Source Code Review for Litigation: Best Practices for Legal Teams

When IP disputes involve software, legal teams often face a gap between what is claimed and what can be proven. Screenshots and product demos can explain what a user sees, but they rarely prove how a system works inside. In many matters, the real answers live in repositories, configuration files, and the logic that actually executes in production.

That is why source code review for litigation is such a high-impact part of case strategy. Done well, it helps legal teams confirm technical facts early, avoid weak theories, support expert work with credible references, and present a story that holds up under pressure. Done poorly, it becomes a time sink that creates noise, drains engineering, and produces findings that are hard to defend.

Why Source Code Review Feels Hard for Legal Teams

Source code review has a reputation for being complex because it mixes legal procedure with technical detail. A few realities make it challenging.

Code Is Not One “Document”

Modern products are distributed across services, repositories, and dependencies. A single workflow may involve frontend triggers, backend services, data pipelines, and third-party components.

The “Relevant Version” Is Often Not Today’s Code

Litigation questions usually tie to a time window. If the codebase has moved on, review must stay anchored to the right release, branch, or build.

Process Rules Can Be Strict

Protective orders, access limitations, and note-taking rules are common. Legal teams need a clear approach to stay compliant while still making progress.

Engineering Time Is Limited

Internal engineers are essential, but they cannot be pulled into constant reactive questions. The best practices below are designed to protect engineering bandwidth while still getting strong results.

What “Good” Looks Like in Source Code Review for Litigation

Before getting into best practices, it helps to define a practical standard for success.

A good review program should:

• Stay focused on disputed issues, not the entire codebase
  
• Produce clear, traceable findings tied to specific code references
  
• Separate “code exists” from “code runs in the accused workflow.”
  
• Respect confidentiality and protocol rules without slowing to a crawl
  
• Create outputs that counsel and experts can use confidently

If your review does not meet these standards, it will be hard to rely on it later.

10 Best Practices to Keep Source Code Review Focused and Defensible

The goal here is not to turn legal teams into engineers. The goal is to run the review in a way that produces reliable results without wasted effort.

1. Align Review Scope to The Claims and The Accused Features

Source code review goes off track when the scope is vague. The scope should be defined in terms that connect directly to the dispute.

Define the “Accused Workflow” in Plain Language: Write a short description of the workflow that is under dispute, such as:

• What triggers it
  
• What input data enters
  
• What processing occurs
  
• What output is produced
  
• Where the output is used

This gives reviewers a map. It also helps prevent drifting into unrelated parts of the product.

Identify What You Must Prove: In patent matters, focus on the specific claim elements that will decide the issue. In trade secret or copyright matters, focus on the protected logic or expression that is alleged to be misused.

2. Treat Versioning as a First-Class Review Requirement

Many code review problems happen because teams look at the wrong version.

Lock the Relevant Time Window Early: Agree on the period that matters and identify which releases or builds align with it.

Confirm Where That Code Lives: Depending on the environment, the relevant version may be tied to:

• A tagged release
  
• A specific branch
  
• A build artifact
  
• A deployment record
  
• A commit range that matches the timeline

If you cannot tie findings to the relevant version, your conclusions will be easier to challenge.

3. Build a Shared Glossary Before Review Begins

Technical disputes often collapse into confusion because different teams use different terms.

Create a simple glossary that covers:

• Product components and service names
  
• Feature names and internal labels
  
• Key data objects
  
• Common abbreviations used in the codebase

This keeps communication consistent across counsel, experts, and technical reviewers.

4. Separate “Code Exists” From “Code Runs”

This is one of the most important best practices.

A function may exist in a repository and still be irrelevant if it never executes in the accused workflow. To avoid weak conclusions, reviewers should confirm:

• Entry points and triggers
  
• Call paths through relevant services
  
• Configuration conditions that enable logic
  
• Feature flags, permissions, and environment settings
  
• Whether the logic is production-grade or test-only

This is often where disputes swing. It is also where sloppy review gets exposed.

5. Make Configuration and Feature Flags Part of The Review

In modern software, behaviour is often controlled outside core logic. If you skip configuration, you risk misunderstanding what the system does.

Review should account for:

• Feature flags and rollouts
  
• Environment variables
  
• Configuration files and templates
  
• Permission checks and access rules
  
• Conditional execution paths

If the accused method only runs in certain environments, that fact may be case-defining.

6. Keep Engineering Involvement Structured and Time-Boxed

Engineers can clarify architecture quickly, but unstructured involvement creates disruption and inconsistent messaging.

