Case of the Day: Autodesk v. ZWCAD

The case of the day is Autodesk, Inc. v. ZWCAD Software Co. (N.D. Cal. 2015). The claim was for copyright infringement and trade secret misappropriation; Autodesk claimed that ZWCAD, a Chinese firm, had committed a “wholesale theft of its proprietary source code.” There was a protective order in the case, but ZWCAD claimed that it would risk legal consequences in China if it produced confidential material in discovery, so it asked the court to require that such materials be requested and produced via the Hague Evidence Convention, or at least to amend the protective order to require the inspection of source code to take place in China.

Judge Grewal denied both requests. Chinese law does prohibit the export of “state secrets” without a license, but ZWCAD could show neither that the material was a state secret under Chinese law or that it had a reasonable apprehension that the Chinese government would consider it to be a state secret. Notably, while Autodesk offered a declaration from a Chinese former judge and IP expert, ZWCAD had no expert. Autodesk’s expert did not give a completely unqualified opinion—Autodesk could provide no ironclad guarantee—but in the absence of any evidence on the other side, academic doubts were not enough for ZWCAD to make its case.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.