Transcript Computers & the Law

Computers & Litigation
How Computer Technology Impacts
Litigation
October 6, 2006
Software Process Improvement Network (SPIN)
Los Angeles SPIN
Northrop Grumman, Redondo Beach CA
John Cosgrove, P.E., Fellow NAFE
Cosgrove Computer Systems Inc.
[email protected], www.CosgroveComputer.com
1
Outline
 Overview
3
 Computers & Software are Different 7
 Example Cases
12
 Opportunities for computer people 16
 Summary
21
 Bibliography
22
2
Overview
 Computer Issues
 Computers are Everywhere
 Impacts on Litigation
3
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
4
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
5
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
6
Computers & Software are
Different
 E-Discovery New Rules – Fed 12/06
 Chain-of-Custody
 Standard of Care
 Computers & Business Value
7
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 edocuments
 E-document information potentially
exponentially larger in magnitude
 Context, environment, collateral content, etc.,
often critical
 Special rules for non-active (i.e., deleted) files8
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
9
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
10
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”
11
Example Cases
 Subpoena Wording
 Software Claim for $10 M+
 Unrealistic SW Contract
12
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
13
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
14
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.
15
Opportunities for Computer
People
 Computer’s Economic Impact
 Computer-Related Liability
 Making Computer Issues
Understandable
 Finding the Critical Facts in Gigabytes
16
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
17
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
18
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)
19
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.
20
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
21
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
22