Case 3:20-cv-05784-ZNQ-DEA Document 180 Filed 06/16/23 Page 1 of 21 PageID: 5971
`
`John E. Flaherty
`jflaherty@mccarter.com
`Cynthia S. Betz
`cbetz@mccarter.com
`McCarter & English, LLP
`100 Mulberry Street
`4 Gateway Center
`Newark, NJ 07102
`T: 973-622-4444
`
`Erik Dykema
`erik@kzllp.com
`Koning Zollar LLP
`4 Manheim Road
`Essex Fells, New Jersey 07021
`T: 858.252.3234
`F: 858.252.3238
`
`ATTORNEYS FOR PLAINTIFF
`OANDA Corporation
`
`Drew Koning (pro-hac vice)
`drew@kzllp.com
`Blake Zollar (pro-hac vice)
`blake@kzllp.com
`Koning Zollar LLP
`169 Saxony Road, STE 115
`Encinitas, CA 92024
`T: 858.252.3234
`F: 858.252.3238
`
`Shaun Paisley (pro-hac vice)
`shaun@kzllp.com
`Koning Zollar LLP
`470 James Street, Suite 007
`New Haven, CT 06513
`T: 203.951.1213
`F: 858.252.3238
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`OANDA Corporation,
`
`Plaintiff,
`
`v.
`
`GAIN Capital Holdings, Inc.;
`GAIN Capital Group, LLC.
`
`Defendants.
`
`Civil Action No. 3:20-cv-5784
`Judge: Hon. Douglas E. Arpert
`Motion Day: June 5, 2023
`ORAL ARGUMENT REQUESTED
`FILED UNDER SEAL
`
`OANDA’S BRIEF IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF DATA
`FROM GAIN’S JIRA SYSTEM
`
`

`

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`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION ............................................................................................................... 1
`
`II. BACKGROUND .................................................................................................................. 2
`
`A.
`
`THE PARTIES ENGAGE IN INITIAL DISCOVERY, WITH OANDA SEEKING ACCESS TO
`GAIN’S SOURCE CODE AND TECHNICAL DOCUMENTS TO UNDERSTAND THE DESIGN,
`FUNCTION, AND OPERATION OF THE ACCUSED PRODUCTS. ................................................ 2
`
`B. OANDA MEETS AND CONFERS WITH GAIN IN AN EFFORT TO FILL NOW-CONFIRMED
`GAPS IN GAIN’S TECHNICAL DOCUMENT PRODUCTION. ................................................... 4
`
`C. AFTER FURTHER MEET AND CONFER EFFORTS, GAIN CONTINUES TO REFUSE TO
`PRODUCE JIRA DATA WITHOUT OANDA FOOTING THE BILL. ......................................... 7
`
`III. GAIN SHOULD BE COMPELLED TO PRODUCE DATA FROM JIRA ................ 11
`
`A. DATA FROM JIRA IS RELEVANT AND PROPORTIONAL TO THE NEEDS OF THE CASE. ..... 11
`
`B.
`
`C.