Use these practices:

• Assign one technical point of contact per system area.
  
• Use scheduled review blocks instead of constant ad hoc questions.
  
• Ask targeted questions tied to the disputed workflow.
  
• Capture answers in a shared, controlled format aligned to the glossary.

This protects bandwidth and keeps the narrative consistent.

7. Document Findings in a Litigation-Ready Format

Notes that only a reviewer can understand are not enough. Findings should be structured so counsel and experts can rely on them.

A strong documentation approach includes:

• Clear references to files, modules, and relevant logic locations
  
• Plain-language explanations of what the code does
  
• A short explanation of why the finding matters to the dispute
  
• Consistent terminology aligned to the glossary
  
• A separation between confirmed facts and reviewer’s interpretation

This reduces miscommunication and improves credibility.

8. Use Simple Workflow Diagrams to Support Clarity

You do not need complex architecture maps. You need simple diagrams that show the relevant workflow.

Good diagrams usually answer:

• Where the workflow starts
  
• Which services interact
  
• What data moves between them
  
• Where the disputed method runs
  
• What output is produced

Diagrams help legal teams explain technical points without overloading the audience.

9. Treat Third-Party Code and Vendor Components Carefully

Many products rely on external libraries, SDKs, and managed services. Review should identify:

• Which part of the workflow is the internal logic
  
• Which part is performed by a third party
  
• Who controls the relevant behaviour?
  
• Whether the accused method is actually implemented in proprietary code

This can change the direction of the case and prevent incorrect accusations.

10. Stay Protocol-Disciplined Without Losing Momentum

Litigation code review often runs under protective orders and access protocols. The best teams treat process rules as part of the strategy, not an obstacle.

Key practices include:

• Establishing clear roles for who can access, review, and take notes
  
• Using compliant note formats and storage methods
  
• Tracking what has been reviewed to avoid repetition
  
• Maintaining a clean audit trail of what supports each conclusion

Process discipline protects the case. It also prevents rework.

Common Mistakes Legal Teams Should Avoid

These mistakes show up frequently, and they can be costly.

Letting Review Become Open-Ended

A codebase is endless. Without a tight scope, review turns into exploration rather than proof.

Treating Keyword Hits as Conclusions

Search is useful, but it cannot replace workflow tracing and execution context.

Ignoring Version and Environment Details

Findings tied to the wrong version are easy to attack. Findings that ignore configuration are easy to undermine.

Overloading the Record With Technical Detail

More detail does not always mean stronger proof. The most persuasive findings are often the clearest, not the longest.

Failing to Keep Terminology Consistent

Inconsistent language creates contradictions. Contradictions create doubt.

How Strong Source Code Review Supports The Wider Case

It Strengthens Early Case Assessment

You learn quickly whether a theory is strong, weak, or misdirected.

It Improves Expert Work

Experts can build opinions on clearer, code-backed facts rather than assumptions.

It Supports Better Depositions

Witness preparation improves when the technical story is consistent and grounded.

It Makes Settlement Discussions More Realistic

When both sides understand what the code actually shows, negotiation tends to become more practical.

Conclusion: Best Practices Keep Code Review Clear, Controlled, and Persuasive

Source code review for litigation is one of the most valuable tools a legal team can use in software disputes, but only if it is handled with discipline. The best practices are simple in principle: define scope tightly, stay anchored to the relevant version, separate “code exists” from “code runs,” treat configuration as evidence, protect engineering bandwidth, and document findings in a format that supports expert work and case strategy.

When these practices are followed, code review stops being intimidating and becomes a clear advantage: a way to prove what the software does, explain it credibly, and make better decisions throughout the dispute.

FAQs

What is source code review for litigation?

It is the structured examination of software code during a legal dispute to understand how a product works and to support or challenge claims in patents, trade secrets, copyright, or related matters.

Why do legal teams need source code review instead of relying on documentation?

Documentation can be incomplete or outdated. Source code, configuration, and execution paths show what the system actually does in practice.

What is the biggest risk in code review during litigation?

Reviewing the wrong version or misunderstanding what runs in the accused workflow due to feature flags, configuration, or environment differences.

How can legal teams reduce disruption to engineering during code review?

Use a tight scope, schedule structured Q&A blocks, assign clear technical points of contact, and maintain a shared glossary to prevent repetitive questions.

What makes code review findings defensible?

Clear code references, plain-language explanations, version-aware context, validation of execution paths, consistent terminology, and documentation that separates confirmed facts from interpretation.