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Judge Fallon resolves protective order disputes regarding source code

In Fraunhofer-Gesellschaft Zur Förderung der angewandten Forschung e.V. v. Sirius XM Radio Inc., C.A. No. 17-184-JFB-SRF (D. Del. Oct. 13, 2017), Magistrate Judge Sherry R. Fallon issued a Memorandum Order resolving the parties’ disputes regarding the terms of a protective order relating to source code.  The Court first ruled that Defendant’s definition of source code would be adopted, which included both software-based and hardware-based code. Id. at 2.  The Court concluded that evidence submitted, including expert declarations, established that “the term ‘source code’ encompasses both software-based and hardware-based code.” Id. at 3.  Furthermore, the Court concluded that “[d]efining ‘source code’ to include hardware-based code, including VHDL, is also consistent with this court’s case authorities” and cited other decisions from this District in support. Id.

Several of Defendant’s disputed proposals regarding restrictions on source code production were also adopted “to provide clear guidance and avoid the need to revisit such issues in this case,” specifically: prohibiting recording devices in the source code review room (while requiring a separate “private space” for the reviewers’ use of electronic devices); allowing reviewers to take notes on the source code computer but then request printouts of those notes; and limiting source code printing to 500 pages with the ability to request more later (accepting Plaintiff’s contention that “source code review is not critical to the facts of this case”). See id. at 3-4.

With regard to confidentiality designations for source code, the Court accepted Plaintiff’s proposal that “documents with fewer than 50 contiguous lines of source code may be produced under the ‘Highly Confidential -·Attorneys’ Eyes Only’ designation, while documents with more than 50 contiguous lines of source code may be produced in redacted form under the, ‘Highly Confidential – Attorneys’ Eyes Only’ designation, or in unredacted form under the ‘Highly Confidential – Attorneys’ Eyes Only – Source Code’ designation.” Id. at 5.

Fraunhofer-Gesellschaft Zur Förderung der angewandten Forschung e.V. v. Sirius XM Radio Inc., C.A. No. 17-184-JFB-SRF (D. Del. Oct. 13, 2017)

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