`
`JIRA DATA IS REASONABLY ACCESSIBLE. ...................................................................... 12
`
`THERE IS NO BASIS FOR COST-SHIFTING EVEN IF THE COURT WERE TO DETERMINE
`THAT JIRA IS NOT REASONABLY ACCESSIBLE. ............................................................... 15
`
`IV. CONCLUSION .................................................................................................................. 18
`
`i
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`

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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Chen-Oster v. Goldman, Sachs & Co.,
`285 F.R.D. 294 (S.D.N.Y. 2012) .............................................................................................13
`
`Cvent, Inc. v. RainFocus, Inc.,
`No. 2:17-cv-00230-RJS-DBP, 2019 WL 7837157 (D. Utah Apr. 4, 2019) ............................14
`
`Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC,
`No. 1:05–CV–2343, 2007 WL 3492762 (N.D. Ga. Nov. 5, 2007) ..........................................15
`
`Gregory v. Gregory,
`No. 2:15-cv-0320 (WHW)(CLW), 2016 WL 6122456 (D.N.J. Oct. 18, 2016) ................12, 15
`
`High 5 Games, LLC v. Marks,
`No. 2:13-cv-07161-JMV-MF, 2019 WL 1499769 (D.N.J. Apr. 5, 2019) ...............................12
`
`High Point SARL v. Sprint Nextel Corp.,
`No. 09-2269, 2011 WL 4526770 (D. Kan. Sept. 28, 2011) .....................................................15
`
`InfoDeli, LLC v. W. Robidoux, Inc.,
`No. 4:15-CV-00364-BCW, 2016 WL 6915315 (W.D. Mo. Oct. 13, 2016) ............................14
`
`Juster Acquisition Co. v. N. Hudson Sewerage Auth.,
`No. 12-3427 JLL, 2013 WL 541972 (D.N.J. Feb. 11, 2013) .............................................16, 17
`
`Mosaid Techs. Inc. v. Samsung Elecs. Co.,
`No. CIV.A01-CV-4340(WJM), 2004 WL 2550309 (D.N.J. Oct. 1, 2004) .............................12
`
`RealPage, Inc. v. Enter. Risk Control, LLC,
`No. 4:16-CV-00737, 2017 WL 1165688 (E.D. Tex. Mar. 29, 2017) ......................................14
`
`Synopsys, Inc. v. ATopTech, Inc.,
`No. 13-cv-02965-MMC (DMR), 2015 WL 2393667 (N.D. Cal. May 18, 2015) ....................14
`
`Zubulake v. UBS Warburg LLC,
`216 F.R.D. 280 (S.D.N.Y.2003) (Zubulake III) .................................................................15, 16
`
`Zubulake v. UBS Warburg LLC,
`217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I) ....................................................................8, 13
`
`Other Authorities
`
`Federal Rule of Civil Procedure 26 .........................................................................................11, 12
`
`ii
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`I.
`
`INTRODUCTION
`
`Plaintiff OANDA files this motion to compel Defendant GAIN to produce data from JIRA,
`
`which is an issue tracking and project management software program employed by GAIN during
`
`the period relevant to this lawsuit. According to deposition testimony from GAIN’s software
`
`engineer, David Leach, and other documents produced by GAIN, GAIN employees have used
`
`JIRA
`
`
`
` during the relevant period. In addition, JIRA is the software tool GAIN
`
`has used to track when particular versions of the accused products were deployed or retired (i.e.,
`
`in use or not in use). JIRA thus contains material technical information, including information
`
`relevant to understanding the design and function of GAIN’s accused products, as well as when
`
`particular versions of the software were deployed.
`
`Notwithstanding the direct relevance of this information, GAIN has refused to produce any
`
`data from JIRA, principally on the alleged ground that JIRA is “not reasonably accessible” within
`
`the meaning of the Federal Rule of Civil Procedure 26(b)(2)(B) and the ESI Order in this case.
`
`GAIN’s position is that it would need to employ a vendor to extract and produce relevant data
`
`from JIRA in readable format using a third-party software platform, at a cost of approximately
`
`$14,500, and that this renders JIRA inaccessible under the ESI Order. Based on this reasoning,
`
`GAIN has stated that it is willing to produce JIRA data but will do so only if OANDA foots the
`
`bill for production.
