Uniloc USA, Inc. et al v. NATIONAL INSTRUMENTS CORP. et al

Filing 200

MOTION for Protective Order by Uniloc Singapore Private Limited, Uniloc USA, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Nelson, Edward)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION
UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
SONY CORPORATION OF AMERICA,
ET AL.
Defendants.

UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
DISK DOCTORS LABS, INC. ET AL.
Defendants.

UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
NATIONAL INSTRUMENTS CORP.,
ET AL.
Defendants.

UNILOC USA, INC., ET AL.
Plaintiffs,
vs.
ENGRASP, INC., ET AL.
Defendants.

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CASE NO. 6:10-CV-373
PATENT CASE

CASE NO. 6:10-CV-471
PATENT CASE

CASE NO. 6:10-CV-472
PATENT CASE

CASE NO. 6:10-CV-591
PATENT CASE

UNILOC USA, INC., ET AL.
Plaintiffs,

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vs.
BMC SOFTWARE, INC., ET AL.
Defendants.

UNILOC USA, INC., ET AL.
Plaintiffs,

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vs.
FOXIT CORPORATION, ET AL.
Defendants.

SYMANTEC CORPORATION, ET AL.
Plaintiffs,

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vs.
UNILOC USA, INC., ET AL.
Defendants.

CASE NO. 6:10-CV-636
PATENT CASE

CASE NO. 6:10-CV-691
PATENT CASE

CASE NO. 6:11-CV-33
PATENT CASE

PLAINTIFFS’ MOTION FOR ENTRY OF PROTECTIVE ORDER
Pursuant to Federal Rule of Civil Procedure 26(c), Plaintiffs Uniloc USA, Inc. and Uniloc
(Singapore) Private Limited (collectively, “Uniloc”) ask that the Court enter the Protective Order
attached as Exhibit A.
I.

PROTECTIVE ORDER NEGOTIATIONS WITH DEFENDANTS
Uniloc first sent Defendants a proposed protective order on May 22, 2011, which

included a framework for review of Defendants’ source code. No Defendant responded with
comments to the proposed protective order; though numerous Defendants contacted Uniloc
proposing widely varying review protocols and restrictions on early source code production.
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In turn, Uniloc explained that the following, basic parameters are essential to effective
and efficient source code review:


Means for production: Standalone computer, or transmittal on a disk or
laptop.



Format: Production (i) in a native format such that the code can be reviewed
with developers’ tools (source code files .c, .cpp, .cs, .java, etc.) and (ii) in the
same directories as the code is kept on the developer’s computer so the
reviewer can step through the code line-by-line and determine what functions
call other functions and modules.



Code Review Tools: Subject to consultation, free tools such as Visual
Express Studio should be installed on the review computer.



Printing: Permission to make reasonable print-outs on pre-labeled Batesnumbered pages (with the “SOURCE CODE ─ ATTORNEY’S EYES
ONLY” confidentiality designation).1



Consultant Approval: Consent for Uniloc’s consultant to review the
produced source code.



Note-Taking: Permission to use a laptop for note-taking (the producing party
may disable input/output connections).

Uniloc believes that these minimum parameters are reasonable. In fact, Uniloc has performed
dozens of source code reviews in this and related cases under these, or substantially similar,
conditions.
Uniloc ultimately resent its proposed protective order to Defendants on July 5, 2011.
(Exh. B, Nelson Letter). The document has since been through two rounds of revisions with

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Note that the Protective Order that Uniloc asks this Court to enter represents a document
advanced from Uniloc’s original proposal in the sense that it includes negotiated provisions that
are agreeable to Uniloc and Defendants alike. For example, the Protective Order includes a
departure from the enumerated printing parameter. Despite the fact that printing portions of code
at the time of review is ideal, Uniloc’s proposed Order reflects its willingness to allow the
producing Defendant to print the code excerpts as requested by Uniloc and to send those excerpts
to Uniloc post-review.
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some, but not all, parties to the pending Uniloc cases.2
The material revisions in Defendants’ most recent draft include multiple unworkable
restrictions and limitations, prompting a meet and confer across all cases on Thursday, July 28.
Over twenty Defendants or Defendant groups participated; but the participants were unable to
resolve the outstanding issues and are at an impasse.
The Docket Control Order sets August 15, 2011 as the deadline for exchanging additional
disclosures. Uniloc believes that entering a protective order in advance of this deadline will
ensure that these disclosures are timely and that there are established, uniform rules for
conducting source code reviews going forward.
II.

