[00:00:00] Speaker 01:
It's argued case is number 21, 1838, Modern Found Applications against Alaska Airlines.

[00:00:07] Speaker 01:
Mr. Clegg.

[00:00:10] Speaker 04:
Thank you, Your Honor.

[00:00:11] Speaker 04:
Good morning.

[00:00:12] Speaker 04:
May it please the court?

[00:00:14] Speaker 04:
My name is Perry Clegg, and I represent Appellant Modern Found Applications, who is the plaintiff in this case.

[00:00:20] Speaker 04:
I appeal there are two primary issues I'd like to address during the hearing.

[00:00:24] Speaker 04:
First, the district court abused this discretion.

[00:00:26] Speaker 04:
and committed an error of law by not allowing a Pelhamton House attorney to have access to certain categories of information.

[00:00:34] Speaker 04:
Second, the district court also abused this discretion and committed an error of law by maintaining confidential designations without requiring Alaska to proffer any evidence or facts to demonstrate good cause or that the information merited the designated protection.

[00:00:50] Speaker 04:
Now before addressing the foregoing substantive issues on appeal, I would like to specifically address

[00:00:55] Speaker 04:
a case cited by Alaska for the proposition that, quote, as a general matter, discovery orders are not appealable under the collateral order doctrine, unquote.

[00:01:05] Speaker 04:
Alaska makes this assertion on page 11 of its response brief, citing a 10th Circuit case, SEC v. Merrill Scott and Associates.

[00:01:16] Speaker 04:
However, the Merrill Scott case treated orders regarding the modification of protective orders differently than routine discovery orders

[00:01:25] Speaker 04:
and actually goes against Alaska's position.

[00:01:27] Speaker 04:
In Merrill Scott, the Tenth Circuit was specifically considering an order regarding the modification of a protective order and evaluated whether the Tenth Circuit had jurisdiction to review the order on appeal under the Collateral Order Doctrine, also known as the Cohen Doctrine.

[00:01:46] Speaker 04:
Referring to the order regarding modification of a protective order, the Tenth Circuit held, quote,

[00:01:53] Speaker 04:
We conclude we have jurisdiction to address the merits of the challenged order of the district court."

[00:01:59] Speaker 04:
Unquote.

[00:02:00] Speaker 04:
And that was our control.

[00:02:02] Speaker 04:
Yeah.

[00:02:03] Speaker 02:
Counselor, this is Judge Raina.

[00:02:05] Speaker 02:
I'm glad you arrived to this particular point for down aggression because the first concern that I have with the case is, why is this even before us?

[00:02:16] Speaker 02:
Is it, we're dealing with a protective order that is a smanning order in that district in the 10th Circuit.

[00:02:28] Speaker 02:
And we're dealing with the administration of that order and other issues related specifically to the order.

[00:02:35] Speaker 02:
I understand there's some other issues here, but shouldn't the 10th Circuit be deciding this?

[00:02:44] Speaker 02:
Why is this a,

[00:02:45] Speaker 02:
a question of federal patent law.

[00:02:48] Speaker 02:
Isn't this more of procedure and process before a district court?

[00:02:57] Speaker 04:
So if I understand your question correctly, Judge Raina, and I want to make sure that I do so that I answer it properly, you're asking why is this an issue of federal circuit precedent versus 10th Circuit precedent, and the answer

[00:03:15] Speaker 04:
to that is because each court has to determine its own jurisdiction.

[00:03:19] Speaker 04:
And I believe we cited some case law in the briefs.

[00:03:23] Speaker 04:
I'd have to dig through to find it.

[00:03:25] Speaker 04:
But where the Federal Circuit says that its precedent applies for determining whether it takes up jurisdiction or not.

[00:03:37] Speaker 04:
So is that the question you were asking, Your Honor?

[00:03:40] Speaker 02:
No.

[00:03:40] Speaker 02:
No, I think our law is pretty clear on that point.

