I. ESI TeleCare Conception, Development And Design

Sivantos produced its TeleCare source code in August 2018. (Bean Decl., ¶ 4, Dkt. 302.) The code included: (1) different versions of TeleCare, including the Signia my Hearing App, Connexx and TeleCare Portal, (2) the source code, binary code and other native ESI of TeleCare and (3) prior versions of the TeleCare code, including the versions released to Apple and Google to include on their respective software application stores. (Ingo Eichinger Decl., Dkt. 336-6, ¶¶ 3-11.) The source code includes electronically stored information, notes and other code for testing. (Id. at ¶ 3.) Plaintiff no longer contends that Sivantos' source code is unreviewable or that TeleCare's Portal is inaccessible.

The above facts provide some of the ESI information required by the Court's February 8, 2019 Order (Dkt. 330 at 6-7), but three issues remain.

A. Version Control Repository

Plaintiff in her Second Supplemental Reply (Dkt. 33; 335-1) presented for the first time the assertion that Sivantos' source code for TeleCare Versions 1.0, 2.0 and 3.0 came from a larger version control repository. This assertion is based on the Declaration of Dan Manheim, Plaintiff's source code expert. (Dkt. 333, ¶¶ 5-6.) Plaintiff asks for the repository to be produced because it would allow Plaintiff to review and compare all interim and released versions of the software with knowledge of the dates the files were created or revised. This new assertion about a version control repository is why the Court ordered the rebuttal briefing. (Dkt. 343.)

There does not appear to be any dispute that Sivantos has a version control repository. Mr. Manheim stated he thought TeleCare was developed using Microsoft Team Foundation Version Control. Sivantos' Head of Software Architecture, Innovation & Strategy Ingo Eichinger confirmed use of Microsoft Team Foundation Server. (Dkt. 351, ¶ 3.) Mr. Eichinger also gave a description of the file repository with version control to manage Sivantos software development files. (Id.)

Sivantos argues that Plaintiff did not request Sivantos' file repository in the discovery requests, that the Protective Order prohibits inspection of the version control repository in Germany by using the internet which would risk exposing non-TeleCare confidential material and that production is not relevant and proportional to the needs of the case. These contentions are disingenuous evasions of a much more fundamental point. Sivantos was obliged to search any space in its custody, control and possession for TeleCare ESI of conception, development and design and to produce any TeleCare ESI not otherwise produced. There is no need for Plaintiff to go to Germany to inspect the repository through an internet connection with access to non-TeleCare ESI. Sivantos can make available for inspection any TeleCare ESI here in California at counsel's office without any internet connection or risk of exposing non-TeleCare ESI, just as Sivantos did with its August 2018 ESI production by inspection.

*2 The issues, then, are whether Sivantos searched the version control repository for relevant ESI and whether TeleCare ESI not otherwise produced exists in the repository. The Court's initial impression is that no search was conducted and that it is likely relevant teleCare ESI exist in the repository not otherwise produced. Mr. Eichinger testified at his deposition that he did not search the repository and does not know whether anyone else did. (Dkt. 349-1, Ex. A.) As Mr. Eichinger was responsible for assembling responsive documents and ESI, it seems unlikely anyone else would have searched the repository. Additionally, Mr. Eichinger stated in his Declaration that Sivantos' file repository contains thousands of snapshots of TeleCare source code. (Dkt. 351-3, ¶ 3.) According to Mr. Manheim, Sivantos' source code only contains three snapshots, of Versions 1.0, 2.0 and 3.0. (Id., ¶ 4.) These facts indicate to the Court that snapshots of other versions of TeleCare may exist.

Accordingly, the Court ORDERS Sivantos: (1) to provide declarations under oath and subject to penalty of perjury within 5 days of this Order whether, when and by whom, the repository was searched for TeleCare ESI, including a declaration from anyone at Sivantos who actually conducted such a search if one occurred, and (2) whether TeleCare ESI exist in the repository not otherwise produced, in particular snapshots of versions of TeleCare other than 1.0, 2.0 and 3.0. If the repository has not been searched then Sivantos shall conduct such a search forthwith. If TeleCare ESI exist in the repository not otherwise produced, then Sivantos shall make it available for inspection here in California, without any connection to the internet as with the prior production, within 10 days of this Order.

