The High Court has allowed one nominated officer of Koger Inc and Koger (Dublin) Limited to inspect highly confidential technical material relating to rival ManTra software, subject to strict controls designed to prevent its use outside ongoing litigation.
Mr Justice Kelly gave the ruling on July 31, 2009 during discovery in Commercial Court proceedings against James O'Donnell, Roger Woolman, David Gross and H.W.M. Financial Solutions Limited.
Koger alleges that the first three defendants, who were former employees or contractors, established the fourth defendant and developed ManTra using confidential and copyrighted information taken from Koger's NTAS software product. The defendants deny the claims in full.
The parties had already agreed that experts would compare the two software products under a confidentiality arrangement preventing them from sharing underlying material with their clients. The experts found limited areas of common code, including material available from third parties, but also agreed that commented-out ManTra code contained references to names of NTAS database columns and tables which they did not believe were public.
Further design, development and metadata documents were accepted as discoverable. The dispute was over who on Koger's side could inspect them.
The defendants argued that allowing Koger personnel to study the material could permanently expose commercially valuable features of ManTra to a competitor. Even if Koger obeyed an undertaking not to use the information outside the case, they argued that a person could not simply forget technical knowledge once acquired.
Koger said preventing its own personnel from seeing the material would leave it at an unfair disadvantage because the defendants and their lawyers already knew ManTra's development history and because Koger personnel could provide useful technical input to its experts.
Mr Justice Kelly described the issue as finely balanced. He held that excluding all Koger personnel would be an exceptional restriction and that the existing experts-only arrangement was insufficient for a fair trial.
The court proposed allowing Koger's lawyers and one nominated officer access under conditions including sworn undertakings, solicitor custody of the documents, supervised inspection, records of each examination and return of all material when the litigation ends. The ruling settles access to discovery material; it does not decide whether ManTra infringed Koger's copyright or misused confidential information.