`
`OANDA, however, is entitled to this data without having to pay for it. Unlike sources that
`
`are traditionally considered inaccessible, such as backups for disaster recovery or fragmented data,
`
`JIRA is an active database, from which documents can be searched, retrieved, and produced, as
`
`numerous cases involving JIRA discovery disputes confirm. And while GAIN may consider
`
`running searches in JIRA too burdensome, there are other methods to produce the relevant data
`
`1
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`

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`that have been proposed by OANDA, including providing OANDA with a complete copy of the
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`database (such as through providing read-only access or a complete copy via XML export), an
`
`approach that has been endorsed by federal courts. GAIN, however, has rejected these alternatives,
`
`claiming that providing OANDA access in this way would compromise private customer
`
`information, and taking the position that even the highest levels of protection provided by the
`
`Stipulated Confidentiality Order do not for some reason address that concern. While GAIN’s
`
`preferred method of production of JIRA data might require paying a vendor, that is not a sufficient
`
`basis for finding JIRA inaccessible, particularly when GAIN has refused to produce via other
`
`available, less costly production methods.
`
`Finally, even if a searchable software platform that is in current, daily use by GAIN
`
`employees could be deemed “not reasonably accessible,” there is still no basis for requiring
`
`OANDA to reimburse GAIN for the costs of production. The factors that are considered in a cost-
`
`shifting analysis all weigh in favor of maintaining the traditional approach to discovery costs: that
`
`the producing party pays.
`
`OANDA’s Motion should be granted.
`
`II.
`
`BACKGROUND
`
`A.
`
`The Parties Engage In Initial Discovery, With OANDA Seeking Access to
`GAIN’s Source Code And Technical Documents To Understand The Design,
`Function, and Operation of the Accused Products.
`
`In this lawsuit, OANDA alleges that its competitor GAIN’s foreign exchange trading
`
`technologies infringe two of OANDA’s patents, U.S. Patents No. 7,146,336 (the ʼ336 Patent) and
`
`No. 8,392,311 (the ʼ311 Patent). These patents claim systems and methods for online currency
`
`trading that improve upon prior art online currency trading.
`
`OANDA propounded its First Set of Requests for Production of Documents (“RFP(s)”) on
`
`June 2, 2021, the first day it could do so under Federal Rule of Civil Procedure 26(f). (Paisley
`
`2
`
`

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`Decl. ¶ 4 & Ex. 1.) These document requests included a request directly seeking the technical
`
`information sufficient
`
`to understand how GAIN’s accused products work, namely,
`
`“DOCUMENTS sufficient to show the design, function, and operation of each of the ACCUSED
`
`PRODUCTS and such functionality therein, including each version or modification of each of the
`
`ACCUSED PRODUCTS.” (Paisley Decl. Ex. 1 (OANDA RFP No. 4).) After initially objecting
`
`to Request for Production No. 4 and offering to meet and confer, GAIN agreed, following a meet
`
`and confer, to produce documents responsive to this request without any indication that it would
`
`withholding documents based on any objections. (Paisley Decl. Ex. 2 at 16-18 (Sept. 17, 2021
`
`GAIN Supp. Resp. to First RFPs).)
`
`Approximately 4 months later, GAIN produced some documents by the end of October
`
`2021, including a 2,237-page PDF document from a section of its internal wiki system,
`
`Confluence, as well as some other technical documents. (Paisley Decl. ¶ 6.) GAIN also provided
`
`OANDA with access to inspect some of its source code in November 2021. (Id.) The production
`
`did not include any data from JIRA. (Id.)
`
`OANDA then propounded an additional set of document requests in January 2022, which
`
`sought, among other things: (1) computer files, including source code, object code, compiled
`
`executables, build scripts, deployment scripts, server configuration files, or other electronic
`
`information presently in use in the compiling, assembling, building, deployment, or provision of
`
`the accused productions (RFP No. 33); (2) documents reflecting which source code was and was
`
`not in use during the relevant period (RFP Nos. 34-35); and (3) documents and communications
`
`supporting or refuting GAIN’s allegation that it has not infringed the patents in suit (RFP Nos. 37-
`
`38). (Paisley Decl., Ex. 3 (OANDA’s Second Set of RFPs).) GAIN objected and did not produce
`
`additional documents, including any documents from JIRA, in response to these requests. (Id.
`
`¶ 7.)