[00:03:43] Speaker 02:
But this, you brought up some issues concerning the protective orders, the scope of the protective order, right?

[00:03:52] Speaker 02:
Isn't this more a 10th Circuit issue than it is a question of federal patent law?

[00:03:59] Speaker 02:
I mean, I realize there's an underlying patent issue here, we're dealing with infringement, but this particular question, doesn't it deal more with the process or procedure of the district court in that circuit than it does a federal patent law?

[00:04:14] Speaker 04:
Well, the particular issue is a US Steel issue.

[00:04:18] Speaker 04:
The issue that we're addressing as a part of the protective order issue is the issue regarding whether in-house counsel can view certain categories of confidential information.

[00:04:32] Speaker 04:
And that is addressed by US Steel.

[00:04:37] Speaker 04:
It's also addressed by the 10th Circuit, citing US Steel, and as you know,

[00:04:42] Speaker 04:
US deals commonly cited in a number of circuits.

[00:04:47] Speaker 04:
But I think that because the issue relates, the information at issue is source code issue, and that source code issue does go at some level towards, I suppose, the infringement issues.

[00:05:05] Speaker 04:
And, but,

[00:05:10] Speaker 01:
We'll have to wrestle with this question of our jurisdiction.

[00:05:15] Speaker 01:
But let's proceed with the merits of your argument so that we don't lose them.

[00:05:22] Speaker 04:
OK, great.

[00:05:23] Speaker 04:
And just to finish off on that case quickly, I'll just mention that in that case, the court in the Merrill case that was cited by, Merrill Scott case cited by Alaska Airlines, the court held that the

[00:05:40] Speaker 04:
order-challenged methicone test or the collateral order doctrine test.

[00:05:49] Speaker 00:
I will move on though to the... Council, why can't NFAs simply rely on outside council here and appeal these issues after a final judgment?

[00:06:01] Speaker 04:
Well, that's a good question.

[00:06:02] Speaker 04:
What happens if that happens that the rights will be retrieved and be lost because there's no way to change the loss of ability of in-house council

[00:06:10] Speaker 04:
to review documents and apply specialized knowledge in a later appeal.

[00:06:15] Speaker 04:
And this question was actually addressed, or a similar question, in US Steel.

[00:06:21] Speaker 04:
In US Steel, the, and I'll quote from the case itself, find that so, and Alaska made this argument on page 18 of their brief, they said,

[00:06:39] Speaker 04:
Quote, plaintiff has competent outside counsel and could hire outside experts, and that would reduce the risk of prejudice.

[00:06:46] Speaker 04:
That's not an exact quote.

[00:06:47] Speaker 04:
I messed it up a little bit.

[00:06:49] Speaker 04:
But in all of this exact reasoning was rejected in US still, in that case, the court noted, quote, the CIT, or the Court of International Trade, indicated that retention of outside counsel was a reasonable way for USS to satisfy its recognized need

[00:07:09] Speaker 04:
for the request you made to him.

[00:07:11] Speaker 04:
Yeah, this court unquote.

[00:07:13] Speaker 04:
And yet, this court vacated that decision, suggesting that sex reasoning did not remedy the prejudice from preventing in-house counsel from getting information.

[00:07:30] Speaker 01:
Well, here the only information was the attorney's eyes only documents which I gather from the brief is the source code, primarily the source code.

[00:07:43] Speaker 01:
That is matters which were considered trade secrets.

[00:07:47] Speaker 01:
So it's more complex, is it not, than just whether someone is house counsel or outside counsel.

[00:07:58] Speaker 04:
It's more complex in the sense that the House counsel here has specialized knowledge because of his background in software engineering and also as if you want to create institutional knowledge specific to evaluating these patents with respect to software.

[00:08:17] Speaker 04:
And so, you know.

[00:08:19] Speaker 01:
Well isn't that the problem?

[00:08:22] Speaker 01:
We're getting into the area of trade secrets and although

[00:08:27] Speaker 01:
I gather from the record before us that nothing has been withheld from disclosure in the discovery phase.

