M-I L.L.C. v. Q'Max Solutions, Inc. et al
Filing
146
MEMORANDUM OPINION AND ORDER denying without prejudice 126 MOTION to Exclude Testimony of David Leathers and Expert Testimony on Copyright Damages, granting 128 MOTION for Summary Judgment as to Copyright Infringement, granting 134 MOTION to Enforce the Terms of the Protective Order and Compel the Destruction of an Inadvertently Produced Document (Compliance due on or before 8/16/2020. Scheduling Conference set for 8/21/2020 at 02:00 PM in Courtroom 9B before Judge Sim Lake.), Q'Max America, Inc. terminated (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 1 of 35
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
M-I L.L.C. d/b/a M-I SWACO,
Plaintiff,
v.
Q'MAX SOLUTIONS, INC.; Q'MAX
AMERICA, INC.; and SANJIT ROY,
Defendants.
§
§
§
§
§
§
§
§
§
§
August 06, 2020
David J. Bradley, Clerk
CIVIL ACTION NO. H-18-1099
MEMORANDUM OPINION AND ORDER
M-I L.L.C. d/b/a M-I SWACO ("M-I") filed this action against
Q'Max Solutions, Inc., Q'Max America, Inc. (together "Q'Max"), and
Sanjit Roy (collectively, "Defendants") alleging the theft and use
of M-I's intellectual property and software.
M-I alleges claims
for copyright infringement, misappropriation of trade secrets, and
conversion against all Defendants and breach of contract and breach
of fiduciary duty claims against Roy. 1
Pending before the court
are Plaintiff M-I LLC's Motion to Enforce the Terms of the
Protective Order and Compel the Destruction of an Inadvertently
Produced Document ("Motion to Compel")
Defendants'
Infringement
Motion
for
Summary
("Defendants' MSJ")
[Docket Entry No. 134],
Judgment
as
to
Copyright
[Docket Entry No. 128],
and
Defendants' Motion to Exclude Testimony of David Leathers and
Complaint, Docket Entry No. 1, p. 5 1 13, pp. 8-9 1 30,
pp. 10-11 11 41-42, p. 13 11 55-56, p. 16 11 70-75, p. 17 1 83.
All page numbers for docket entries in the record refer to the
pagination inserted at the top of the page by the court's
electronic filing system, CM/ECF.
1
t�.·
I
Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 2 of 35
Expert Testimony on Copyright Damages ("Motion to Exclude Expert
Testimony") [Docket Entry No.
126].
For the reasons explained
below, the Motion for Protective Order will be granted, Defendants'
MSJ will be granted, and the Motion to Exclude Expert Testimony
will be denied.
I.
Factual and Procedural Background
The court will not describe in detail the background of this
action because it has done so in its previous Memorandum Opinion
and Order granting in part and denying in part M-I's motion for
summary judgment as to its breach of contract and misappropriation
of trade secrets claims. 2
The facts below are those that relate
specifically to M-I's copyright infringement claim.
M-I developed Virtual Hydraulics
("VH") and Presspro RT
("PPRT"), which are hydraulics simulation software used in oil and
gas drilling.
The software permits users to enter parameters about
a well and to simulate the hydraulics that will occur within the
well at various depths.
M-I asserts copyright over VH, PPRT, and
Until May of
proprietary databases (the "Copyrighted Works") .
Sanjit Roy was employed by M-I and had access to the
2014,
Copyrighted
Works.
When
Roy
left
M-I,
he
kept
copies
of
confidential information on computers and external hard drives,
including a full backup of his M-I computer that contained the
source code for various versions of VH and PPRT.
2
Memorandum Opinion and Order, Docket Entry No.
-2-
111,
pp.
1-4.
Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 3 of 35
Roy joined Q'Max, a competitor of M-I, in April of 2015.
and Q'Max developed MAXSITE Hydraulics
( "MAXSITE") ,
Roy
a software
program with the same models as VH that could compete with VH in
the virtual hydraulic simulation space.
M-I alleges that Roy and
Q'Max copied the Copyrighted Works; specifically, M-I claims that
MAXSITE infringes on its copyright because it was created by
copying the Copyrighted Works and is substantially similar to them.
M-I filed this action on April 6, 2018, asserting, among other
claims, copyright infringement. 3
Defendants seek summary judgment
only as to M-I's copyright infringement claim. 4
December 9, 2019. 5
M-I responded on
Defendants replied on December 16, 2019, 6 and
M-I filed a surreply on April 29, 2020. 7
II.
A.
Defendants' Motion for Summary Judgment
Standard of Review
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
3
Complaint, Docket Entry No. 1, p. 7.
4
Defendants' MSJ, Docket Entry No. 128, p. 1.
Plaintiff M-I LLC's Opposition to Defendants' Motion for
Summary Judgment as to Copyright Infringement ("M-I's MSJ
Response"), Docket Entry No. 132.
5
Defendants' Reply in Support of Motion for Summary Judgment
as to Copyright Infringement ("Defendants' MSJ Reply"), Docket
Entry No. 136.
6
Plaintiff M-I LLC's Surreply to Defendants' Reply in Support
of Motion for Summary Judgment as to Copyright Infringement ("M-I's
MSJ Surreply"), Docket Entry No. 144.
7
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 4 of 35
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Disputes about material facts are genuine "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party."
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510
(1986)
The party moving for summary judgment must show the absence
of a genuine issue of material fact.
Exxon Corp. v. Oxxford
Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir. 1997).
"If the moving
party fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant' s response."
Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en bane) (per curiam)
(citing Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986)).
If the moving party meets this burden,
Rule 56 © requires the
nonmovant to go beyond the pleadings and show by affidavits,
depositions, answers to interrogatories, admissions on file, or
other admissible evidence that specific facts exist over which
there is a genuine issue for trial.
Id.
The nonmovant "must do
more than simply show that there is some metaphysical doubt as to
the material facts."
Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986).
In reviewing the evidence "the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence."
Reeves v.
Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110 (2000).
The court resolves factual controversies in favor of the nonmovant,
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 5 of 35
"but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little,
37 F.3d at 1075.
B.
