Judge Andrews Establishes Framework for Attorney's Eyes Only Designations and In-House Counsel Access in Discovery Disputes
Read the Court's Opinion (PDF)
Judge Melissa Davis Andrews
In Westlake Longview Corp. v. Eastman Chemical Co., the Business Court of Texas, 11th Division, granted in part Eastman's motion for a two-tiered protective order with an Attorney's Eyes Only designation for commercially sensitive information, but declined to rule on which specific materials merit AEO protection or whether particular in-house counsel should have access. The Court held that both determinations require a balancing of competing interests based on specific, non-conclusory evidence that had not yet been presented.
Court Staff Summary
This opinion addresses the applicable legal tests and evidentiary burdens for deciding whether discovery material may be designated as “Attorney’s Eyes Only” under a protective order and whether in-house counsel should be granted access to AEO-designated material. Both inquiries require a balancing of the parties’ competing interests based on specific, non-conclusory evidence that has not yet been presented in this case.
Background and Business Context
This contract dispute between Westlake Longview Corporation and Westlake Chemical OpCo LP (collectively, Westlake) and Eastman Chemical Co. arises from an ethylene supply agreement under which Eastman sells ethylene to Westlake for use at Westlake's polyethylene plants in Longview, Texas. The parties agreed on the need for a protective order but disagreed on whether the order should include a separate "Attorney's Eyes Only" (AEO) designation that would shield certain discovery materials even from the opposing party and its in-house counsel.
The Court's Ruling
After a hearing on May 1, 2025, the Court entered a protective order containing an AEO provision but held that the parties had not shown which information merited an AEO designation or whether specific counsel should have access to AEO-designated materials. The opinion addresses the basis for the Court's ruling and the applicable evidentiary burdens.
The Two-Tiered Protective Order
The Court entered a protective order containing two levels of protection: (1) a "Confidential" designation that protects material from disclosure to people not involved in the litigation, and (2) an AEO designation that protects material from disclosure even to the other parties, including their in-house counsel. The protective order requires that a party designating information as AEO have "a good-faith belief that the information is of such a proprietary and commercially sensitive nature that disclosure to anyone other than the opposing party's outside counsel could (i) materially harm the disclosing party's business or (ii) materially impact any competitive advantage that the disclosing party may have." Such information may include confidential research and development, financial, technical, marketing, or other sensitive trade secret information.
Safeguards and Limitations
The Court added terms to the proposed protective order to address some of Westlake's concerns. First, a party designating material as AEO must provide a redacted version of AEO documents with only the AEO-designated information redacted, so that all other information in the document may be disclosed to the other parties. Second, when a party designates the identity of a customer as AEO, it must specify the scope of the designation.
Evidentiary Requirements
The Court's opinion establishes that both the question of whether discovery material may be designated as AEO and whether in-house counsel should be granted access to AEO-designated material require a balancing of the parties' competing interests based on specific, non-conclusory evidence. The Court noted that such evidence had not yet been presented in this case, leaving these determinations for future proceedings as specific discovery disputes arise.