Opinion
15-CV-2926 (DRH)(SIL)
04-10-2017
CAPRICORN MANAGEMENT SYSTEMS, INC., Plaintiff, v. GOVERNMENT EMPLOYEES INSURANCE CO., Defendant.
ORDER
LOCKE, Magistrate Judge :
Presently before the Court in this breach-of-contract and theft-of-trade-secrets litigation, is Plaintiff's, Capricorn Management Systems, Inc. ("Plaintiff"), Letter Motion to Compel Production of the Source Code and to Revise the Stipulated Protective Order. Docket Entry ("DE") [52]. Defendant Government Employees Insurance, Co. ("Defendant") opposes. See DE [53]. For the reasons set forth below, Plaintiff's motion is granted in part and denied in part.
Initially, Plaintiff's motion seeks revision of the Stipulated Protective Order ("SPO"), DE [46], and to compel full production of the source code at issue in this case for comparison analysis to identify the allegedly misappropriated lines of code that would be discoverable. See DE [52] at 3-4. That application is denied. Although Plaintiff maintains that full disclosure would be ideal and expeditious, it does not argue that compliance with the SPO would prevent it from conducting the necessary analysis. See id. at 4. Plaintiff states only that its expert believes that the arrangement of having him conduct his analysis at Defense Counsel's office as laid out in the SPO will be burdensome and may "almost certainly be insufficient for his purposes." Id. While Plaintiff does specify how the situation may be more burdensome for its expert than the full disclosure that it seeks, Plaintiff does not offer any concrete reason in support of its latter assertion as to the innate insufficiency of the SPO's methodology. See id.
Such speculation does not satisfy the "heavy burden" modifying a previously agreed upon protective order requires. See Rensselaer Polytechnic Inst. v. Apple Inc., No. 1:13-CV-0633, 2014 WL 1871866, at *3 (N.D.N.Y. May 8, 2014) (noting that the moving party seeking to revise a protective order bears a "heavy burden to establish justification for granting that request.") (citing Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594, 597 (7th Cir.1978) ("[W]here a protective order is agreed to by the parties before its presentation to the court, there is a higher burden on the movant to justify the modification of the order.")). Based on the foregoing, the SPO shall remain in effect as it represents a "reasonable compromise" between the parties that balances Plaintiff's need for the relevant portions of the source code to be identified and produced with Defendant's valid interest in preventing this analysis from becoming a fishing expedition. See Interactive, Inc. v. Adorama, Inc. 2013 WL 6283511, at *4 (S.D.N.Y. Dec. 4, 2013) (denying motion to modify a protective order that mandated inspection of source code at the defendant's headquarters when request was premised upon expert's personal inability to perform work at that location where there was no showing that agreement was innately "impossible" or "impracticable").
In the alternative, Plaintiff seeks an order that Defendant facilitate the inspection by installing necessary operating systems and software at Defense Counsel's Office. DE [52] at 6. Defendant does not explicitly oppose this request, which is already contained in the SPO. See id; DE [46] ¶ 6, DE [53]. Accordingly, on or before April 21, 2017, Plaintiff is to provide Defendant with a list of all programs and operating systems that are reasonably necessary for its expert to conduct the inspection at Defense Counsel's office in accordance with the SPO. Defendant is then to install these operating systems and programs at Plaintiff's expense and take all necessary and reasonable steps to facilitate the inspection going forward. The inspection is to be completed on or before June 30, 2017. Dated: Central Islip, New York
April 10, 2017
SO ORDERED
/s Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
Members Servs., Inc. v. Sec. Mut. Life Ins., 2007 WL 2907520 (N.D.N.Y. Oct. 3, 2007), on which Plaintiff relies, is inapposite. Although it also dealt with alleged misappropriation of source code, unlike the present matter, in Member Servs., Inc. there was no protective order in place governing electronic review of the code at issue. Member Servs., Inc., 2007 WL 2907520, at *5-6. Additionally, the defendant there had already disclosed a full copy in paper form of the source code for expert review and analysis. Id. Member Servs., Inc. is thus procedurally distinguishable as well because the question confronting that court was whether to grant the defendant's Rule 26(c) motion to limit discovery rather than, as here, to alter a preexisting protective order. See id. at *4-5. Consequently, the burden in Member Srvs., Inc., necessarily rested with the defendant as the moving party, requiring a showing as to why discovery of relevant material should be limited, rather than here with Plaintiff who must show why the SPO already in place should be altered. See id. at *4-6 (noting that with the code already disclosed in paper form defendant had failed to demonstrate any further prejudice that disclosure of an electronic copy would create). Accordingly, the case is distinguishable and unavailing.