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LLC v. Marks

United States District Court, D. New Jersey

March 27, 2019

HIGH 5 GAMES, LLC, a Delaware Limited Liability Company, f/k/a PTT, LLC, Plaintiff/Counterclaim Defendant,
DANIEL MARKS, an individual; JOSEPH MASCI, an individual; BRIAN KAVANAGH, an individual; MARKS STUDIOS, LLC, an entity d/b/a GIMME GAMES; ARISTOCRAT TECHNOLOGIES, INC., an entity; ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED, an entity; ARISTOCRAT LEISURE LIMITED, an entity; PRODUCT MADNESS, INC., an entity; GRANT BOLLING, an individual; JOHN SMITH(s) 1-7; and XYZ COMPANIES 1-7, Defendants/Counterclaim Plaintiffs.



         This matter comes before the Special Master upon Plaintiff High 5 Games, LLC's ("H5G") motion to compel the production of source code from defendants Daniel Marks, Joseph Masci, Brain Kavanagh, Grant Boiling, Marks Studios, LLC ("Marks Studios"), Aristocrat Technologies, Inc. ("ATI"), Aristocrat Technologies Australia Pty Ltd. ("ATA"), Aristocrat Leisure Limited ("ALL"), and Product Madness, Inc. ("Product Madness")(collectively, "Defendants"). After considering the submissions of the parties, based upon the following, it is me opinion of the Special Master that HSG's motion is Granted.


         I. History of the Dispute

         On November 9, 2016, United States Magistrate Judge Mark Falk signed the parties' Stipulation and Order Regarding Source Code ("Source Code Stipulation"), which governs the production of source code in this matter. The Source Code Stipulation provides that "[s]ource code and executable code relating to the Parties' respective technologies are properly discoverable in this action."

         On December 8, 2017, H5G disclosed its source code expert, Michael S. Fagan. Pursuant to Section I.E of the Source Code Stipulation, Defendants then had five business days to object to disclosure of their source code to Mr. Fagan. Defendants did not object. Mr. Fagan, on behalf of H5G, then began reviewing Defendants' source code, which included source code for approximately 80 games. Review was conducted on December 19, 2017, January 2, January 3, January 5, January 9, January 10, and January 11, 2018.

         According to H5G, Mr. Fagan identified certain deficiencies with Defendants' source code production, including missing source code files and directories. H5G asserts that Mr. Fagan also generated an exception report, indicating files that were missing from Defendants' source code production. In light of these alleged deficiencies, on January 12, 2018, H5G requested that Defendants produce missing source code files. Thereafter, on January 26, 2018, Defendants advised that they had "re-collected the source code." According to H5G, Mr. Fagan then identified a relevant source code file, vector.h, which was included in the re-collected source code but that had not been previously produced. Because Defendants had only produced recollected source code for one game, on January 12, 2018, H5G requested updated source code production for all other games at issue. On February 27, 2018, the parties conducted a meet and confer. On March 12, 2018, Defendants made available the additional source code.

         On January 25, 2019, H5G requested that Defendants' source code be made available January 30 through February 1, 2019, so that Mr. Fagan could conduct additional review. H5G alleges that while Defendants did not deny its request, Defendants did not confirm the requested review dates. According to H5G, it then became apparent that Defendants would not make the source code available thus it reached out to the Special Master and filed the present motion to compel.

         II. Arguments of the Parties

         High 5 Games

         H5G argues that additional review of Defendants' source code is necessary to prepare for depositions and to determine the extent of Defendants' improper use of H5G's confidential source code. H5G argues that Defendants are attempting to stymie its reliance on and access to source code.

         H5G asserts that source code is clearly relevant given that the Source Code Stipulation admits that source code is properly discoverable. Thus H5G argues that the Source Code Stipulation alone provides grounds for H5G to inspect Defendants' source code. However, H5G also points to the broad and liberal discovery permitted under the Federal Rules of Civil Procedure and argues that source code is reasonably calculated to lead to the discovery of admissible information because source code will assist in determining how Aristocrat's games operate in H5G's patent infringement claim. H5G further argues that source code will show the extent of Defendants' improper use of its trade secrets and confidential materials. H5G maintains mat there is no burden to Defendants since Defendants have already collected the source code.

         H5G argues that it needs access to Defendants' source code to determine how Defendants' accused games operate with relation to its patent claims. H5G claims that analysis of source code is prominently cited within the infringement contentions for the '852 patent. H5G further argues that while its claims do not require source code to infringe, they certainly anticipate that source code is one manner to determine how "instructions stored on a memory" is executed by a processor, as claimed. H5G argues that Defendants' assertion, that game sheets are the only relevant evidence necessary for this case, is untrue as game sheets do not address a claim element that Defendants insist must be addressed in claim construction-replacing the reserved symbol. H5G asserts that unlike game sheets, review of Defendants' source code shows precisely how this purported insertion is performed and whether it infringes inasmuch as it involved replacement.

         H5G also argues that source code plays a critical evidentiary role in H5G's trade secret and breach of contract claims. H5G argues that documents produced by Mr. Boiling show that he took documents containing source code authored by H5G and improperly used it as a basis for creating Defendants' now-accused games. H5G argues it is imperative to review ...

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