        Here, employing a balancing test of the type employed in Standard Space, the
court finds that the potential harm of disclosing the requested Proprietary Information to
Mr. Rosheim outweighs the need for such disclosure. Cf. id. (weighing the risk of
inadvertent disclosure against the harm in barring the plaintiff company’s officer from
full participation in the litigation). Unlike the officer seeking access in Standard Space,
Mr. Rosheim is actively involved in pursuing patents, and, unlike the plaintiff company
in Standard Space, Ross-Hime is still in business and led by Mr. Rosheim. See Def.’s
Resp. 19; see also Def.’s Sur-Reply 3 (“emphasiz[ing] that Mr. Rosheim should not be
entitled to view any [Robonaut 2] proprietary information because he is the principal of a
closely held company that does business in the field of robotics, he is an author in the
field of robotics, and he is a prolific inventor and patentee with pending patent
applications in the field of robotics”); cf. Standard Space, 35 Fed. Cl. at 509-10. This
creates a greater risk that Mr. Rosheim may inadvertently misuse confidential
information as compared to an aerospace or other technical expert who does not stand to
gain a competitive advantage from such information. Cf. Standard Space, 35 Fed. Cl. at
509.

        Defendant alleges that such disclosure of non-public Robonaut 2 technology
“could negatively impact the value to [General Motors] of its participation in the [joint
development] agreement” and could “adversely impact . . . future joint development
agreements” because “prospective NASA partners may put less value on jointly
developing new technology.” Def.’s Resp. 18. Further, defendant appears to suggest that
the CAD drawings and photographs at issue represent continuing development of
Robonaut 2 technology and states that “continuing development could lead to additional
technology that NASA and [General Motors] would like to seek to protect with patents.”
See Def.’s Resp. 17; cf. Deutsche Bank, 605 F.3d at 1381 (stating that “information
related to new inventions and technology under development, especially those that are
not already the subject of pending patent applications,” is particularly sensitive
proprietary information”). Plaintiff does not dispute the potential harms that defendant
alleges may result from disclosure of non-public information, except to say that “the
drawings do not contain proprietary information” because they “are based on public[ly]
disclosed drawings and photographs.” Pl.’s Reply 3. Plaintiff also does not allege any
specific harm it will face if Mr. Rosheim is not permitted the access sought. Indeed,
plaintiff’s continued assertion that the information contained in the CAD drawings and
photographs at issue has been publicly disclosed belies any argument by plaintiff that it
will be harmed by a denial of access. Cf. Def.’s Resp. 25-26 (pointing out this
inconsistency in plaintiff’s request).



                                            23
        Finally, as defendant asserts, any potential harm to plaintiff is minimized because
plaintiff, “th[r]ough its attorneys and independent expert, already has access to all
documents produced.” Def.’s Sur-Reply 1. Plaintiff’s independent expert, Mr. Neils, is
the patent attorney who prosecuted the patents-in-suit, and he “has already seen NASA
proprietary information when he accompanied counsel for plaintiff” to the inspection of
the space hand at ICRA 2012. Def.’s Resp. 23. Defendant does not object to Mr. Neils’s
accessing Proprietary Information because “Mr. Neils is now retired from the practice of
law” and “no longer the member of any state bar”--in other words, Mr. Neils poses a
lower risk of inadvertent disclosure than Mr. Rosheim. See id. In addition, Mr. Neils’s
familiarity with the patents at issue and current involvement in the case suggest that there
would be little, if any, harm to plaintiff in having Mr. Neils, rather than Mr. Rosheim,
view the disputed Proprietary Information. See id.

       Because the court finds that plaintiff’s interest in obtaining access for Mr.
Rosheim to the Robonaut 2 CAD drawings and photographs created for this litigation and
designated as Proprietary Information is outweighed by the potential harm to the
government of disclosure, plaintiff’s Motion is DENIED with respect to access to
properly designated Proprietary Information by Mr. Rosheim. Cf. Baystate, 283 F.
App’x at 810; Albino, 93 Fed. Cl. at 410.

