273 F.R.D. 357
D. Mass.2011Background
- Jagex sues Snellman brothers and Impulse Software for copyright and trademark infringement, with discovery disputes pending.
- Plaintiffs seek a protective order to shield source code, arguing it is a trade secret and requires special handling.
- Disputes focus on where and how the source code will be made available and how much advance notice is required.
- Plaintiffs propose seven days’ advance notice for unlimited on-site inspection in the District of Massachusetts at outside counsel’s office.
- Defendants propose four hours’ advance notice, access at a location convenient to their counsel, and a Court deposit of an identical copy of the source code on a hard drive.
- Court adopts a protective order permitting access within Massachusetts, stipulates a min-drive deposit, and sets inspection and disclosure procedures with timelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether protective order protecting source code is appropriate. | Jagex argues source code is a trade secret needing protection. | Defendants seek reasonable access terms to view and protect integrity of code. | Protective order warranted with limitations; MA access approved and deposit allowed. |
| Whether extension of discovery deadlines and subpoena handling are proper. | Jagex requests extended time to amend pleadings and serve discovery. | Defendants oppose but acknowledge delay is due to protective order disputes. | Extensions granted; subpoenas to be withdrawn and re-served under new deadlines. |
Key Cases Cited
- Pub. Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st Cir. 1988) (protective orders require good cause and have broad discretion)
- Poliquin v. Garden Way, Inc., 989 F.2d 527 (1st Cir. 1993) (court may tailor protective orders to protect confidential materials)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (Sup. Ct. 1984) (free flow of information balanced against protection of trade secrets)
- LinkCo, Inc. v. Fujitsu Ltd., 230 F. Supp. 2d 492 (S.D.N.Y. 2002) (source code may constitute a trade secret deserving protection)