[00:08:36] Speaker 01:
It's just that it's disclosed to outside counsel.

[00:08:42] Speaker 04:
That's correct.

[00:08:43] Speaker 04:
But the challenge here is that in this case, the parties aren't competitors.

[00:08:52] Speaker 04:
And so the restriction was based on

[00:08:57] Speaker 04:
the fact in a case where the court said, acknowledged that the parties were not competitors, but yet the district court found that the in-house counsel was a competitive decision maker.

[00:09:13] Speaker 04:
And when you're looking at the issue of whether somebody is a competitive decision maker, in U.S.

[00:09:21] Speaker 04:
still, the definition is pretty clear that

[00:09:26] Speaker 04:
It is somebody who's involved in making decisions, and it says, quote, made in light of similar or corresponding information about a competitor, unquote.

[00:09:35] Speaker 04:
But here, they're not competitors, and there's no information that would have been about a competitor.

[00:09:41] Speaker 01:
So we're talking about, again, source code, valuable trade secrets.

[00:09:46] Speaker 01:
And if a particular person happens to be employed by a non-competitor who nonetheless is suing for patent infringement, once you glean the knowledge of another, the secret knowledge, it's there in your head.

[00:10:05] Speaker 01:
And isn't that what's really behind the standard rule of the circuit?

[00:10:13] Speaker 01:
of the circuit in which the trial is being held of protecting trade secrets.

[00:10:20] Speaker 04:
Well, yeah, so if you look at the case plot there, a lot of it references the harm at issue is the harm of it inadvertently being disclosed to a competitor.

[00:10:31] Speaker 04:
But if the party is not a competitor,

[00:10:33] Speaker 04:
then where's the harm?

[00:10:36] Speaker 04:
Where is it going to be inadvertently disclosed to a competitor?

[00:10:39] Speaker 02:
But we said more than that in US still.

[00:10:42] Speaker 02:
We went on to say that a competitive decision making is defined as a council's activities, association, relationship with the client, whether it involves council's advice, participation in client decisions, including pricing, product decision.

[00:10:58] Speaker 02:
It's made in light of similar or corresponding information.

[00:11:04] Speaker 04:
If I may respond.

[00:11:08] Speaker 04:
Yes, but that is all qualified by made in light of similar corresponding information about a competitor.

[00:11:18] Speaker 04:
And so if you were to look at the decisions, both 10th Circuit and then even the district court decisions within the 10th Circuit, when they reference the harm, it's re-harm by inadvertent disclosure to a competitor.

[00:11:32] Speaker 02:
The problem here is that there's no... Are you asking us to avoid Federal Circuit precedent in favor of Tenth Circuit, which leads back to my point?

[00:11:42] Speaker 02:
Don't you belong back in the Tenth Circuit on this particular issue?

[00:11:46] Speaker 04:
No, I'm just discussing that with respect to persuasive authority, but I think the same applies here because when you look at U.S.

[00:11:54] Speaker 04:
Steel and when you look at Deutsche Bank, again, those decisions are

[00:12:01] Speaker 04:
referencing a definition that applies to competitors.

[00:12:05] Speaker 00:
Now, given that your business model focuses on asserting and licensing patents, couldn't you be considered competitors vis-a-vis your patent assertion efforts?

[00:12:16] Speaker 04:
No, and may I just quickly?

[00:12:18] Speaker 04:
My time's run out, and I'm afraid I'll lose my rebuttal time.

[00:12:21] Speaker 01:
No, it may be rebuttal.

[00:12:24] Speaker 01:
So please proceed.

[00:12:25] Speaker 04:
OK, thank you.

[00:12:26] Speaker 04:
So that's a good question, Your Honor.

[00:12:30] Speaker 04:
So if you were to hold that a competitor, that somebody's a competitor by virtue of licensing, then basically to eviscerate US still, because in every case that you had, any patent case is going to involve settlement.

