No need to explain complicated patent law to jurors when the ESI is so convincing

the iPhone has a “beautiful design”, and “easy to copy” hardware. – internal Samsung report [1]

The Background

In one of the most significant Intellectual Property cases of our time, a jury has awarded Apple over one billion dollars in damages in a patent case involving the design and functionality of Apple’s treasured iPhone. Apple alleged that Samsung had ripped-off their iPhone design and a number of features. Before the trial, legal commentators predicted it could be a difficult case to win because of the challenge of describing the complex functionality of high-tech applications and mobile software to jurors. As it turns out…much of the anxiety over how to communicate these complex issues in plain English was not necessary. Why not? Because a key piece of evidence used to win the case was an internal Samsung report touting the iPhone’s “beautiful design” and “easy to copy hardware”. Really. This is the sort of smoking gun hot document that makes IP litigator’s dreams come true. Juror’s eyes may glaze over when describing software code, but they certainly understand what “easy to copy” suggests.

What does this mean?

Well, for starters, this is yet another clear reminder that otherwise smart people continue to create electronic documents that are both dangerous and discoverable; even as awareness of these pitfalls increases. This is bad news for general counsels and company shareholders…but good news for plaintiff’s attorneys seeking the digital goodies that will help them win lawsuits. A large courtroom display of a blow-up of an emotionally charged internal report or email is often worth even more than technical testimony or other hard evidence.

The Take-Aways

Counsel clients on privacy.  Counsel clients on privacy.  Many of your clients probably issue company-owned iPhones, tablets, and other devices to their employees.  It is highly likely that these employees are using those devices for personal use.  Here are some tips…

  • Counsel.  Use these emerging cases as opportunities to engage your clients in discussions about Electronically Stored Information (ESI) and their internal practices and policies.  Remind clients that some discussions are simply too sensitive to put in writing.  Think this is rudimentary?  Tell that to Samsung.
  • Keep only what you need!  Most of the damaging documents that are discovered during litigation did not need to be saved.  Advise your clients to regularly purge ESI that is not subject to preservation requirements.  Companies must employ an internal document management program that removes electronic documents when their useful life is over.
  • Go for it.  Yes, recommending engaging in electronic discovery in our digital world does seem obvious, but the fact is that many litigators remain reluctant.  While it is true that eDiscovery can be difficult and confusing, litigators ignore ESI at their own peril.  If you are still uncomfortable with the digital world, task someone on your staff with being your Electronic Discovery Liaison.

[1] “How Apple Got Its Case Across”.  By Jennifer Smith and Steve Elder.  The Wall Street Journal.  August 27, 2012.