Multimedia Patent Trust v. Directv, Inc. et al

Filing 462

ORDER denying Third Party Ambarella Inc.'s #377 Motion for a Protective Order. Signed by Magistrate Judge Cathy Ann Bencivengo on 8/24/2011. (All non-registered users served via U.S. Mail Service)(mtb)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MULTIMEDIA PATENT TRUST,

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Civil No.
Plaintiff,

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ORDER DENYING THIRD PARTY
AMBARELLA INC.’S MOTION FOR A
PROTECTIVE ORDER
[Doc. No. 377]

v.
DIRECTV, Inc., DIRECTV Enterprises, LLC,
The DIRECTV Group, Inc., DIRECTV Holdings
LLC, DIRECTV Operations, LLC; et al.

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09cv0278-H (CAB)

Defendants.
Before the Court is third party Ambarella, Inc.’s motion to enforce the terms of the Source Code

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Protective Order against plaintiff Multimedia Patent Trust (“MPT”). [Doc. No. 377.] MPT filed an

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initial response [Doc. No. 378] and a supplemental opposition [Doc. No. 387], Ambarella filed a reply

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[Doc. No. 456]. The Court heard argument on August 22, 2011. Nathan Cummings, Esq., and Phil

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Morton, Esq., appeared for MPT. Kimberly P. Zapata, Esq., appeared for Ambarella. Joseph Reid, Esq.,

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appeared for defendant DirecTV. Ryan McCrumb, Esq., appeared for defendant Vizio. Having

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considered the submissions of the parties and the arguments of counsel, the motion is DENIED.

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MPT subpoenaed documents from third-party Ambarella regarding the design, architecture,

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operation, etc., of processors manufactured by Ambarella that are incorporated in the video encoding

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equipment defendant DirecTV uses and sells which are accused of infringement of MPT’s patents.

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Ambarella agreed to make source code files available for inspection subject to a Protective Order [Doc.

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No. 357] entered by this Court. Recognizing the highly proprietary and confidential nature of the source

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code files being produced, the parties agreed that the files would be provided for review on locked-

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down, non-networked, stand-alone computers at the offices of Ambarella’s counsel. Counsel for MPT

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and MPT’s expert consultant could review the files and could print a paper copy of portions of the

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Source Code as reasonably necessary to prepare court filings, pleadings or papers, including

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infringement contentions, expert reports or as deposition exhibits.

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Specifically the Protective Order prohibits “wholesale printing.” “The receiving party shall not

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print Source Code in order to review blocks of Source Code elsewhere in the first instance, i.e., as an

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alternative to reviewing that Source Code electronically on the Source Code Computer.”

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[Doc. No. 357, ¶4.c.] MPT is further limited to a paper copy of the code; no electronic reproductions

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can be made. A maximum of five additional papers copies can be made for internal use only and the

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code must be secured when not in use.

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Beginning on May 23, 2011, MPT’s counsel and consultant spent a week reviewing the

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Ambarella code in accordance with the terms of the Protective Order. Approximately 85 files of verilog

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code were provided for inspection. Following its review, MPT printed copies of 67 files it represents are

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reasonably necessary to the preparation of its case. Ambarella will not produce the printed files and

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contends the requested files violate the “wholesale printing” prohibition and put its confidential

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information at risk of inadvertent disclosure. Ambarella contends that the Protective Order anticipated

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MPT requesting lines of code following the review for paper reproduction, not entire code files.

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MPT responds that it followed the terms of the Protective Order. MPT reviewed the files at the

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offices of Ambarella’s counsel and made a determination that 67 of the 85 files are reasonably necessary

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to the preparation of its case. The files represent distinct independent hardware modules that cross-

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reference other structures, functions, etc., and cannot be understood or read without reference to the

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other portions of the module in the file. [Doc. No. 387 at 7.] The Court appreciates Ambarella’s

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legitimate concerns about the control and confidentiality of its source code. The terms of the Protective

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Order limit the nature and number of copies MPT can make of the files after review. The order however

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does not limit the reviewing party to just lines of code, but to the code it deems reasonably necessary for

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preparation of its case after review of Ambarella’s responsive production.

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MPT has represented that the files selected for reproduction are reasonably necessary to its case

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preparation. Other than the volume of materials selected, no showing has been made to contradict that

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representation. The motion is DENIED and the documents selected by MPT shall be provided

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forthwith. Given the volume however and Ambarella’s concerns about control of this very sensitive

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information, the Court directs that no later than 30 days after the production to MPT, MPT will return

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or certify that it has destroyed any of the requested files it determines are not reasonably necessary for its

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case preparation based on its continued review and analysis.

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DATED: August 24, 2011
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CATHY ANN BENCIVENGO
United States Magistrate Judge

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