[00:12:45] Speaker 04:
And typically those are often all settlement based on licensing.

[00:12:49] Speaker 04:
So that would essentially make every patent that it needs to be paid, one in which you automatically become a competitor simply because you're trying to settle the case.

[00:13:00] Speaker 04:
In our brief, we pointed out that we're suppliers of technology.

[00:13:08] Speaker 04:
Alaska is a supplier of travel.

[00:13:15] Speaker 04:
That doesn't really create competition automatically.

[00:13:18] Speaker 04:
In that case, essentially, you force a case to become, parties become competitors just by virtue of the litigation.

[00:13:32] Speaker 04:
But now, going back to you still just really quickly, and I hopefully this addresses the question.

[00:13:40] Speaker 02:
Are you saying that MFA will not ever have license negotiations with other airlines?

[00:13:47] Speaker 02:
For example, what about Algiant Air?

[00:13:52] Speaker 02:
Modern Farm was sued by them, and their direct competitor, Alaska,

[00:13:59] Speaker 04:
Yeah, I suppose that's possible.

[00:14:03] Speaker 04:
They won't be suing.

[00:14:06] Speaker 04:
The situation there is that would be true of a lot of parties that engage in litigation.

[00:14:15] Speaker 04:
And here, what happens is there's a treatment of in-house counsel differently than outside counsel.

[00:14:23] Speaker 04:
And outside counsel, in-house counsel, if you look at the roles here in a case like this,

[00:14:28] Speaker 04:
they're virtually identical.

[00:14:29] Speaker 04:
And so you would have to eliminate not just in-house counsel but outside counsel in almost all of these cases with this kind of a rationale.

[00:14:43] Speaker 01:
Okay, any more questions at the moment for Mr. Clay?

[00:14:49] Speaker 01:
Okay, we'll save your full rebuttal time.

[00:14:52] Speaker 01:
Let's hear from Mr. Hanson.

[00:14:55] Speaker 03:
Thank you, Your Honor.

[00:14:56] Speaker 03:
Good morning, and may it please the court, Sean Hanson for Alaska Airlines.

[00:15:02] Speaker 03:
This appeal does not satisfy the requirements of the collateral order doctrine, and accordingly should be dismissed for lack of appellate jurisdiction.

[00:15:10] Speaker 03:
If the court determines that it does have jurisdiction, it should affirm the district court's challenge rulings, because NFA has failed to show that there was a legal error or that any ruling was clearly erroneous.

[00:15:22] Speaker 03:
NFA's appeal is also contrary to its own position taken earlier in this same case, and it misconstrues the case law regarding competitive decision making.

[00:15:33] Speaker 03:
Regarding the collateral order doctrine, this appeals clearly outside the narrow exceptions of the final judgment rule that the Supreme Court has established.

[00:15:41] Speaker 03:
The district court has not entered final judgment, yet NFA through immediate appellate review of routine procedural determination

[00:15:48] Speaker 03:
relating to the district court's protective order and Alaska's designations of source code there under.

[00:15:53] Speaker 01:
Well, they say it's not routine.

[00:15:56] Speaker 01:
The House counsel has specialized knowledge and experience that's directly related to the licensing activities and the subject matter of the suit.

[00:16:14] Speaker 03:
Your Honor, what is routine is the determination of whether the standard protective order should be modified and whether the source code was properly designated as attorney's eyes only information because it's a trade secret.

[00:16:29] Speaker 03:
Does that respond to you?

[00:16:29] Speaker 01:
I don't think they challenge the fact that it's a trade secret, do they?

[00:16:35] Speaker 01:
Maybe they do.

[00:16:36] Speaker 01:
I don't think so.

[00:16:37] Speaker 03:
I'll let Mr. Clegg speak for their positions on that.

[00:16:44] Speaker 01:
Okay.

[00:16:46] Speaker 01:
All right.