SOURCE CODE REVIEW PROTOCOL ISSUES
The majority of differences among the parties involve the disclosure, review and

handling of Defendants’ respective source code. In an effort to highlight the differences for the
Court, Uniloc attaches a comparison of Uniloc’s proposed protective order (Exh. A) with
Defendants’ most recent iteration. (See Exh. C, showing Defendants’ changes in redline). It
bears mention that many Defendants have reached agreements with Uniloc on interim source
code review procedures that are consistent with the protective order Uniloc submits for entry.
a. Location of source code computer
The parties have agreed that source code may be produced on a standalone computer (the
“Source Code Computer”). (Exh. C, at ¶ 20(a)). Uniloc proposes, however, that the Source
Code Computer be located: (i) at any office of the Producing Party’s outside counsel in Texas,
(ii) any place of business of the Producing Party in Texas, or (iii) if mutually agreed to, any other

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That the Defendant drafts are not endorsed by all Defendants is a complicating issue.
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location. Defendants’ draft removes the requirement to produce the Source Code Computer in
Texas. (Exh. C, at ¶ 20(a)).
Uniloc believes that the Source Code Computer should be located in Texas (absent
mutual agreement of the parties) for a variety of reasons: (i) This case is pending in Texas and
any trial will be conducted in Texas and any source code will eventually have to be in Texas for
that purpose, (ii) all Defendants have retained local counsel in Texas, and (iii) most Defendants
are represented by outside counsel who have offices in Texas. Furthermore, if Defendants have
carte blanche to produce the Source Code Computer at any location, they could use the location
of the Source Code Computer offensively as a mechanism to drive up costs and hinder efficient
discovery.
b. Production of source code as it is kept in the normal course of business
Uniloc believes that any source code should be produced as it is kept in the normal course
of business. This position is consistent with Rule 34(b)(2)(E)(i), which provides that “[a] party
must produce documents as they are kept in the usual course of business…” Fed. R. Civ P.
34(b)(2)(E)(i) (emphasis added).
Defendants removed this provision in their recent draft, which is contrary to the
requirements of the Federal Rules. (See Exh. C, at ¶ 20(a)). Uniloc’s position is consistent with
the Federal Rules and requests that this provision be incorporated to ensure the code review is no
more burdensome for Uniloc than for Defendants.
c. Use of a laptop to take notes
Uniloc’s primary consultant has a medical condition, arthritis, which makes taking hand
written notes difficult. Given the voluminous amount of code review expected in this case,

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Uniloc believes that using a laptop for note taking is reasonable. Defendants’ draft would forbid
the use of a laptop for note taking. (Exh. C, at ¶ 20(d)).
To the extent that Defendants are concerned about unauthorized access to any notes on
Uniloc’s consultant’s laptop, the Court should be aware that the laptop has a variety of security
features, including: (i) the use of a hidden TruCrypt partition using 256 bit AES (rated by the
National Security Agency for top secret documents3), (ii) a 30+ character password in addition to
the password file being secured with Syskey, and (iii) the TruCrypt partition has an additional
20+ character password that is not the same as the login. Thus, Uniloc believes that it has taken
sufficient precautions and has adequately addressed any legitimate security concerns. In fact,
notes on the laptop would arguably be more secure than any handwritten notes on paper.
d. Audible monitoring of source code reviews
Uniloc has yielded to Defendants’ request to visually monitor any source code review in
order to ensure compliance with the requirements of the protective order (such as not copying
source code to an external device). However, Defendants proposal would permit them to audibly
monitor such reviews. (Exh. C, at ¶ 20(g)). Such is unjustifiably intrusive and would permit
Defendants to eavesdrop on conversations between Uniloc counsel and consultant. Courts have
rejected attempts by opposing counsel to similarly monitor counsel and their experts while
conducting inspections and reviews. See Mancuso v. D.R.D. Towing Co., L.L.C., 2006 U.S. Dist.
LEXIS 9672, at *6 (E.D. La. Mar. 10, 2006).
e. Restrictive limitations on printing
Defendants seek to limit the number of source code pages that may be printed to fifty
pages. (Exh. C, at ¶ 20(i)). This is an unworkable limitation for a variety of reasons. First,

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See http://csrc.nist.gov/groups/ST/toolkit/documents/aes/CNSS15FS.pdf.
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Uniloc does not know how many files are relevant for a given Defendant’s activation technology
until it has an opportunity to review the code. Second, Uniloc has no control over the size of the
relevant files.

