GWACS Armory, LLC v. KE Arms, LLC, 4:20-cv-00341

Background

GWACS Armory sued KE Arms and others alleging misappropriation of design for a polymer AR-15 lower and related IP/NDA breaches; counterclaims and third-party interests followed.
Non-party InRange (Karl Kasarda) marketed a related firearm project (WWSD) and posted a YouTube video criticizing Armory and discussing deposition testimony.
Non-party Reed Oppenheimer (Armory investor) testified at deposition that he funded the litigation but was personally opposed to AR-15 manufacturing; portions of his testimony were publicly filed.
Armory moved for a protective/gag order and sanctions, claiming defendants and Kasarda publicly disclosed confidential materials (e.g., Russell Phagan declaration, deposition excerpts) in violation of a Stipulated Protective Order.
Defendants denied improperly disclosing designated confidential material and contend the cited materials were publicly filed or not designated confidential; counsel said they did not provide transcripts to third parties.
Magistrate Judge Huntsman denied the motion: Armory failed to identify any actually-designated confidential pages or show good cause for sanctions or a prior restraint/gag order; alternative trial safeguards and the age/scope of publicity weighed against restraint.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants violated the Stipulated Protective Order by publicizing confidential discovery	Defendants (and Kasarda) disseminated confidential materials (Phagan declaration, deposition pages) via the InRange video and media links	No identified pages were designated CONFIDENTIAL; cited materials were publicly filed or not designated; counsel denies providing transcripts to non-parties	Denied — Armory failed to point to any materials actually designated confidential or show disclosure of such materials
Whether defense counsel engaged in sanctionable misconduct under professional rules	Counsel gave Kasarda Oppenheimer transcript and otherwise facilitated a smear campaign, violating Rules 3.6/8.4 and local rules	Counsel denies improper disclosure to third parties; any excerpts were provided only to clients; no evidence of professional misconduct	Denied — no evidence presented to support sanctions against counsel
Whether a broad gag order or prior restraint on extrajudicial speech is warranted	Public dissemination (InRange video, Recoil article) prejudices jury pool and harms Armory/Oppenheimer; seeks order prohibiting dissemination and public commentary	Speech is largely non-juror-directed online commentary; publicity is insubstantial and attenuated; First Amendment limits prior restraints; other remedies (voir dire, change venue) suffice	Denied — Armory did not show a reasonable likelihood of prejudicial pretrial publicity; Nebraska Press/Tijerina factors weigh against a gag order
Whether additional protective relief under Rule 26 is justified	Requests a new protective order prohibiting use of evidence outside litigation	Existing Stipulated Protective Order sets designation procedures; Armory did not show good cause to alter discovery rules	Denied for failure to show good cause under Rule 26(c)

Key Cases Cited

Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (prior restraint/ gag-order framework; party seeking restraint must show likelihood of prejudicial publicity)
United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969) (adopts "reasonable likelihood" standard for prejudicial news)
Gentile v. State Bar, 501 U.S. 1030 (1991) (timing of publicity affects risk of prejudice; older publicity less likely to taint jury)
Skilling v. United States, 561 U.S. 358 (2010) (diminished media attention over time reduces presumptive juror prejudice)
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (distinguishes Rule 26 protective orders from classic prior restraints; Rule 26 orders require good cause)
Slivka v. YMCA, 390 F. Supp. 3d 1283 (D. Colo. 2019) (insubstantial media coverage does not justify gag order)
United States v. McVeigh, 955 F. Supp. 1281 (D. Colo. 1997) (extensive voir dire can mitigate pretrial publicity concerns)