Intellectual Property News

David Kappos in Portland

David Kappos in Portland

Undersecretary of Commerce and USPTO Director David Kappos with Chris Casiero of Verrill Dana, host of our Portland meeting on pro bono IP, and Maine Law’s Leonard Agneta and Rita Heimes


Predictive Coding and E-Discovery

At Day Two of our Advanced Document Analytics conference, the subject is predictive coding. Speaking are Joel Wuesthoff of Robert Half Legal, Jessica Ross of Latham & Watkins, and Daniel Taylor of Jones Day. Each is speaking on his/her own behalf, not that of his/her firm.

According to Joel, when you have a case in litigation, one of the first things you need to do is determine how much data you have. Make sure you have identified and segregated all duplicate documents. You find duplicates by looking at “metadata” (see previous post). Electronically Stored Information (ESI) was added to the Federal Rules of Civil Procedure to include all data associated with documents, not just the main content.

Predictive coding is coming on rapidly as a preferred mechanism for electronic document review. Statistics used to support predictive coding are that it tends to return relevant documents at a rate of 85-90% accuracy, compared to as low as 20% accuracy ascribed (by some) to traditional paper document review by attorneys.

Assuming predictive coding becomes the acceptable norm for discovery of evidence in litigation, attorneys in large cases have to make cost- benefit decisions on staffing cases in-house or outsourcing it to vendors or contract attorneys. Proportionality — FRCP 26(b)(2)(B) (discovery cannot be unduly burdensome or expensive given the needs of the case) – is crucial in e-discovery decision making.

Daniel Taylor believes from his years of litigation experience that predictive coding effectively drives down the cost of litigation. He says estimates for reviews are about a third of what they would be when you employ predictive coding and the results are more accurate. A lead attorney and team can go through 900,000 documents in about nine days.

When a lawyer sits down with an e-discovery technology vendor, the first thing he/she asks is: “what’s the management team”? Joel says e-discovery isn’t just about technology, it’s about the people managing the process. Daniel doesn’t ask first about costs, but rather about the administrator of the data bases. He says, “You’re only as good as your support. If you have a big case, you want the industry’s A Team on the case. Getting the veterans on your case ensures that you will get the 85-90% return thresholds you need.’

The second question? What’s the cost. Pricing is either per document or per gigabyte, depending on what’s best for the client.

Load your documents, removed irrelevant data, broken everything out by file extension, remove duplicates, apply date ranges, and have a remaining subset for review. Then, it gets sent to predictive coding. The predictive coding model takes on the personality of the expert. If he/she is stingy with document retention, so is the predictive coding method. Correspondingly, if the expert is loose and fast, so will be the predictive coding.

For every 50,000 documents, want to review 1800-2400. If there are 1,000 documents in each cluster, the lead lawyer will have them be reviewed by the attorney or expert running the predictive coding method. Coherence (or relevancy) thresholds within each database help the reviewer and system respond to a parent document sample.

As a parting word, Daniel recommends that students (and attorneys) get a certification in e-discovery and become expert in it. Joel mentions ACEDS, OLP and EDI.


Discovery Isnât Boxes Anymore: Jessica Ross of Latham & Watkins on e-discovery

The Center for Law & Innovation at Maine Law is hosting a 3-day CLE on the latest e-discovery technologies and how courts view lawyers‘ ethical obligations in digital discovery. The event is jointly hosted by Robert Half Legal and the Center for Law & Innovation. The following is a summary of some of the remarks by Jessica Ross of Latham & Watkins who discusses how e-discovery can be extensive and expensive. It’s important to keep in mind rules of ethics and civil procedure in discovery.

The practice of discovery and e-discovery is “advanced Civ Pro.”

One objection to discovery request specific to Electronically Stored Information (ESI) is that it’s not “reasonably accessible” (FRCP Rule 26). Also, lawyers can argue that a discovery request is not proportional to the damages at issue. Courts will balance the expense of discovery against the amount in controversy.

Jessica discusses the “discovery funnel,” applying FRCP 34 to actual discovery practice. The large end of the funnel is preservation (issuing the legal hold); the next is collection; then processing (preparing the material for review); then review (for privilege and responsiveness); and finally production.  Much of the discovery costs are in the review process (industry estimates put it at 70% of e-discovery costs), where lawyers and paralegals may charge by the hour, but preservation has become expensive as well.

Ethically, counsel has an obligation to understand the nature of the case, learn about the client’s IT structure; and communicate with the client to issue a legal hold. Jessica sites Zubulake v UBS Warburg, 220 F.R.D. 212 (SDNY 2003), and also Pension Committee of the University of Montreal Pension Plan v. Banc of America, 685 F. Supp. 2d 456 (SDNY 2010) (holding that it is “gross negligence” not to issue a written litigation hold and immediately preserve paper and email records. Some “ethical landmines” include the responsibility of lawyers to supervise junior attorneys and non-lawyers to ensure they made “reasonable efforts” and to ensure delegation to competent people.

