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Joseph J. Farnan: Source Code for Future Products Must be Produced

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Discovery disputes over the production of source code often involve thorny issues of confidentiality. But sometimes those disputes are more basic, such as when a party outright refuses to produce certain code. In a recent decision, district judge Joseph J. Farnan Jr. addressed this type of dispute, and came down in favor of production.

On the underlying motion to compel, Imagine argued that it had no obligation to produce source code relating to its future products (as opposed to current products) because “of the likelihood that the products will change before they are released” and because movant BigBand “is not entitled to any damages from the future products.”

The Court dismissed this contention, noting that Rule 26’s relevancy standard is broad enough to encompass BigBand’s discovery request: “[S]ource code of Imagine’s future products is discoverable because it is reasonably likely to lead to evidence relevant to BigBand’s infringement claim.”

BigBand Networks, Inc. v. Imagine Comms. Inc., C.A. No. 07-351-JJF (D. Del. July 20, 2010) (Farnan, J.).

Also see the Court’s related decision on a motion to amend and motion to dismiss.

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