Online Shoppers Ask Court to Compel Disclosure of FullStory’s Source Code in Nike Wiretapping Suit

By letter brief filed last Friday, the plaintiffs accusing Nike Inc. and FullStory Inc. of eavesdropping on their online shopping experiences asked that the court compel discovery of what they refer to as “the single most important evidence in this case.” The California class action is proceeding through discovery while the fully briefed motion to dismiss and motion to stay discovery are pending before Judge Fernando L. Aenlle-Rocha.

In the filing, the plaintiffs make several arguments in favor of compelling FullStory’s source code. Substantively, they argue that courts routinely require litigants to produce such code when relevant to claims or defenses.

The plaintiffs contend that as a wiretapping case, FullStory’s “Session Replay” software is the alleged wiretapping device that facilitated “recordings of everything anyone does on Nike’s website.” Critically, they assert, the source code will answer the question of whether the software reads or attempts to read or learn the contents of the plaintiffs’ communications, an element of wiretapping under the California Penal Code.

The consumers then assert that both Nike and FullStory have put the source code at issue by raising numerous factual arguments about how it works.  For example, the defendants argue that FullStory’s software did not gather the “‘contents’” of the shoppers’ purported communications, which directly implicates the enabling code, the brief says.

The plaintiffs note that they offered to drop any discovery of FullStory’s code should both defendants agree to stipulate that it meets the penal code’s technical requirements and that they would not raise arguments or defenses about how the software works. Reportedly, Nike and FullStory declined.

Finally, the plaintiffs attempt to overcome other arguments the defendants have erected to prevent disclosure of the source code. The consumers assert that the court’s protective order, entered at FullStory’s request, adequately protects the source code from disclosure. The plaintiffs further contend that FullStory’s proposed alternatives to the disclosure of its code are “prejudicial, invite further discovery disputes, and have been rejected by other courts.”

The consumers are represented by Bursor & Fisher PA, and Nike and FullStory by Covington & Burling LLP.