Monkey See Monkey Do LLC v. Peach, Inc. Vs.

The Startup: Founded by Cornelius Heston to market facial recognition software for unlocking smartphones.

The Engineer: Cornelius hired Simon Zaius, Ph.D to develop the software. Simon had a contractual obligation to assign rights to all IP he developed and maintain confidentiality.

Three years later . . . Monkey See was marketing itself to all the major players in the smartphone market, including global giant Peach.

Peach was interested . . . The talks between the two companies went further than any of Monkey See’s other negotiations. In the end, Peach decided that it could do the development in-house.

Monkey See missed its big chance Disgruntled, Simon left Monkey See… . . . and was soon hired by Peach.

Peach got sued . . . Monkey See sued both Peach and Simon for trade secret misappropriation. He sought over $20 million in damages for unjust enrichment under both federal and state law.

The Lawsuit: Monkey See alleged that Simon copied source code from his company computer to a flash drive during his employment. Peach then used this trade secret information to obtain a patent and develop the Peach Z product.

Monkey See's Client Meeting Cornelius Heston – Peter Mims IT Director, Dweeba Jones – Priya Prasad Attorney, George Grandscale – Ali Dhanani Issues: Imaging of Simon’s computer All Versions of Source Code Version 6 is the only version that has the Breakthrough Feature while Simon was employed by Monkey See.

Peach’s Client Meeting Peach In-house Counsel 1, Kelly Eager – LaTasha Snipes Peach’s In-house Counsel 2, Diamond Dye – Dhamineh Moraseli Peach’s Outside Counsel, Wilma “Billy” Scairya – Paige Edwards Issues: Getting a Litigation Hold Out Gathering Pricing Documents Worldwide Producing all Versions of Peach’s Source Code

Discovery Hearing Monkey See Monkey Do’s Counsel – Peach’s Counsel – Goliath Greybeard – Paul van Slyke John Goodall – Kyle Friesen vs. Peach’s Counsel – Henry Trotter James – Matthew Frontz Princess Peach – Heather Khassian Judge Peter C. Justice – Pete Chassman

Monkey's Motion to Compel – Source Code Monkey See wants ALL versions of Peach’s facial recognition source code. Will show when the special Breakthrough Feature Simon was working on was added to Peach’s code. Irrelevant whether it was used in a finished product, it is still misappropriation of a trade secret. Monkey See will agree to reasonable source code protections.

Monkey's Motion to Compel – Financial Documents Monkey See wants pricing information for the Peach Z and their other smartphones worldwide. This will allow Monkey See to see what value Peach has assigned to the facial recognition feature it stole from Monkey See. Trade secret misappropriation is not territorially limited like patent infringement. If successful in its claim, Monkey See is entitled to damages for worldwide sales.

Monkey's Motion to Compel – Your Rulings? Issue Monkey’s Arguments Peach’s Arguments Source Code for All Versions Relevant to copying allegations Not too burdensome for giant Peach Will agree to source code protections Unreasonably broad Source code inspections are burdensome, when done right Worldwide Pricing Information on Other Models Relevant to show value added by trade secrets Trade secret claims permit global damages Requested information will not reflect value of one small feature Producing the information is too costly

Peach's Motion to Compel -- Forensics Assessment Monkey's server logs that show Simon downloaded the entirety of version 6 of the code six weeks before he left the company Not clear whether this was only to his computer or to a flash drive No flash drive was turned in when Simon departed the company Simon’s computer was re-purposed and given to another employee Monkey had 20 personal computers in service at that time and can easily identify those computers. Requested forensics is very narrowly tailored and will end once computer is identified and analyzed

Peach's Motion to Compel -- Technical Documents and Source Code Monkey has argued that Simon added a facial recognition feature in version 6 of Monkey’s product that wasn’t present in earlier versions Version 6 was the current version at Simon’s departure Only discovery of all documents relating to development and testing of facial recognition features will confirm when the facial recognition features were added Relevant because Monkey has argued this as a basis for alleging copying of version 6

Peach's Motion to Compel -- Technical Documents and Source Code Rule 26 (b)(1) allows discovery that is: relevant to any party's claim or defense and proportional to the needs of the case considering: the importance of the issues at stake in the action the amount in controversy the parties’ relative access to relevant information the parties’ resources the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit

Peach's Motion to Compel – Your Rulings? Issue Peach’s Arguments Monkey’s Arguments Forensic Examination of Computers Can definitively show whether Simon copied files to flash drive Examination can be limited to reduce the burden Not definitive because logs may have been overwritten Extensive scope too burdensome for Monkey Source Code for All Versions Relevant to disprove Monkey’s allegations regarding development Proportionate to the needs of the case under Rule 26 Only the allegedly copied Version 6 is relevant Discovery is disproportionate because of limited relevance