The request is overly broad, unnecessary, and contrary to Canadian public policy: court
The Ontario Superior Court of Justice denied a request to compel a Canadian company to produce un-obfuscated source code in a US class action against Amazon, ruling the request overly broad, unnecessary, and contrary to Canadian public policy.
In Svoboda v. Modiface Inc., 2024 ONSC 6249, the court ruled on a request to enforce letters rogatory issued by a United States District Court. The case concerns an Illinois class action against Amazon.com Inc. and Amazon.com Services LLC for alleged violations of Illinois’ Biometric Information Privacy Act (BIPA). The applicants sought the production of source code from ModiFace Inc., a Canadian company specializing in augmented reality (AR) technology.
The applicants, representing a class of Illinois consumers, alleged that Amazon violated BIPA by capturing biometric data through virtual try-on (VTO) programs for cosmetics. ModiFace developed and licensed the VTO programs used by Amazon but is not a party to the Illinois litigation. The US court issued letters rogatory seeking ModiFace’s cooperation, including production of its source code and deposition testimony.
ModiFace resisted the request, arguing that disclosure of its un-obfuscated source code could expose trade secrets and cause irreparable harm. ModiFace offered to produce the code in obfuscated form, which it argued would sufficiently address the applicants’ inquiries while protecting its proprietary technology.
The Superior Court acknowledged the principle of international comity but emphasized that Ontario courts are not bound to enforce foreign court orders without independent assessment.
The court found that the applicants failed to establish the relevance and necessity of un-obfuscated source code. The court noted that ModiFace’s obfuscated code, as provided to Amazon, is functional and sufficient for analyzing the program’s behaviour. The court also determined that the request was unduly burdensome, as complying would require significant effort and risk exposing sensitive business information.
The court further held that forcing ModiFace, a non-party to the Illinois action, to disclose trade secrets could harm its competitive position, particularly since Amazon is both a client and competitor. The court concluded that the potential consequences of disclosure, even with confidentiality safeguards, were unacceptable.
Ultimately, the court denied the applicants’ request to compel production of un-obfuscated source code but ordered ModiFace to produce its compiled and obfuscated code. ModiFace must also comply with a limited deposition, subject to strict procedural safeguards under Ontario law.
