Case 1:19-cv-01238-ADA Document 131 Filed 06/25/20 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FINTIV, INC.,
` Plaintiff,
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`v.
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`APPLE INC.,
` Defendant.
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`1:19-CV-01238-ADA
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`ORDER DENYING DEFENDANT APPLE’S REQUEST FOR
`PLAINTIFF TO RE-SERVE ITS FINAL INFRINGEMENT CONTENTIONS
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`Before the Court is Defendant Apple’s request for the Plaintiff Fintiv to re-serve its Final
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`Infringement Contentions to use Bates and line numbers instead of file names and function calls,
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`in order to comply with what Apple believes the Protective Order requires. ECF No. 98 at 2. For
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`the reasons that follow, the Court will not require Fintiv to re-serve its Final Infringement
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`Contentions using Bates and line numbers.
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`I.
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`Factual Background
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`Plaintiff filed the instant action on December 21, 2018 alleging that Apple infringed U.S.
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`Patent No. 8,843,125. ECF No. 1. The ’125 Patent is titled “System and Method for Managing
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`Mobile Wallet and its Related Credentials.” Id. at 1. Fintiv alleges that Apple infringes upon the
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`’125 patent through the sale of its iPhone, Apple Watch, and Apple Wallet products that are
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`enabled to provision a contactless card in a mobile device that includes a mobile wallet application.
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`Id. at 5.
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`Given the proprietary nature of the devices in question, the parties negotiated and jointly
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`submitted a motion for entry of an agreed protective order. ECF No. 98 at 1. The Court entered
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`the Protective Order on August 7, 2019. Id. The Protective Order defines “Source Code” as
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`Case 1:19-cv-01238-ADA Document 131 Filed 06/25/20 Page 2 of 5
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`“computer code, scripts, assembly, binaries, object code, source code listings and descriptions of
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`source code, object code listings, and descriptions of object code, . . . .” Id. The Order restricts
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`communication of the Source Code from being “included in correspondence between the Parties
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`(references to production numbers shall be used instead), and shall be omitted from pleadings and
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`other papers whenever possible.” Id. at 2.
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`On January 17, 2020, Fintiv served Apple with its Final Infringement Contentions. Id. at
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`1. The Final Infringement Contentions contained over sixty file names and function calls from
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`Apple’s source code. Id. Apple, under the impression that file names and function calls are within
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`the Protective Order’s definition of “Source Code,” requested that Fintiv re-serve its Final
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`Infringement Contentions using references to Bates and line numbers in lieu of the file names and
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`function calls. Id. The Court held a discovery hearing on February 24, 2020.
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`II.
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`Analysis
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`The central issue of this discovery dispute is whether file names and function calls fall
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`within the protection of the Protective Order given its definition of “Source Code.” Apple makes
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`several arguments in support of its position.
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`First, Apple contends that Fintiv implicitly concedes that file names and function calls fall
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`the protections of the Protective Order. More specifically, Apple argues that because Fintiv
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`designated the Final Infringement Contentions as “CONFIDENTIAL – OUTSIDE ATTORNEY’S
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`EYES ONLY – SOURCE CODE,” Fintiv implicitly concedes that file names and function calls
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`are source code. ECF No. 98 at 2.
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`Fintiv responds by stating that it included the “SOURCE CODE” designation to its Final
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`Infringement Contentions out of an abundance of caution since those contentions contained
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`information relating to “Source Code.” ECF No. 101-1 at 3.
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`The Court agrees that the confidentiality designation is not dispositive of the substance of
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`the document. The Court also finds that it is not unreasonable that Fintiv would overclassify a
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`document that referenced source code in order to err on the safe side.
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`Second, Apple further claims that since the function calls are included within the source
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`code, they should be considered source code as well. ECF No. 98 at 2. Apple provided a
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`representative sample of Fintiv’s Final Infringement Contentions, which listed various file names
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`and function calls but did not appear to contain any actual lines of code beyond that. Id. at Ex. 1.
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`Fintiv’s response contends that since the definition of “Source Code” does not explicitly
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`list “file name” or “function name” or any derivations thereof, citations to such names should not
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`fall within the Protective Order. ECF No. 101-1 at 1–2.
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`The Court again agrees with Fintiv. First, after examining the representative sample of
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`Fintiv’s Final Infringement Contentions, the Court does not believe that the listed file names and
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`function calls provide the same level of disclosure as would the source code implementation of an
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`algorithm or data structure. In fact, the Court finds that the listed file names and function calls
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`provide very little, if any, useful—let alone highly confidential—information. Second, the people
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`that have access to this document only have access to this document by virtue of their involvement
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`in this litigation, i.e., the parties’ counsel and their experts. Because the operative Protective Order
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`in this case does not bar parties’ counsel and their experts from reviewing source code, the Court
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`finds that danger of including file names and function calls in this type of document is considerably
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`less than the danger of including those things in other documents e.g., a sealed filing with
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`improperly applied redactions.
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`That said, the Court realizes that there is a non-zero danger of including file names and
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`function calls within this type of document, as one party (usually the receiving party) may
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`accidentally disclose this document to an unauthorized third-party. But even if that were to occur,
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`the Court finds that because the file names and function calls in Fintiv’s Final Infringement
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`Contentions do not appear to be particularly informative, the Court finds that the level of danger
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`in this case is acceptably low.
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`Third, the Court finds that using file names and function calls instead Bates and line
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`numbers improves the clarity of Fintiv’s Final Infringement Contentions, while also eliminating
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`the potential of introducing inadvertent errors when converting over to Bates and line numbers.
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`Fourth, while the burden to Fintiv (to modify its contentions to excise any listing of file
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`names and function calls by replacing them with Bates and line numbers ) is relatively low, the
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`Court finds the danger is small enough and less than Fintiv’s burden.
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`Therefore, the Court declines to order Fintiv to re-serve its Final Infringement Contentions
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`using Bates and line numbers instead of file names and function calls.
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`The Court, however, shares Apple’s concern of protecting its source code from improper
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`disclosure. ECF No. 98 at 3. To the extent that Apple feels any particular file name or function call
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`has an independent basis for being sensitive enough material to warrant further protection, the
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`Court will allow Apple to request encoding particular terms on a case-by-case basis.
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`III. Conclusion
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`Based on the foregoing, Defendant Apple’s request for Fintiv to re-serve its Final
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`Infringement Contentions is DENIED (ECF No. 98).
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`Case 1:19-cv-01238-ADA Document 131 Filed 06/25/20 Page 5 of 5
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`SIGNED this 24th day of June 2020.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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