Finisar Corporation v. Nistica, Inc.

Filing 233

ORDER RE: DISCOVERY DISPUTE. Signed by Magistrate Judge Jacqueline Scott Corley on 7/9/2015. (ahm, COURT STAFF) (Filed on 7/10/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FINISAR CORPORATION,

Case No. 13-cv-03345-BLF (JSC)

Plaintiff,
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v.

ORDER RE: DISCOVERY DISPUTE

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NISTICA, INC.,

Re: Dkt. No. 220

Defendant.

United States District Court
Northern District of California

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Now pending before the Court is the parties’ joint letter brief regarding Finisar’s request

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for an order compelling Nistica to install certain software tools on the computer designated for

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review of Nistica’s source code. (Dkt. No. 220.) The Court heard oral argument on the discovery

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dispute on July 9, 2015. For the reasons stated on the record in open court at the hearing and

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discussed briefly below, the Court GRANTS Finisar’s request for an order compelling Nistica to

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install the software programs.

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The Stipulated Protective Order (“Protective Order”) in this case provides in relevant part

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that “the Producing Party [i.e., Nistica] shall install tools that are sufficient for viewing and

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searching the code produced[,],” and that the Receiving Party [here, Finisar] “may request that

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commercially available software tools for viewing and searching source code be installed on the

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Confidential Source Code Computer, and the Producing Party may not unreasonably refuse such

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requests.” (Dkt. No. 140 ¶ 6(c).) Further, “the Receiving Party shall not at any time use any

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compilers, interpreters or simulators in connection with the Producing Party’s Source Code.” (Id.)

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The requested software tools, Cygwin and the Compare Plug-In for Notepad++, can be installed

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without any compiling, interpreting, or simulating functions that the Protective Order prohibits.

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Instead, Finisar seeks to use the programs for their “comparing” function, which allows

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comparison of various versions of source code and highlights the differences, analogous to the

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“redline” function of Microsoft Word. Comparing facilitates the “viewing” of the source code and

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thus is permitted by the Protective Order. However, because comparing identifies changes—

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conceivably, improvements—to Nistica’s products, these “redlined” versions are particularly

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sensitive to Nistica’s commercial interests.

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Accordingly, it is hereby ORDERED that Nistica shall install Cygwin and the Compare
Plug-in for Notepad++ on the designated Source Code computer, without any compilers,

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interpreters, or simulators, by Monday, July 13, 2015. The Court finds that bash.exe is not an

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interpreter. To the extent it can nonetheless be used as such, Finisar is, of course, prohibited from

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doing so. It is further ORDERED that Finisar may not request or obtain copies of any “redlined”

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United States District Court
Northern District of California

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version of Nistica’s source code that these software tools create. The Court declines Finisar’s

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request to extend the due date for expert reports.

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IT IS SO ORDERED.
Dated: July 9, 2015

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________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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