       B.      Access to Restricted Information: Mr. Joachim

       The information related to Robonaut 2 as to which plaintiff seeks access for Mr.
Joachim is designated as both Restricted and Proprietary. See supra Part I. Mr. Joachim
would therefore have to have access to both Restricted and Proprietary Information under
the Protective Order--or be a “Proprietary Person”--in order to access such information.
See Protective Order ¶ 11. Pursuant to the Protective Order, a Proprietary Person allowed
access to Restricted Information “must be located in the United States,” in addition to
being a U.S. citizen or permanent resident.16 See id. ¶¶ 12 (stating that a Proprietary
Person is a type of “Qualified Person”), 13 (“Each Qualified Person permitted to have
access to Restricted Information must be a United States citizen or [permanent resident]
and must be located in the United States.”). Accordingly, Mr. Joachim, who is located in

       16
          In support of this requirement, the Protective Order cites 32 C.F.R. § 250.3(a)(1),
which applies to a U.S. contractor receiving export-controlled data. See Protective Order ¶ 13
(citing 32 C.F.R. § 250.3(a)(1) (stating that a qualified U.S. contractor must certify that “[t]he
individual who will act as recipient of . . . export-controlled technical data on behalf of the U.S.
contractor is a U.S. citizen or a [permanent resident] and is located in the United States)). This
regulation, although it may be the model for the Protective Order provision, is not relevant to
exporting technical data to Mr. Joachim, because he is not receiving export-controlled data on
behalf of a U.S. government contractor. Cf. 32 C.F.R. § 250.3(a)(1) (2012).


                                                 24
Canada, see supra Part I, cannot be granted access to the disputed information without an
amendment to the Protective Order, cf. Protective Order ¶ 13.

       Defendant appears to contest access to the disputed information by Mr. Joachim
only to the extent that the information is Restricted Information. Def.’s Resp. 24-25
(“The United States does not object to Mr. Joachim accessing information under the
protective order outside of [the] fact that in order for Mr. Joachim to review the
information it appears that the information would need to be exported to Canada.”).
Plaintiff does not appear to dispute that the information as to which it seeks access for
Mr. Joachim is properly designated as Restricted Information.17 Thus, the court
construes plaintiff’s Motion not as a challenge to defendant’s Restricted Information
designation but as a request to allow Mr. Joachim to be a Proprietary Person--that is, a
person with access to both Restricted and Proprietary Information, cf. Protective Order ¶
11(g) (listing, among the categories of Proprietary Persons, “any other person . . . allowed
by the Court”), and a request to amend the Protective Order so that Mr. Joachim may be
exempted from the requirement that all Proprietary Persons allowed access to Restricted

       17
          Defendant states that the “technical data” contained in Robonaut 2 CAD drawings
constitutes Restricted Information because export of such data “is controlled by [the Export
Administration Regulations (EAR), 15 C.F.R. §§ 730.1-774.1 & supps. (2012)].” Def.’s Resp.
24; see id. at 2 n.3 (“[Robonaut 1] and [Robonaut 2] CAD drawings are subject to export control
under EAR.”). Defendant also states that Robonaut 1 and Robonaut 2 “technology is subject to
export control under International Traffic in Arms Regulations (ITAR),” 22 C.F.R. §§ 120.1-
130.17 (2012). Def.’s Resp. 2 n.3; see id. at Ex. I (letter from defendant’s counsel to plaintiff’s
counsel) (asserting that ITAR would be implicated by export of Robonaut 2 CAD drawings to
Canada and suggesting in a footnote that the EAR could be implicated as well). Exports subject
to ITAR, however, are not also subject to the EAR. See supra Part II.C; 15 C.F.R. §
734.3(b)(1)(i) (stating that defense articles subject to ITAR are “exclusively controlled for
export” by the Department of State).

        The court notes that Robonaut 2 CAD drawings do not appear to be export controlled
under ITAR, see 22 C.F.R. § 121.1 (U.S. Munitions list) (not listing robot technology), but are
likely subject to the EAR, cf. Def.’s Resp. 3 (stating that “Robonaut hardware is classified under
the EAR, Commerce Control List as Export Control Classification Number [(ECCN)] 2B007
‘Robots’” (citing 15 C.F.R. pt. 774 supp. 1 (entry for ECCN 2B007, Robots))); 15 C.F.R. pt. 774
supp. 1 (entry for ECCN 2B007, Robots) (stating that “technology for items controlled under”
ECCN 2B007, Robots, may be subject to EAR under ECCN 2E001 for “development,” 2E002
for “production,” or 2E201 for “use”). Therefore, to the extent that the Robonaut 2 accused
structure descriptions, drawings and photographs to which plaintiff seeks access for Mr. Joachim
require an export license pursuant to the EAR, see supra Part II.C (discussing requirements of
EAR), they are properly within the scope of Restricted Information, cf. Protective Order ¶ 7
(stating that Restricted Information includes “information that may not be exported lawfully
without approval, authorization, or license”).


