Maximising the tools at your disposal during a technology dispute: Written guide

Introduction

When negotiating an IT contract neither party wants to consider the possibility of a dispute, but planning and incorporating a clear and well thought out dispute resolution clause is essential to minimise disruption once a dispute has arisen. As part of such any dispute resolution process, it will likely be necessary to marshal the available evidence in order to deploy it to best effect to help achieve the most favourable outcome. This article will therefore explore the use of different types of evidence in a technology dispute, including:

• Documentary evidence;
• Witness evidence;
• Expert evidence and support.

Documentary evidence

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 phenomenal amount of data is generated at an unprecedented rate which poses challenges for organisation, especially when they are trying to store and manage this data. Tech projects are no exception to this as by their very nature and longevity they tend to create a large volume of documentation in many different forms.

In England and Wales, there is an obligation on the parties to identify and make available documents that are relevant to the issues in the proceedings. The logic is that the court should have all the documents available to make a fully informed and just decision, so parties cannot simply choose to disclose documents that are helpful to their case on which they intend to rely. Parties must also provide documents which adversely affect their own case or another party’s case or support another party’s case, unless there is a right to withhold inspection.

It is therefore crucial that even before a dispute arises, it would be sensible to have a document management system in place to ensure that important documents (such as the contractual documents, change documentation, governance documents etc) are properly maintained, but also easily accessible.

As discussed in our earlier podcast, Managing technology contracts to deliver good outcomes, most IT contracts will include a framework for project governance, so there are (usually) different levels of governance meetings and it is common for there to be presentations/slide packs accompanying these as well as 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 in relation to changes, code and testing are often also key and having an advisory expert as discussed below will be important to assist in obtaining a proper understanding of these.

Therefore, document management should be seen as an important consideration, because if a dispute does arise it will be essential that a party is able to quickly locate and export the relevant material to be reviewed by their legal team, so that the strengths and weaknesses of its position can be assessed.

Once the documents have been exported to the legal team (or external legal advisors) it is more likely than not that the documents will be uploaded to a review platform where a comprehensive set of review tools can help determine which documents are most relevant.

Witnesses

Although documentary evidence is usually the preferred source of evidence as it is contemporary, factual witnesses can also be important in plugging plug any evidential gaps in the documents, explain the context behind certain documents or decisions and tell a story as to why the dispute has occurred between the parties.

At the outset of an IT dispute, and ideally when issues first start to arise, it is important to:

• identify the relevant witnesses: when conducting an initial assessment of the case and reviewing the initial documentation, it will be important to identify the ‘key’ individuals who were involved at the relevant times (for example, who attended the governance meetings and was involved in the key discussions between the parties). IT projects are technical and complex, so it can be helpful to be able to rely upon witness evidence especially if an individual is able to explain why there may be gaps in documentary evidence, or to provide a clearly articulated explanation of certain technical points which a layperson/judge may not be familiar with.
• obtain a proof of evidence: once ‘key’ individuals have been identified, it will be important to speak to them and assuming they are willing to co-operate, arrange to take a proof of evidence from them. it is often the case that the proof is a full “warts and all” story covering all the background facts and issues in dispute, which is then used to form the basis of a witness statement. A proof of evidence should be taken at an early stage given that human memory is imperfect and fades over time, the witness may leave the role, or simply become less willing to co-operate. It is also useful to obtain proofs of evidence as it allows the party to assess, early on, the strength of the evidence and to monitor the consistency of the evidence.

It is prudent to involve the legal team if interviewing witnesses/ obtaining proofs of evidence to maximise the protection of legal professional privilege.

The final point to bear in mind regarding witness evidence is that the witness is likely to be challenged in cross examination by the other party’s Counsel. Many cases can be won or lost on the strength of the witness evidence and the performance of the witness(es) at trial – credibility is key!

Experts

IT disputes often involve very technical, specialist or complex issues which are costly and time-consuming to unravel, so it is common for the parties involved to rely on the assistance of experts, who will often be appointed in cases involving or requiring:

• Critical path analysis to determine why a project has been delayed and the resultant impact;
• An investigation into faulty design and/ or operational deficiencies (such as system instability or unreliability) to determine if the supplier performed the services in accordance with industry standard and best practice; and
• An analysis of changes to determine if the modifications/ requested work constituted a change to scope/requirements.

There are commonly two types of experts: experts who are instructed to assist the court when the case before it involves matters on which it does not have the requisite technical or specialist knowledge (commonly referred to as an “Expert Witness”), or individuals who have been instructed to act solely in an advisory capacity (and these individuals are often described as an “Expert Advisor”).

An Expert Witness’s duty is to assist the court, and this duty overrides its obligations to those instructing the expert.

In a complex technology dispute, it can be very beneficial to obtain input from an expert at an early stage as they can assist in assessing the strengths and weaknesses of a party’s case. This assessment of the merits can help in deciding whether to pursue or defend a claim or whether a party should be considering settlement and what the terms of such a settlement should be.

External consultants/ experts are often instructed to conduct an assurance review or ‘lessons learnt’ exercise on, for example, (i) critical path analysis; (ii) faulty design and/or operation deficiencies; and (iii) change requests to determine if the requested work constituted a change to scope/requirements for which the supplier ought to be compensated, or if it originates as a result of a defect or other default on the part of the supplier, such that the supplier’s solution needs to be changed and the cost of doing so borne by the supplier.

One thing to be mindful of is that often experts/ consultants will be appointed when issues start to arise on a project, or when it appears that a dispute may be starting to arise. Although these exercises are often invaluable, it is important to appreciate that any reports which are produced which may highlight weaknesses in the position of the party commissioning the report, which may then become a disclosable document in future legal proceedings. It is therefore worth considering with the party’s legal team whether an expert can be appointed in an advisory capacity to undertake these reviews, such that they may then be potentially cloaked in legal privilege and so not have to be disclosed.