2008-10-31 Source Code Production Compelled in Commercial Dispute - From Both Parties

In a decision from last week, a motion to compel production of source code was granted by a federal court in Wisconsin. In Metavante Corp. v. Emigrant Sav. Bank Slip Copy, 2008 WL 4722336 (E.D.Wis. 2008), Judge Stadtmeuller found that weighing all the factors, the balance tipped in favor of production (that Emigrant produced its source code to Metavante was also not lost on the court):

"The court finds that the source code Metavante utilized in its performance under the outsourcing agreement is relevant, or may reasonably lead to admissible evidence. See Fed.R.Civ.P. 26(b)(1). Metavante's source code may reveal the quality of the online banking product that Metavante delivered, and whether Metavante fully performed under the agreement. In balancing the value of the source code against the burden of producing it, the court finds that the potential value outweighs the burden. While Metavante asserts that the cost of producing its source code will be great, Emigrant has offered to mitigate the cost by using Emigrant's outside consultants to review the code and parse out any relevant information. Moreover, the parties have experience in exchanging the source code in this case. The court also recognizes that any confidentiality concerns that Metavante may have are addressed by the court's May 14, 2008 protective order. (Docket # 125)."

The production of source code will in all likelihood be more frequently requested, and produced (or production compelled) in future cases. Remarks in uncompiled code may reveal much about what code does (or fails to do) once compiled. It's not at all improbable that compilers may also be sought in future discoverty requests.