Delaware's Default Standard requires defendants to produce "core technical documents" on the accused products, even absent discovery requests from the plaintiff.
These core technical documents "includ[e] but [are] not limited to operation manuals, product literature, schematics, and specifications." Often parties interpret this as a relatively light production of just the core non-public material that a plaintiff needs to make out its infringement contentions.
Sometimes, however, plaintiffs will push back and demand production of source code, saying that a defendant must produce source code as part of its core technical documents.
This is a recurring issue, so I thought it was worth noting that, in Judge Fallon's discovery dispute order that we discussed earlier, she also declined to hold that source code is a core technical document:
ORAL ORDER: Having reviewed the parties' discovery dispute letter submissions . . . IT IS HEREBY ORDERED that: . . . (2) Plaintiff's request to compel the production of core technical documents is DENIED. Defendant represents that it has produced core technical documents, including operation manuals, product literature, schematics, specifications, system-level and device-level user guides, and configuration documents for end users and customers. . . . Plaintiff has not identified specific deficiencies in the production. Plaintiff has not shown that source code should be categorized as a core technical document. Cf. Delaware Default Standard for Discovery of ESI, ¶ 4(b); Cirba Inc. v. VMWare, Inc., C.A. No. 19-742-LPS, 2021 WL 7209447, at *6 (D. Del. Dec. 14, 2021) (explaining that "whether source code must be produced as a core technical document is far from clear."). Furthermore, to the extent Plaintiff moves to compel production of source code in response to its Request for Production No. 4, (D.I. 47, Ex. A at 8), it is premature on this discovery record. However, the parties are directed to meet and confer on the issue of source code production on or before June 24, 2022. . . .
PerDiemCo LLC v. CalAmp Corp., C.A. No. 20-1397-VAC-SRF (D. Del. May 17, 2022).
Judge Fallon's order is consistent with Judge Stark's ruling earlier this year, and I can't recall any of our judges holding the opposite. I've heard that earlier non-public drafts of the Default Standard included source code as a "core technical document," but it was intentionally removed.
This issue was actually addressed by Judge Robinson all the way back in 2012, soon after the Default Standard was created:
THE COURT: Okay. And one of the general discussions that we've had, I've got a couple things marked here. I think there are three global issues that have risen to the surface. . . .
[I]n terms of the default standard generally, I think we're going to tweak it [for this case] to the extent that we say that the core documents should not be limited to publicly available documents, because obviously that does not move a case forward. If they're the documents the plaintiff had in the first place, then why are we asking for them?
So I think that to the extent that any defendant just produced core -- that their core production was just publicly available documents, I think they have an obligation to go back and give the kind of documents that the public doesn't get, at least to some extent, and certainly not including source code at the initial level.
Cyberfone Systems, Inc. v. Cellco Partnership, C.A. No. 11-827-SLR, Sept. 20, 2012 transcript at 82:8-83:1 (D. Del. Sept. 20, 2012).
Of course, as former Chief Judge Sleet used to say, there is no law of the district, and other judges may hold differently.
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