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United States District Court Northern District of California v. Acronis Corporation

August 20, 2012


The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge


Pending before the Court is the parties' Joint Discovery Letter Brief concerning Plaintiff Symantec's proposed expert witness and consultant. (Dkt. No. 96). Defendant 22 Acronis objects to Plaintiff disclosing its highly confidential technical information (source 23 code) to Plaintiff's technical expert Dr. Martin Kaliski and consultant Edward Haletky. 24 Having considered the parties' filing and having had the benefit of oral argument on August 25 9, 2012, as stated on the record the Court DENIES Plaintiff's request to quash Defendant's 26 objections.


Recovery and True Image products infringe on five of Symantec's patents. The parties are 4 competitors in the back-up and recovery market

6 intends to use as a testifying expert and consultant, respectively, to help it prepare for and 7 present its case at trial. Pursuant to the Stipulated Protective Order ("Protective Order"), 8 which District Judge Chen granted on July 2, 2012, Plaintiff notified Defendant that it 9 intended to disclose information that had been designated as "Highly Confidential" to Dr. 10

Kaliski and Mr. Haletky. The Protective Order requires the party seeking to disclose highly 11 confidential information to serve written notice on the other party which: 12


CODE" information that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3) attaches a copy of the Expert's current resume, (4) identifies the Expert's current employer(s), (5) identifies each person or entity for the past 5 years for whom the Expert has provided professional services or from whom the Expert received compensation or funding, including in connection with litigation, (6) identifies all of the Expert's patents and pending patent applications in which the Expert is an inventor, assignee, or holds a financial interest; (7) identifies all source code relevant to this litigation in which the Expert holds a financial interest, and (8) identifies any professional services provided by the expert or any of his staff to Symantec, Acronis, Inc., or Acronis International GmbH or any predecessors or successors (merged,

acquired or otherwise), parents, divisions, subsidiaries, associated organizations,

joint ventures, and affiliates thereof. (Dkt. No. 89, 11:20-12:6). Under the Protective Order, if a party opposes disclosure of highly 23 confidential information, the party may file a timely written objection. If the parties are 24 unable to resolve the issue through meet and confer, the party seeking to disclose the highly 25 confidential information shall file a motion which "must describe the circumstances with 26 specificity, set forth in detail the reasons why the disclosure to the Expert is reasonably 27 necessary, assess the risk of harm that the disclosure would entail, and suggest any additional 28

In this patent infringement action, Symantec alleges that Acronis' Backup and The underlying dispute concerns two individuals whom Plaintiff has indicated it

(1) identifies the general categories of "HIGHLY CONFIDENTIAL -- means that could be used to reduce that risk." (Dkt. No. 89, 12:11-21). If a motion is filed, 2 "the Party opposing disclosure to the Expert shall bear the burden of proving that the risk of 3 harm that the disclosure would entail (under the safeguards proposed) outweighs the 4

Plaintiff provided written notice of its intent to disclose highly confidential information 6 to Dr. Kaliski and Mr. Haletky. Defendant responded with written objections which objected 7 to disclosure to Dr. Kaliski because Plaintiff had failed to provide sufficient information 8 regarding his clients for the past five years. Defendant objected to disclosure to Mr. Haletky 9 because it contended that there was a significant risk of harm associated with the disclosure 10 given that Mr. Haletky currently provides private consulting services in the very area in which 11 Acronis develops its products and he also publishes in this same field. The underlying motion 12 to quash these objections followed. (Dkt. No. 96). At oral argument the parties advised the

Court that they had resolved the motion with respect to Dr. Kaliski; accordingly, this Order 14 only addresses Defendant's objections to Mr. Haletky. 15 Defendant objects to disclosure of ...

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