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Discovery in Computer or Software Systems Litigation

Discovery Help

The Discovery phase of computer related law suits is particularly difficult because the Computer Industry has developed its own unique language, product documentation structure, job classification, and a host of unique management practices. Additional difficulty stems from the computer's virtually unlimited ability to produce paper and alter paper documents.

For example, a wide spread Computer Industry management practice is to assign the responsibility for a new product management to a task force or management team consisting of at least three distinct managers: the project manager, the product manager and the development manager. If one is not clear on who the respective individuals are, where they formally report to, what kind of decisions are delegated to each team member, one would have a hard time first in finding out who to depose most effectively, and second in formulating lines of inquiry to explore under oath. It wastes everybody's time and money to ask questions of a witness that can truthfully say "I do not know".

The same can be said of documentation, in fact outsiders, or what the Computer Industry refers to as "end users" (which includes all law firms), have a limited perception of what product documentation is available. Usually end users are familiar with user manuals and programmers' reference manuals, on one hand, and source code at the other extreme. Neither of these two types of documentation are very useful during non technical discovery. Source code, because it is prohibitively expensive to READ, certainly not a job for para legals or even young attorneys with computer degrees. User manuals, because they rarely are completely truthful and, in any event, lack the "inside" information to establish the causes for product malfunction or limitation.

The industry has developed a rich set of formal and sometimes very informal internal documents which, usually, truly capture sensitive information regarding choices made in designing the product and their rationale. For example, in a case we were involved with, and regarding whether the vendor had exercised due diligence in alerting end users on the risks associated with the use of the product, the point was beautifully made by locating, with the help of a GSG expert, an internal planning document which addressed precisely the same point and documented why it was resolved in the negative. i.e. not to warn the unwary end users. Needless to say the document wound up as a critical exhibit in the case.

Paper Blizzard Conversion

Another way an expert can help is in countering the standard defense Computer Industry vendors adopt. Namely, to drown the opposing side in a veritable blizzard of paper. In a recent case we have seen in excess of two hundred large boxes of photocopied documents gleefully handed by the vendor's counsel to the plaintiff counsel.

To begin with, any half way up-to-date Computer Industry vendor (hardware, software or services), has all of its information in a computer readable form. If one can compel disclosure of the computer readable form one can dramatically slash discovery costs. What is more, it costs these companies far more to print than simply making an electronic copy (e-copy). In fact. e-copies can be made, usually, in a completely automatic way, at VERY low cost.

In addition one needs computer expertise to do much with it. In fact, most such information is not indexed or otherwise structured for easy retrieval and massaging by standard (end users) database or retrieval programs. Therefore the cost of discovery can be dramatically slashed if:

  1. The Courts compel e-disclosure
  2. One has on hand enough expertise to quickly pull together ad hoc retrieval code that can massage large collection of unstructured e-text

    Typical Malfunctions

    A key area is determining the root causes for computer systems malfunction. Computer systems are very complex, involving thousands of parts that have to work with extreme precision. Modern systems can involve millions of bytes of information where even a single bit off can sometimes cause catastrophic malfunction. Furthermore, this complex maze of wires and software instructions can fail in virtually infinite number of ways.

    Here is where true expertise can be of huge help, in narrowing down the probable causes of failure, so that the cost of proving what has actually gone wrong is manageable. In addition, an expert is familiar with some broad categories of problems that occur frequently and therefore are useful candidates for early exploration. The expertise in question is very similar to the diagnostic expertise of an MD who, on the basis of the symptoms and extensive professional experience, makes a preliminary diagnosis. The preliminary diagnosis, in turn, suggests both some initial remedies and further tests to confirm or refine it.

    For instance, if one sees that transactions in a computer system, such as an airline reservation system, seem to either vanish in a black hole or result in incorrect values, an experienced systems designer would immediately think of checking the so called concurrency control mechanism of the system. The symptoms in question indicate that there is a high probability that concurrency control is being handled incorrectly. This kind of general cause of malfunction is not likely to be known to many practically trained technicians (programmers). In fact, this is the root cause why such problems exist in the first place. Namely, the skills required to design systems are far more than just the ability to program. People who do not have a complete set of skills will design systems which have huge internal problems.

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