`
`3
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`

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`In a further effort to try to fill the apparent gaps in GAIN’s technical production and
`
`understand the accused products’ backend systems, OANDAtook the deposition of a GAIN Senior
`
`Software Engineer, David Leach. While the deposition wasoriginally noticed for February 2022,
`
`for various scheduling reasons, including Mr. Leach’s health issue that rendered him unavailable
`
`for more than two months and the death of OANDA’s counsel’s family member, the deposition
`
`did not ultimately take place until September 21, 2022. (/d. § 8.)
`
`The deposition served to confirm that GAIN’s production of technical documents was
`
`incomplete, and that GAIN hadnot searched for or produced technical documents from available
`
`sources, including JIRA. Among other testimony, Mr. Leachtestified that:
`
`B.
`
`OANDAMeets and Confers With GAIN In An Effort To Fill Now-Confirmed
`Gaps In GAIN’s Technical Document Production.
`
`On October 4, 2022, OANDA sent a meet-and-confer letter in light of Mr. Leach’s
`
`testimony, demanding that GAIN produce missing technical documents, including architectural
`
`diagrams from the relevant period, and seeking assurances about GAIN’s preservation of
`
`documents given Mr. Leach’s testimony suggesting spoliation. (Paisley Decl. § 9.) In thatletter,
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`

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`OANDA noted that Mr. Leach had testified
`
`, and asked that GAIN
`
`produce all documents, including but not limited to “Wiki pages,” text, diagrams, or downloadable
`
`files, from JIRA or Confluence, including all architectural diagrams or documents containing such
`
`diagrams, as well as metadata sufficient to identify the author of such items and the date(s) of
`
`creation and/or editing. As the letter noted, these documents are directly relevant to this litigation
`
`and responsive to at least RFP Nos. 4, 33-35, and 37-38. (Id.)
`
`GAIN responded two weeks later, but only to state that Mr. Leach—contrary to his sworn
`
`testimony—did receive a litigation hold notice, and to represent to OANDA that it would respond
`
`substantively sometime after November 1, 2022. (Id.) After multiple follow-ups by OANDA,
`
`GAIN took until December 2, 2022—two months after the original letter was sent—to provide
`
`that promised response. (Id. ¶ 10.) GAIN’s belated response still addressed none of the issues
`
`adequately. With respect to additional technical documents requested by OANDA from GAIN’s
`
`JIRA system, GAIN indicated that it was “still investigating whether it is possible to search and
`
`retrieve information without substantial additional programming or without transforming it into
`
`another form before search and retrieval can be achieved.” (Id.)
`
`OANDA responded with a letter of its own on December 8, 2022, seeking additional
`
`clarification of GAIN’s position and requesting transparency as to what technical documents
`
`GAIN was withholding. (Id. ¶ 11.) With respect to GAIN’s JIRA system, OANDA offered that
`
`if targeted search and production was not practicable, it was amenable to creating an account on
`
`JIRA that would have read-only access to the documents in GAIN’s system, from which counsel
`
`for OANDA could login and inspect the information itself, subject to the highest possible
`
`confidentiality protections under the Stipulated Confidentiality Order. (Id.)
`
`By December 21, 2022, nearly two weeks later, OANDA had still not received a response,
`
`and contacted GAIN stating that it would have to seek court intervention if it did not receive a
`
`5
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`

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`response by close of business the following day. (Id. ¶ 12.) GAIN then responded on December
`
`22, 2022, implicitly admitting for the first time that complete architectural diagrams for the
`
`accused products had not been produced. (Id.) During months of back-and-forth between the
`
`parties, GAIN had repeatedly provided assurances that it had produced in discovery all documents
`
`and information necessary for OANDA to understand the operation of the accused product during
`
`the relevant period (including architectural diagrams), while also refusing to identify with any
`
`specificity what documents or information GAIN was referring to. (Id.) But in its December 22,
`
`2022, letter, GAIN asked OANDA to “please point to the document production request that seeks
`
`all iterations and versions of all system diagrams created by GAIN,” claiming for the first time
`
`that “[s]uch a request would not be proportional to the needs of the case.” (Id.) OANDA in fact
`
`had propounded requests seeking documents sufficient to understand the operation of each version
`
`of the accused products, GAIN had agreed to produce documents responsive to that request without
`
`indicating that it was withholding documents on the basis of any objection, and GAIN then
`
`affirmed that it had substantially completed that production. (Id.)
