There are two important considerations when responding to the BSA | The Software Alliance that can help resolve the matter with the least costs and least amount of time.

1. Work Product Doctrine and Attorney-Client Priviledge

Hiring an attorney is one of the most important considerations even if a business fully understands the circumstances. When the business hires external counsel to handle the audit matter, the business may be able to take advantage of the work product doctrine and the attorney-client privilege that it may not be able to utilize otherwise.

During a system audit, there are several valuable documents created, including the audit results. When an attorney creates these documents in anticipation of litigation, which can contain the thoughts and mental impressions of the lawyer, the documents are generally not discoverable under the work product doctrine.

Communications about a an audit issues and strategy between an attorney and a business client may be protected under the attorney-client priviledge. This means that communicating information about the audit may be protected from discovery at trial, but communications with non-attorneys may not be protected.

2. Protecting Disclosures During Negotiations

An attorney experienced with software audit matters can help ensure that information disclosed to the auditing entities is protected from being used against the business at trial. In other words, the attorney for the business can draft and negotiate a confidentiality agreement between the business client and the auditing organziation. This step is important to make sure that compromises made in settlement negotiations are not later used against the company to prove liability.

Hiring an attorney for a BSA audit matter can help ensure that the rights of a business are protected throught the audit process, as well as negotiate a settlement with the BSA to avoid a costly lawsuit.