Byte Wars: The Complexities of Technology Disputes

18 June 2024
London International Disputes Week
Byte Wars: The Complexities of Technology Disputes


Gareth Coffey, Andy Jackson, Nick Hourigan and Ian Smith of FTI Consulting support clients across a wide range of economic, forensic, technology and operational issues in disputes and investigations. They serve as advisers and expert witnesses in matters across industries and support legal teams in explaining complex technical issues to clients, their advisers and the courts.

This article shares some of the recurring themes and challenges which are characteristic of technology disputes, including:

  • obtaining and analysing the right data;
  • understanding information when data volumes are large;
  • breadth and depth of technical knowledge demands in complex technology disputes; and
  • the pace of technological change.

Obtaining and analysing the right data

Data is central to all disputes to varying degrees and particularly in technology-related disputes. The availability, quality and accessibility of data can be critical to a legal team and expert witness’s ability to reach a view on the issues on which they are instructed.

There are three specific challenges.

Firstly, information about IT estates and configurations at specific points in time is ephemeral. Organisations typically do not keep logs of individual configuration changes for long periods and software that is used to run IT estates typically comes pre-configured to retain logs for a limited time, often 120 days or less. In the context of disputes, this may mean that by the time an investigation commences the information no longer exists or is costly and time-consuming to restore.

Secondly, the complex and varied nature of IT systems means that a degree of system knowledge is required to be able to identify what extant records there are and to meaningfully interpret them.

Without the ability to explore the systems directly to understand how, where and in what form data are stored, which is rarely possible with an adverse party’s systems, formulating a request for disclosure that covers all necessary material is challenging. This is especially true when disclosure is limited or confined to particular or narrow classes of documents, as is now more common, so that wider requests for necessary contextual material may be considered too broad.

Disputes related to technology deployment, use, functioning and intellectual property are especially unique, in that a claimant or defendant party with direct access to relevant data and systems face a different set of burdens. This includes that the party in direct control of the system or data may face disproportionate preservation and production requirements. Also, opacity may, at least initially, impair counterparties’ ability to understand technical details of data and formulate targeted information and data requests.

Thirdly, information obtained often requires intermediate processing, cleansing and interpretation to make it meaningful to clients, advisers and courts.

Other complicating aspects include:

  • Disputes that centre around how systems and solutions are designed often require a review of design documents and change records which are out of date and/or represent a past or planned state rather than the actual position at the relevant time.
  • Data disclosed via e-discovery tools may not be provided with all original meta-data intact. Additional requests may be necessary to obtain native versions or additional meta-data such as full date-time values, which can be critical to answering the question put to an expert witness.
  • Particularly in an IT context, information is often held by third parties such as IT outsourcers, managed service providers and software as a service (SaaS) providers. This can increase the time and effort required to get hold of necessary information, especially if, for example, service providers have changed.

Understanding information when data volumes are large

Expert analysis of systems and software requires a dimension of data not commonly required in other data-heavy disputes. This includes system specifications data, configuration and log files, potentially from multiple points in time where they may not be available due to their ephemeral nature. Increasingly, data and underlying models from artificial intelligence systems may be required.

Thus, a key quality for teams dealing with these matters is the ability to scrutinise and sense-check technical explanations and information in order to fully understand the IT system, environment or technology solution central to the dispute. Without specific expertise in IT and technology, it can be difficult to achieve this with any degree of confidence. For example, FTI Consulting has been involved in many cases where legal teams and clients were misled on technical matters, including inadvertently, by their own internal resources in ways that significantly influenced their approach and the perceived strength of their position.

Indeed, it can be difficult for IT teams to appreciate what may be of legal relevance, and likewise difficult for lawyers to appreciate the nuances, corollaries and limitations of technical information provided by the IT team. Sometimes what appears to be a complete response to a question or request is not fully accurate or a complete picture. IT experts play an important role as interpreters between IT specialists, the advisers and the courts.

In some cases, specific subject matter expertise can be vital to understanding the evidence in context, while in others the ability to analyse many data sources to identify patterns of behaviour and draw conclusions as to a likely sequence of events is paramount.

Breadth and depth of technical knowledge demands in complex technology disputes

Another significant challenge in technology disputes is the great variability of IT systems in combination with the depth to which these may need to be explored. In contrast with some other complex data-drive areas such as financial accounting where the foundations are more clearly defined and structured, the IT landscape is far less organised and predictable. Moreover, the scope of data in disputes has skyrocketed, with increased creation and retention of information, largely due to lower costs of cloud storage, a post big-data revolution focus on using data to drive insights, and an evolution in courtroom tolerance for broad data submissions.

Disputed matters are rarely well delineated, so both breadth and depth of an expert witness’s knowledge can be crucial factors.