[00:16:47] Speaker 01:
Let's assume it's a trade secret.

[00:16:51] Speaker 01:
And it's hard to imagine that source code is not a trade secret.

[00:16:56] Speaker 01:
So for the sake of this argument, where does that leave us?

[00:17:03] Speaker 03:
That then brings us to the question of whether MFA's in-house counsel on a consideration of his particularized circumstances

[00:17:11] Speaker 03:
is properly excluded from access to that source code under the U.S.

[00:17:17] Speaker 03:
Steel case and the subsequent cases interpreting it.

[00:17:21] Speaker 03:
And our response to that is that it is proper to exclude him from counsel based on his own admissions regarding his activities that fall squarely within the description of competitive decision making in U.S.

[00:17:35] Speaker 03:
Steel.

[00:17:36] Speaker 03:
As you can see in the appendix pages

[00:17:39] Speaker 03:
238 and 239, which are the declaration of the in-house counsel regarding his activities, which we submit as described are clearly within the scope of competitive decision making.

[00:17:54] Speaker 03:
And I want to be careful because that declaration is confidential.

[00:17:59] Speaker 03:
I don't want to inadvertently disclose any confidential information.

[00:18:03] Speaker 03:
But in general terms,

[00:18:05] Speaker 03:
it describes its activities as being related to MFA's business of licensing.

[00:18:09] Speaker 03:
That's its only business.

[00:18:11] Speaker 03:
And in the context of this case, the interaction between MFA and Alaska relates specifically to that business of licensing.

[00:18:21] Speaker 03:
And MFA seeks to negotiate a license with my client.

[00:18:26] Speaker 03:
And in the context of licensing negotiations, these parties are in direct competition with respect to

[00:18:33] Speaker 03:
For example, the price of a license and or the scope of a license.

[00:18:38] Speaker 00:
And... Council, is it your position that all in-house counsel for non-practicing entities should be excluded from accessing AEL material?

[00:18:48] Speaker 03:
No, Your Honor.

[00:18:50] Speaker 03:
In light of U.S.

[00:18:51] Speaker 03:
steel, it's necessary to consider the specific circumstances of each individual in-house counsel.

[00:18:57] Speaker 03:
But here, there is a record.

[00:19:00] Speaker 03:
developed in the district court of the activities of this in-house counsel, the magistrate judge and the district court considered that evidence and determined properly that he is involved in competitive decision making and that therefore excluding him from access to attorney's eyes only information, not confidential information under the protective order, but just attorney's eyes only information is proper.

[00:19:29] Speaker 01:
Okay, anything else you'd like to tell us?

[00:19:33] Speaker 03:
Yes, with regard to the merits of the appeal, well, a few more thoughts on the collateral order doctrine, if I may.

[00:19:41] Speaker 03:
The second requirement of the collateral order doctrine is clearly not met here because the issues to be decided are inextricably linked with the merits concerning whether that specific in-house council is permitted to conduct MFA's infringement analysis of Alaska's source code and MFA's

[00:19:59] Speaker 03:
Concerns are explicitly about speculative future prejudice to NFA's preparation of its case on the merits.

[00:20:07] Speaker 03:
But there's no evidence in the current record showing any actual prejudice has occurred or is inevitable.

[00:20:12] Speaker 03:
And in the Richardson-Merrill case, the Supreme Court ruled that even the hardship of outright disqualification of counsel is insufficient to support jurisdiction under the collateral order doctrine.

[00:20:22] Speaker 03:
And NFA is an example of the piecemeal appellate review that the second requirement of the collateral order doctrine

[00:20:28] Speaker 03:
is designed to prevent the complete separation from the merits requirement.

[00:20:35] Speaker 03:
MFA now, this is the second appeal that MFA has brought before final judgment in our case.

[00:20:41] Speaker 03:
It previously brought a petition for mandamus that was denied by this court in case number 21-138.