Applicable Law
"To prove copyright infringement, a plaintiff must establish
(1) ownership of a valid copyright;
substantial similarity."
(2) factual copying; and (3)
Nola Spice Designs,
L.L.C. v. Haydel
Enterprises. Inc., 783 F.3d 527, 549 {5th Cir. 2015).
The second
element requires a showing that the defendant "actually used the
copyrighted material to create his own work" and that "the copying
is legally actionable."
Engineering Dynamics, Inc. v. Structural
Software, Inc., 26 F.3d 1335, 1340-41 (5th Cir. 1994)).
There is
no dispute that the copyrights M-I has asserted are valid.
Actual use of copyrighted material may be proven either by
"direct evidence of copying or through circumstantial evidence
demonstrating both
(1) that the defendant had access to the
copyrighted work and
similar."
(2) that the two works are
'probatively'
General Universal Systems. Inc. v. Lee, 379 F.3d 131,
141 (5th Cir. 2004).
"The access element is satisfied if the
person who created the allegedly infringing work had a reasonable
opportunity to view the copyrighted work.
The second element -
probative similarity - requires a showing that the works,
compared
as
a
appropriation.'"
whole,
are
adequately
Id.
-5-
similar
to
'when
establish
Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 6 of 35
"Not all copying, however, is copyright infringement."
Feist
Publications, Inc. v. Rural Telephone Service Co., Inc., 111 S. Ct.
1282, 1296
alleged
(1991).
infringing
For copying to be legally actionable, the
work
must
satisfy
the
third
element
by
"bear[ing] a substantial similarity to the protected aspects of the
original."
Peel
Co, Inc. v. The Rug Market, 238 F.3d 391, 398
&
(5th Cir. 2001).
Therefore, "[t]he inquiry focuses not on every
aspect of the copyrighted work,
but on those aspects of the
plaintiff's work [that] are protect[a]ble under copyright laws and
whether whatever copying took place appropriated those [protected]
elements."
112
(1st
T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97,
Cir. 2006)
omitted).
" [A]nyone may copy uncopyrightable
copyrighted work."
these
(internal quotation marks and citations
limitations,
elements in a
Engineering Dynamics, 26 F.3d at 1347.
"where
the
copyrighted
work
Given
contains
unprotectable elements, the first step is to distinguish between
protectable and unprotectable elements of the copyrighted work."
Nola Spice,
783 F.3d at 550.
Once unprotectable elements are
excluded, "[t]he next inquiry is whether the allegedly infringing
work bears a substantial similarity to the protectable aspects of
the original work."
Id.
The standard is "whether a layman would
view the two works as 'substantially similar'" after comparing the
works side-by-side.
General Universal, 379 F.3d at 142.
This is
a question of fact on which summary judgment is only available if
no reasonable juror could find substantial similarity of ideas and
expression.
Id.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 7 of 35
Computer
programs
are
entitled
to
copyright
protection.
General Universal, 379 F.3d at 142. Protection extends to both the
literal elements - the source code and object code - and the
nonliteral elements such as its "structure, sequence, organization,
user interface, screen displays, and menu structures."
Id.
The
Fifth Circuit has endorsed the "abstraction-filtration-comparison"
test for assessing whether protectable expression in software has
been improperly copied.
where
the
court
Id.
"dissect[s]
The test begins with abstraction,
the
allegedly
copied
program's
structure and isolate [s] each level of abstraction contained within
it."
Id.
"Second, the court filters out unprotectable expression
by examining the structural components at each level of abstraction
to determine whether they can be protected by copyright."
Id. The
court must filter out ideas, processes, facts, elements dictated by
efficiency or external factors, and elements taken from the public
domain, as these are not protected by copyright.
Id. at 142-43.
Finally, the court compares the filtered copyrighted software to
the defendants' to determine whether a substantial portion was
copied.
c.
Id. at 143.
Analysis
M-I alleges two types of copyright claims:
(1) the claim
against Roy for making copies of the Copyrighted Works, and (2) the
claim against all Defendants that MAXSITE was produced by copying
the Copyrighted Works.
Defendants argue that they are entitled to
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 8 of 35
summary judgment against M-I's copyright claim on the basis that
there
is
no
substantial
similarity
between
protected elements of M-I's Copyrighted Works. 8
MAXSITE
and
the
Defendants argue
that M-I has identified no protectable elements of the software
that will survive filtration except the source code and that the
source code of the two programs are not substantially similar. M-I
responds that (1) the abstraction-filtration-comparison test does
not apply,
(2) even if the test applies, there are substantial
similarities between MAXSITE and the Copyrighted Works, and that
(3) Defendants' argument does not affeet the copyright claim
against Roy based on his making copies of the Copyrighted Works. 9
1.
The Abstraction-Filtration-Comparison Test Applies
As an initial matter, M-I disputes whether the court should
rely on the abstraction-filtration-comparison test.
M-I argues
that the court should instead hold that the nonliteral elements of
its Copyrighted Works are protectable based on tests stated in
Torah Soft Ltd. v. Drosnin, 136 F. Supp. 2d 276 (S.D.N.Y. 2001),
and Feist, 111 s. Ct. 1282.
M-I's argument lacks merit.
circuit
that
courts
should
It is well established in this
use
the
abstraction-filtration
comparison test to assess copyright infringement claims involving
Brief in Support of Defendants' Motion for Summary Judgment
as to Copyright Infringement ("Defendants' MSJ Brief"), Docket
Entry No. 129, p. 7.
8
9
M-I's MSJ Response, Docket Entry No. 132, pp. 9, 10-11, 24.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 9 of 35
nonliteral elements of computer programs. �' General Universal,
379 F.3d at 142;
(S.D.
Tex.
Beardmore v. Jacobsen, 131 F. Supp. 3d 656, 674
2015);
Engenium
Solutions,
Inc.
v.
Symphonic
Technologies, Inc., 924 F. Supp. 2d 757, 786-87 (S.D. Tex. 2013).
Torah Soft and Feist do not speak to what framework a court should
use to decide alleged infringement against a computer program. The
principle M-I cites from Torah Soft is simply that a computer
program's output may be protectable along with the program itself
if the program, rather than the user, "suppl[ies] the lion's share
of the creativity to create the screen display."
at 283.
