Case 2:20-cv-09581-FLA-RAO Document 66 Filed 08/16/21 Page 1 of 3 Page ID #:763
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES – GENERAL
`
`
`Case No.: CV 20-09581-FLA (RAOx)
`Title:
`Burhaan Saleh v. Nike, Inc., et al.
`
`
`
` Date:
`
` August 16, 2021
`
`
`
`
`Present:
`
`
`
`
`
`
`Donnamarie Luengo
`Deputy Clerk
`
`Attorneys Present for Plaintiff(s):
`
`The Honorable ROZELLA A. OLIVER, U.S. MAGISTRATE JUDGE
`
`
`
`
`
`
`
`
`N/A
`Court Reporter/Recorder
`
`Attorneys Present for Defendant(s):
`
`N/A
`
`N/A
`
`(In Chambers) MINUTE ORDER RE: PLAINTIFF’S MOTION TO
`COMPEL DISCOVERY RESPONSES [62, 63, 64]
`
`
`Proceedings:
`
`
`
`Pending before the Court is Plaintiff Burhaan Saleh’s motion to compel production of
`Defendant FullStory’s (“Defendant”) source code. On July 23, 2021, the Court held an informal
`telephonic hearing following which the Court directed the parties to file letter briefs addressing
`this dispute. See Dkt. No. 62. Plaintiff submitted his brief (“Plaintiff’s Brief”) on July 30, 2021.
`Dkt. No. 63. Defendant submitted its brief (“Defendant’s Brief”) on August 6, 2021. Dkt. No.
`64. For the following reasons, Plaintiff’s Motion is DENIED without prejudice.
`
`
`Federal Rule of Civil Procedure 26(b)(1) provides that “parties may obtain discovery
`regarding any non-privileged matter that is relevant to any party’s claim or defense and
`proportional to the needs of the case, considering the importance of the issues at stake in the
`action, the amount in controversy, the parties’ relative access to relevant information, the parties’
`resources, the importance of the discovery in resolving the issues, and whether the burden or
`expense of the proposed discovery outweighs its likely benefit.”
`
`The discovery request at issue, Plaintiff’s Request for Production (“RFP”) No. 15, seeks
`
`All versions of the source code, including version numbers and deployment dates, for
`Session Replay as utilized on nike.com. This request includes any ‘front end’ code
`deployed on nike.com [i.e., such as JavaScript], and any ‘back end’ code residing on any
`server, and any other proprietary code necessary for end-to-end functionality of Session
`Replay.
`
`
`CV-90 (05/15)
`
`CIVIL MINUTES - GENERAL
`
`Page 1 of 3
`
`

`

`Case 2:20-cv-09581-FLA-RAO Document 66 Filed 08/16/21 Page 2 of 3 Page ID #:764
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES – GENERAL
`
`
`Case No.: CV 20-09581-FLA (RAOx)
`Title:
`Burhaan Saleh v. Nike, Inc., et al.
`
`
`
` Date:
`
` August 16, 2021
`
`
`
`Defendant represents that its source code is “highly confidential and proprietary, and is
`the company’s most valuable asset.” Kuebrich Decl. in Support of Defendant’s Brief, Dkt. No.
`64-4 at ¶ 4 at ¶ 2. Consequently, Plaintiff must establish that the source code is both relevant
`and necessary to his case. See, e.g., In re Apple and AT & TM Antitrust Litigation, 2010 WL
`1240295, at *2 (N.D. Cal. Mar. 26, 2010).
`
`The parties do not dispute that the source code is relevant to Plaintiff’s claims. See
`Plaintiff’s Brief at 2; Defendant’s Brief at 4. Defendant contends, however, that Plaintiff has
`failed to show that the code is necessary, or that his request is proportional to the needs of the
`case, since the information he seeks can be obtained through less burdensome means.
`Defendant’s Brief at 1, 2-4.
`
`The burden of proportionality in discovery is not placed on the party seeking discovery,
`but “the parties and the court have the collective responsibility to consider the proportionality of
`all discovery and consider it in resolving discovery disputes.” Rule 26, Advis. Comms. Notes
`for 2015 Amends. After reviewing the parties’ briefs and authorities cited therein, the Court
`agrees that RFP No. 15 is disproportionate and unduly burdensome at this stage of the
`proceedings.
`
`First, Defendant represents that it would take approximately 120 hours to prepare the
`source code for production. Defendant’s Brief at 1; Kuebrich Decl. in Support of Defendant’s
`Brief, Dkt. No. 64-4 at ¶ 4 (stating “to disentangle [the requested version of the source code]
`would require bespoke novel software research development by expert engineering resources and
`would require approximately 120 hours or more of FullStory employee time.”).
`
`Second, and more significant, Defendant contends that the risk of inadvertent disclosure
`far outweighs Plaintiff’s need for the source code. Defendant’s Brief at 2. As set forth above,
`Defendant represents that its source code is the company’s most valuable asset and that 95% of
`the source code consists of the “session replay functionality [that] is the primary feature of the
`service that FullStory provides to its clients.” Id. at 3. Furthermore, Defendant argues that what
`Plaintiff actually wants is to know how Defendant’s Session Replay software works and what
`data the software collected during the period in question, which is information that can be
`provided either through other documents or deposition testimony. Id.; Verdin Decl. in Support
`of Defendant’s Brief, Dkt. No. 64-3 at ¶ 5.
`
`
`CV-90 (05/15)
`
`CIVIL MINUTES - GENERAL
`
`Page 2 of 3
`
`