[00:20:47] Speaker 03:
And about a month ago, at the beginning of December, MFA filed another appeal of discovered rulings in a different case

[00:20:55] Speaker 03:
against the company called Duolingo, and that's in case number 22-1215.

[00:20:59] Speaker 03:
That sort of piecemeal appellate review is what the collateral order doctrine's second requirement is intended to preclude.

[00:21:09] Speaker 03:
The third requirement of the collateral order doctrine is also not met because, in fact, the only way to effectively review whether MFA is prejudiced by excluding its in-house counsel from access to source code is to proceed to a final judgment in order to evaluate the impact on the final judgment

[00:21:25] Speaker 03:
of NFA's preparation of its infringement case without this in-house counsel having access.

[00:21:30] Speaker 03:
And without seeing how its infringement case turns out, there's only speculation of potential prejudice.

[00:21:36] Speaker 03:
If cognizable prejudice were shown, for example, it could be remedied by remanding the case for further proceedings under a modified protective order that allowed in-house counsel access to source code.

[00:21:48] Speaker 03:
So neither the second nor the third requirement of the collateral order doctrine is satisfied

[00:21:55] Speaker 03:
And for that reason, this court should determine that it does not have jurisdiction over this appeal.

[00:22:00] Speaker 03:
If it does consider the merits, one point that is very important to consider is that MFA itself advocated for application of the District of Utah Standard Protective Order at the outset of the underlying litigation.

[00:22:14] Speaker 03:
And I refer you to page 218 of the appendix, which is MFA's January 31, 2020 response to a filing by

[00:22:23] Speaker 03:
Alaska seeking to modify the standard protective order in which MFA argued to the district court that the court's quote standard protective order is in place pursuant to DECFR 26-2 comma which is sufficient for this matter period.

[00:22:39] Speaker 03:
MFA took that position in the early part of the case in opposing a proposal by Alaska to modify the standard protective order.

[00:22:48] Speaker 03:
And at that time, NFA knew that source code was going to be an issue in the case because the modification that Alaska had proposed was to include additional provisions to protect source code information.

[00:22:59] Speaker 01:
Well, to be fair, they didn't know it would be applied to counsel who happened to be in-house rather than outside as opposed to, for instance, technical personnel.

[00:23:15] Speaker 03:
I don't think that's correct, Your Honor, because the district standard protective order does provide that in-house counsel are not eligible for access to attorney's eyes only information.

[00:23:26] Speaker 01:
Oh, okay.

[00:23:27] Speaker 01:
That's part of the order?

[00:23:29] Speaker 01:
Yes.

[00:23:29] Speaker 01:
Part of the standard order?

[00:23:31] Speaker 03:
That's correct, Your Honor.

[00:23:33] Speaker 01:
Okay.

[00:23:33] Speaker 01:
Good.

[00:23:34] Speaker 01:
Now that's helpful.

[00:23:35] Speaker 03:
And the district, an important further point is that the district's local rule, and this is D-USIV

[00:23:43] Speaker 03:
are 26-282 states, quote, any party or person who believes that substantive rights are being impacted by application of the rule may immediately seek relief, close quote.

[00:23:56] Speaker 03:
In other words, any party that believes that the application of the standard protective order would impact them adversely can raise that concern with the district court if you can modification.

[00:24:07] Speaker 03:
And that's what my client did at the outset of the case at the time that MFA opposed

[00:24:13] Speaker 03:
modification of the standard protective order.

[00:24:15] Speaker 03:
But MFA didn't seek modification of the standard protective order until much longer, over a year into the case, when MFA brought its motion to modify the standard protective order.

[00:24:26] Speaker 03:
And for that you can see appendix pages 109 to 111.

[00:24:34] Speaker 03:
So MFA's argument that the burden of proof should have been borne by Alaska on this issue is

[00:24:42] Speaker 03:
not correct.

[00:24:44] Speaker 03:
The district and in fact MFA itself argued that good cause existed for application of the standard protective order at the beginning of the case and as a result of that the burden was properly on MFA to establish good cause for modification of the standard protective order which is failed to do according to the magistrate and district judge.