136 F. Supp. 2d
The principle of Feist is simply that a work must be
original in order to receive copyright protection.
345-46.
These
principles
are
properly
111 S. Ct. at
applied
within
the
abstraction-filtration-comparison test at the filtration stage to
which of the program's non-literal elements may be protectable.
Accordingly,
the court will apply the abstraction-filtration
comparison test and assess these other tests for protectability at
the filtration step.
2.
Abstraction
The first step of the test is abstraction. The parties do not
substantially disagree on the levels of abstraction by which the
court should analyze the Copyrighted Works.
the program can be abstracted into:
(2) coefficients and constants,
-9-
Defendants state that
(1) formulas and algorithms,
(3) architecture,
modules,
and
Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 10 of 35
components, (4) test results, (5) user interfaces and outputs, and
( 6) the source code. 10
abstraction are:
M-I states that the relevant levels of
(1) the source code,
(2)
algorithms and data
structures, (3) modules, (4) architecture or structure, and (5) the
purpose of the program. 11
Neither side has argued that the court
should not consider the levels of abstractions identified by the
other.
The court finds no reason to stray from the levels of
abstraction proposed by the parties.
M-I has not, however, argued
that its Copyrighted Works contain protectable expression at the
level of the purpose of the computer programs.
Combining the
parties' arguments, the court will analyze the program as divided
into the following levels of abstraction:
constants;
modules,
(2)
(4)
formulas and algorithms;
(1)
(3)
coefficients and
architecture and
test results and data structures,
and
(5)
user
interfaces and outputs.
3.
Filtration
The second step of the test is filtration.
The court will
assess the computer program at the different levels of abstraction
to determine which parts of the program are protectable and which
are not.
M-I bears the burden of proof to demonstrate copyright
infringement.
Nola Spice, 783 F.3d at 549.
Accordingly, where
Defendants meet their burden by demonstrating that there is no
Defendants' MSJ Brief, Docket Entry No. 129, p. 11.
10
M-I's MSJ Response, Docket Entry No. 132, p. 14.
11
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 11 of 35
genuine issue of material fact that an element of the Copyrighted
Works are protectable,
the burden shifts to M-I to point to
summary-judgment evidence showing the contrary.
Little, 37 F.3d at
1075.
a.
Coefficients and Constants
Coefficients used within the Copyrighted Works are a component
that expert testimony has identified as proprietary to M-I. 12 These
coefficients "were developed and continuously refined by M-I after
many years of gathering and analyzing laboratory data and actual
wellsite data from many wells." 13
physical relationships
But "scientific observations of
are not invented or created; they
already exist and are merely observed, discovered and recorded.
Such a discovery does not give rise to copyright protection."
Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823,
842-43 (10th Cir. 1993).
A constant or coefficient used by a
computer program that reflects scientific observation and physical
relationships is therefore not protected by copyright.
Id. at 843;
see 17 U.S.C. § 102{b) (excluding principles and discoveries from
copyright protection).
The coefficients accordingly must be
filtered out and cannot be used as the basis for finding copyright
infringement.
M-I has not argued otherwise.
Declaration of Lucian K. Johnston, Exhibit E to Defendants'
MSJ Brief, Docket Entry No. 129-5, p. 6 1 10.
12
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b.
Formulas and Algorithms
Expert testimony has also identified formulas used by the
Copyrighted Works as proprietary.14
Richard Hooper,
an expert
retained by M-I, identified a number of algorithms used by the
Copyrighted Works.15
In particular, Hooper's Report states that
MAXSITE and the Copyrighted Works used algorithms that produced the
same results in estimating pressure and temperature. 16
The report
also states that the "hole cleaning functionality" present in both
are implemented in similar ways using the same four pieces of
functionality.17 Defendants argue that algorithms and formulas may
not be protected by copyright as a matter of law,
and in the
alternative the algorithms are in the public domain. 18
M-I argues
that the specific
"algorithm structures" as implemented with
particular functions are protectable. 19
The Copyright Act explicitly excludes any "procedure, process,
system,
[or]
method
of
operation"
from
receiving
copyright
protection "regardless of the form in which it is . . . embodied in
such work."
17 U.S.C. § 102(b).
Copyright law protects only the
14Id.
Expert Report of Richard Hooper ( "Hooper Report"), Exhibit D
to Defendants' MSJ Brief, Docket Entry No. 129-4, pp. 47-54.
15
1 131, 52 1 141, 54 1 145.
16
Id. at 47-48
17
Id. at 47-48
18
Defendants' MSJ Brief, Docket Entry No. 129, pp. 14-15.
19
M-I's MSJ Response, Docket Entry No. 132, p. 16.
11 131-133.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 13 of 35
original expression of a process or method, not the process or
method itself.
Atari Games Corp. v. Nintendo of America Inc., 975
F.2d 832, 839 (Fed. Cir. 1992).
An algorithm is a specific series
of steps that accomplish a particular operation and accordingly
often embodies an unprotectable process.
835, 837.
Gates Rubber, 9 F.3d at
Computer program algorithms cannot receive copyright
protection to the extent that they are simply a process or method
of operation.
critical
algorithm
to
Torah, 136 F. Supp. 2d at 291.
distinguish
from
the
the
process
original
embodied
expression
of
It is therefore
by
the
a
computer
algorithm.
Typically, for the expression of a process to be protectable, it
must be possible for the process to be expressed in multiple
different way. Oracle America, Inc. v. Google Inc., 750 F.3d 1339,
1367 (Fed. Cir. 2014).
And even when an algorithm is expression
rather than process, it may still be unprotectable under other
copyright doctrines.
Gates Rubber, 9 F.3d at 845.
Hooper's expert report concludes that MAXSITE copied the
algorithms for calculating pressure and temperature changes solely
because the MAXSITE code and the PPRT code for those functions
returned the same result.
At most this shows that the MAXSITE
algorithms use the same process as the PPRT algorithms; it does not
show that MAXSITE copied any algorithm expressive component of the
algorithm.
Hooper's analysis of the hole cleaning functionality is more
detailed.
Hooper demonstrates that the MAXSITE and PPRT hole
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cleaning algorithms are implemented via four separate sub-functions.