`
`GAIN also asserted that any accusation that its technical production was “insufficient”
`
`were “baseless.” (Id. ¶ 13.) In response to OANDA’s request that GAIN identify the documents
`
`that reflected their supposedly complete technical production, GAIN identified only the 2,237-
`
`page PDF document it had produced from Confluence, from which many diagrams, images, and
`
`attachments had been stripped out. It then accused OANDA of not having properly reviewed its
`
`production or found this Confluence document, falsely claiming that OANDA had not asked Mr.
`
`Leach a single question in the deposition about it. (Id.) A quick review of the deposition transcript
`
`shows that OANDA’s counsel questioned Mr. Leach about this very document at length. (See,
`
`e.g., Paisley Decl., Ex. 4 at 153:25-173:5.)
`
`6
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`

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`Having met and conferred over the course of several months, and with GAIN refusing to
`
`produce a complete set of architectural diagrams depicting the accused products during the relevant
`
`time period, or any other basic technical documents, OANDA on January 7, 2023 filed a letter
`
`request with the Court seeking to compel GAIN to comply with its discovery obligations (Dkt.
`
`157). (Paisley Decl. ¶ 14.) That letter sought, among other technical information, “[a] complete
`
`version of GAIN’s JIRA site, including hyperlinks, attached files, logs, diagrams, images,
`
`metadata (including the identity of authors and/or editors), and other items that may be referenced
`
`therein, or in the alternative, a login with full read-only access to the live version, through trial.”
`
`(Dkt. 157 at 6.)
`
`Following a January 9, 2023 conference with the Court, however—which addressed
`
`GAIN’s preemptive request to preclude OANDA from amending its infringement contentions—
`
`the Court notified the parties that, in future, all discovery-related relief (including the relief sought
`
`in OANDA’s January 7, 2023 letter) must be sought by formal motion to the Court, rather than
`
`through informal letter requests. (Paisley Decl. ¶ 15.)
`
`C.
`
`After Further Meet and Confer Efforts, GAIN Continues To Refuse To
`Produce JIRA Data Without OANDA Footing The Bill.
`
`Given this Court’s reiteration of the need to meet and confer, as well as GAIN’s assertion
`
`during the January 9, 2023 hearing that some of the issues raised in OANDA’s January 7, 2023
`
`filing concerning the production of technical documents were not ripe, OANDA reached out to
`
`GAIN the same afternoon to set up a call to make sure that meet-and-confer efforts were exhausted
`
`before involving the Court. (Paisley Decl. ¶ 16.) The parties scheduled a call for January 13,
`
`2023. (Id.)
`
`During the call, GAIN indicated that there may be relevant technical documents in JIRA
`
`and Confluence that had not been produced. (Id. ¶ 17.) GAIN, however, took the position that
`
`7
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`

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`these systems were not “reasonably accessible” within the meaning of the ESI Order, but that it
`
`could get a quote from a vendor to export information from these systems in reviewable form using
`
`ONNA, and would expect OANDA to bear the cost. (Id.) When OANDA proposed having its
`
`attorneys inspect a read-only version of these systems, with appropriate safeguards, GAIN stated
`
`that it would not agree to do so under any circumstances. (Id.) OANDA explained that it did not
`
`believe there was any basis for shifting the cost to OANDA, but that GAIN should obtain a quote,
`
`and that OANDA would, in the meantime, share with GAIN what it believed were less expensive
`
`or cost-free ways to export data from Confluence and JIRA in a form that would be reviewable.