                                                25
Information must be located in the United States, see id. ¶¶ 12-13 (requiring Proprietary
Persons with access to Restricted Information to be located in the United States); cf. id. ¶
50 (providing for amendment of the Protective Order by the court).

        “[I]n determining whether a protective order should be modified, the court must
balance the privacy interests of the parties against the public interest in access to
discovery information.” Baystate, 283 F. App’x at 810; accord Albino, 93 Fed. Cl. at
410. Here, defendant states that “[t]he United States does not object to Mr. Joachim
accessing information under the protective order outside of [the] fact that in order for Mr.
Joachim to review the information it appears that the information would need to be
exported to Canada.” Def.’s Resp. 24-25. Further, defendant represents that “the United
States would seek complete compensation from plaintiff for all expenses incurred in
procuring an export license for Mr. Joachim absent a compelling reason why only Mr.
Joachim could review the documents for plaintiff.” Id. at 25; see also Def.’s Sur-Reply
18 (citing, inter alia, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978) for
the proposition that the court has discretion under FRCP 26(c) to condition discovery on
the requesting party’s payment of the costs to protect the responding party from undue
burden or expense). Plaintiff responds that “any export controls can be accommodated
by court order.” Pl.’s Reply 7 (capitalization and emphasis omitted).

        The court agrees with defendant that the effort and expense of procuring an export
license may constitute an undue burden or expense. The court also observes that plaintiff
has not articulated a reason why it seeks access for Mr. Joachim, specifically, as
distinguished from another draftsman. However, the court is not persuaded that
defendant’s concerns outweigh plaintiff’s interest in having its preferred draftsman
review complicated technical information. Because the government has represented that
it does not object to Mr. Joachim’s accessing the requested information based on its
content, see Def.’s Resp. 24-25, the court finds a balancing of the interests weighs in
favor of amending the Protective Order to permit access by Mr. Joachim, cf. Baystate,
283 F. App’x at 810; Albino, 93 Fed. Cl. at 410. The court, therefore, amends the
Protective Order with respect to paragraph 13, so that it reads:

       Each Qualified Person permitted to have access to Restricted Information
       must be a United States citizen or person lawfully admitted into the United
       States for permanent residence and must be located in the United States,
       except that the court may determine on a case-by-case basis that a United
       States citizen located abroad may also be a Qualified Person.

       The court allows Mr. Joachim to be a Proprietary Person pursuant to paragraph 11
of the Protective Order and, thereby, also to be a Qualified Person pursuant to paragraph
13, as amended, based on the court’s determination that a balancing of the interests
weighs in favor of access by Mr. Joachim. Accordingly, plaintiff’s Motion is GRANTED

                                             26
with respect to access for Mr. Joachim to Robonaut 2 accused structure descriptions,
drawings, and photographs.

IV.   Conclusion

       For the reasons stated, plaintiff’s Motion is DENIED to the extent that it
challenged defendant’s Proprietary Information designations, except with respect to
Exhibits 18-20 to plaintiff’s Reply, as to which the court withholds a decision pending
further briefing. See supra Part III.A.1. Further, plaintiff’s Motion is DENIED with
respect to granting Mr. Rosheim access to properly designated Proprietary Information
because of his role as a competitive decision-maker for Ross-Hime. See supra Part
III.A.2. However, with respect to access for Mr. Joachim to Robonaut 2 accused
structure descriptions, drawings and photographs, plaintiff’s Motion is GRANTED and
the Protective Order is amended as provided in Part III.B.

       Regarding Exhibits 18-20 to plaintiff’s Reply, defendant SHALL file at or before
5:00 p.m. Eastern Daylight Time (EDT) on Monday, March 18, 2013 a supplemental
brief addressing when Exhibits 18 and 20 were created, whether each of Exhibits 18-20
was obtained or developed by the NASA Administrator, and whether being subject to
public inspection under the Space Act brings the documents to public knowledge within
the meaning of paragraph 23 of the Protective Order. Plaintiff SHALL file a
supplemental reply brief at or before 5:00 p.m. EDT on Monday, April 1, 2013.

      IT IS SO ORDERED.

                                                s/ Emily C. Hewitt
                                                EMILY C. HEWITT
                                                Chief Judge




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