PPRT
uses
functions
named
"SetParameters,"
"GetSteadyHClean," and "GetSlipVelocity."
named
"SetParameters,"
"GetCutConc,"
MAXSITE uses functions
"C a l cC u t t i n gC o n c e n t r a t i o n , "
"GetSteadyHClean," and "SlipVelocity. " 20 M-I argues that the choice
to divide the hole cleaning algorithm into four sub-functions is
protectable creative expression.
The court disagrees.
A process
that requires the execution of several sub-processes is still an
unprotectable process.
Instructive is Hooper's description of the
"GetSteadyHClean" functionality as a "recipe" using the same "series
of steps. " 21
Hooper's conclusion of infringement relies on the fact
that the program algorithms used the same variables in the same
series of steps to achieve the same outcomes.
demonstrates that they implement the same processes.
But this only
M-I points to
no evidence in the record that these processes could have been
expressed without the use of sub-functions that have their own
particular series of steps.
The court concludes that there is no
genuine issue of material fact as to whether the algorithms in the
Copyrighted Works as claimed by M-I are subject to copyright
protection.
Because M-I seeks protection of the processes carried
out by the algorithms rather than their specific expression, the
algorithms cannot support a finding of copyright infringement.
201d.
H ooper Report, Exhibit D to Defendants' MSJ Brief, Docket
Entry No. 129-4, p. 51 � 138.
21
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c.
Architecture and Modules
The program's architecture or structure is a description of
how the program operates in terms of its various functions, which
are performed by discrete modules, and how each of these modules
interact with each other.
Gates Rubber, 9 F.3d at 835.
Modules,
in turn, are groupings of data types with a particular result to be
obtained or set of actions that may be performed.
The
abstract idea of structuring functions of a computer program using
a method or organizing principle is not protected by copyright.
Oracle, 750 F.3d at 1367.
Only the particular implementation of
that idea may be protected.
Id.
The structure of the program that Hooper identifies and M-I
claims is protected is
"a lower-layer that
presents modular
functionality to the layers above it for intermediate calculations
and display on the user interface." 22
Defendants argue that this
is a general statement of the basics of computing structuring and
is therefore not protectable expression.23
Defendants' rebuttal
expert opines that Hooper's description of the architecture is
simply that it is modular.24
The court agrees.
Hooper's report
does not describe what is expressive about the Copyrighted Works'
M-I's MSJ Response, Docket Entry No. 132, p. 17; Hooper
Report, Exhibit D to Defendants' MSJ Brief, Docket Entry No. 129-4,
p. 57 1 161.
22
23
Defendants' MSJ Reply, Docket Entry No. 136, pp. 3-4.
Expert Rebuttal Report of Ronald S. Schnell, Exhibit B to
Defendants' MSJ Brief, Docket Entry No. 129-2, p. 27 1 78.
24
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architecture or modular system; it only likens the M-I and Q'Max
architectures because they implement functions and models in a
series of layered
modules. 25
M-I
specifies
no part
of the
architecture that is protectable expression distinct from the idea
of its organizational structure.
The court concludes that the only
element of the architecture that M-I has claimed as protected is
the idea of its layered, modular functionality, for which copyright
is not available.
Defendants argue that the modules themselves are not subject
to copyright protection because under the scenes a faire doctrine
their presence is dictated by the external factors of customer
demands and the business served by MAXSITE. 26
The scenes a faire
doctrine denies protection to "those expressions that are standard,
stock, or common to a particular topic or that necessarily follow
from a common theme or setting."
Gates Rubber, 9 F. 3d at 838.
In
addition to expressions that are "standard, stock, or common," the
doctrine "excludes from protection those elements of a program that
have been dictated by external factors."
may include:
software
Id.
"External factors
hardware standards and mechanical specifications,
standards
manufacturer design
and
compatibility
standards,
target
requirements,
industry
computer
practices
and
Hooper Report, Exhibit D to Defendants' MSJ Brief, Docket
Entry No. 129-4, pp. 57-58 11 161-171.
25
26
Defendants' MSJ Brief, Docket Entry No. 129, p. 16.
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demands,
and
computer
industry
programming
practices."
Id.
(internal citations omitted).
Defendants point to testimony that the predictive hydraulics
modeling programs for well drilling typically and reasonably would
need to provide certain data in a certain way in order to be useful
for customers. 27
This testimony also shows that implementing
features offered by competitors in order to please customers is
standard practice. 28
M-I's expert testified that M-I's Copyrighted
Works are not unique in providing data on density, temperature, and
annular velocity, or in accounting for variables such as low shear
rate viscosity. 29
Defendants also point to marketing material by
a non-party competitor, Halliburton, that advertises its software
as aiding oil rig operators by providing "accurate modeling of the
pressure
losses,
predictions." 30
hole
cleaning
and
surge
and
swab
pressure
The court is persuaded that this evidence shows no
genuine issue of material fact as to whether modules for pressure
loss, surge and swab, and hole cleaning are standard features in
predictive hydraulics modeling programs.
Because the undisputed
0ral and Videotaped Deposition of Lee Conn, Exhibit G to
Defendants' MSJ Brief, Docket Entry No. 129-7, p. 8 lines 17-25,
p. 9 lines 1-8.
27
28
Id. at 14 lines 9-18.
29
Id. at 10 lines 23-25, 11 lines 4-23, 12 lines 7-11.
Halliburton, Drilling Fluids Graphics (DFG™) Software Allows
Operator to Save Rig Time and Successfully Drill Challenging HPHT
Well in Western Canada, Exhibit C to Defendant's MSJ Reply, Docket
Entry No. 136-3.
30
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 18 of 35
summary-judgment evidence shows that the presence of these modules
is dictated by industry standards and M-I has pointed to no
particular aspect of the modules in its Copyrighted Works that are
more than the standard expressions incidental to industry demand,
the court concludes that the modules are not protectable.
d.
