For product liability, patent infringement, copyright and trade secret litigation, involved parties must engage in source code discovery.  When not managed properly, this process can be long, complex and expensive. In this interview, Barr Group CEO Andrew Girson and CTO Michael Barr discuss challenges faced during the source code discovery process and steps litigation teams can take to make the source code discovery process more efficient and cost-effective.

David Tayman:  Hi, I’m David Tayman, Management Partner of Tayman Lane Chaverri.  And I’m here today with Andrew Girson and Michael Barr of Barr Group.  And Barr Group has been engaged as an expert and consultant on software issues in a number of high profile and not so high-profile litigation involving patents and product liability.  And we’re here today to talk about the issues involved with software discovery.  So, Andrew, how about if I start with you. When we use the term software discovery, what do we mean?

Andrew Girson:  That’s a good question.  A lot of people think about in terms of electronic discovery and software discovery and may think they’re the same thing; they’re obviously very different.  Software discovery is about understanding and learning about new software, the source code, the controls, the electronics in the devices that we use and how that work in the cloud where various web services that are provided to us.  And software is the complex set of instructions that these devices use and these cloud computing services use to control our everyday life.  It’s a challenging thing to do software discovery because software is very complex.  You can make the analogy similar to what used to be in the days before software of say some mechanical linkage on a device that would be controlling something and determining whether there was a problem for a product liability lawsuit or determining whether there was patent infringement in an IP lawsuit would involve just a quick inspection of a few design documents.

Fast forward now to the age of software and we have a situation where software is now replacing these mechanical linkages and all these other actuators to be the brains of these systems.  And what might have been a simple activity that could be easily discerned by just looking at a couple of design documents, in software might take hundreds of thousands of lines of code and very complex sequence of instructions.  And so that’s really what makes software discovery challenging and different in today’s expert world.

David:  And what people normally think about software oftentimes they think about the programs that are running on a computer.  But from your description it sounds like it’s more than that, right?

Andrew:  Yeah, I mean, certainly we think of our personal computers, our Macintoshes, our PCs as running software and they do.  But software runs a lot of things.  The car that people drive in has hundreds of computers in it.  Each of those computers, there’s a computer in the engine that’s controlling the acceleration of the vehicle.  There is a computer that’s controlling the braking system.  When you’re using your phone, there is a computer inside your phone- maybe multiple computers inside your phone.  One that’s controlling the display, there might be a computer that’s managing power consumption.  When you’re in a factory environment there might be industrial automation or robotics that are being controlled by various software systems.

And then those systems are made to communicate up to the cloud.  And then there is software running in the cloud that’s aggregating IoT, Internet of Things, sensor measurements and making intelligent decisions about what to do and whether to send out a maintenance person or anything like that.  So, software pervades many aspects of our daily life.

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David:  And from a discovery standpoint, what are some of the very highest level of the issues that you can see when there is litigation that involves an aspect of software?

Andrew:  I think Mike will comment a little bit more on some of the specific things that we look for in there.  But in terms of the higher-level issues I think one of the real challenges is, is it, it can be very time consuming, it can be very costly, it can be very complicated to do software and it often involves multiple people involved in that review.  And for that reason, it’s very important to get with a company like Barr Group very early in the process.  And talk to us about potential documents that you want to you need a discovery, the source code, the other aspects of it.

And the earlier that we get involved, it often grows much better because we can help drive discovery, we can help drive what is provided and that can make the process in code rooms where we’re often going through these facilities that are secret where the code and the software is provided.  And we have been in dozens of these facilities all across the country and the world that you can make that process which can be quite challenging that much more streamlined.

David:  Okay.  So, Mike assuming that you’ve been engaged early on and that you’re helping to streamline the discovery process, what does that software discovery process look like?

Michael:  Well, one of the things that is important is not just to discover the software source code.  I’ve written articles before about other things that we can be used and we can aid attorneys in discovery if we’re engaged early.  For example, take the example that an issue in the case is a medical device maybe in an implanted defibrillator planted close to the heart.  Well, that device if something goes wrong with it or if there is patent infringement alleged is more than just the software.  Yes, there’s software and discovering the source code is important but it’s also important to understand that the software works closely with the hardware or the electronics in a case like that.

And so, it’s important to discover not only exemplars of the relevant hardware electronics but also the design documents and other information about the electronics and what the engineers had in mind about how it should work whether it has failure defenses and things of that sort.  And so that’s one issue.  And not to belabor that point and go into all the things that I’ve talked about before with others.  But another important issue would be for example to get access to all the versions of source code that exist just as if you were discovering emails in a litigation you want to make sure you have the full email history the same history with a software source code that engineers typically particularly in complex projects keep track of all the different versions in the document depository, also known as a version control system.

And it’s possible for them to produce the entire version control repository.  So that when we’re analyzing the software our engineers are looking into code we can see how it changed overtime.  For example, perhaps it infringed a patent recently versus throughout its history or perhaps the bug was introduced to the particular version software and things of that sort.  And there are other things as well.

David:  So, the discovery process managed well will give you the informations that Barr Group consultants need to have in order to conduct their analysis and regular expert mechanism, correct?

Michael:  Yes, and what it really does is to help us to reduce the cost ultimately on the software discovery because the more information we have, the earlier we have it in the case.  The more we’re able to assemble – quickly assemble a thorough analysis without having to do additional and potentially costly steps to discover something that would have been right there in other documents and other version of the source code.

Andrew:  And I think to reiterate and summarize on that point, we talk about getting in early you know, often when we’re doing discovery we’re assembling teams of multiple people, it could be five, six, seven people is sometimes the software that’s involved is rather voluminous, there is a significant amount of it.  And the more that we can plan ahead of time at the end of the day one of the biggest concerns of clients is cost.

And obviously getting the truth and understanding from a part of liability or patent infringement perspective what actually is going on.  And with software it can be fairly open-ended.  So, getting in early, getting us involved, allowing us to assemble our team and putting that team to work very quickly and as efficiently as possible that’s going to result in the best outcome and also in a reasonably manage and reasonable cost way.

David:  Well, I can say it’s as a litigator that I’m always interested in trying to find a way to streamline discovery and make its cost effective as possible.  I think this has been very helpful in terms of understanding how to do that in the software discoveries at their best.

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