The opinion of the court was delivered by: The Honorable Joseph C. Spero
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Joint Letter to the Court Regarding the Parties' Second In-Person Meet and Confer
On Tuesday, June 7, 2011, lead trial counsel for MotionPoint, Joel M. Freed, attended an in-person meet-and-confer with new lead trial counsel for TransPerfect, Doug Lumish, about a discovery dispute over the proper interpretation of the Order of this Court regarding review of native source code. This joint letter is the result of that meeting.
I.MATTERS THAT REMAIN IN DISPUTE
The sole issue in dispute is the software allowed on the stand-alone source code review computer for use in connection with MotionPoint's extracting, reviewing, and analyzing the source code in native form.
II.DETAILED SUMMARY OF EACH PARTY'S FINAL SUBSTANTIVE POSITION
MotionPoint originally requested the native version of TransPerfect's source code on February 9, 2011. TransPerfect responded with vacillation. TransPerfect stated that they would consider production, and at one point even agreed to produce the native code. TransPerfect then reneged on its agreement and completely refused to the native production. MotionPoint was forced to bring a motion, and TransPerfect was required to produce its code in native format, but by then TransPerfect had successfully delayed the commencement of MotionPoint's review of the native code for many months. The present discovery dispute arises from TransPerfect's further imposition of delay by now refusing to install and allow use by MotionPoint's expert of commercial software supplied by him for his use in extracting, reviewing, and analyzing the source code in native form.
On May 6, 2011, this Court adopted MotionPoint's position of entitlement to access to source code in native form that can be extracted, reviewed, and analyzed by its expert. The Court Ordered the production of the native source code on the conditions as set forth on pages 7-8 of the Joint Letter resulting from the first in person meet and confer, which Order was further implemented as an Addendum to the Protective Order. Pursuant to the Order and the Addendum, MotionPoint's technical expert provided TransPerfect's counsel with software. TransPerfect then installed that software on the stand-alone source code review computer in the office of TransPerfect's counsel. This software included Understand, as well as other standard commercial software that MotionPoint's expert supplied on a disc for installation and his use in extracting, reviewing, and analyzing the source code in native form.
On May 26, 2011, a little over a week after MotionPoint's expert began his review-and created work product results from that review as permitted by the governing Orders- TransPerfect sent a letter refusing to permit further use of that software and further access to the stand-alone computer, stating that use of any software other than Understand was a violation of the Court's Order and the Addendum. MotionPoint's counsel responded, stating that TransPerfect was entitled to continue to inspect the commercial software provided by MotionPoint's expert. MotionPoint's counsel further noted that the Order and Addendum not only permits extraction and review, but also analysis, and do not contain any requirement that the commercial software he is using be explained. TransPerfect, however, continued to refuse access to the source code computer at Orrick's office.
At that point, MotionPoint proceeded under the Standing Order regarding discovery disputes, demanding an in person meet and confer on this issue. Shortly thereafter there was a change in lead counsel acting on behalf of TransPerfect, with Orrick being replaced by Kasowitz, Benson, Torres & Friedman LLP. The in person meet and confer took place on June 7, 2011. At the meeting, TransPerfect's new lead counsel continued to maintain TransPerfect's position that no software other than Understand could be used by MotionPoint's expert, and offered as a "compromise" position the availability of inspection at Kasowitz's San Francisco office of a new stand-alone computer with only Understand installed, and without the "work product" folder from the stand-alone computer at Orrick's Menlo Park office, which contains working files from MotionPoint's expert's prior native source code review to date. The stated concern offered by TransPerfect's new lead counsel was that TransPerfect did not know how MotionPoint's expert intended to use the commercially available software he provided and therefore concluded it might be used, even if unintentionally, to alter the source code on the stand-alone computer.
Counsel for MotionPoint explained that at this point the expert has not been designated as a testifying expert and as such his use of the software to extract, review, and analyze the source code is currently protectable work product (not to mention that it would take a deposition to fully explain in detail how one with his technical skill would extract, review, and analyze the native source code). Furthermore, upon consultation with its expert, MotionPoint's counsel learned and informed TransPerfect's counsel that ...