Test Results and Data Structures
Among the Copyrighted Works described in the Complaint are
"proprietary databases." 31
Hooper's expert report identifies two
claimed databases among the information found to have been copied
by Roy:
"[I]nformation about the results
of
drilling with
different fluids (the FANN 70 database)" and a "database relating
to M-I's drilling logs from its activities around the world (ONE
TRAX) ." 32
Defendants argue that these databases contain raw data
resulting from testing that is not subject to copyright protection.
M-I does not argue that the raw data is subject to copyright.
M-I
suggests that these databases should be considered at the level of
abstraction of "data structures."
M-I does not, however, argue
that MAXSITE infringes on these data structures nor provide any
analysis or authority to suggest that the data structures as used
by the computer programs are protectable under the abstraction
filtration-comparison test.
31
Accordingly, the court concludes that
Complaint, Docket Entry No. 1, p. 6
1 18, 7 1 25.
Hooper Report, Exhibit D to Defendants' MSJ Brief, Docket
Entry No. 129-4, p. 11 1 41.
32
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 19 of 35
Defendants are entitled to summary judgment that MAXSITE does not
infringe on either the raw data in the databases or the data
structures.
e.
Graphical User Interfaces and Outputs
M-I claims copyright protection over the graphical user
interfaces ("GUis") used in its programs. 33
M-I limits the non
literal element of the GUis that it claims as copyright to "the
combination of the layout,
color,
order,
direction,
shape,
and
placement of output variables" - or the "look and feel" of the
GUI. 34
Defendants argue that the elements of the GUis are not
protected by copyright because they are methods of operation or
because they are unprotectable through the merger or scenes a faire
doctrines. 35
Much of Defendants' argument focuses on whether discrete
elements within the GUis such as the charts, output tables, command
buttons, and module selection window, are subject to copyright
protection. 36
M-I disclaims that these individual elements are
copyrightable and claims only the GUis' combination, layout, and
presentation of these elements. 37
33
Defendants reply that if the
M-I's MSJ Response, Docket Entry No. 132, p. 18.
34Id.
35
Defendants' MSJ Brief, Docket Entry No. 129, p. 20.
36
Id. at 22-24.
37
M-I's MSJ Response, Docket Entry No. 132, p. 18.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 20 of 35
GUis' individual elements cannot be protected, neither can their
combined "look and feel." 38
But infringement may be based on an
original selection and arrangement of unprotected elements. Apple
Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir.
1994).
Nevertheless, the court cannot find infringement based on
the "look and feel"
of the GUis without first filtering out
elements that are not protectable. See id. ("[T]he party claiming
infringement
expression
may
place
resulting
no
from
reliance
upon
unprotectable
any
similarity
elements."
in
(internal
quotations omitted)).
Hooper's expert report identifies a number of elements. Those
elements can be generally categorized as:
•
Naming and organization of menus and options, such
as an expandable tree menu; 39
•
Labeling and options for inputs and outputs; 40 and
•
Selection, labeling, organization, ordering, and
coloring of graphical output displays, such as the
Virtual Hydraulics Snapshot. 41
The merger doctrine prohibits copyright if an idea may only be
expressed in a limited manner and therefore the idea and expression
merge.
Gates Rubber, 9 F.3d at 838.
In a functional program the
Defendants' MSJ Reply, Docket Entry No. 136, p. 5.
38
Hooper Report, Exhibit D to Defendants' MSJ Brief,
Docket Entry No. 129-4, p. 26 1 71.
39
�,
40
�,
id. at 33
41
�,
id. at 40
1 92.
11 102-106.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 21 of 35
idea of allowing users to input particular data and receive output
of particular data necessarily merges with the labeling needed to
communicate those inputs and outputs to the user. For example, the
GUis' use of labels such as "well geometry," "casing," "lining,"
"length," and "weight" to show the user where to input variables is
necessary to implement the idea of allowing users to input the well
geometry variables.42
The idea of
users inputting variables
therefore merges with the functional labels that show where each
variable should be placed and renders the labels unprotectable.
The court need not examine every example in detail to conclude that
the naming and labeling used in the GUis are not protectable
expression.
As explained above, the scenes a faire doctrine prohibits the
protection of expressions that are standard to a particular topic,
including expressions that are an industry standard in a particular
In the business market context, when a feature, sequence,
area.
organization, or other element of the GUI becomes standard, the
scenes a faire doctrine will operate to make them unprotectable by
copyright.
Apple Computer, Inc. v. Microsoft Corp., 799 F. Supp.
1006, 1023 (N.D. Cal. 1992) (citing Plains Cotton Co-Op Ass'n of
Lubbock, Texas v. Goodpasture Computer Service,
1256, 1262
(5th Cir. 1987)).
Inc., 807 F.2d
The evidence establishes that
customers of these programs require a complete hydraulics analysis
42
• d
�' 1:.........:... at 28
fl
11
78.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 22 of 35
report that displays all of the results and presents them using
graphs that plot the results versus the depth of the analyzed
well. 43
Moreover, the industry standard is to plot the graphs
vertically because that is an intuitive way to display data that
varies by the depth of a well.44 The court concludes that under the
scenes a faire doctrine,
direction
of
data
and
the general selection,
charts
on
the
graphical
display,
and
output
are
unprotectable.
This filtering leaves only the arrangement and presentation of
elements in the GUI as protectable under copyright.
Creativity in
arrangement, however, is "a function of (i) the total number of
options available,
(ii) external factors that limit the viability
of certain options and render others non-creative, and (iii) prior
uses that render certain selections 'garden variety.'"
Bender
&
Matthew
Co.• Inc. v. West Publishing Co., 158 F.3d 674, 682-83 (2d
Cir. 1998).
If there is a limited amount of material to select,
compile, or arrange, it is less likely that the choices made will
require more than a de minimis effort.
Id.
The court concludes
that the use of an expandable tree to display a menu is not an
original choice in light of the evidence that an expandable tree is
Videotaped Deposition of Alan D. McLean, Exhibit K to
Defendants' MSJ Brief, Docket Entry No. 129-11, p. 51 line 24 p. 53 line 11.
43
0ral and Videotaped Deposition of Sanjit Roy, Exhibit I to
Defendants' MSJ Brief, Docket Entry No. 129-9, p. 362 line 7 p. 363 line 8.
