Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008)
In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests. One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement. Under the agreement, Metavante was to provide Emigrant with an online direct banking product called EmigrantDirect.
Emigrant argued that access to the source code may provide information about the quality of the product and was therefore relevant and properly discoverable. Metavante argued that its production would be unduly burdensome because it would cost over $300,000 and take over 5,000 hours to produce. Metavante also argued that the code would provide little relevant information. Emigrant responded arguing that Metavante’s estimates assumed a need to sort and compile all of the information before disclosing it and suggested it could mitigate the cost to Metavante by providing the code to outside consultants for inspection and a determination regarding relevance. The court found that the source code was relevant and, citing Emigrant’s offer to use outside consultants, found that “[i]n balancing the value of the source code against the burden of producing it…the potential value outweighs the burden.” The court also noted that any confidentiality concerns were addressed by its previously issued protective order.