The Government resists disclosure of the source code on grounds that Cybergenetics considers it a trade secret, and that disclosure is not necessary. The Court has considered the present record, including the amicus submission made on Defendant’s behalf and Dr. Perlin’s declaration. Here, there can be no dispute that the DNA evidence is central to the case against Defendant. Although it is nonbinding, I am persuaded by the recent pertinent analysis in State v. Pickett, No. A-4207-19T4, 2021 N.J. Super. LEXIS 17, at *48 (Super. Ct. App. Div. Feb. 3, 2021). I have also considered the factors set forth in United States v. Nixon, 418 U.S. 683, 699- 700, 94 S. Ct. 3090, 3103 (1974), and related principles. As the Pickett court stated, “[i]n appropriate circumstances, especially where civil liberties are on the line, independent source code review is critical when determining reliability. …Fundamental due process and fairness demand access.” Id. at *6.

 

Based on all applicable factors and considerations previously identified in my January 21 Order, Paragraph 5)2c of the Amended Subpoena Schedule, attached as Exhibit 2 to Docket No. 73, will not be quashed. The pertinent production, however, shall be subject to a protective order. The parties shall confer, and by March 12, 2021, shall submit a joint proposed order setting forth agreed-upon terms regarding the protection and place and manner of production of Cybergenetics’ source code.