The Power of Depositions in Software and IT Litigation

    DisputeSoft Admin
    software expert witness at a deposition

    Depositions hold immense power in legal proceedings and can significantly affect litigation outcomes. Attorneys use depositions to gather information, challenge opposing witnesses, and explore relevant topics. It is well-known that while a strong deposition is unlikely to win a case, a poor deposition could easily scuttle a case. Examples of lawsuits being sabotaged by ineffective fact witness depositions abound.

    Based on DisputeSoft’s wide-ranging experience in software and IT systems disputes, informed, skilled, and careful deposition testimony by qualified software litigation expert witnesses can be pivotal to litigation success. Such testimony can provide valuable background information on relevant technologies, business processes, and organizational dynamics. 

    In this brief article, we will touch upon the purpose and value of depositions in software and IT disputes, and share how close collaboration between legal counsel and an effective software and IT expert can facilitate positive litigation outcomes.

    The Purpose of Depositions in Software and IT Disputes

    In software and IT litigation, depositions allow attorneys to obtain sworn testimony from fact witnesses, expert witnesses, and other individuals with pertinent knowledge. In such disputes, witness testimony can provide useful information on litigants’ development tools, methodologies, the business context in which the dispute arose, and the traceable logical evolution of the dispute. Effective cross-examination of software expert witnesses can potentially highlight methodological flaws in the expert’s analysis, and any weaknesses in the expert’s credentials.

    Uncovering Hidden Technical Information

    Depositions can uncover technical information not easily found or recorded elsewhere, and in this regard, help complete the set of facts surrounding a dispute. Attorneys can ask a variety of questions to encourage fact witnesses to provide previously unknown information. This can be critical in software disputes, in which key facts are often buried in large volumes of seemingly disjointed or superfluous technical information. When deposing an adverse witness, an attorney benefits from being highly familiar with intricate aspects of the matter. As many attorneys are not software experts, the support of qualified experts can help to distill large volumes of technical and related information and condense it into a logical flow of key facts and findings. This can be vital to conducting an effective deposition.

    Challenging Adverse Expert Witnesses

    Depositions further provide an opportunity to challenge opposing expert witnesses, test their testimony, and scrutinize the basis for expert opinions. By carefully analyzing the responses and cross-referencing them with other evidence, attorneys can sometimes challenge the credibility of adverse software experts. Challenging the methodological underpinnings of expert opinion can be especially useful in software and IT litigation. Indeed, litigants may successfully challenge the admissibility of unfavorable expert testimony by finding errors in an expert’s analytical methodology or highlighting the expert’s failure to explain the methodology used. In our experience, the process of challenging adverse expert testimony and responding to an opposing party’s challenge helps to further the merits of the litigation.

    Collaboration with IT Experts

    In software and IT disputes, depositions provide an opportunity for attorneys to closely collaborate with expert witnesses with relevant expertise in at least these below areas:

    Attorneys can depose such specialists to gain a deeper understanding of relevant technical or scientific matters. Legal counsel can also benefit from involving their software expert in deposing adverse witnesses and eliciting key testimony. While attorneys always conduct depositions, their software experts can recommend fact witnesses to depose, suggest deposition topics and questions, attend depositions of opposing witnesses, and sometimes revise lines of questioning in real time based on the elicited testimony. Involving an expert witness in this process has the added benefit of preparing the same witness for their own deposition by the opposing party.

    DisputeSoft’s experts have meaningfully contributed to deposition preparation in numerous lawsuits. In a recent trade secret misappropriation dispute, for example, the DisputeSoft staff of trade secret expert witnesses reviewed the opposing party’s issue tracking and version control system to determine which technical staff were most likely to provide useful testimony. In turn, counsel relied on DisputeSoft’s recommendations to determine which fact witnesses to select for deposition. The resulting testimony provided crucial support for DisputeSoft’s subsequent expert report, as well as a strong basis for rebutting the opinions of the opposing software expert.

    Further, DisputeSoft personnel routinely support counsel in the deposition of technical fact witnesses. In a breach of contract suit relating to a dispute over the cost of data conversion services, DisputeSoft prepared a detailed outline of potential deposition questions for the opposing party’s technical project manager. Such topics ranged from the opposing party’s database architecture and migration tools to the scheduling and cost estimation methodologies used on the project. After delivering these topics to counsel, DisputeSoft staff attended the deposition and guided counsel in the development of new questions in response to the witness’s fact testimony.


    Depositions are a powerful tool in software projects failure and IT litigation, providing an opportunity to fill gaps in the fact record, uncover crucial technical information, and challenge adverse witnesses. By asking the right technical questions, attorneys can extract valuable insights from software and IT experts and use their knowledge to strengthen their arguments. Involving software experts can provide valuable support throughout the process, whether through delivering expert testimony or guiding counsel in the deposition of opposing witnesses. Thus, close collaboration between attorneys and effective software and IT experts can be very important to achieving successful litigation outcomes.