Discovery in Computer or Software Systems Litigation
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: