PLI s 8th Annual Patent Law Institute

Transcription

1 PLI s 8th Annual Patent Law Institute Managing Patent Litigation Michelle Waites Senior Patent Counsel Xerox Corporation

2 Focus on Efficiency Focus on Controlling Costs At the Start of the Case Thorough Review of Complaint & Patents Identify and Learn About Accused Products High Level Understanding of Technology and Products Identify Internal Experts Initial Estimate of Financial Exposure Need to Engage Outside Counsel? Page 2 February 2014

3 Efficient Management of Outside Counsel Who Is Best Under the Circumstances? Case Likely to Go to Trial? Experience in Relevant Jurisdiction Strategic Approach Prior Litigation Involving the Same Patents, Same or Similar Products Representing Codefendants? Number of Cases to Trial and/or to Verdict Financial Exposure to Client Attorney and/or Firm Reputation Expertise in Technology and Other Issues in the Case Page 3 February 2014

4 Efficient Management of Outside Counsel Division of Responsibility Do What You Can In-House Farm Out Only As Necessary Know Business Team Processes How is Information Reported to Management Where Are Relevant Documents Typically Stored? Consider Building/Maintaining a Discovery Database/Repository Avoid having to repeat document collection when using a different firm. Page 4 February 2014

5 Efficient Management of Outside Counsel Conflicts Retention and Billing Policy Staffing Lean; fewer attorneys, all knowledgeable about the case no payments for Basic Training i.e., no 1 st year and/or summer associates Billing dollar limits, acceptable fees & disbursements Early Disposition Within 60 days; assess potential for early disposition, effective mediation, arbitration or other alternative dispute resolution. Page 5 February 2014

6 Efficient Management of Outside Counsel Motion Practice In-house Counsel Approval Before Filing Motions How Will The Motion Help Advance The Case? What Is The Likelihood Of Success? What will it cost? Depositions Material Witnesses Only Require Cooperation With Opposing Counsel to Limit Discovery Page 6 February 2014

7 Efficient Management of Outside Counsel Communication Ongoing Periodic Reporting Exception Reporting New Developments and Any Impact On Strategy Budget or Budget Timing Reasons Behind Strategic Decisions Page 7 February 2014

8 Alternative Fee Arrangements Strategic Control to Get Desired Result - Shared Risk Predictability/Certainty in Budgeting Encourage Efficient Operation Reasonable Fee to Firm Difficult to Set In Advance Set Parameters for Modifications Rolling in less obvious firm driven costs? e.g., discovery, experts. Page 8 February 2014

9 Alternative Fee Arrangements Discount on Regular Hourly Rates Capped or Fixed Fees - Entire Case, Selected Phases Success Fee Incentives For Specified Outcome Blended Fee Hybrid Contingency Page 9 February 2014

10 Best Practices With Litigation Vendors & Consultants Investment at Earliest Stages Of Litigation Work with outside counsel and e-discovery experts - articulate goals End-to-end plan - establish milestones and guiding principles Periodic Status Meetings/conference Calls With e-discovery Vendor, Outside Counsel & In-House Personnel Collaborative effort by attorneys, subject matter experts, linguistic search experts and statisticians - the sooner the better Page 10 February 2014

11 Best Practices With Litigation Vendors & Consultants e-discovery - 3 Main Phases 1. Identification, Preservation, and Collection 2. Processing, Analysis, and Review 3. Production Page 11 February 2014

12 Best Practices With Litigation Vendors & Consultants Phase 2: Processing, Analysis, and Review Typically the Most Expensive Phase Need an aggressive but well-researched and statistically validated search term culling strategy Manual document review is very costly and time consuming Automated Document Classification technologies (CategoriX) are much more efficient and produce excellent results. Significant reductions in volume of data passed along for hosting and review (and thus, costs) through the strategic use of search terms. Page 12 February 2014

13 What is CategoriX? Xerox s automated document classification system for advanced strategic workflow management. A Statistical Modeling Approach based on Machine Learning Techniques The CategoriX process generalizes expert reviewer assessments from a sample of data across the entire review population quickly and accurately. CategoriX relevance scores can be used to accomplish a wide range of goals from sophisticated review prioritization and QC enhancement to wholesale document categorization. Page 13 February 2014

14 CategoriX Model-Building Process XLS Attorneys XLS XLS Analyze Corpus Review Samples Train CategoriX Test CategoriX Assess CategoriX Output Apply CategoriX Model Resolve Coding Conflicts Evaluate Results Attorneys XLS Attorneys XLS Page 14 February 2014

15 Example CategoriX Prioritization of Data for Optimized Review Workflow CategoriX Review Population Before Classification CategoriX Review Population After Classification Set Aside for Manual Review Due to Inadequate Textual Content CategoriX Training and Validation Samples CategoriX Classified as Top Priority for Manual Review and QC CategoriX Classified as Standard Priority for Manual Review and QC CategoriX Classified as Low Priority for Optional Manual Review and QC Page 15 February 2014

16 Avoiding E-Discovery Nightmares Devise and Follow Document Retention Policy Litigation Hold Upon Receipt of Complaint or Sufficient Threat Revise and Redistribute as Claims Become More Specific Agreement With Opposing Counsel - Stipulate As To Types Of Documents To Be Produced Early Production Of Documents That Can Eliminate Claims Page 16 February 2014

17 Avoiding E-Discovery Nightmares Proactive scoping and management of the e-discovery process Understand and Stick to the Goals easier to adapt and discover efficiencies even when obstacles arise Page 17 February 2014

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