`
`(Id.)
`
`The provision of the ESI Order on which GAIN was relying states that information is not
`
`reasonably retrievable if its “retrieval cannot be accomplished without substantial additional
`
`programming or without transforming it into another form before search and retrieval can be
`
`achieved.” (Dkt. 88 ¶ 3.) Neither Confluence nor JIRA, which can both be searched and from
`
`which documents
`
`can be
`
`readily produced,
`
`fit
`
`this description.
`
`
`
`(See,
`
`e.g.,
`
`https://support.atlassian.com/jira-work-management/docs/search-for-issues-in-jira/.) In addition,
`
`none of the relevant factors for discovery cost-shifting under Zubulake v. UBS Warburg LLC, 217
`
`F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I), weighs in favor of forcing OANDA to pay for this
`
`material technical discovery. Because OANDA did not believe that the information was
`
`inaccessible, and because it believed there were cheaper or cost-free options available, OANDA
`
`continued to push back on GAIN’s refusal to produce JIRA and Confluence data. (Id. ¶ 18.)
`
`GAIN then partially relented, acknowledging that it may be able to produce data from
`
`Confluence and JIRA through HTML/XML files without paying a vendor. (Paisley Decl. ¶ 19.)
`
`GAIN, however, took the position that it did not know whether this export would leave images,
`
`attachments, and document relationships intact, and if OANDA accepted this approach, it did so
`
`8
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`

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`“at its own risk.” (Id.) GAIN stated that if OANDA accepted this method of production, GAIN
`
`would not “confirm that using the HTML and XML conversions will include the information
`
`OANDA has requested,” and if it ultimately did not provide useable data, GAIN “will not go back
`
`and perform additional productions to provide ‘missing’ information.” (Id.) GAIN’s position that
`
`OANDA must either pay the GAIN estimate of approximately $21,000 for usable data, or blindly
`
`accept potentially unusable data, treated discovery like a game.
`
`Unwilling to accept this ultimatum, OANDA finally proposed that GAIN simply provide
`
`a small sample from Confluence and JIRA via the HTML/XML method for review—if it worked,
`
`then the broader set of data could be produced in the same format; if it didn’t, then the parties
`
`could figure out an alternative means of production. (Id. ¶ 20.) GAIN agreed to this approach on
`
`January 31, 2023. (Id.)
`
`On February 14, 2023, GAIN produced the Confluence sample, and it was usable, with
`
`images, attachments, and associations between documents intact. (Paisley Decl. ¶ 21.) OANDA
`
`promptly approved the broader production in this format. (Id.) Two months later, on April 17,
`
`2023, GAIN finally produced the Confluence data set in HTML/XML format, which included
`
`more than 41,000 documents (spanning 181,698 pages) containing technical information about
`
`GAIN’s accused products. (Id. ¶ 22.)
`
`The JIRA HTML/XML sample meanwhile was produced on February 8, 2023. (Id. ¶ 23.)
`
`But that sample production was less successful. The HTML/XML export of JIRA did not leave
`
`images, attachments, and document associations intact, and as a result, was not useable. (Id.) The
`
`parties therefore continued negotiations over the JIRA data.
`
`On February 23, 2023, OANDA emailed GAIN to point out that the Confluence
`
`XML/HTML sample included attachments and images, and kept associations between documents
`
`intact, and sought an explanation about why the same could not be achieved with JIRA. (Id. ¶ 24.)
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`9
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`Having received no response by March 1, 2023, OANDA followed up, only to receive a response
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`that GAIN was looking into the matter. (Id.) On March 7, 2023, having still received no
`
`substantive response, OANDA followed up again. (Id.) Later that day, GAIN responded to inform
`
`OANDA that the only available export options (at least the ones GAIN was willing to consider)
`
`did not include attachments, and reiterated the option to export via ONNA at OANDA’s cost. (Id.)