A file might be three to four pages long, or it could be 100 pages long

(particularly if there are substantial programmer’s comments contained within).

Given

Defendants’ proposed restriction, Uniloc might not be able to print more than one partial file.
Third, it is possible that certain Defendants use more than one activation technology, or that the
source code has undergone revisions over time. Defendants’ printing restrictions would prevent
Uniloc from printing relevant pages/files for use in this case and necessitate multiple trips to
review the same code.
Uniloc has agreed that it will not “request printed copies of Source Code in order to
review blocks of Source Code elsewhere in the first instance, i.e., as an alternative to reviewing
that Source Code electronically on the Source Code Computer.” (Exh. C, at ¶ 20(i)) As Uniloc
has no desire to print large sections of non-relevant code, this should adequately address
Defendants’ concerns.
III.

UNILOC HAS ENTERED INTO INTERIM REVIEW PROTOCOLS WITH
NUMEROUS DEFENDANTS THAT ARE SUBSTANTIALLY SIMILAR, IF NOT
IDENTICAL, TO THE PROCEDURES PROPOSED IN UNILOC’S PROPOSED
PROTECTIVE ORDER
In order for Uniloc to review early source code disclosures pursuant to the Court’s Order

dated May 20, 2011, Uniloc has entered into interim review protocols with numerous
Defendants. In fact, Uniloc has signed what is essentially a full-blown, interim protective order
with Defendants Adobe, BMC Software, Freedom Scientific, National Instruments, Pinnacle
Systems, SafeNet, Aladdin Systems, and Oynx Graphics (the “Adobe Defendants”). (See Exh.
D). The agreement with the Adobe Defendants is materially the same as Uniloc’s present
proposed protective order and includes the following:
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1. Source Code Computer available in Texas (Exh. D, at ¶20(a));
2. Notes to be taken on a laptop (Exh. D, at ¶ 20(b); see also ¶ 20(d));
3. No hard printing limitations (Exh. D, at ¶20(f));
4. No audible monitoring of the review proceedings.
In fact, in the pending cases alone, Uniloc has conducted a number of code reviews
subject to similar arrangements, and those reviews have run smoothly. Since Uniloc’s interim
code review procedures have proved successful, Uniloc sees no reason why these procedures
should not be adopted and applied to all Defendants.
IV.

CONCLUSION
Uniloc respectfully requests that the Court enter its proposed protective order without

further modification in order to establish uniform rules for further source code reviews, and to
otherwise permit discovery to proceed on August 15, 2011 unimpeded.

Dated: August 2, 2011.

Respectfully Submitted,
/s/ Edward R Nelson, III
Edward R. Nelson, III
Attorney-in-Charge
Texas State Bar No. 00797142
Barry J. Bumgardner
Texas State Bar No. 24041918
Steven W. Hartsell
Texas State Bar No. 24040199
S. Brannon Latimer
Texas State Bar No. 24060137
Jaime K. Olin
Texas State Bar No. 24070363
NELSON BUMGARDNER CASTO, P.C.
3131 West 7th Street, Suite 300
Fort Worth, Texas 76107
[phone]
[phone] (fax)
[e-mail]
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[e-mail]
[e-mail]
[e-mail]
[e-mail]
T. John Ward, Jr.
Texas State Bar. No. 00794818
J. Wesley Hill
Texas State Bar. No. 24032294
WARD & SMITH LAW FIRM
111 West Tyler St.
Longview, Texas 75601
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
COUNSEL FOR PLAINTIFFS UNILOC USA,
INC. AND UNILOC SINGAPORE PRIVATE
LIMITED

CERTIFICATE OF CONFERENCE
Counsel for Uniloc scheduled a meet and confer for July 28 to discuss the proposed
protective order and invited Defendants to attend. A significant number of defendants and
defendant groups participated on the July 28 call. The discussions have conclusively resulted in
an impasse, leaving an open issue for the Court to resolve.

/s/ Edward R. Nelson, III
Edward R. Nelson, III
CERTIFICATE OF SERVICE
The undersigned certifies that on August 2, 2011, the foregoing document was filed
electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all
counsel who have consented to electronic service. Local Rule CV-5(a)(3)(A).
/s/ Edward R. Nelson, III
Edward R. Nelson, III
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