[00:25:07] Speaker 03:
Regarding the

[00:25:08] Speaker 03:
the arguments that MFA has made regarding financial hardship and loss of institutional knowledge.

[00:25:14] Speaker 03:
Financial hardship is not a strong argument because the only, excuse me, financial burden that would be subjected, that MFA would be subjected to are the ordinary burdens of litigation that parties ordinarily hire outside counsel and experts to conduct analysis of information that is sufficiently sensitive that is not accessible to

[00:25:38] Speaker 03:
individuals inside of a client.

[00:25:41] Speaker 03:
And there's no reason why that should be treated differently in this case just because Mr. Oliver is the only in-house counsel at MFA or possibly the only employee at MFA.

[00:25:52] Speaker 03:
In fact, that makes the concern heightened because Mr. Oliver has even greater involvement in the business activities of MFA relative to Alaska as well as to other people in which it's, to whom it's seeking to sell patent licenses.

[00:26:07] Speaker 03:
The institutional knowledge that MFA argues Mr. Oliver has is not specific to Alaska Airlines.

[00:26:13] Speaker 03:
Mr. Oliver hasn't had access to our source code, and so he has no institutional knowledge regarding our source code.

[00:26:21] Speaker 03:
He has only generalized institutional knowledge regarding software engineering and the patents and suits and how MFA has analyzed them, but that is not specific to the questions presented here, and so it doesn't support the conclusion that

[00:26:36] Speaker 03:
MFA is seeking.

[00:26:38] Speaker 03:
With that, I can pause and see if there are any other questions from the panel.

[00:26:45] Speaker 01:
Okay.

[00:26:45] Speaker 01:
Anything else for Mr. Hanson?

[00:26:50] Speaker 01:
Oh, I hear silence.

[00:26:51] Speaker 01:
All right.

[00:26:52] Speaker 01:
I believe we have the argument.

[00:26:54] Speaker 01:
Let's hear rebuttal for Mr. Clegg.

[00:26:58] Speaker 04:
Thank you, Your Honor.

[00:27:01] Speaker 04:
Let me first address

[00:27:04] Speaker 04:
The issue regarding source code.

[00:27:07] Speaker 04:
Now, they address that source code is attorney's eyes only.

[00:27:16] Speaker 04:
And there was a question whether we disputed whether some of their information was confidential.

[00:27:21] Speaker 04:
In the briefing, that is part of the briefing because as part of the briefing, there was both arguments regarding in-house counsel access to

[00:27:33] Speaker 04:
information designated as attorney's eyes only and also there was arguments relating to whether some of the information was confidential or was to the level of attorney's eyes only type information.

[00:27:47] Speaker 04:
And the reason for that is because Alaska didn't proffer any evidence whatsoever to demonstrate that their information was confidential.

[00:27:57] Speaker 04:
It was all based on attorney argument.

[00:28:00] Speaker 04:
There was no

[00:28:02] Speaker 04:
there was no declarations, there was no evidence submitted by Alaska, and MSA or Appellant actually submitted evidence, declaration to demonstrate that in a number of instances, source code is not necessarily confidential.

[00:28:26] Speaker 04:
And it's true that source code can be a trade secret and a lot of valuable trade,

[00:28:32] Speaker 04:
code is a trade secret.

[00:28:34] Speaker 04:
But there's also a valuable code that's not a trade secret.

[00:28:37] Speaker 02:
And if you were to reference it.

[00:28:40] Speaker 02:
Did the court make a finding that the source code was confidential information subject to the standing protective order?

[00:28:49] Speaker 04:
The court did, but it was based on.

[00:28:53] Speaker 02:
So once that decision is made, isn't it up to you?

[00:28:57] Speaker 02:
Isn't the British ship to you to argue that, no, the source code is not

[00:29:02] Speaker 02:
confidential information?