44
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 23 of 35
a basic structure available to software developers using Microsoft
Visual Studio. 45
The court is not persuaded, however, that the arrangement and
presentation of the data table, header bar, and vertical graphs on
the Virtual Hydraulics Snapshot are totally devoid of originality.
At
minimum,
interface,
screenshots
of
the
M-I
Snapshot,
Baker
Hughes
and Halliburton interface demonstrate there is some
variation in the arrangement, presentation, and coloring of those
elements of the results screen that is left to the discretion of
the
program's
author.46
To
the
extent
that
M-I's
GUI
is
protectable, however, it is limited to these protectable elements.
Infringement of the GUI cannot be found based on a similarity of
the unprotectable elements described above.
4.
Comparison
Having completed the filtration
determine
whether
Copyrighted
Works.
"Ultimately
the
MAXSITE
is
substantially
Engineering
court
must
process,
Dynamics,
decide
whether
the court must
similar
26
F.3d
those
to
at
the
1348.
protectable
portions of the original work that have been copied constitute a
substantial part of the original work - i.e. matter that is
Oral and Videotaped Deposition of Richard Hooper, Ph.D. ,
P.E., Exhibit A to Defendants' MSJ Brief, Docket Entry No. 129-1,
p. 138 line 20 - p. 139 line 21.
45
See Hooper Report, Exhibit D to Defendants' MSJ Brief, Docket
Entry No. 129-4, pp. 35-39 (displaying and comparing the graphical
results screens of each of the competing programs).
46
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 24 of 35
significant in the plaintiff's program."
839.
Gates Rubber, 9 F.3d at
The court must also consider the applicable scope of
protection
afforded
by
copyright
to
Engineering Dynamics, 26 F.3d at 1348.
the
particular
work.
Computer interfaces "may
lie very near the line of uncopyrightability" "[t] o the extent that
they
are
highly
functional
technical information."
[or]
contain
highly
standardized
Id.
The only non-literal elements of the Copyrighted Works that
the court found protectable are the arrangement, presentation, and
coloring of the data tables, header bar, and vertical charts used
in the results screen.
There is no question that the output
graphics of the 2015 version of MAXSITE, "HydrauliQs QuikView," is
very similar to Virtual Hydraulics'
protectable elements of the GUI.47
Snapshot in terms of the
The coloring and layout of the
screens are virtually identical, except the order of the vertical
graphs and the location of a vertical column displaying data have
been moved.
The 2018 version of MAXSITE, by contrast, nearly
completely removed these similarities.
For the 2015 version of MAXSITE's arrangement, presentation,
and coloring of the results screen to
establish
substantial
similarity between the programs, those elements of the GUI must be
important to M-I's programs as a whole.
See Digital Drilling Data
Systems, L.L.C. v. Petrolink Services, Inc. 965 F.3d 365, 2020
See Hooper Report, Exhibit D to Defendants' MSJ Brief, Docket
Entry No. 129-4, p. 23 1 62, p. 24 1 63.
47
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 25 of 35
WL 3603953, at *5 (5th Cir. July 2, 2020).
In the absence of
summary judgment evidence as to the qualitative and quantitative
importance of the copied portion to the plaintiff's work as a
whole, summary judgment of non-infringement is appropriate.
Id.
Because M-I has pointed to no evidence that the protectable
arrangement, presentation, and coloring of the results screen are
a "substantial part" of the program, the court must conclude that
there is no genuine issue of material fact as to MAXSITE' s
substantial similarity to the Copyrighted Works.
Accordingly,
Defendants' MSJ will be granted as to the allegation that MAXSITE
infringes on the Copyrighted Works' non-literal elements.
5.
Source Code
Defendants also seek summary judgment as to literal copying of
the source code.
Defendants argue that there is no genuine issue
of material fact as to literal infringement because M-I's expert
identified at most 44 lines that appear similar between the two
source codes - amounting to 0.0022% of the over two million lines
in M-I's original source code.
The court agrees that no reasonable
jury could find that these 44 lines could establish substantial
similarity on the basis of quantitative importance.
See Digital
Drilling, 2020 WL 3603953, at *5 (holding that copying of 5% of an
original work did not satisfy the threshold for quantitative
importance).
And M-I has not pointed to any summary judgment
evidence as to the 44 lines' qualitative importance to its overall
programs.
See id.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 26 of 35
M-I argues that the court should not grant summary judgment
because there is evidence Roy actually copied its source code when
he wrote MAXSITE.
Both factual copying and substantial similarity
are distinct elements that must be established to prove copyright
infringement.
Nola Spice, 783 F.3d at 549.
That Roy may have
copied the code in writing MAXSITE does not save the copyright
infringement claim if there is no genuine issue of fact as to
substantial similarity.
See Digital Drilling, 2020 WL 3603953, at
*5 (affirming summary judgment of a copyright infringement claim on
substantial
similarity
grounds
despite
actual
copying).
Accordingly, the court need not consider M-I's arguments that (1)
comments in MAXSITE's source code prove the lines were copied from
M-I's source code and
(2) Defendants spoliated evidence as to
access and copying of the source code.
Defendants are entitled to
summary judgment on M-I's copyright infringement claim based on
MAXSITE's
alleged
infringement,
including
M-I's
request
for
injunctive relief. 48
D.
M-I's Unauthorized Copying Claim Remains Live Against Roy
M-I's Complaint alleges two grounds for its copyright claim:
(1) that Roy copied and distributed the Copyrighted Works without
authorization,
and
(2) that Q'Max and Roy infringed on the
Copyrighted Works by copying them to create MAXSITE.
48
Defendants
See M-I's MSJ Response, Docket Entry No. 132, p. 9 n.2.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 27 of 35
have sought summary judgment only as to the latter ground.
Accordingly, M-I may continue to pursue its copyright claim against
Roy on the
basis
of making
and
distributing
copies
of the
Copyrighted Works.
III.
