A stipulated protective order ("SPO") in Manchester v. Sivantos GMBH, No. CV 17-5309-ODW (JEMx), 2019 WL 1598754 (C.D. Cal. Jan. 30, 2019) (McDermott, USMJ), reached out to specifically provide for secrecy of "source code":
The Stipulated Protective Order (Dkt. 262) governs the production and copying of source code documents. Paragraph 2.9 defines source code material as :
extremely sensitive “Confidential Information or Items” representing computer code and associated comments and revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structures of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.
Manchester, 2019 WL 1598754, at *1.
There are a couple of issues with this Magistrate Judge's opinion. One issue is that the SPO absolutely did not govern the production and copying of source code documents or any other documents, for that matter; the Federal Rules of Civil Procedure govern the production and copying of any documents at all as well as the discovery of witnesses' testimony through depositions, affidavits, and declarations.
Another issue is what exactly is the "serious harm that could not be avoided" if source code documents are disclosed? Personal injury? Most likely not. Property damage? Again, most likely not. Harm that would be recognized as grounds for a protective order under the Federal Rules of Civil Procedure? We do not yet know, even now, the full extent of what the parties agreed in their SPO would be "serious harm" that would follow from the disclosure of source code documents.
However, we do know that the Magistrate Judge in this case required the production and copying of 85 particular source code documents. The Magistrate Judge went so far as to impose sanctions on a party for its failure to produce hard copies of the source code documents in this case. The Magistrate Judge's ruling that production of the hard copies was required in this case is based on Local Rules in addition to the terms of the SPO, Manchester, 2019 WL 1598754, at *2-*3, before his extended discussion rejecting waiver contentions.
The SPO in the Manchester case also provided its own "dispute resolution procedure," to use the Magistrate Judge's description. Manchester, 2019 WL 1598754, at *5. The Magistrate Judge awarded the opposing party's attorney's fees as sanctions under both Federal Rule of Civil Procedure 37(a) and the SPO in this case.
At least in the award of sanctions, the Federal Rules of Civil Procedure were treated as the SPO's equal in authority in this decision.
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