Source code ch.25: Authentication, admissibility, weight

Chapter 25: Authentication, admissibility, and “weight” of source code

25.1 Authentication of source code

Often auto-authentication, from party’s production in response to discovery request for source code to a given product/version
Authentication of source code produced in discovery is often straightforward, except for date/timestamps (see 25.2 below)
Authentication of source code produced in response to sufficiently-specific interrogatory under FRCP 33(d) (produced source code is “tied” or “linked” to the request)
Rare problems of incorrect (“unauthentic”?) source code located in source-code production
Authentication of source code not produced in discovery (e.g. open source, used for comparison with vendor’s modified version as produced)
Authentication of expert/examiner’s test files on protected source-code computer; these can be made the subject of deposition question or request for admission
Authentication of output from expert/consultant’s reverse engineering, pre-filing investigation
Authentication of web site screenshots
Stipulations to authenticity under FRE 901
“Is the source code a fair representation of what it purports to represent?”: i.e., is this the correct source code for the product/service at issue?

25.2 Authentication of source-code date/timestamps

Source code dates are especially significant to prior art, on-sale bar, public-use bar
A single source-code file will likely have several different dates (date within file itself; within version-control system; within OS file system; date reflected in related non-source files; etc.)
Cases in which files were backdated (see also chapter 10 on spoliation)
Ease of modifying file dates, or selecting wrong one; but no mere speculation on file dates as basis for exclusion or as basis for satellite “discovery on discovery”
Authentication of dated files from “Wayback Machine” (Internet Archive)

25.3 Admissibility and “weight” of source code

Occasional attempts to have source-code comments or dates excluded as “hearsay”
Business records exception (source code should present fewer problems than e.g. emails)
“Machine hearsay doctrine” and software-generated (vs. merely software-stored) evidence [application to wizard-generated code?]
Cases on admissibility of files from Wayback Machine (Internet Archive)
“Corroboration”? [mostly re: priority, swearing behind, pre-AIA]
Expert’s reasonable reliance on inadmissible evidence, upon which expert would rely in non-litigation context (especially re: open source, archive.org, Google Cache, etc.); see chapter 8 on experts
But no use of expert as “conduit” for inadmissible (or “backdoor” to late) evidence
Disputes about admissibility usually end up as a matter of arguing “weight” to the fact finder (e.g., how reliable are these file dates?; how much care went into writing these source-code comments?; can you really count on the name of this file or function, in contrast to what an expert says the file or function really does?)
Admissibility rules often provide a useful way to structure presentation of evidence, to emphasize its reliability and “weight”

25.4 Intersection of admissibility with discovery

Holding back source code as “not relevant” or “not admissible”: the standard is discovery “calculated to lead to” relevant/admissible evidence
Source code likely contains names of software developers, references to internal documents (specs, requirements, etc.)
Source code relevance unlikely to be speculative in software patent case; contrast speculative value of source code in e.g. DUI Breathalyzer cases (!)
Source code in “discovery about discovery”: source code for producing party’s internal records-keeping systems, to determine cost/burden/availability of other evidence; court will often decline satellite discovery; but spoliation, file backdating, etc. can lead to inspection of producing party’s records-keeping systems

Source-code cases re: authentication & admissibility

Netscape v. Valueclick (source code date as hearsay?)
Kenexa Brassring v. Taleo (ease of modifying file timestamp)
Comp. Assoc. v. Simple (no mere speculation re: ability to modify source code; FRE 901(b)(9) re: timestamp)
Cordance v. Amazon (source code author’s testimony: issue of weight, not admissibility)
Motorola Mobility v. Apple (parties stipulate to authenticity under FRE 901)
In re Epstein (source-code dating, corroboration, in patent prosecution case)
Netscape v. Valueclick (hearsay, corroboration, date; business record?)
ACTONet v. Allou (contract case; HTML code admissible evidence similar to photograph, because produces visible website appearance?)
Globespanvirata v. TI (need to link source-code files with specific products, when expert based opinion on source code from opponent’s workstation?)