Source Code & Software Patents: A Guide to Software & Internet Patent Litigation for Attorneys & Experts
by Andrew Schulman (http://www.SoftwareLitigationConsulting.com)
Detailed outline for forthcoming book
Chapter 10: Incomplete source-code productions, missing source code, and spoliation
10.1 Under-production & over-production (“dumping”) of source code
- 10.1.1 Producing party’s up-front assertion of source-code unavailability
- 10.1.2 Incompleteness of source-code production detected by examiner (see chapter 16)
- 10.1.3 Discrepancies found by expert may trigger further inspection (low-level disk image, etc.)
- 10.1.4 Over-production (“dumping”)
10.2 Reasons why some source code may be missing
- 10.2.1 Both legitimate & illegitimate reasons
- 10.2.2 Cases with “egregious” vs. understandable reasons for source-code loss
- 10.2.2B Interaction of source code loss with owner’s “crown jewel” assertions of source-code value
- 10.2.3 “What, no version-control system?”: Overwriting of source code in the ordinary course of development
- 10.2.4 Overwriting of source code despite preservation obligations
- 10.2.5 The “balkanized team” approach: Source code missing from central repository [often contradicts vendor claims of “integrated” software; example of Microsoft Windows Media Player]
- 10.2.6 Source code in possession/custody/control of third party
- 10.2.7 Asserted inability to produce because third party’s code is “intermingled” with party’s code [3rd party may intervene to block production of its source code]
10.3 Source code available but modified or “redacted” in production
- 10.3.1 Loss/modification of source-code metadata, especially date/timestamps
- 10.3.2 “Redaction” of source-code comments
- 10.3.3 Producing “scrubbed” or sanitized (public) version of source code
- 10.3.3 Asserted undue cost/burden of locating or restoring older archived code
10.4 Spoliation
- Legal definition of spoliation
- Depends in part on willfulness/intent
- Depends in part on relevance and importance of the lost evidence (“no harm, no foul”)
- Speculative vs. likely-known value of missing source code
10.5 Sanctions for spoliation
- Sanctions when prejudice to party
- Prejudice to party requires that missing evidence be “necessary” not merely helpful?
- Dependence of sanctions on relevance, issues in case, anticipated facts
- Availability of alternative (less-than-“best”) evidence for the same point?
- Adverse inferences from loss/destruction of evidence
- Rebuttable presumptions from loss/destruction of evidence (presume facts would have been unfavorable to losing/destroying party)
- Jury free to consider loss/destruction of evidence
- Monetary sanctions for client and/or attorney
- “Death penalty” sanctions
- Seeming oddly-unrelated sanctions for loss of evidence
- Requesting party’s tactical benefits from opponent’s loss (or stated inability to find) any requested evidence
- Relationship of source-code loss to burdens of production & proof
Source code spoliation cases
- Adams v. Dell/Winbold (speculative value of original source code; safe harbor?; failure to preserve IFDC.exe source code violated duty, but sanction only if prejudice)
- VocalSpace v. Lorenso (no sanction, but jury free to consider)
- i4i v. Microsoft (relationship of source-code loss to burden of proof/production)
- Keithley v. Homestore.com (“egregious” spoliation)
- Juniper Networks v. Toshiba (source code code “unavailable”)
- Rosenthal Collins v. Trading Tech. (backdating files; code found in barn; authentication)
- Big Baboon v. Dell (6 files referenced by produced code, but not produced)
- 3Com v. D-Link (Realtek) (missing versions)
- Fleming v. Escort (“redaction” of comments)
- GE v. SonoSite (both sides say “documents don’t exist” re: source code)
- Fresenius Med. v. Baxter (deponent identified source code not produced; discrepancy; incomplete production)
- Clear One v. Chiang (copyright case; required to produce complete source code with comments)
- SCO v. IBM (destruction of AIX, Dynix source code?)
