Back in March, the Bllawg covered the latest revision of Delaware’s Default Standard for Discovery, which was current as of December 8th, 2011. On the same date, the court released the Default Standard for Access to Source Code, which has received considerably less press. However, as several high profile patent cases have recently been in the news, it warrants closer examination. Source code is often a crucial part of software patent cases; unlike object code, it can be read by a human who knows the programming language that was used to write the software. For this reason, it can be an extremely valuable source of evidence if several hurdles can be overcome.
The first issue is that unless the code at hand is “open source,” is it typically a trade secret. Most of the major tech companies depend on a closed source business model, in which a user purchases the right to use the software rather than the software itself. While it is obvious that such a model may greatly increase the profitability of the software, it may also be used for security reasons. The second issue is that source code, while readable by a human expert, may comprise millions of individual lines, corresponding to thousands of printed pages. Trying to find a few lines amongst all of this chaos presents substantial discovery challenges.
Delaware’s Default Standard for Access to Source Code addresses both of these issues. In order to preserve as much confidentiality as possible, a single copy of the source or executable code would be located on a single password protected computer provided by the originator of the code. The computer would be located with an independent escrow agent and access restricted to two outside counsel and two experts from the requesting party. Furthermore, the code may not be printed unless it is agreed upon by the parties or ordered by the court. These provisions help ensure that when it is necessary to provide source code for discovery purposes during litigation (patent or otherwise), the software will be protected.
What the standard does not address is that electronic access may be necessary during deposition, and that some selected printouts may be required early during the litigation process. Another concern is that source code is frequently updated and it may be necessary to choose a single representative version of the software to use. Individual courts may enact protective models that draw much of their content from Delaware’s standard while also including material that allows for greater flexibility.