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Computers & Litigation

How Computer Technology Impacts LitigationOctober 6, 2006

Software Process Improvement Network (SPIN)Los Angeles SPIN

Northrop Grumman, Redondo Beach CA John Cosgrove, P.E., Fellow NAFECosgrove Computer Systems Inc.

JCosgrove@computer.org, www.CosgroveComputer.com

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Outline

Overview 3 Computers & Software are Different 7 Example Cases 12 Opportunities for computer people 16 Summary 21 Bibliography 22

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Overview

Computer Issues Computers are Everywhere Impacts on Litigation

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Computer Issues

Computer Forensics Computer evidence handling Electronic discovery

Contractual disputes involving computer technology Litigation issues

“More Lawyers Than Programmers, Microsoft ..”, CACM Security issues Business interruption Safety issues

1st computer engineer in NAFE (2006)CACM, 7/2004, Cusamano MA

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Computers are Everywhere More and Bigger!

Typically 20-70 in your car Functional size & complexity increasing

rapidly Size increase ~ 10x every 5 years

“Increasingly software [i.e., computer systems] .. crucial part of the products and services in almost all industries.”

“Most computer systems .. interconnected ..” “.. more internal and external threats. .. In ..

past, .. assumed a friendly .. environment.” Source: Humphrey, 2002

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Impacts on Litigation Most cases involve computer issues Case law and accepted guidelines mostly non-

existent – e.g. SW asset in divorce Electronic discovery standards

Proposed “model rules” for E-evidence Magnitude becomes a tactic – Format important

Standard-of-Care not yet established Computer systems Software products Contracts for computer-intensive systems

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Computers & Software are Different E-Discovery New Rules – Fed 12/06 Chain-of-Custody Standard of Care Computers & Business Value

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E-Discovery New Rules - Fed 12/06

“..so commonplace …most court battles … some computer-stored information.“

Includes electronic documents as discoverable Recognizes need for special guidance for e-

documents E-document information potentially

exponentially larger in magnitude Context, environment, collateral content, etc.,

often critical Special rules for non-active (i.e., deleted) files

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Chain-of-Custody

Computer evidence handling Separate issue from E-discovery Chain-of-custody rules for electronic data

Rules of computer evidence Forensic software at work – why Encase?

Protect integrity of evidence Important legal precedents Avoiding being challenged

Issues in Criminal Proceedings Establish common evidence baseline

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Standard of Care

Standards to be followed by professionals Root of licensing dispute

Professional standards still in process Effectively non-existent Read the Microsoft warranty

Implied standard-of-care possible Engineered systems can be a useful analog Worst-case design, orderly procedures, etc.

Creating analogies to similar business issues often works Delivery fleet analogy

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Computers & Business Value Value derives from the abstraction of productive

knowledge* SW Development is a SOCIAL learning process

Any economic value comes from impact on the useful activity it affects* Efficient automotive ignitions

Franchises show how preserved abstractions can be valuable

Value is increased when the knowledge is readily adaptable – e.g., McDonalds in China

Software patents – Unique issues * Source – Baetjer, “Software as Capital”

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Example Cases

Subpoena Wording Software Claim for $10 M+ Unrealistic SW Contract

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Subpoena wording

All information for prescription #x, dates 12/0x - 3/0y.

Any form such as paper, microfiche or electronically.

If Electronic Media - disk drives or tape storage Attributes - “metadata” must be included Database or log-file entry – entire file with context

Issues hinged on timing of all transactions (if present) involving prescription

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Software Claim for $10 M+

Claim for loss of unfinished game software

Valuation started with analysis of project records & timing of events

Business valuation showed nil value Targeted obsolete hardware

Plaintiff’s Case collapsed after valuation report

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Unrealistic SW Contract

Complex, high-risk financial system Delivery in six months or less Constant changes in transactions supported Analysis of ambiguous contract resolved

dispute Comparison to industry statistics provided basis Some client deficiencies -- Absence of concrete

product deliverables added to burden of defending opinion.

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Opportunities for Computer People Computer’s Economic Impact Computer-Related Liability Making Computer Issues

Understandable Finding the Critical Facts in Gigabytes

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Computer’s Economic Impact NIST report estimates SW errors cost $60B

annually Significant impact on US Economy “Impact of SW errors is enormous” – NIST Director

Bement “.. Every business in US now depends on SW ..”

“80 % of development costs .. correcting defects”

Some are catastrophic: 2/98 failure of telephone service on East coast Cascading power failure in NE & MW involved software

failure Air traffic control software failure, Los Angeles, 2004

Source: Humphrey

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Computer-Related Liability

Implied Responsibility in Business Distress Sarbanes – Oxley compliance Security compromises

Secondary Impacts Causing Economic Damage Losses involving computer systems

Identifying Mutual Responsibility/Performance Project history analysis

“For years ..tolerated buggy, … programs … but soon we’ll … litigate and regulate them into reliability.”

Source: Mann,“Why Software is so Bad”, MIT

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Making Computer Issues Understandable Legal concept of “Teaching the court”

Experts only need to be able to “teach” the court about the subject

Problem is magnified for jury trials Creative use of analogies is effective

Example of analogy to explain buffering Make explanation separate from proof

Avoid MEGO (My Eyes Glaze Over)

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Finding the Critical Facts in Gigabytes Information may be buried in GB of

unsearchable print-image files Common tactic by opposition

Document “provenance” lost Metadata is electronic provenance Subtle modifications can occur

Organizing data and extracting meaning 10s of Ks of project emails, status, etc.

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Summary

Computers & software involved in most litigation Trend is for this to increase

Computer specialists’ skills needed to assist the court: Find the evidence Organize the complexity Interpret the meaning

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Bibliography Baetjer, H., Software as Capital - An Economic Perspective on Software Engineering, IEEE

Computer Society Press, 1997 Cosgrove, J., Software Engineering & Law, IEEE Software, May-June 2001 Cusamano, Michael A., More Lawyers than Programmers? Microsoft …, Communications

of the ACM, July 2004 Humphrey, Watts, The Future of Software Engineering: V, SEI Interactive, Software

Engineering Institute, Carnegie Mellon University, Vol. 5, Num.1, 1Q 2002, http://interactive.sei.cmu.edu/news@sei/columns/watts_new/watts-new.htm

Mann, Charles, “Why Software is So Bad”, MIT Technology Review, July/August 2002 “Proposed Model Local Rule on Electronic Discovery”, May 2004, Synthesis from “The

Sedona Principles: Best Practices & Principles for Addressing Electronic Discovery Production”, http://www.thesedonaconference.org/publications_html

“Sedona Principles for Managing Information in the Electronic Age”, September 2004 Helpful website when dealing with documents in electronic form

http://www.pdfforlawyers.com/ocrpaper_capture/index.html