Motion to Enforce Protective Order and Compel
Destruction of an Inadvertently Produced Document
On September 28, 2018, the court entered a Protective Order
under Federal Rule of Civil Procedure 26(c) . 49 The Protective Order
governs the designation, maintenance, and discovery of confidential
documents for use in this action. 50
The order contains a snap-back
provision governing the quick return of accidentally produced
materials subject to attorney-client privilege pursuant to Federal
Rule of Evidence 502(d) . 51
The order provides that the inadver
tently producing party "must promptly notify the recipient(s) and
provide a privilege log for the inadvertently produced materials,"
after which "[t] he recipient(s) shall gather and destroy all copies
of the privileged material and certify as such to the producing
party within ten (10) days of the date of the notification." 52
M-I states that on November 26, 2019, it became aware that
document M-I_QMAx.00002957 ("the Document") had been inadvertently
49
Protective Order, Docket Entry No. 57.
50
Id. at 1-3.
51
Id. at 7-8 � 5.
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produced despite containing attorney-client communications and
privileged work product.53
M-I notified Defendants and invoked a
snap-back of the Document under the
December 12,
2019,
Protective
Order.54
On
Defendants informed M-I that they did not
believe the Document was privileged and that they would not allow
the snap-back. 55
M-I did not submit a privilege log to Defendants
until December 12.56 M-I filed its Motion to Compel on December 13,
2019, which asks the court to compel the destruction or return of
the Document.57
Defendant responded on January 3,
2020, 58 and
Plaintiff replied on January 10, 2020. 59
Defendants argue that the Protective Order applies only to
inadvertently
53
produced
materials
actually
"protected
by
the
Motion to Compel, Docket Entry No. 134, p. 4.
Id.; Email from Kelvin Han dated November 26, 2019, Exhibit 2
to Motion to Compel, Docket Entry No. 134-3, p. 2.
54
Email from Lauren Black dated December 12, 2019, 8:41 a.m.,
Exhibit 4 to Motion to Compel, Docket Entry No. 134-5, p. 2.
55
Motion to Compel, Docket Entry No. 134, p. 5; Email from
Lauren Black dated December 12, 2019, 3:11 PM, Exhibit 6 to Motion
to Compel, Docket Entry No. 134-7 (stating that Defendants had not
received a privilege log); Email from John R. Keville dated
December 12, 2019, 4:19 p.m., Exhibit 7 to Motion to Compel, Docket
Entry No. 134-8 (attaching a privilege log).
56
57
Motion to Compel, Docket Entry No. 134, p. 2.
Defendants' Response in Opposition to Motion to Enforce
Protective Order and Compel Destruction of Inadvertently Produced
Document ("Defendants' Discovery Response"), Docket Entry No. 140.
58
Plaintiff M-I LLC's Reply in Support of Its Motion to Enforce
the Terms of the Protective Order and Compel the Destruction of an
Inadvertently Produced Document ("M-I's Discovery Reply"), Docket
Entry No. 141.
59
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 29 of 35
attorney-client privilege or work product privilege."
disagrees.
The court
The snap-back provision in the Protective Order is
essentially a recitation of the snap-back procedure in Federal Rule
of Civil Procedure 26.
That rule requires snap-back for any
information produced in discovery for which there is a claim of
privilege.
they
Fed. R. Civ. P. 26(b)(5)(B).
could
withhold
the
Document
Defendants' argument that
from
snap-back
under
the
Protective Order while they could not do so under FRCP 26(b)(5) {B)
lacks merit.
The Document is a single page containing two April 3, 2018,
emails.
One email contains two requests for information.
The
second email responds to the two questions and attaches a sixteen
page PDF.
The parties agree that the underlying facts provided in
the email response and the sixteen-page PDF are not privileged, and
M-I agrees that Defendants are entitled to discovery of those parts
of the Document. 60
The only issue is whether the Document is
privileged because one of the questions and responses is protected
by the attorney-client privilege.
privileged
because
it
contains
M-I argues that the Document is
communications
within
M-I's
corporate setting made for the purpose of collecting information to
be transmitted to counsel. 61
Defendants argue that the Document is
Motion to Compel, Docket Entry No. 134, p. 5 & n.4; M-I's
Discovery Reply,
Docket Entry No.
141,
p.
3
&
n.3;
M-I=QMAX00002957, Exhibit A to Defendants' Discovery Response,
Docket Entry No. 140-1.
60
61
Motion to Compel, Docket Entry No. 134, pp. 6-7.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 30 of 35
not privileged, and alternatively that there is a substantial need
for Defendants to be allowed to use the Document as evidence even
if it is privileged.62
Attorney-client privilege "exists 'to encourage full and frank
communication between attorneys and their clients.'"
Ins. Co. v. T. Wade Welch
&
OneBeacon
Associates, Civil Action No. H-11-3061,
2013 WL 6002166, at *2 (S.D. Tex. Nov. 12, 2013) (Miller,
J.)
(quoting United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir.
1982)).
The elements of attorney-client privilege are:
confidential
communication;
( 2)
made
to
a
lawyer
"(1)
or
a
his
subordinate; (3) for the primary purpose of securing either a legal
opinion, legal services, or assistance in a legal proceeding."
SEC
v. Microtune. Inc., 258 F.R.D. 310, 315 (N.D. Tex. 2009).
The
party asserting the privilege bears the burden to demonstrate how
each communication satisfies all the elements of the privilege.
Id. (citing Hodges. Grant & Kaufmann v. United States, 768 F.2d
719, 721 (5th Cir. 1985)).
The court narrowly construes the privilege to the bounds
necessary to protect these principles because the "assertion of
privileges inhibits the search for truth."
Consulting,
2004)).
Inc. v. Wilkinson,
220 F.R.D.
Id. (quoting Navigant
467,
477
(N.D. Tex.
The privilege is limited to the disclosures made to an
Defendants' Discovery Response, Docket Entry No. 14 O, pp. 5-6
& n.14.
62
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 31 of 35
attorney that are "necessary to obtain informed legal advice which
might not have been made absent the privilege."
Id. ( quoting
Fisher v. United States, 96 s. Ct. 1569, 1577 (1976)).
Therefore,
"the privilege does not protect documents and other communications
simply because they result from an attorney-client relationship."
Id. (citing Navigant Consulting, 220 F.R.D. at 477).
"This privilege applies in the corporate setting when an
employee,
on instructions from a superior,
communicates with
counsel that which is necessary to supply the basis for legal
advice."