`

`Case 2:20-cv-09581-FLA-RAO Document 66 Filed 08/16/21 Page 3 of 3 Page ID #:765
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES – GENERAL
`
`
`Case No.: CV 20-09581-FLA (RAOx)
`Title:
`Burhaan Saleh v. Nike, Inc., et al.
`
`
`
` Date:
`
` August 16, 2021
`
`
`
`Plaintiff seeks to downplay Defendant’s interest in not disclosing its source code, arguing
`that “[c]ourts routinely grant motions to compel disclosure of source code where, as here, it is
`relevant to the parties’ claims or defenses.” Plaintiff’s Brief at 1. The Court finds that Plaintiff’s
`authorities are readily distinguishable. For the most part, the decisions that Plaintiff relies upon
`are patent cases where the determination of infringement required an examination of the source
`code. The exception, Burnett v. Ford Motor Co., 2015 WL 1527875 (S.D. W. Va. Apr. 3, 2015),
`while not a patent case, clearly required examination of the source code of software that was
`involved in the sudden unintended acceleration of cars, as shown by a government investigation
`into the same issue involving Toyota vehicles that “spent considerable time evaluating and
`analyzing the relevant . . . system’s source code.” Id. at *4.1 There is no similar showing of
`necessity in the instant case.
`
`Indeed, some courts have gone further than requiring a showing of necessity and held that
`“when source code is requested not only must it be relevant and necessary to the prosecution or
`defense of the case but when alternatives are available, a court will not be justified in ordering
`disclosure.” Congoo, LLC v. Revcontent LLC, 2017 WL 3584205, at *3 (D.N.J. Aug. 10, 2017)
`(citing cases); see also Disney Enterprises, Inc. v. Hotfile Corp., 2011 WL 13100240, at *2 (S.D.
`Fla. Aug. 26, 2011) (denying plaintiffs’ request for code that “contains [defendant’s] entire
`business” where they had not shown that source code was necessary). Here, Plaintiff has not
`established why he cannot obtain the information he needs by alternative means. See, e.g.,
`Congoo, 2017 WL 3584205, at *3 (finding plaintiff could gain adequate understanding of
`software functionality through witness testimony).
`
`For the foregoing reasons, Plaintiff’s motion to compel Defendant’s response to RFP No.
`15 is DENIED without prejudice.
`
`IT IS SO ORDERED.
`
`
`
`
`
`Initials of Preparer
`
`
`
`
`
`:
`dl
`
`
`1 Moreover, the source code at issue in Burnett, though assertedly a valuable trade secret,
`Burnett, 2015 WL 1527675, at *2, was not alleged to be Ford’s most valuable asset.
`
`
`CV-90 (05/15)
`
`CIVIL MINUTES - GENERAL
`
`Page 3 of 3
`
`