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District Court Orders Production of Source Code in Searchable Format

The plaintiff, [24]7 Customer, Inc. (“[24]/7”), filed a lawsuit against Defendant LivePerson, Inc. (“LivePerson”) alleging that LivePerson infringed several patents pertaining to a customer engagement software platform. After the lawsuit was filed, the parties entered into a stipulated protective order in which the parties agreed that “[a]ny source code produced in discovery shall be made available for inspection, in a format allowing it to be reasonably reviewed and searched, during normal business hours or at other mutually agreed times, at an office of the Producing Party’s Counsel or another mutually agreed upon location.”

Furthermore, the Protective Order provided that “[a]ll source code shall be made available by the Producing Party to the Receiving Party’s Outside Counsel of Record and/or experts on a secured computer in a secured room without Internet access or network access to other computers, as necessary and appropriate to prevent and protect against any unauthorized copying, transmission, removal or other transfer of any source code outside or away from the computer on which the source code is provided for inspection (the “Source Code Computer” in the “Source Code Review Room”).

[24]7 contended that LivePerson was obligated to produce its source code in a manner that is reasonably reviewable and searchable and moved for an order compelling LivePerson to “produce on a local computer (a) the entire SVN repository and (b) the source code for the most current release version of LivePerson’s software.” In response, LivePerson contended that its current production complies with the Protective Order and that it is not required to create a search capability that does not exist.

The district court agreed with LivePerson that it was only required to produce the source code in the way that it was ordinarily maintained, but the district court disagreed that LivePerson only had to produce a local copy. “To the contrary, the Protective Order provides that the Producing Party make the source code available on a secured computer. (Protective Order ยง 9.1(b).) Thus, the position that Plaintiff may download as many files as it wants–even though its remote access is repeatedly timed out–is unreasonable when there are 76 million documents. This is apparently not a situation that could be remedied by logging in a handful of times and downloading all of the source code to enable Plaintiff to conduct a thorough review.”

As a result, the district court ordered LivePerson to provide the source code either on a secured computer to permit [24/7] to download the source code. “Accordingly, LivePerson has two options: provide a secured computer pursuant to the Protective Order, or identify a way for [24]7 to remotely download the entire repository, so that, in either case, Plaintiff has the capability of performing a search the source code repository using Github.”

24/7 Customer, Inc. v. Liveperson, Inc.
, Case No. 15-cv-02897-JST (KAW) (N.D. Cal. Aug. 29, 2016)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or