Nalco Co., Inc. v. Baker Hughes Inc., 2017WL 3033997, at
*2 (S.D. Tex. July 18, 2017) (citing Upjohn v. United States, 101
S. Ct. 677, 685 (1981)).
"Communications that reflect counsel's
advice to the corporation do not lose their privileged status when
shared among corporate employees who share responsibility for the
subject matter of the communication."
Nalco, 2017 WL 3033997, at
*2.
Based on the court's in camera review of the Document and
affidavit testimony submitted under seal, 63 the court concludes that
the Document contains privileged communications within a corporate
setting between employees at the behest of gathering information
for the corporate counsel. The authori ties cited by Defendants are
inapposite because they do not involve this particular type of
M-I_QMAX00002957,
Exhibit A to Defendants' Discovery
Response, Docket Entry No. 140-1; Declaration of Lee Conn, Docket
Entry No. 135, pp. 1-2 11 2-7.
63
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 32 of 35
attorney-client privilege.
Defendants' argument that M-I seeks
protection of facts rather than an attorney-client communication
lacks merit because M-I has only sought shielding of the email
itself, not any underlying facts the email may have revealed or be
related to.
Defendants also argue that they should be permitted to use the
Document because they have a substantial need to demonstrate that
M- I had ready access to certain materials,
and Defendants face
undue hardship in obtaining evidence of such elsewhere. 64
But
discovery of privileged material is generally not available when
the information sought is available by other means.
In re
International Systems and Controls Corp. Securities Litigation, 693
F.2d 1235, 1240 (5th Cir. 1982).
Defendants can obtain the same
facts by deposing the employees involved.
That Defendants may need
to re-depose the M-I employees involved without the use of the
Document does not meet the high level of undue hardship to enable
discovery of privileged material.
See id.
("The cost of one or a
few depositions is not enough to justify discovery of [privileged
documents].").
Accordingly, the court will grant M-I's Motion to
Compel and order Defendants to destroy any copies of the Document
in accordance with the Protective Order. Because the parties agree
that parts of the Document are not privileged, the court will order
n.14.
64
Defendants' Discovery Response, Docket Entry No. 140, p. 6
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 33 of 35
M-I to produce a redacted version of the Document to Defendants
after destruction of the unredacted version is certified.
IV.
Motion to Exclude Expert Opinion
Also pending before the court is Defendants' Motion to Exclude
Expert Testimony (Docket Entry No. 126).
The court's practice is
to rule on motions to exclude expert testimony during trial because
experts frequently modify their opinions,
and at trial counsel
often establish more extensive predicates for experts' testimony.
Moreover, the context in which the testimony is offered is often
necessary to rule on such issues.
The Motion to Exclude Expert
Testimony will be denied without prejudice.
V.
Conclusion and Order
For the reasons explained above,
the court concludes that
M-I's copyright claim based on the MAXSITE Hydraulics's alleged
infringement of M-I's Copyrighted Works fails because M-I has not
identified any protectable non-literal elements of its Copyrighted
Works other than the limited presentation and arrangement of its
output GUI, and there is no evidence that the protectable portions
of the output GUI and the source code that Defendants are alleged
to have copied are important enough to the M-I's overall programs
to render MAXSITE substantially similar to them.
Defendants'
Motion
for
Summary
Judgment
as
Infringement (Docket Entry No. 128) is GRANTED.
-33-
Accordingly,
to
Copyright
M-I's copyright
Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 34 of 35
claim against Q'Max Solutions, Inc., and Q'Max America, Inc. are
dismissed with prejudice, and its claim against Sanjit Roy is
dismissed
except
as
based
on
his
unauthorized
copying
and
distribution of the Copyrighted Works.
The court concludes that Defendants retained inadvertently
disclosed
privileged
communications
contrary
Protective Order (Docket Entry No. 57).
to
the
court's
Accordingly, Plaintiff M-I
LLC's Motion to Enforce the Terms of the Protective Order and
Compel the Destruction of an Inadvertently
(Docket Entry No. 134)
Produced Document
Defendants are ORDERED to
is GRANTED.
gather and destroy all copies of M-I_QMAX00002957 under its control
and to certify the destruction to M-I within ten days of the
submission of this opinion.
M-I is ORDERED thereafter to produce
a version of M-I_QMAX00002957 with the privileged communication
redacted.
Defendants' Motion to Exclude Testimony of David Leathers and
Expert Testimony on Copyright Damages (Docket Entry No. 126) is
DENIED WITHOUT PREJUDICE.
Based on this opinion
Memorandum
Order
and
and the
Opinion
(Docket
remaining claims in the case are:
court's August 6,
Entry
111),
M-I's
(1) its federal and state law
trade secrets claims against all Defendants;
claim against all Defendants;
No.
2019,
(2) its conversion
(3) its limited copyright claim
against Roy; and (4) its breach of fiduciary duty claim against
Roy.
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Case 4:18-cv-01099 Document 146 Filed on 08/06/20 in TXSD Page 35 of 35
The court will hold a scheduling conference on August 21,
2020, at 2:00 p.m., in Courtroom 9-B, Ninth Floor, United States
Courthouse, 515 Rusk Street, Houston, Texas 77002.
On August 4,
2020,
defendant Q'Max America,
Inc. filed a
petition under Chapter 7 of the Bankruptcy Code under Case No. 2060030, Suggestion of Bankruptcy, Docket Entry No. 145.
filed under 11 U.S.C. § 301, et
.fil'ill_:_,
A petition
operates as a stay of the
continuation of a judicial proceeding against the debtor that was
commenced before the initiation of the bankruptcy proceeding.
U.S.C. § 362(a) (1).
DISMISSED.
11
Accordingly, defendant Q'Max America, Inc. is
Plaintiff may reinstate this action against Q'Max
America, Inc. upon notice to this court of the discontinuance of
the stay pursuant to 11 u.s.c. § 362(c)(2), provided such notice is
filed within 30 days after the bankruptcy stay is discontinued.
This action remains pending against the other defendants.
SIGNED at Houston, Texas, on this the 6th day of August, 2020.
SENIOR UNITED STATES DISTRICT JUDGE
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