[00:29:06] Speaker 04:
Yes, and let me address that real quickly.

[00:29:11] Speaker 02:
The problem with the finding... You made that argument and lost, correct?

[00:29:16] Speaker 04:
Well, right, but the problem with the holding was that it wasn't based on any evidence or testimony provided by Alaska.

[00:29:26] Speaker 04:
It was based on a case that said that source code can be

[00:29:32] Speaker 04:
trade secrets and so here we submitted evidence and this is on page 31 I believe to 32 of the reply brief and particularly looking at footnote 15 provides an example where Android for example is a very valuable software but it's also publicly available.

[00:29:55] Speaker 04:
So there's source code that is certainly available that is public.

[00:30:00] Speaker 04:
And no finding was made in this instance, no evaluation regarding whether this source code was or was not.

[00:30:08] Speaker 04:
In fact, there's evidence was provided that showed that a lot of the parts of the software, publicly available information on the software of Alaska demonstrates that it's likely based on SDKs or software development kits that are open source and likely not confidential.

[00:30:28] Speaker 04:
So just using the term

[00:30:30] Speaker 04:
source code doesn't automatically mean everything must be confidential.

[00:30:35] Speaker 00:
Even if source code involves certain portions of open source code, can't that still be protected as it's used within Alaska's system?

[00:30:47] Speaker 04:
Right, but they would have to determine it.

[00:30:49] Speaker 04:
And even under the protective order, it would require that they only designate such portions as is confidential and not the entirety of it.

[00:31:01] Speaker 04:
And then just moving back from there to another thing that they addressed, which is I want to talk about the issue where they said that the MFA had advocated for a protective order.

[00:31:24] Speaker 04:
And I think that needs to be addressed because

[00:31:27] Speaker 04:
The context we're talking about is early in the case, the court had issued an order to show a causeway.

[00:31:35] Speaker 04:
The parties hadn't submitted a case management order, a proposed case management order.

[00:31:39] Speaker 04:
And in response to that, MFA provided information explaining that there had been delays getting a response from Alaska to the proposed order and then submitted a proposed order to the court.

[00:31:56] Speaker 04:
And then in reply to that,

[00:31:58] Speaker 04:
Alaska had submitted this proposed protective order that was super onerous.

[00:32:05] Speaker 04:
At the time... Finish your thought.

[00:32:10] Speaker 04:
Yeah, thank you.

[00:32:11] Speaker 04:
At the time, the issue of attorney's eyes only information was not at issue.

[00:32:17] Speaker 04:
And in fact, looking at the brief, it was discussed within our brief, we explained

[00:32:26] Speaker 04:
And I'm talking about the brief in the lower court.

[00:32:28] Speaker 04:
I think it's in appendix 32 to 33, that there was a discussion that the information at the time, the source code, was not expected by modern fund applications to be designated as highly confidential or attorney's eyes only.

[00:32:48] Speaker 04:
And the order that they were proposing was very honest around the source code and actually requiring attorney's eyes only information.

[00:32:57] Speaker 04:
Source code was not specifically referenced in the existing standard protective order.

[00:33:04] Speaker 04:
And so the reference that it was sufficient was not to the case as a whole, but simply as to, as modified applications understood it to be at that time.

[00:33:14] Speaker 04:
And so any delay, so the motion was to modify the protective order was brought very promptly

[00:33:22] Speaker 04:
after closures by Alaska through software due to the abuse of designation by Alaska by everything is highly confidential, or at least the entirety of the source code and many other documents that were produced.

[00:33:42] Speaker 01:
OK.

[00:33:43] Speaker 01:
Any more questions for Mr. Clegg?

[00:33:48] Speaker 01:
I use Salmon.

[00:33:51] Speaker 01:
Okay.

[00:33:52] Speaker 01:
All right.

[00:33:53] Speaker 01:
Thanks to both counsel.

[00:33:55] Speaker 01:
The case is taken under submission.