Electronic Evidence: Protecting Source Code And Other Confidential Data From Disclosure

In intellectual property cases and other federal cases, the production of computer source code and other confidential electronic data can become a hotly contested issue. One party contends that the production of such electronic evidence is necessary, and the responding party argues that the production of computer source code and other confidential electronic data will be harmful to its business and should not be produced to parties that have competitive interests. The resolution of these arguments is governed by the protective order provisions of Rule 26 of the Federal Rules of Civil Procedure and applicable case law. Depending on the facts of each case, the courts will issue protective orders either denying the discovery of confidential electronic evidence, after balancing the necessity for the discovery with the harm that would be caused by the disclosure, or allowing the discovery to proceed, subject to certain limits as to the parties that will have access and the scope of what has to be produced.

The following questions have been addressed in this article:

After receiving a request for the production of documents and things under Federal Rule of Civil Procedure, Rule 34, which calls for the production of computer source code and other electronic data, what is the obligation of the responding party?
Is it proper to exclude the opposing litigant's in-house counsel from access to the confidential data being produced under the protective order?
Is it proper to exclude the principal executives and individual parties to a case from access to the confidential data being produced under the protective order? Doesn't the party seeking the disclosure of confidential data have a due process right to review such materials?

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