The pace of technological change

Many business sectors change rapidly but few have experienced such long periods of continuous change as the IT sector. That change can create significant disconnects between contractual terms and the IT landscape they are applied to. In a recent software licensing case, a client held perpetual licenses in 2024 that were acquired under documentation from 1998. It is common to find parties in these circumstances disputing what is meant by a “processor” when the same term that was once used to refer to a single, physical silicon chip may now be applied to a virtual processor that has a transient existence inside a physically distributed virtual network of interconnected hardware.

The growth in data created every year follows an exponential pattern. In technology disputes it is not just scale that presents a challenge, it is also variety and dispersion. Email, dozens of corporate and personal messaging applications, collaboration tools, social networks and cloud productivity platforms have all become vehicles for corporate activity that may be relevant in a dispute.

What this means for lawyers and experts, especially in the technology industry, is there is now a very steep and constantly evolving learning curve to navigate when keeping up to date with issues and trends. Breadth of knowledge and the need to stay current are now at a premium. This also creates demand for those who have deep technical knowledge of IT systems that have passed out of contemporary usage, but that remain relevant in the backward looking world of disputes.

Looking towards the future

Those involved in technology disputes that have complex data issues at their core need to continually evolve and adapt their practice to respond to new developments. With this in mind, there are several best practices teams can follow:

  1. Be prepared: encourage clients to think carefully about the records they retain on their IT systems and put in place systems and processes to make the archiving and retrieval of data practical, efficient and cost-effective.
  2. Involve experts as early in the process as possible. Obtaining an expert assessment pre-action allows more time to become familiar and comfortable with the issues in dispute and get on the right track early.
  3. Invest time in developing at least a foundational understanding of common technology concepts, even if technology itself is not a primary focus.
  4. Pay close attention to the collection, handling and disclosure of data, especially in native format and be alert to the risks of information loss that may compromise evidential value.


Andy Jackson 

Andy has 13 years’ experience of contentious and non-contentious technology matters, and his work principally involves quantifying license usage and requirements in line with technology licensing arrangements.

Andy combines deep technical expertise and strong commercial understanding to address complex issues faced by his clients.

He has worked on numerous cases in UK and US litigation supporting appointed experts in preparing their evidence and was a named contributor to an expert report submitted in US litigation.

Andy also advises rights owners and rights users on technology licensing issues, including the quantification of licensing exposures (pre-litigation), audit response and strategy, and the design and implementation of technology compliance programmes.

Gareth Coffey

Gareth has 17 years’ experience as a technology and risk consultant. He specialises in arbitration and litigation relating to licensing agreements (software and otherwise), royalty agreements, outsourcing, and IT delay. He also has experience in rail industry arbitrations.

He is a Fellow of the ICAEW, and as such supports other Experts in FTI in matters relating to the assessment of damages and valuation of companies.

Gareth’s litigation experience covers matters before the High Court of Justice, Business & Property Courts of England & Wales, Technology and Construction Court (QBD) and the Court of Common Pleas of Philadelphia County.

He currently leads the development of the IBM Software Licensing & Compliance website, which he has done for the last four years since its inception. 

Nick Hourigan

Nicholas Hourigan is a Senior Managing Director for FTI Consulting’s Data & Analytics practice and is based in London. He has over 20 years’ experience working on some of the largest investigations in recent history. He specializes in large volume typically transaction-based analytics for the financial services and other industries in litigation and investigation matters.

Nick leads the Data & Analytics practice in the EMEA region and has extensive experience of managing complex global-scale projects with record sets in the billions. His firm view is that the highest use of analytics is the elevation of expertise, and so his teams work in close collaboration with counsel, client and other FTI experts to ensure effective and efficient achievement of project objectives. Nick champions development of FTI’s Augmented Investigations offering, whereby traditional analytics are complemented by data science and statistical methods in those—and, importantly, only those—situations where this coupling is to maximum client benefit.

Ian Smith 

Ian advises clients in relation to the technology aspects of investigations, litigation and regulatory enquiries, encompassing data preservation, analysis and review.

Ian has over 20 years’ experience in the fields of digital forensics and e-discovery. His engagement experience encompasses matters in relation to fraud and corruption, anti-competitive practices, intellectual property theft and breach of contract. He has assisted clients in EMEA and globally from a wide range of industries, in particular the financial services sector, and also in the energy, pharmaceutical, manufacturing and construction sectors.

Ian directs client projects from start to finish through the e-discovery lifecycle, advising both pre and post-engagement in the most effective strategies to ensure defensible, proportionate and cost-efficient outcomes.

Ian has extensive experience in the planning and execution of forensic data collections in the UK and internationally both under invitation and under the provision of court issued warrants. He has led and conducted many digital forensic investigations in the areas of employment disputes, intellectual property theft and unauthorised activity.