This section contains the nature of the case and procedural background.

Cybernetic (C) is a manufacturer of electronic 'teaching machines' used in arithmetic instruction. C products randomly generate two numbers which are displayed along with instructions as to how the numbers are to be added, subtracted, multiplied or divided. The student mentally computes an answer to the displayed problem and inserts his answer through the machine's keyboard. The teaching machine compares the student's answer with the correct answer computed by the machine and then advises the student whether his answer is correct. C created the software or program used in its miniature computers and claims that the software constitutes a trade secret. P owns a patent, which it claims is infringed by the C teaching machines. C is not a party to that action. Notice required production of certain documents from C's files. C filed a Notice of Objection to Subpoena under Rule. 45(d)(1). P filed a motion to compel production of the software information the district court affirmed the magistrate's order to produce the information. C appealed. Rule 26(b)(1) allows a party to examine a deponent concerning 'any matter, not privileged, which is relevant to the subject matter involved in the pending action.' Rule 26(c)(7) allows the court 'for good cause shown (4) … make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden … including … that a trade secret … not be disclosed or be disclosed only in a designated way.' Rule 45(b)(1) authorizes the court to 'quash or modify the subpoena if it is unreasonable and oppressive. ….'

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