MasterCard Not Required to Produce Source Code for Software
In ACI Worldwide Corp. v. MasterCard Technologies, LLC et. al., Case No. 14-31 (D. Nebraska, Oct. 27, 2016), Plaintiff sued Defendants for disclosure of confidential information related to Plaintiff’s software. Plaintiff granted Defendants, who provide transaction processing and payment processing services between banks and buyers, a license to use its software, and thereafter, Defendants disclosed proprietary intellectual property to third party Baldwin. Defendants then advised Plaintiff that they would not renew the license for Plaintiff’s software before publicly announcing that they were switching to Baldwin’s software, which Plaintiff alleged was developed using Plaintiff’s proprietary intellectual property.
During discovery, Plaintiff sought electronically stored information from Defendants, and the court entered an order in July 2015 finding that Plaintiff had shown that ESI “constituting or containing” Plaintiff’s proprietary information that was inputted into a software application called Master Debit Switch (MDS), as well as information never removed from MDS after Defendants terminated their license with Plaintiff and information copied from MDS for transmission to Baldwin.
At the time, the court determined it did not know the best way to retrieve the data and ordered the parties to create a joint search protocol or other methodology. The parties agreed on a protocol but could not agree on search terms. The court then ordered Defendants to run Plaintiff’s proposed search terms and produce the results. Defendants balked, and Plaintiff filed a Motion to Compel. The court again granted the motion and ordered Defendants to produce the information, which included source code. Defendants did not produce everything requested, and Plaintiff filed yet another Motion to Compel, requesting the full source code. Defendants objected, stating that the production of the entire source code was not necessary, as it could produce individual files deemed missing.
The court agreed, finding that the request for the entire source code was not proportional to the needs of the case and would produce irrelevant material. The court also found it would “defeat the purpose of the protracted efforts of the parties to reach a compromise” regarding production of ESI. The court granted the Motion in part and denied it in part, ordering Defendants to produce only those materials discovered by the search protocol but withheld.