GUEST-POST: Creative Mediation for IT Dispute

By Peter S. Vogel

After receiving a Temporary Restraining Order (“TRO”) the Judge ordered a mediation conference between the plaintiff software licensor and their customer in Alabama. The software in dispute was a specialized tax website that the plaintiff had spent many years developing, and after defendant abruptly terminated the license the plaintiff was shocked that the defendant had a competing website providing specialized tax services somewhat a kin to the plaintiff. So the trial judge had no trouble issuing a TRO. As oftentimes happens the Judge ordered me to mediate the case since I was a programmer and have a masters in computer science. My law practice of more than 30 years has always been limited to representing buyers and sellers of IT and Internet services.

Step One – In Depth Review of Plaintiff’s Technology

Since the defendant was in Alabama I arranged a meeting with the plaintiff licensor’s technical staff at my offices a few days before the mediation conference. Plaintiff’s IT staff demonstrated the construction and schema for their data base, and how the website processed data. This exercise lasted a couple of hours, but provided good insight about their IT solution and web business.

Step Two – Review Defendant’s Technology

When the defendant arrived from Alabama for the mediation conference I immediately requested that they demonstrate their website, database construction, and schema. It did not take a lot to determine that the database structures and implementation were not related to the plaintiff’s at all. Further that there were no clues that defendant developed their systems with the aid of plaintiff’s technology.

Settled at the Mediation

The case settled immediately. As a neutral observer of the databases and websites I was certain that the plaintiff’s and defendant’s tax websites were not related. Although on the surface it seemed obvious to most that how else would the developed their website were it not for access and use of plaintiff’s software.

Without question my IT experiences saved both parties from expensive litigation, and allowed them to move on.

Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.