B. Undated Snapshots Of TeleCare ESI

Plaintiff's source code expert Dan Manheim states in his Declaration that Sivantos' source code made available for inspection contains snapshots of TeleCare versions of 1.0, 2.0 and 3.0 without dates corresponding to any version. (Dkt. 333, ¶ 4.) Sivantos responded that Plaintiff did not meet and confer, characterizes Mr. Manheim's statement as “unsubstantiated” and states, “To the contrary, the TeleCare files include ESI.” (Dkt. 351:4-5.) This somewhat flustered response again misses the point. Mr. Manheim's statement that the snapshots of Versions 1.0, 2.0 and 3.0 are undated is based on personal knowledge after inspecting Sivantos' source code. It does not call for a meet and confer. It calls for a response with a declaration whether the snapshots of TeleCare ESI for Versions 1.0, 2.0 and 3.0 are dated or not. They either are or are not. The truth is plainly within Sivantos' knowledge. The Court in its February 8, 2019 Order made clear the Court wanted to know if TeleCare prototype ESI is “recognizable and dated.” (Dkt. 330 at 6.) Nor is Sivantos' assertion that the TeleCare files include ESI helpful; the issue is whether the snapshots of ESI for Versions 1.0, 2.0 or 3.0 are dated, which will be important in determining when the features of TeleCare were developed.

Accordingly, the Court ORDERS Sivantos to: (1) produce a declaration within 5 days of this Order stating unequivocally whether the snapshots of the TeleCare ESI of Versions 1.0, 2.0 and 3.0 in the source code Sivantos produced for inspection are dated or undated, and (2) whether dated versions exist in the version control repository. If the latter is true, then Sivantos is ORDERED to produce the dated versions within 10 days of this Order.

C. Prototypes

A major issue addressed in the Court's Order of February 8, 2019 is Sivantos' production of TeleCare prototype ESI. (Dkt. 330 at 3-7.) Mr Eichinger explains in his Declaration that, when Sivantos' software developers update the source code with additional features, they update existing source code and the legacy source code of prior versions in the updated source code. (Dkt. 336-6, ¶ 12.) For example, the code for TeleCare 2.0 includes code from TeleCare 1.0, and the code for TeleCare 3.0 includes code from prior versions, such as TeleCare 1.0 and 2.0. (Id.) Code is added to the prior code so as to keep or modify the legacy code and add new code to it. (Id.) Thus, Sivantos asserts that its source code produced for inspection in August 2018 did include prototypes, as TeleCare 1.0 code is the prototype for TeleCare 2.0 and TeleCare 2.0 is the prototype for TeleCare 3.0. (Dkt. 351 at 5:11-13.)

*3 Sivantos' assertion, however, is incomplete and misleading. First, Plaintiff asserts that snapshots of TeleCare ESI for the above versions are undated, despite the fact the Court made clear it wanted to know whether ESI prototype information was dated. The Court already has ordered Sivantos to produce a declaration stating whether the TeleCare ESI for Versions 1.0, 2.0 and 3.0 are dated or undated and whether dated versions exist in the version control repository, and to produce any TeleCare prototype ESI in the version control repository not otherwise produced.

Second, there is no dispute that prototypes were created between 2015 and 2017 before Versions 1.0, 2.0 and 3.0. Both Mr. Eichinger (Dkt. 344-4, Ex. B to Decl. of B. Dahlberg) and Ms. Heuermann (Dkt. 344-4, Ex. C to Decl. of B. Dahlberg) attest to same. A planning document confirms that work was under way on a prototype planned for development between March and June 2016. (Dkt. 344-7.) Mr. Eichinger, however, states that prototypes for TeleCare were created at the initial stages of development but not in or after May 2017 when this lawsuit was filed. (Dkt. 336-6, ¶ 13.) He offered the opinion that these prototypes were “likely not retained before this lawsuit was filed because they are not retained as a business practice at our company.” (Id.) Mr. Eichinger also stated that he searched for but did not find any TeleCare prototype ESI. (Id.)

The problem with this analysis is that Mr. Eichinger admitted in his deposition that he did not search the version control inventory repository. (Dkt. 349-1.) He also admitted in his rebuttal declaration that there are thousands of snapshots of source code in the repository. (Dkt. 351-3, ¶ 3.)

Accordingly, the Court ORDERS Sivantos to: (1) search the version control repository for prototype ESI from 2015 to 2017 forthwith and (2) provide a declaration under oath and subject to penalty of perjury whether the repository contains Telecare 2015-2017 prototype ESI within 5 days of this Order. If such ESI exists, the Court ORDERS Sivantos to produce it for inspection within 10 days of this Order.

II. Released Versions Of TeleCare

In its February 8, 2019 Order, the Court ordered Sivantos to provide information on whether released versions of TeleCare software are included in the source code made available for inspection, and are dated, and on whether Version 1.2 relied on by Sivantos' expert Les Atlas is in the source code. The Court also ordered Sivantos to produce any released versions of the TeleCare software not heretofore disclosed forthwith. (Dkt. 330 at 8.)

