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Judge Rules against Gene Codes in Breach-of-Contract Suit over 9/11 Victim ID Software


By Uduak Grace Thomas

A US District Court Judge has denied Gene Codes' request for discovery in a suit it filed against the Office of the Chief Medical Examiner of New York and granted the city's motion for summary judgment in the case.

According to documents filed in June in the US District Court for the Southern District of New York, the judge denied Gene Codes' request for discovery, calling it "a fishing expedition." The city's motion for summary judgment was granted on June 28.

Gene Codes had made the request in an attempt to find additional evidence that would indicate that OCME had breached its contract with the firm.

The company filed the breach-of-contract suit late last year, alleging that the OCME had misappropriated trade secrets related to DNA-matching software that it had developed to identify victims in the Sept. 11, 2001, terrorist attacks.

Gene Codes sought at least $10 million in damages in the suit, which charged that OCME provided the Federal Bureau of Investigation with access to confidential information about the company's Mass Fatality Identification System, or M-FISys, software (BI 11/5/2010).

However, Judge Naomi Reice Buchwald ruled last month that Gene Codes' assertion that OCME misused its proprietary information was rooted in hearsay and that the company did not provide “competent evidence in opposition to a motion for summary judgment.”

Additionally, she ruled that the city offered a “reasonable explanation” of the method it chose to retrieve DNA information from Gene Codes' system — generating printouts rather than asking the company to extract the information — although Gene Codes claimed that this action constituted a misuse of the data.

The judge also ruled that Gene Codes failed to submit an affidavit explaining what discovery it sought, how it planned to obtain that discovery, a description of prior efforts to obtain the needed information and why they were unsuccessful, and how the information it gleaned would raise “a genuine issue of material fact.”

Officials from Gene Codes and OCME could not be reached for comment.

A Competing Offering

Gene Codes charged in its suit that city officials revealed proprietary information to the FBI that allowed the agency to produce a database and software that competes with Gene Codes own offerings.

Gene Codes developed M-FISys in the months following the Sept. 11, 2001, tragedy under a $13 million contract with OCME. The city used the database and software program to identify victims of the attack.

Under the three-year contract, Gene Codes maintained an exclusive license over its previously developed software, Sequencher, and granted OCME a license to use the software and any modifications to the product that came during the term of the contract. Once the contract was terminated, OCME would be required to pay licensing fees for its use of the software.

According to the company's version of events, the contract included a clause in which both parties agreed to keep each other's information confidential "by using methods at least as stringent as each party uses to protect its own confidential information," which is what Gene Codes alleges OCME failed to do.

Specifically, Gene Codes alleged that OCME shared print-outs of the M-FISys database schema — which the company claims is a “protectable trade secret” —with the FBI, which in turn used the information to develop its own database, the Combined DNA Index System, or CODIS, which competes with M-FISys.

In response, the city countersued for $10 million in damages claiming that Gene Codes misinterpreted its obligations under the agreement and breached the contract by, among other things, failing to train OCME personnel to upload DNA profiles into M-FISys and to provide proper documentation for the operation of the program.

The city also argued that the case against it should be dismissed because of the "absence of any admissible evidence" to support Gene Code's allegations.

In last month's ruling, Judge Buchwald agreed that Gene Codes failed to provide sufficient evidence that OCME had misused the information from its software. In addition, she found the city's reason for printing out the data to be "reasonable."

Specifically, the ruling notes, OCME stopped using M-FISys in 2009 and moved to the FBI's CODIS system, which was free.

"To complete the transition to the new program, OCME had to migrate its data from M-FISys to CODIS 6.0 and had to format the data in a manner that CODIS would recognize," the ruling notes. "However, the M-FISys program lacked a tool that would enable OCME to easily extract its DNA profile data from the database … and the M-FISys database had become inaccessible using the related software."

Therefore, in order to access the data and migrate the information to CODIS, "OCME personnel printed out all of the tables contained in the M-FISys database."

Buchwald concluded that this explanation "undermines Gene Codes’ argument that, because other methods of data retrieval possibly existed, the city must have done something improper here."

She added that "any suggestion by Gene Codes that it is entitled to dictate to the city how it should have collected its own data is unacceptable. Indeed, even if OCME’s decision to print out the data proved to be costly, time-consuming, or ill-advised, that does not determine whether the city in fact shared any confidential information or trade secrets with the FBI."

Furthermore, the ruling notes, "to require OCME to extract its data from the numerous original sources, as Gene Codes suggests, would deprive the City (and in turn the citizenry) of the benefits of the $13 million payment to Gene Codes and the fruit of hundreds or thousands of man-hours of work performed by City employees."

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