Data collection (the process of collecting electronic data from storage media or devices), creates many risks, including the potential for spoliation of evidence, questionable collection practices, and the need for the data collection employee to testify about it at trial.

Rule 34(b) permits the requesting party to designate the format(s) for production of the responding party’s ESI; if she fails to do so, the responding party can turn it over in his own preferred format. Production specifications: TIFF imaging is a preferred format for e-discovery because it preserves the original so it is unalterable and it is searchable.  Jessica’s fancy sentence is: “I’d like you to produce discovery in a standard single-page TIFF with a corresponding load file.”  It’s also possible to use an online repository, used often when there are many co-plaintiffs or co-defendants needing access to the same set of documents.

Jessica Ross of Latham and Watkins illustrates the importance of metadata in e-discovery. She describes metadata as the information on a letter that isn’t the core communication itself, such as the letterhead, the date, notations as to anyone copied on the letter or the presence of attachments.

Rule 34 prohibits the “degrading” of documents, which means you want to produce it in a reasonably useable format (paper to paper, electronic to electronic) and the court can reprimand a party for redacting metadata. For an excellent discussion of metadata in discovery, see Aguilar v. Immigration & Customers Enforcement Division of the US Department of Homeland Security, 244 F.R.D. 350 (SDNY 2008).


IP in Iowa

Recently I was fortunate to participate in a conference at Drake Law School celebrating the 5th anniversary of its Intellectual Property Center directed by Prof. Peter Yu. The Honorable Chief Judge Randall Rader of the Court of Appeals for the Federal Circuit gave an excellent keynote address touching on many important issues in patent law, including the significance of international trade and foreign legal systems to IP lawyers and firms.

Many of the speakers represented large corporations with massive patent portfolios. What a fish out of water I am, representing as we do the independent inventor and micro-business. The scale at which these large firms relate to the U.S. Patent & Trademark Office, the U.S. federal courts system, and other law firms is so significantly beyond what an individual or tiny business will ever see as to be of almost another world.

In my remarks, I reminded my colleagues that individual inventors are entitled to take advantage of the patent system, but lack resources to gain access. Under a first to file regime, rapid and timely access is more important than ever. Many individuals will need expert representation to be able to fully enjoy the benefits of the patent system, and yet few can afford the legal fees.  I called on my professional colleagues to consider pro bono patent programs, something the USPTO is encouraging, the American Invents Act anticipates, and a few cities (such as Minneapolis) have started to implement. I called on my law faculty colleagues to consider participating in these programs and even integrating them, where possible, into legal education. Not every school will be as fortunate as Maine Law to have such a deep and robust patent clinic, but there are other ways of assisting low income inventors with access to the patent system.

Whether patent acquisition is supported by social or distributive justice theories I leave for another day.


Contracts and Innovation

Sean O’Connor, a UW Law Professor, writes brilliantly and concisely about the value lawyers bring to entrepreneurs and the innovation pipeline through their ability to structure and document deals. In his chapter in “Handbook on Law, Innovation and Growth,” edited by the Kauffman Foundation’s Robert E. Litan, Prof. O’Connor notes that while the existence of patent, copyright, trademark and trade secret law form the fundamental tools in the box, these are legal structures established by government and merely applied by lawyers.  Of course, knowledge of intellectual property law and possessing skills to help entrepreneurs and innovators gain access to IP legal regimes are crucial. But, Prof. O’Connor points out, innovators and entrepreneurs spend more of their productive lives in the “private ordering legal environment,” one filled with corporate structures and contracts. There are numerous established forms of contracts, and provisions that become the meat and potatoes of most standard IP licensing agreements or employment contracts.  In between the standard terms, however, are nuanced choices guided by skilled transactional attorneys who can play with variations on themes to find the sweet spot that gets a deal done. Prof. O’Connor’s work in creating an environment at UW Law for law students to work with sophisticated start-up transactions is a model for other schools to follow.


A relevant experience

A recent article in the ABA Journal discusses the role of the US Department of Education in helping law students get deep into debt they are increasingly less likely to repay given the depressed job market for recent law graduates. It is sobering. So is the notion that law schools may have to demonstrate that their degrees result in jobs:

“One plausible outcome has the Education Department using its accreditation authority to force law schools to demonstrate, as a condition of receiving federal loan money, a minimum threshold of employability and income upon graduation.”

Higher education is no longer the guaranteed path to wealth or even job stability it once used to be. That this is true of legal education shouldn’t be a huge surprise. Many law students are seeking shelter from the bad job market that faced them after acquiring their undergraduate degree, so law schools are enrolling a large number of people who have already struggled to stay employed. Compound that with the shift in what clients expect from lawyers, what law firms expect from young associates, and what we all seem to expect will be our guaranteed lifestyle, and there is much disappointment and frustration.

