publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/192213
CRACKING SOURCE CODE PRODUCTION: XXXX BASICS AND BEST PRACTICES RULES OF ENGAGEMENT: COLLECTION AND PRODUCTION While the plaintiff, defendant or judge can make requests for source code, only the judge may order the production of source code. Court-issued protective orders are usually the method by which source code production is compelled. The court often mandates how source code should be isolated and produced to the other side. It is important that the orders contain detailed requirements of the types of files and codes needed for review. And just how much can production cost? problematic depending on the magnitude of the source code, the high price of forensic expertise and the number of source code isolation hours. RISKY BUSINESS: RULES AND PENALTIES Producing source code is inherently risky, as parties are turning over intellectual property to adverse parties who are often competitors. Many parties will do whatever it takes to circumvent having to produce source code. Companies will argue their user manuals and the like are sufficient to show how the product operates for the purpose of patent The Apple v. Samsung patent trial — a civil case under the jurisdiction of the Northern District of California — is a good illustration of the source code sanctions that can be put in place. Because of Samsung's refusal to comply with court orders to produce source code, keeping the court waiting for several months, the judge ruled that Samsung would be precluded from offering any evidence of its design-around efforts for certain patents and could not argue the design-arounds are distinct from those versions of code produced in accordance with the court's order. Meaning? Samsung had to assume liability for continued use of old, possibly infringing code because the new, possibly non-infringing code wasn't shown in time. The judge also imposed monetary sanctions on Samsung for lack of source code production. FIRST STEPS If you must produce source code, here are a few key initial steps to take. •Have a timely and detailed discussion with the IT department or the programmers who create and manage the source code related to the product or program in question TIME IS MONEY Source code can be both time-consuming and costly to produce, depending on the program or device and the nature of the case. Production can become infringement without disclosing patent information. The courts often are forced to impose sanctions upon parties for producing incomplete source code or not producing it at all. •Discuss whether an expert would be well-utilized •Establish open communication with the court and opposing counsel to ensure any plans include