Valencell, Inc. v. Fitbit, Inc., 5-16-cv-00002 (NCED May 29, 2017, Order) (Gates, MJ)
Wednesday, May 31, 2017
Expert’s Reliance on Confidential Information From Other Cases Undermines Request for Additional Source Code
The court denied without prejudice plaintiff's motion to compel the production of additional source code because of a potential protective order violation by its expert. "[Plaintiff] disclosed that the testifying expert was able to identify the purported incompleteness because he had previously been given access to the source code when working in other cases as an expert witness, apparently for parties adverse to [defendant]. In that other litigation, there were presumably protective orders and/or agreements in place limiting use in other cases of information obtained about [defendant's] confidential information, just as the protective order in this case imposes such limitations. The testifying expert’s reliance on confidential information of [defendant's] obtained in other cases therefore presents several questions requiring further elucidation. . . ."