`
`GAIN also acknowledged for the first time that JIRA does in fact have search functionality, while
`
`characterizing that search capability as “limited.” (Id.)
`
`On March 8, 2023, OANDA—continuing to look for solutions short of a motion to
`
`compel—proposed another workaround: having the JIRA attachments downloaded and produced
`
`separately from the rest of the export. (Id. ¶ 25.) Having received no response by March 15, 2023,
`
`OANDA followed up again. (Id.) Later that day, GAIN responded that all of the proposals
`
`OANDA had identified for JIRA production were “unworkable and unacceptable.” (Id.) GAIN
`
`stated that either a complete HTML/XML export or read-only log-in would “effectively give
`
`OANDA unbounded access to the large swathes of GAIN’s JIRA system, much of which
`
`comprises irrelevant and sensitive information.” (Id.) Other proposed solutions were similarly
`
`rejected as unworkable, and GAIN reiterated that it would produce via ONNA at OANDA cost
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`(which, because the production involved only JIRA and not Confluence, was now estimated at
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`$14,500). (Id.)
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`The parties arranged a telephonic meet-and-confer for March 21, 2023 to try to determine
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`if there was any path to informal resolution. (Id. ¶ 26.) On that call, the parties discussed the
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`various approaches, including OANDA’s longstanding proposal to obtain read-only access to
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`JIRA subject to the protections of the Stipulated Confidentiality Order, as well as OANDA’s
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`March 8, 2023 proposal to produce attachments separately. (Id.) GAIN expressly stated that each
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`of the proposals was unworkable, and the parties ended the call agreeing that the only way GAIN
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`would voluntarily produce JIRA data was through ONNA at OANDA’s sole cost. (Id.) The parties
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`thus agreed that they were at an impasse and that Court intervention would be required. (Id.)
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`Later that day, GAIN emailed OANDA to state that it was looking into OANDA’s “new
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`request to collect JIRA attachments separately from a directory on the server back-end (or from a
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`local backup).” (Id..) This request was not “new” (having been proposed two weeks earlier) and
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`GAIN had expressly rejected it as unworkable on the call just hours previously. (Id.) Nonetheless,
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`GAIN took until March 30, 2023 to inform GAIN that extracting attachments in this way resulted
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`in at least partially illegible and undecipherable data, and that such a production would remove
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`any associations between the attachments and the underlying JIRA tickets. (Id.)
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`Because the parties have exhausted their months-long meet-and-confer efforts without a
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`resolution, OANDA now files this motion to compel.
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`III.
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`GAIN SHOULD BE COMPELLED TO PRODUCE DATA FROM JIRA
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`A.
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`Data From JIRA Is Relevant And Proportional To The Needs Of The Case.
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`Under Federal Rule of Civil Procedure 26(b)(1), a party is entitled to take discovery
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`“regarding any nonprivileged matter that is relevant to any party's claim or defense and
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`proportional to the needs of the case.” The JIRA data, which is responsive to at least OANDA’s
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`Request for Production Nos. No. 4, 33-35, and 37-38, meets this standard. While GAIN has
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`questioned the relevance and proportionality of the JIRA data, its own witness, David Leach, has
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`testified under oath that
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`
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` (Paisley Decl., Ex. 4 at 111:14-23; id. at 112:21-
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`113:2). Further, Mr. Leach explained that
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`
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`production of technical documents from Confluence references JIRA or documents within JIRA
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` (Id. at 192:17-193:24.) Lastly, GAIN’s
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`approximately 787 times. (Paisley Decl. ¶ 22.)
