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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: November 22, 2019

Court Should Have Granted Source Code Attorneys’ Eyes Only Protection

On November 12, 2019, the First Department issued a decision in BEC Capital, LLC v. Bistrovic, 2019 NY Slip Op. 08144, holding that a court should have granted source code attorneys’ eyes only protection, explaining:

The production of defendants’ source code, which is a trade secret, should have been ordered to be produced for “attorneys and expert eyes only”. Plaintiffs’ assertion that they have the expertise to review and opine on the source code and should not be subjected to retaining an expert, does not support unfettered access to defendants’ confidential algorithm.

(Internal citations omitted).

This decision is about a practice that may not be apparent to clients, but that can arise in litigation involving trade secrets and other highly-sensitive business information. Courts will allow very sensitive evidence to be disclosed only to counsel, and not to their clients, because of the danger of competitors getting each other’s trade secrets. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client has a question regarding how to protect sensitive information in discovery.

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