When negotiating an IT contract, neither party wants to consider the possibility of litigation, but it is essential to plan and incorporate a clear and well-thought-out dispute resolution clause to minimize disruption once a dispute has arisen. As part of such a dispute resolution process, it will probably be necessary to gather the available evidence in order to best deploy it to help achieve the most favorable outcome. This article will therefore explore the use of different types of evidence in a technological dispute, including:
- Documentary evidence;
- Proof and expert support.
Documentary evidence will play a key role in any technology dispute – documents are usually the most important source of evidence and they also underpin the other types of evidence in a case. In a digital society, a tremendous amount of data is being generated at an unprecedented rate, which poses challenges for organizations, especially when trying to store and manage this data. Technology projects are no exception to this rule because, by their very nature and longevity, they tend to create a large volume of documentation in many different forms.
In England and Wales, parties are required to identify and make available documents relevant to the issues in dispute. The logic is that the court should have all the documents to make a fully informed and fair decision, so the parties cannot simply choose to disclose documents relevant to their case on which they intend to rely. . Parties must also provide material that harms their own or another party’s case or supports another party’s case, unless there is a right to suspend the inspection.
It is therefore crucial that even before a dispute arises, it would be wise to have a document management system in place to ensure that important documents (such as contract documents, change documents, governance, etc.) are properly maintained, but also easily accessible. .
As discussed in our previous podcast, Manage technology contracts for successful results, most IT contracts will include a framework for the governance of the project, so there are (usually) different levels of governance meetings and it is common for there to be accompanying presentations/slide decks as well as lawsuits – minutes of meetings. These will often be the key documents to provide evidence of delays and key decision making on a technology project. Technical documentation for changes, code and testing is often also essential and it will be important to have an expert advisor, as noted below, to help get a good understanding of these.
Therefore, document management should be seen as an important consideration, because if litigation arises, it will be critical that a party is able to quickly locate and export relevant material for review by their team. legal, so that the strengths and weaknesses of his position can be assessed.
Once the documents have been exported to the legal team (or outside legal advisors), it is more likely than not that the documents will be uploaded to a review platform where a full set of review tools can help determine which documents are most relevant.
Although documentary evidence is usually the preferred source of evidence because it is contemporaneous, fact witnesses can also be important in filling evidentiary gaps in documents, explaining the context behind certain documents or decisions, and telling a story about why which the dispute arose. between the parties.
At the start of a computer dispute, and ideally when problems start to arise, it is important to:
- identify relevant witnesses: during the initial assessment of the case and the review of initial documentation, it will be important to identify the “key” people who were involved at the relevant times (for example, who attended governance meetings and participated in key discussions between the parties). IT projects are technical and complex, so it can be useful to be able to rely on witness testimony, particularly if someone is able to explain why there may be gaps in the documentary evidence, or provide an explanation clearly articulated some technical points that a layman/judge may not be familiar with.
- Obtain proof of proof: Once ‘key’ people have been identified, it will be important to speak to them and, assuming they agree to cooperate, arrange to obtain proof of proof from them. often the evidence is a complete story “with all the details” covering all the background facts and issues in dispute, which is then used to form the basis of a witness statement. Evidentiary evidence must be taken at an early stage since human memory is imperfect and fades over time, the witness may leave the role or simply become less willing to cooperate. Obtaining evidentiary evidence is also useful as it allows the party to assess, from the outset, the strength of the evidence and to check the consistency of the evidence.
It is prudent to involve the legal team if you are interviewing witnesses/obtaining evidentiary evidence to maximize the protection of legal privilege.
The final point to keep in mind regarding witness testimony is that the witness is likely to be challenged on cross-examination by the other party’s attorney. Many cases can be won or lost depending on the strength of the testimonies and the performance of the witness(es) at trial – credibility is key!
IT disputes often involve very technical, specialized or complex issues that are costly and time-consuming to resolve, so it is common for the parties involved to rely on the assistance of experts, who will often be named in cases involving or requiring :
- Critical path analysis to determine why a project was delayed and the resulting impact;
- An investigation of design and/or operational defects (such as system instability or unreliability) to determine whether Supplier has performed the Services in accordance with industry standards and best practices; and
- A change analysis to determine if the changes/work requested constituted a change in scope/requirements.
There are generally two types of experts: experts who are responsible for assisting the court when the case before it involves matters on which it does not have the required technical or specialist knowledge (commonly called “expert witnesses”) ), or persons who have been instructed to act solely in an advisory capacity (and such persons are often described as an “expert adviser”).
The duty of an expert witness is to assist the court, and this duty outweighs his obligations to those instructing the expert.
In a complex technological dispute, it can be very beneficial to get expert advice at an early stage, as it can help assess the strengths and weaknesses of a party’s case. This assessment of the merits can help decide whether to pursue or defend a claim or whether a party should consider a settlement and what the terms of such a settlement should be.
External consultants/experts are often commissioned to carry out an assurance review or “lessons learned” exercise on, for example, (i) critical path analysis; (ii) defects in design and/or operation; and (iii) change requests to determine whether the work requested constituted a change in scope/requirements for which the supplier should be compensated, or whether they arise from a defect or other breach on the part of the supplier. supplier, so the supplier’s solution must be changed and the cost of doing so borne by the supplier.
One thing to keep in mind is that often experts/consultants will be appointed when problems start to arise on a project, or when it looks like a dispute is starting to arise. While these exercises are often invaluable, it is important to understand that any report produced that may highlight weaknesses in the position of the party commissioning the report, which may then become a divulgable document in future legal proceedings. It should therefore be considered with the party’s legal team whether an expert can be appointed in an advisory capacity to undertake these reviews, so that they could then potentially be subject to legal privilege and therefore should not be disclosed.