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`Discovery into technical documents explaining the functioning of the accused product
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`during the relevant time is both relevant and proportional to the needs of the case, given the
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`importance of such documents in proving infringement. Moreover, while GAIN might question
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`the need for information from JIRA in addition to other technical information produced, the JIRA
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`data is discoverable, and it is not for GAIN to determine what information OANDA needs to prove
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`its case. See Mosaid Techs. Inc. v. Samsung Elecs. Co., No. CIV.A01-CV-4340(WJM), 2004 WL
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`2550309, at *3 (D.N.J. Oct. 1, 2004) (holding that defendant “had an obligation to produce
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`relevant, responsive documents regarding schematics, completion reports, netlists and other
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`technical documents” and rejecting defendant’s argument that plaintiff “did not need” this
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`information because it was not for defendant “to dictate to [plaintiff] what evidence it should and
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`should not be able to rely upon to prove its case”); High 5 Games, LLC v. Marks, No. 2:13-cv-
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`07161-JMV-MF, 2019 WL 1499769, at *7 (D.N.J. Apr. 5, 2019) (finding that requests seeking
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`“information on products using . . . specific features” alleged to be infringing are appropriate).
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`B.
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`JIRA Data Is Reasonably Accessible.
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`GAIN’s argument that JIRA is not reasonably accessible, such that GAIN should only have
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`to produce JIRA data if OANDA bears the cost of production, is also baseless. Under Federal
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`Rule of Civil Procedure 26(b)(2)(B), a party may resist discovery of electronically stored
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`information from sources that the party identifies as not reasonably accessible because of undue
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`burden or cost. On a motion to compel discovery, the party resisting production then bears the
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`burden of showing that the requested information “is not reasonably accessible.” Fed. R. Civ. P.
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`26(b)(2)(B); Gregory v. Gregory, No. 2:15-cv-0320 (WHW)(CLW), 2016 WL 6122456, at *10
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`(D.N.J. Oct. 18, 2016).
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`The argument that information from an active online data platform like JIRA is “not
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`reasonably accessible” within the meaning of Rule 26(b)(2)(B) has been routinely rejected by
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`courts. In the seminal case of Zubulake I, 217 F.R.D. at 318–19, the court identified five categories
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`of sources of ESI in descending order of accessibility: (1) active, on-line data; (2) near-line data;
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`(3) data that is archived or stored off-line; (4) backup media designed for disaster recovery rather
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`than routine use; and (5) erased, fragmented, or damaged data. Id. at 318–19. Of these, the first
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`three categories are generally considered as accessible because they are “stored in a readily usable
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`format” and, while it may take anywhere from “milliseconds to days” to access the data, they “do[]
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`not need to be restored or otherwise manipulated to be usable,” unlike backup media or deleted
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`data. Id. The Sedona Principles similarly recognize that reasonably accessible sources of ESI
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`include “files available on or from a computer user’s desktop, or on a company’s network, in the
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`ordinary course of operation,” as opposed to, for example, “backup tapes used for disaster recovery
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`purposes that are not indexed, organized, or susceptible to electronic searching” or fragmented
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`data that “requir[es] a modern version of forensics to restore and review.” Chen-Oster v. Goldman,
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`Sachs & Co., 285 F.R.D. 294, 302 (S.D.N.Y. 2012). The JIRA data falls squarely into the category
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`of accessible data—it is active, online data which is currently accessed by GAIN employees in the
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`regular course of business. See id. (holding that PeopleSoft was not inaccessible where it was
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`“accessed in the regular course of business by Goldman Sachs employees”).
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`GAIN contends that JIRA, a platform its employees currently use and access on a daily
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`basis, should nonetheless be considered inaccessible here, relying principally on language in the
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`ESI Order in this case (Dkt. 88). The ESI Order lists certain sources of information that are
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`considered inaccessible, including, in addition to sources such as backup tapes and data fragments,
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`“information whose retrieval cannot be accomplished without substantial additional programming
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`or without transforming it into another form before search and retrieval can be achieved.” (Dkt.
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`88 ¶ 3.) While GAIN has repeatedly pointed to this language to resist production, JIRA does not
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`fit this description. JIR