Verinata Health, Inc. et al v. Ariosa Diagnostics, Inc et al

Filing 90

ORDER RE: DISCOVERY DISPUTE (Illston, Susan) (Filed on 10/17/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 12-05501 SI

VERINATA HEALTH, INC., et al.,

ORDER RE: DISCOVERY DISPUTE

Plaintiffs,
v.
ARIOSA DIAGNOSTICS, INC., et al.,
Defendants.

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Now pending before the Court is the parties’ discovery letter regarding the production of source
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code. In the joint letter, plaintiffs Verinata Health, Inc. and The Board of Trustees of the Leland
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Stanford Junior University (collectively “Verinata”) request an order compelling defendant Ariosa
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Diagnostics, Inc. (“Ariosa”) to produce its source code in the San Francisco Bay Area. For the reasons
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set forth below, the Court denies Verinata’s request.
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BACKGROUND
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This is a patent infringement action.
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Plaintiff Verinata accuses defendants Ariosa and

Laboratory Corporation of America Holdings’s HarmonyTM Prenatal Test of infringing U.S. Patent Nos.

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8,296,076 and 8,318,430. Docket No. 40, Third Amended Complaint. In response to a discovery
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request from Verinata, Ariosa has agreed to produce the source code for the HarmonyTM Prenatal Test

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at its counsel’s office in Los Angeles. Docket No. 88 at 3. In the joint discovery letter, Verinata
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requests that Ariosa be ordered to produce its source code in the San Francisco Bay Area. Id. at 1. In

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response, Ariosa argues that under the Northern District of California’s Interim Model Protective Order,

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it may produce the source code at its counsel’s office, which is located in Los Angeles. Id. at 3-5.

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DISCUSSION
The current protective order in this action does not address the production of source code. See

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Docket Nos. 52, 66. Under Patent Local Rule 2-2, the Northern District of California’s Interim Model

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Protective Order governs discovery in an action for patent infringement, unless the Court enters a

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different protective order. N.D. Cal. Pat. L.R. 2-2; MasterObjects, Inc. v. Yahoo! Inc., 2012 U.S. Dist.

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LEXIS 93867, at *5 (N.D. Cal. Jul. 6, 2012). Courts in this district treat “the model protective order

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United States District Court
For the Northern District of California

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as setting forth presumptively reasonable conditions regarding the treatment of highly confidential

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information.” Kelora Sys., LLC v. Target Corp., 2011 U.S. Dist. LEXIS 96724, at *7 (N.D. Cal. Aug.

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29, 2011). Therefore, absent a protective order already in place governing the parties’ dispute, the party

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requesting to deviate from the Interim Model Protective Order bears burden of showing the specific

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harm and prejudice that will result if its request is not granted. See Dynetix Design Solutions, Inc. v.

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Synopsys, Inc., 2012 U.S. Dist. LEXIS 51724, at *6 (N.D. Cal. Apr. 12, 2012).

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Section 9(c) of the Interim Model Protective Order provides: “Any source code produced in

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discovery shall be made available for inspection . . . at an office of the Producing Party’s counsel or

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another mutually agreed upon location.” Ariosa’s counsel only has offices in Los Angles and Newport

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Beach. Docket No. 88 at 3. Ariosa further explains that if it were required to produce its source code

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in the Bay Area, it would either have to retain additional counsel, lease office space and have its current

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counsel travel to the Bay Area, or produce the source code at its facility, which houses all of Ariosa’s

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most confidential business and scientific work. Id. at 4. Therefore, Ariosa’s offer to have the source

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code produced in its counsel’s Los Angeles office is reasonable and in accordance with the Interim

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Model Protective Order. Verinata argues that Ariosa should be required to deviate from the Interim

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Model Protective Order, but the only potential harm and prejudice it points to is the cost of traveling

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to Los Angeles to review the source code. Docket No. 88 at 2. The Court concludes that this is an

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insufficient showing to warrant deviating from the Interim Model Protective Order.

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Accordingly, the Court DENIES Verinata’s request to require Ariosa to produce its source code
in the San Francisco Bay Area. This Order resolves Docket No. 88.

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IT IS SO ORDERED.

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Dated: October 17, 2013
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SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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