Bonjour dear readers! I have missed you all so. The blog vacation has been a real boon for us, and we've got a whole trove of opinions, orders, and shouted comments built up to discuss over the next few weeks.
One of the first that caught my eye was an order from Judge Burke that contained that rarest of gems—praise for a party to a discovery dispute—and included a neat primer on what the Court likes to see when ruling on them.
The dispute in question was pretty standard stuff, with the defendant wanting a supplemental protective order that gave extra protections to design files that it likened to source code. As the party seeking the stricter protective order, they bore the burden which the Court found they met easily:
Defendant did here what too few parties in discovery disputes do: it made a detailed factual record, supported by multiple sworn declarations, that strongly supported its arguments. That is, Defendant has demonstrated that the "highly technical details necessary to fabricate [its] proprietary... lens designs" are, "in effect, the source code of lenses" and "are as commercially sensitive as any other form of source code[,]" such that they should receive the heightened form of protection set out in the SPO.
ImmerVision, Inc. v. Apple Inc., C.A. No 21-1484, D.I. 136 (D. Del. Aug. 4, 2023) (Oral Order).
The "detailed factual record" here was more straightforward [read: achievable] than you might think. The defendant submitted 2 declarations: first, a 3-pager from an expert explaining the danger of disclosure:
it is my opinion that the lens prescriptions stored in Zemax Archives files would allow a person with knowledge of lens design and manufacture to fabricate the lenses that are the subject of those files because they contain all of the technical detail necessary to do so. Conversely, it would be extremely difficult, if not impossible, for a person with knowledge in the field to use technical documents which describe or depict the lenses but do not disclose their prescriptions (schematics, specifications, drawings, etc.) or even the lenses themselves to fabricate the lenses of Apple’s Ultra Wide cameras.
Id., D.I. 126, Ex. A at Para. 17.
Second, they also submitted a 1-pager from an in-house product manager explaining how they keep these files more confidential than their run of the mill docs:
The Zemax Archive files for the Ultra Wide lenses detailed above are treated as highly sensitive and proprietary information within Apple and are subject to access controls beyond those generally applicable to all confidential or proprietary material. For instance, Zemax Archive files are stored in access-controlled repositories by the Camera Optics Design team. Access to such repositories is granted only on a need-to-know basis to a limited subset of Apple employees.
Id., Ex. B at Para. 8.
Nothing too taxing to put together, and it seems to have done the trick admirably. At this point, I should probably remind readers that Judge Burke's discovery dispute procedures specifically encourage the submission of factual declarations:
If the discovery dispute involves disputed, material factual issues (e.g., whether obtaining certain discovery would be unduly costly or burdensome), then the party with the burden should strongly consider attaching as an exhibit to its letter brief a sworn declaration or affidavit regarding that disputed issue.
TL;DR, it might be a good idea to include a declaration with your next discovery dispute letter.
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