We are addressing those issues one student at a time, something we can do at one of the smallest law schools in America. Just yesterday I got a call from someone at the US Patent & Trademark Office offering to personally track down the applications of Maine Law graduates that may have been lost in the system to make sure they get considered if not hired by the agency. Another friend who hires contract lawyers to do e-discovery talked to me for an hour about training our recent graduates in the latest document review technology so they will be competitive for contract work in the near term, and for entry-level litigation positions as well. This would be exclusive for our students. Employers are hiring our students for internships out of loyalty to our school even if their general counsel didn’t go here. One of the things about Maine is that people love the state, and by extension love the law school. So we have friends willing to help our students one by one, which is the way it should be.

 


Cannibals

I’ve just learned of a disturbing trend whereby law firms send glossy brochures not to clients, but to recent law school graduates they assume are hanging out a shingle given the dearth of law firm jobs presently. These firms, who are reluctant to hire these same young lawyers and train them, are offering to help them (for a fee) when they get over their heads.

Gone are the days when law firms assumed first and second year associates required residency, apprenticeship, mentorship and training, and structured their finances and partnership tracks to accommodate those years. Now, young lawyers are chided for being unable to function at the highest levels and law firms complain that their clients won’t pay the billable fees of the newest associates, making laterals more compelling than recent law school grads.  These recent law school grads with their large loans must do what they can to survive, including taking on clients if they can. If the law firms who seek fees from these young solo practitioners would spend their marketing money on hiring and training them, instead of taking advantage of their inexperience, the clients would be better served as would the legal profession. True, we law schools can do a better job providing students with skills they need to handle matters on their own, but no amount of clinical training or cooperative externship programs will replace supervised practice in a law firm or government agency. Instead of cannibalizing these young lawyers, more experienced lawyers should take them in.  After all, someone did that for them years ago.

 

 


A relevant experience

A recent article in the ABA Journal discusses the role of the US Department of Education in helping law students get deep into debt they are increasingly less likely to repay given the depressed job market for recent law graduates. It is sobering. So is the notion that law schools may have to demonstrate that their degrees result in jobs:

“One plausible outcome has the Education Department using its accreditation authority to force law schools to demonstrate, as a condition of receiving federal loan money, a minimum threshold of employability and income upon graduation.”

Higher education is no longer the guaranteed path to wealth or even job stability it once used to be. That this is true of legal education shouldn’t be a huge surprise. Many law students are seeking shelter from the bad job market that faced them after acquiring their undergraduate degree, so law schools are enrolling a large number of people who have already struggled to stay employed. Compound that with the shift in what clients expect from lawyers, what law firms expect from young associates, and what we all seem to expect will be our guaranteed lifestyle, and there is much disappointment and frustration.

We are addressing those issues one student at a time, something we can do at one of the smallest law schools in America. Just yesterday I got a call from someone at the US Patent & Trademark Office offering to personally track down the applications of Maine Law graduates that may have been lost in the system to make sure they get considered if not hired by the agency. Another friend who hires contract lawyers to do e-discovery talked to me for an hour about training our recent graduates in the latest document review technology so they will be competitive for contract work in the near term, and for entry-level litigation positions as well. This would be exclusive for our students. Employers are hiring our students for internships out of loyalty to our school even if their general counsel didn’t go here. One of the things about Maine is that people love the state, and by extension love the law school. So we have friends willing to help our students one by one, which is the way it should be.

 


Law & Innovation Blog

After ten years, here is what the Center for Law & Innovation does really well: We help law students gain experience with intellectual property law and IP transactions. We help them appreciate how interesting, cautious, vulnerable and fascinating inventors are, and what a deep sense of satisfaction one gets helping an individual understand the legal value and potential of his ideas. Many times, our clients hear disappointing news about the novelty of their creations. It turns out people keep having the same ideas over and over. But our students deliver those messages with compassion and care, grasping that much of legal counseling is teaching others about the law so they can gain a deeper understanding of how to work more effectively with it next time.

Here’s what else we do well: We have a positive impact in the lives of hundreds of Maine citizens every year, whether we help them register a trademark, apply for a patent, negotiate a license agreement, fend off litigation, protect a trade secret, or avoid making a costly mistake. Through all this work, one-on-one and with no meter running, we help them learn to improve their business acumen, understand intellectual property law, and feel valued and celebrated for their entrepreneurial spirit.

Is it ever frustrating? Sure. I wish Maine boasted a thicket of technology innovators and entrepreneurs to rival Cambridge, Boulder or Silicon Valley. What rural state would not want a piece of that? But I have learned that even though economic growth through innovation has not blasted off here since our creation in 2000, we make a difference every day. And that’s very satisfying.


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