VideoShare, LLC v. Facebook, Inc.

Filing 59

DISCOVERY DISPUTE ORDER. Signed by Judge Alan D Albright. (zv)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
VIDEOSHARE, LLC,
Plaintiff,
v.
META PLATFORMS, INC.,
Defendant.

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Case No. 6:21-CV-00254-ADA

DISCOVERY DISPUTE ORDER
The Court hereby rules on the following discovery dispute that the parties raised by email.
Plaintiff’s Position:
Defendant (“Meta”) should be compelled to produce the text file which Plaintiff’s
(“VideoShare”) expert created and saved on the source code computer.
VideoShare’s expert, Dr. Nabil Sarhan, spent five days painstakingly reviewing the over
2.6 million files of source code that Meta made available for inspection in San Francisco. To ensure
an efficient review session, VideoShare requested that Meta (1) provide its directory structure
ahead of time for Dr. Sarhan to study and (2) provide documentation on the Source Code Computer
(i.e., its Wiki) which it makes available to its developers; Meta refused both requests. See, e.g.,
Ex. A. Notably, on March 22, 2022, 5 days after the code review, Meta produced 31 redacted
documents (excerpts from its Wiki), which it claims are source code but never made available for
inspection or use on the Source Code Computer during the code review.
The lack of documentation significantly hampered Dr. Sarhan’s review. Dr. Sarhan
nonetheless identified around 600 files which evidenced Meta’s infringing activities. Due to the
sheer volume of code produced and the 325-page limit for printing, not to mention the fact that
Meta did not provide any tools to print files so that their full directory and filename was visible in

the header (without which the resulting PDFs would have limited, if any, value), Dr. Sarhan was
forced to create a text file listing hundreds of file paths for printing in lieu of creating PDFs per
the Protective Order, and informed Meta’s counsel of this no later than Thursday. To be clear, the
text file contains no source code whatsoever. Instead, it includes only directories and filenames
for ease of printing.
On March 18, 2022, VideoShare’s counsel requested the text file so as to determine the
relevant files and lines of code for printing, but Meta refused to provide it, first by feigning
ignorance and asking VideoShare which file exactly it meant—despite it being the sole file in the
directory arranged by Meta for providing review results to VideoShare—and later by insisting that
the Protective Order required handwriting those 600+ filenames and that, absent this needless
inefficiency, the results of the code review remain inaccessible. Dr. Sarhan’s approach is the most
efficient method and benefits all parties, reducing errors and giving VideoShare the ability to
further narrow down print requests without additional travel. Despite this and contrary to common
courtesy, especially given its insistence on source code review only in San Francisco, Meta
expects VideoShare’s expert to fly back solely to make PDFs for printing and would not even
agree to shorten the printing time from 5 business days to 3 days.
Thus, VideoShare asks only that this Court ensure that it is able to conduct its rightful
discovery.
Plaintiff’s Requested Relief
The Court should compel Meta to produce the text file which is located on the source code
computer at ~/Desktop/Reviewer/Copies/22-03-18/File_requested_by_VideoShare.txt.

Defendant’s Position
VideoShare violated the Court’s Protective Order. VideoShare’s expert wrote and ran a
script on the source code computer and created electronic notes in the form of a text file on the
Source Code computer. The Protective Order is clear that doing so is prohibited:

Dkt. 52 at §10(j) (emphasis added). Remarkably, VideoShare does not deny that it violated
the Protective Order. Rather, it helps itself to an unheard of right to violate the Protective Order
whenever VideoShare deems doing so to be “the most efficient method.” See supra.
But as a software company, Meta’s Source Code is its crown jewel. Unauthorized release
of the Source Code could cause significant—potentially disastrous—harm to Meta; that is
precisely what the Protective Order is designed to avoid. Litigants cannot choose to disobey the
Court’s Protective Order whenever it inconveniences them. VideoShare’s passel of complaints
about the millions of files of Source Code, the Source Code being in San Francisco—as this Court
ordered—and the insufficiency of tools on the Source Code computer— though Meta provided all
tools requested by VideoShare—do nothing to excuse VideoShare’s blatant disregard for this
Court’s Order.
Indeed, that VideoShare’s expert was able to create an electronic file cataloguing the
specific parts of the Source Code that he thinks are most relevant disproves VideoShare’s selfserving arguments that the Source Code computer was deficient. VideoShare brought this case in
this District and should not be permitted to circumvent the Protective Order to save time—time
during which VideoShare can continue its review of the source code at the Source Code computer,

determine the files it seeks to print, and complete its review by creating PDFs of lines and pages
of code for printing, as authorized by the Protective Order. Dkt. 52.
If the Court sets a precedent of allowing VideoShare to violate the Protective Order with
impunity, Meta (and other technology companies) will be put at risk. Accordingly, Meta seeks
relief under the Protective Order. See Dkt. 52 at 20, ¶28 (“Any Party knowing or believing that
any other Party is in violation … may move the Court for such relief as may be appropriate in the
circumstances.”). In particular, Meta seeks an order allowing it to destroy VideoShare’s electronic
notes about the Source Code and disallowing VideoShare from using the electronic notes in any
way.
VideoShare should not be rewarded for its violation, and so, at minimum, its motion should
be denied, and the electronic notes should remain in Meta’s sole custody. VideoShare can return
to the Source Code computer, view the electronic notes for one time only and make proper print
requests that comply with the Protective Order. After the viewing of the unauthorized electronic
notes, the electronic notes should be destroyed.
Defendant’s Requested Relief
Meta seeks an order allowing it to destroy the electronic notes in violation of the Protective
Order. Meta also respectfully requests that VideoShare’s motion be denied.
RESOLUTION
The Court finds that Plaintiff’s expert violated the Protective Order. The Court adopts a
modified version of Meta’s proposal that minimizes the burden to Plaintiff.
The Court ORDERS:
1) VideoShare may return to the Source Code computer one time to examine the electronic
notes and copy them by hand, make print requests, or otherwise review them.

2) Thereafter, Meta may destroy the electronic notes.
3) Plaintiff’s requested relief is DENIED.

SIGNED this 27th day of March, 2022.

ALAN D ALBRIGHT
UNITED STATES DISTRICT JUDGE