Sivantos has now made clear that the TeleCare versions were made available to Apple and Google. (Eichinger, 336-6, ¶ 6.) Sivantos also indicates that Signia TeleCare Version 1.2 is a publicly available document on the internet relied on by Plaintiff's own expert, Dr. Pavlovic. (Bean Decl., ¶ 3.) Plaintiff, however, contends that the document available on the internet referenced by Sivantos is not Version 1.2 of the Signia TeleCare, which is not in the source code according to Mr. Manheim. (Dkt. 333, ¶ 5.) Plaintiff also complains that Dr. Atlas did not provide a declaration clarifying the issue. The Court ORDERS Sivantos to clarify the issue, to state unequivocally whether Version 1.2 is in the source code that Sivantos has produced for inspection and to produce for inspection the released version of 1.2 if it is not in the source code. The Court wants to know whether Dr. Atlas relied on a Version 1.2 not available in the source code that differs from the publication. The Court also wants to know whether Version 1.2, source code and/or snapshots of source code for Version 1.2 are in the version control repository. The Court ORDERS Sivantos to submit a declaration under oath and subject to penalty of perjury within 5 days of this Orderregarding the above matters. If Version 1.2, source code for Version 1.2 and/or snapshots of source code of Version 2 exist in the source code produced or in the repository, the Court ORDERS Sivantos to produce it, with a statement of where it was located, within 10 days of this Order.

*4 In its Second Supplemental Reply, Plaintiff shifts gear from her previous contention that publicly released versions of TeleCare have not been made available, Sivantos having effectively rebutted that contention for the most part. Now Plaintiff seeks “working versions” of TeleCare (executable or binary versions), which she says she needs so her experts can test user experience and software features. She now begins to refer to “working, released” versions, suggesting through Mr. Manheim that she previously had requested working versions of released TeleCare mobile applications (Dkt. 333, ¶ 10) and that the Court ordered production of same. Yet the Court's February 8, 2019 Order speaks only of released versions of TeleCare, not working versions. (Dkt. 330 at 8, ¶ 1.) The issue of working versions first came up in Plaintiff's Second Supplemental Reply with Mr. Manheim's Declaration and does not appear to have been specifically requested before, other than as something arguably responsive to Plaintiff's general request for ESI of conception, development and design. Plaintiff's request at this point is new discovery made necessary because of a lack of diligence in having an expert review the source code that was made available in August 2018. Plaintiff, moreover, never shared her source code with Sivantos and does not contend Sivantos purloined it, but rather stole her concepts of a cloud-based platform, timing of tuning and location of patient. (Dkt. 91-2, ¶¶ 10-11, 18-24; Dkt. 91-3, ¶ 22.) Plaintiff's expert Dr. Pavlovic was able to opine that Sivantos misappropriated these concepts by only reviewing the literature on TeleCare publicly available on their website, including papers on TeleCare 2.0 and 3.0 and the TeleCare Handbook. (Dkt. 91-2, ¶ 18.) The Court does not believe that the working versions of the TeleCare software are needed for Plaintiff to prove her claim. The Court also does not believe that producing working versions in addition to released versions and other ESI the Court is requiring Sivantos to produce is proportional to the needs of the case, particularly in view of Plaintiff's lack of diligence in having an expert review the Sivantos source code.[1]

III. All Financial Information

The Court in its February 8, 2019 Order ordered Sivantos to: (a) produce declarations regarding financial documents produced at the depositions of Eichinger and Heuermann not previously produced, (2) 45 financial documents considered by damages expert Jeffrey Kinrich not previously produced, and (3) other financial documents not previously produced. (Dkt. 330 at 9-11.) The Court accepts the declarations of Eichinger that he produced documents at his deposition that he did not know if they had been produced (Dkt. 336-6, ¶¶ 14-15) and of Heuermann that she was deposed about a document entitled “TeleCare & Next Generation Development Cost Overview” which was created from information in a data base. (Dkt. 336-5, ¶¶ 2-3.) As both were deposed about these documents, there was no harm or prejudice, particularly in view of the extension of the fact discovery and expert witness report deadlines. (Dkt. 324.) Ms. Heuermann also stated in her declaration that Mr. Kinrich specifically requested reports from Sivantos that did not exist prior to the time they were generated. (Id., ¶ 5.) Her declaration also indicates that some of the documents already were produced. (Id., ¶ 7.)

The Court believes that Sivantos has substantially complied with the Court's prior orders regarding production of financial data. The production of these documents has not resulted in any prejudice in view of the schedule extension. A preclusion order is not warranted.

IV. Documents Not Timely Produced

Sivantos has presented an explanation for their untimely document productions, supported by Dr. Heuermann's declaration. The Court does not believe Plaintiff has suffered any prejudice from these late productions, particularly in view of the extension of fact discovery and expert witness report deadlines. (Dkt. 324.) A preclusion order is not warranted.

V. Sanctions

In view of the pending matters, the Court still cannot address what sanctions, if any, should be imposed on Sivantos. The Court will address the issue after Sivantos complies with the Court's orders herein.

Plaintiff tries to seek refuge in the fact that Sivantos objected to Mr. Manheim reviewing its source code but that delay does not explain never examining the source code with an expert from August 2018 to the point Sivantos objected to Mr. Manheim.