It seems to me that is a different thing than the original statement, "Attorney's eyes only". . . . "Attorney's eyes only" either means what it says, or it does not.
I can't disagree with you there. What the original poster didn't mention is that "Attorneys' eyes only" means what the protective order says "Attorneys' eyes only" means. You have to look to the protective order itself to see what exceptions exist to allow outside experts to view the material.
In this case, the exception is found in paragraph 9 of the protective order (PACER access required; the cost for the document is $1.92 - goes to $0 if you don't download $10 worth of documents by the end of the year):
9. For purposes of this Protective Order, a consultant or expert shall be defined as a person who is neither an employee, agent or representative of a party, nor anticipated to become an employee, agent or representative of a party in the near future, who is not involved in the application or prosecution of patents for the party, and who is retained or employed to assist in the preparation for trial in this litigation, whether full or part time, by or at the direction of counsel for a party. The procedure for having a consultant or expert approved for access to confidential material designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order shalI be as follows:
a. Outside counsel for the receiving party shall (1) provide the consultant or
expert with a copy of this Protective Order, (2) explain its terns, and (3) obtain the
written agreement of the consultant or expert, in the form of Exhibit A hereto, to comply
with and be bound by the terms of this Protective Order. Before providing information
designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE by a producing party pursuant to this Protective Order to a consultant or expert, the party seeking to disclose the information to a consultant or cxpert shall identify the consultant or expert to the producing party in writing and provide the producing party with (a) an executed Exhibit A, and (b) a written statement setting forth the consultant's or expert's residence address, business address, employer, job title, curriculum vitae, and past or present association with any party, as well as a list of litigation matters for which
the consultant or expert has provided any professional services during the preceding five
b. Five (5) court days following the identification specified in the preceding subparagraph, the identifying party may disclose the information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order to the identified consultant or expert unless the party receives a
written objection to the identification, served by facsimile or electronic mail, setting forth in detail the grounds on which it is based. Failure to object within five (5) days of the
identification shall be deemed a waiver of the objection. If an identifying party receives
such an objection within five (5) days of the identification, the consultant or expert shall
be barred from access to any information designated CONFIDENTIAL, HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL -
ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order for
fourteen (14) calendar days commencing with the receipt by the producing party of a
copy of the executed Exhibit A and accompanying information required in subparagraph
c. If within fourteen (14) calendar days, the parties are unable to resolve their
differences and the opposing party moves for a further protective order preventing
disclosure of information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL -
ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES
ONLY - SOURCE CODE under this Protective Order to the identified consultant or
expert, then the confidentid material shall not be provided to said consultant or expert
except by further order of the Court. Any such motion by the opposing party must
describe the circumstances and reasons for objection, setting forth in detail the reasons
for which the further protective order is reasonably necessary, assessing the risk of harm
that the disclosure would entail, and suggest any additional means that might be used to
reduce that risk. The party opposing the disclosure to said consultant or expert shall bear
the burden of proving that the risk of harm that the disclosure would entail (under the
safeguards proposed) outweighs the seeking party's need to disclose the confidential
material to said consultant or expert.
A judge could establish a protective order which allows only the attorneys to view discovered materials, without exception. But I doubt many judges would do so (at least not intentionally). They want input from experts who can understand the technical details.
An attorney is bound by ethical standards and whatnot that a random "analyst" wouldn't be and could conceivably be disbarred (and thereby lose his livelihood) for breaching a confidentiality order. This "incentive to do the right thing" is not present with the random analyst. There may be other sanctions that would apply to both the attorney and the random analyst, but my point is that the attorney has an additional incentive to be, for lack of a better word, trustworthy.
An expert who signs off on a protective order and has access to confidential material has plenty of incentive not to violate the protective order. Being fined or imprisoned for perjury wouldn't be much fun. Plus, any use of the confidential material could lead to a lawsuit for misappropriation of trade secrets.
If the sanctions that apply to the ordinary citizen are sufficient, there would be no need for the additional obligations that attorneys are required to undertake as officers of the court.
Sorry, I'm not sure what you're getting at here. Protective orders are issues as part of the discovery process in order to establish duties that the attorneys have to the other party. Attorneys do have certain ethical duties to persons other than clients (see Rules 4.1-4.4 of the Model Rules of Professional Conduct for typical examples), but protective orders generally create new duties specific to the case.