The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER REGARDING JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE AND ALL RELATED COUNTERCLAIMS.
Plaintiffs HTI IP, LLC and Networkfleet, Inc. (collectively, HTI) filed this patent infringement suit against Procon, Inc., Xirgo Technologies, LLC (Xirgo), and WebTech Wireless, Inc. and WebTech Wireless USA, LTD (collectively, WebTech). The four patents asserted relate to a wireless appliance placed in a car and a host computer that analyzes the data received from that appliance.
HTI and Xirgo filed this joint motion to resolve a third discovery dispute that relates to whether the stipulated protective order allows HTI to make and transport electronic copies of relevant portions of Xirgo's source code. HTI argues the protective order allows its expert to make temporary electronic copies of certain portions of Xirgo's source code and transport those electronic copies to later print out hard copies. Xirgo argues that the protective order does not allow making electronic copies of its source code solely for the purpose of printing out those portions for an expert's review.
For the following reasons, the court GRANTS the joint motion to determine the discovery dispute and determines the protective order requirements as follows.
The protective order sets out the parameters for an expert's review of an opposing party's source code. The relevant provisions provide:
21. Source Code Material shall be produced as follows:
(a) Access to a Party's Source Code Material shall be provided only on "stand-alone" computer(s) (that is, the computer may not be linked to any network, including a local area network ("LAN"), an intranet or the Internet). The stand-alone computer(s) may be connected to (i) a printer, or (ii) a device capable of temporarily storing electronic copies solely for the limited purposes permitted pursuant to paragraphs 21 (h and k) below. Additionally, except as provided in paragraph 21(k) below, the stand-alone computer(s) containing Defendants' source code may only be located at the offices of Fulbright & Jaworski LLP in Los Angeles, CA (for so long as Fulbright & Jaworski L.L.P. is counsel in this civil action) or at Iron Mountain in San Diego, CA, and the stand-alone computer(s) containing Plaintiffs' source code may only be located at the San Diego offices of Paul, Hastings, Janofsky & Walker LLP. The Parties may stipulate to another location for the stand-alone computer as circumstances dictate; ***
(g) Except as set forth in paragraph 21(k) below, no electronic copies of Source Code Material shall be made without prior written consent of the Producing Party, except as necessary to create documents which, pursuant to the Court's rules, procedures and order, must be filed or served electronically;
(h) The Receiving Party shall be permitted to make printouts and photocopies of Source Code Material, all of which shall be designated and clearly labeled "CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY" and the Receiving Party shall maintain a log of all such files that are printed or photocopied; ***
(k) A Producing Party's Source Code Material may only be transported by the Receiving Party at the direction of a person authorized under paragraph 21(e) above [outside counsel and outside consultants or experts (i.e., not existing employees or affiliates of a Party or an affiliate of a Party) retained for the purpose of this litigation and approved to access such Protected Materials] to another person authorized under paragraph 21(e) above, on paper or removable electronic media (e.g., a DVD, CD-ROM, or flash memory "stick") via hand carry, Federal Express or other similarly reliable courier. Source Code Material may not be transported or transmitted electronically over a network of any kind, including a LAN, an intranet, or the Internet. Source Code Material may only be transported electronically for the purpose of Court proceeding(s) or ...