Patent Law

Andrew Conry-Murray writes for InformationWeek (From the June 23, 2008 print issue) about how, "[f]ailure to manage e-mail can cost millions in court. A popular framework and an archiving system can help get your house in order--and pay dividends in the legal realm and beyond."

In January, U.S. District Court Judge Barbara L. Major hit Qualcomm (NSDQ: QCOM) with an $8.5 million penalty for failing to produce e-mail relevant to a patent lawsuit against Broadcom (NSDQ: BRCM). "Qualcomm intentionally withheld tens of thousands of decisive documents from its opponent in an effort to win this case and gain a strategic business advantage over Broadcom," Major wrote. At issue: Qualcomm failed to search the computers of key witnesses before completion of the trial, a catastrophic oversight because e-mail disputing Qualcomm's main argument was subsequently found by a Qualcomm attorney.

Then Qualcomm compounded its error by not turning the newly discovered e-mail over to Broadcom.

Because nothing gets a product sold like the threat of litigation, we're seeing a surge in two markets: e-mail archives, and tools to aid in legal discovery, the process by which information relevant to litigation or an investigation is found, analyzed, and turned over. Legal discovery is the new growth engine for archiving technology: Gartner estimates spending on discovery software and services will grow 35% every year for the next three years, while IDC forecasts that sales of e-mail archiving applications will jump to $1.7 billion by 2011, up from $631 million in 2007. And this spring saw significant activity in the archiving market. Dell (Dell) purchased MessageOne, a software-as-a-service provider of e-mail archiving, continuity, and compliance services, for $155 million. Barracuda Networks and Trend Micro launched archiving appliances. And in April, Oracle (NSDQ: ORCL) announced a forthcoming product line, the Universal Online Archive, to store and manage unstructured data; its first module will be the Oracle E-Mail Archive Service.

The full article is a nice overview of the issues facing companies when confronted with e-discovery.  Based on a major e-discovery project that I managed two years ago, the tools are a tremendous aid, but the real challenge I found was in selecting keywords and then sifting through the massive volume of responsive documents to get to the truely useful material.  This litigation involved dealing with documents across multiple media and locations with little guidance from former employees of the now defunct company as to how the data was archived over time.  I learned a lot about the importance of having a system in place that anticipates the future need for e-discovery while at the same time yielding substantial business benefits.  Read the full article here.