Computer Software Source Code in Litigation

Date: Available 24/7 CLE Credits: 1.5 General

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Course Description

This program was recorded on April 29, 2020

Source code is a human-readable form of computer software. It forms the basis for the apps and internet platforms we use everyday, and for the ever-increasing computerization of devices and processes. Source code can play an important evidentiary role in a wide variety of litigation. Not only is it central to litigation directly related to software, such as patent, copyright, and trade secret cases, but it often also figures in other practice areas, including contracts, products liability, and even criminal law (for example, a DUI defendant's expert might examine breathalyzer source code to see if there are "bugs" that might be used to cast reasonable doubt on the breathalyzer's output). How a particular device operates may become a question in cases that are otherwise unrelated to software, and this is often best answered by inspecting the source code for the device (e.g. medical equipment, voting machines).



  • Andrew Schulman
    Andrew Schulman is an attorney, software engineer, and software litigation consulting expert with a specialty in software patent litigation; he has an LL.M. in Intellectual Property. Mr. Schulman joined DisputeSoft as a Managing Director, specializing in providing expert consulting services in regard to intellectual property disputes involving software. He has a particular focus on software patent litigation, pre-litigation investigations, and source code review. Mr. Schulman is also the founder and principal of Software Litigation Consulting. He is an attorney, software engineer, and software litigation consulting expert with a specialty in software patent litigation. Mr. Schulman also authors works on a variety of related subjects, including patent claim charting, software reverse engineering, software patent litigation, and source code review for litigation.

    Contact Andrew Schulman
      • 1.5 General Credits
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    1. How source code is handled in the discovery phase of litigation,
    2. How experts use source code to answer specific types of litigation-related questions
    3. How "source code" is defined, and types of source code, both generally and in the context of a particular case
    4. Source-code protective orders (POs), including their impact on the source-code examination
    5. The relation of source code to other types of electronic information (ESI), and how source code can be correlated with other evidence such as emails
    6. The relation of a litigation source-code examination to the use of source code in non-litigation contexts, to highlight Daubert issues of the basis and methodology for expert opinions regarding software
    7. Tools and methods typically used to inventory, search, compare, and analyze source code
    8. The differences between source-code examination and computer forensics
    9. Analyzing software (including source code) to question the results generated by forensics devices and forensics software
    10. Analyzing software (including source code) to uncover an organization's defacto policies and practices
    11. Some source code "gotchas" that can be used to question an expert's testimony
    12. Searching for absences, negatives, counter-examples, and for code missing from a party's source-code production

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