Background:

• This case involves an application to enforce Letters Rogatory issued by the U.S. District Court for the Northern District of Illinois.
• The plaintiffs, Svoboda and Colosi, represent a class suing Amazon under the Illinois Biometric Information Privacy Act (BIPA) for allegedly capturing and storing biometric data without consent through virtual try-on (VTO) technology.
• ModiFace, a non-party in the U.S. litigation, developed the VTO software Amazon used but is based in Canada. The plaintiffs sought ModiFace's un-obfuscated source code to examine how the software captures data.

Key Issues:

1. Scope of Source Code Production:

   • ModiFace argued that disclosing its proprietary source code would expose its business secrets and compromise its competitive position. It offered to produce obfuscated and compiled code instead.
   • The plaintiffs claimed that un-obfuscated source code was necessary for transparency in understanding the software’s data collection mechanisms.

2. Court's Decision:

   • The Ontario court found that the plaintiffs did not prove the relevance or necessity of un-obfuscated source code under Canadian law.
   • It was determined that providing obfuscated code was sufficient for the plaintiffs’ expert to understand the software’s functionality.
   • The court also emphasized that compelling the disclosure of proprietary source code was against Canadian public policy, especially when it could harm a non-party’s business interests.

Order:

• ModiFace is required to produce only the compiled and obfuscated source code along with a limited deposition, under strict confidentiality.
• The court declined to grant costs without further submissions.
• No amount for monetary award was specified.

This decision highlights the tension between cross-border discovery requests and the protection of proprietary technology, particularly where non-parties are involved.