Parties in patent cases involving software typically agree to protective orders or stipulated agreements setting out the terms for review and use of source code.
These days, the basic outline of these procedures are usually that the party with the source code offers that code for an inspection at their attorneys' offices. The inspection takes place on a laptop with software for reviewing the code, and the reviewers are prohibited from taking the code directly off of that machine.
Instead, parties are usually limited to requesting paper printouts of limited sections of the code. This may seem odd, but it protects source code from leaking in the event of a data breach at a law firm or by an expert witness.
These agreements often detail various additional limitations—notice of the review must be given a certain time in advance, reviewers can't bring electronics into the room, review will take place during business hours, etc. Negotiating these can sometimes be tricky—there is not always a ton of precedent addressing these narrow limitations.
On Friday, we got a short order from Judge Williams resolving one such dispute. In Voxer, Inc. v. Amazon.com, Inc., C.A. No. 25-872-GBW (D. Del.), the parties raised a dispute over source code transportation.
The defendant argued that all printed source code pages must be hand carried at all times, either by an authorized individual or by a private courier service, and cannot be transported by overnight delivery (e.g., Fedex), which they argue is less secure. Id., D.I. 70 at 2-3. They offered to pay the opposing party's hand-carry costs. Id. at 3.
The plaintiff argued that the parties should be permitted to ship printed source code pages overnight. They argued that overnight shipping is secure and far more efficient than paying hand courier travel costs. Id., D.I. 72 at 2-3. They called a hand carry requirement an "onerous and unwanted obstacle." Id. at 3. They pushed back on the defendant's offer to cover costs, arguing that it was only made in their brief and during the meet-and-confer, and was not included in their proposed protective order language.
In a short oral order, Judge Williams sided with the defendant, and ordered that source code must be hand carried—and that costs will be split, rather than the defendant bearing the costs:
ORAL ORDER: . . . the Court adopts Defendants' proposed paragraph 9(j) which shall read: "The source code may only be transported by the Receiving Party via hand carry, or by any other such method that the Producing Party and Receiving Party may agree upon. To the extent that the Producing Party and Receiving Party cannot reach agreement on the method of transportation of a copy of the source code to the Receiving Partys designee specifically allowed to access HIGHLY CONFIDENTIAL SOURCE CODE, as identified in paragraph 7.4, the costs of the hand-carry delivery of the source code shall be split equally between the Producing Party and Receiving Party. Unless the parties specifically agree in writing otherwise, the source code should not be delivered outside of the United States." ORDERED by Judge Gregory B. Williams on 3/13/2026.
Voxer, Inc. v. Amazon.com, Inc., C.A. No. 25-872-GBW, D.I. 73 (D. Del. Mar. 13, 2026).
It looks like, after pushing back on the defendant's offer to cover costs, the plaintiff ended up with a ruling where the parties have to split costs. Whoops.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
