The lower costs and cost certainty attributable to flat fee IP litigation has, unexpectedly but not unsurprisingly, appealed not only to traditional consumers of IP litigation, but created a market of small, often foreign, high tech companies who never before could afford top quality IP legal services.

With that said, according to Dean Gonsowski of EWeek.com,

Pre-trial discovery expenses alone now represent 50 percent of litigation costs in an average case [and i]n situations where discovery is actively used, it could represent as much as 90 percent of litigation costs, approaching and perhaps exceeding $1 million on a single case.

So what we – at CLP – quickly discovered was that it was not enough to keep attorney fees in check, we needed to re-think the way law firms conduct discovery to cut the total costs drastically for clients.

Recently CLP represented a Taiwan based wireless broadband communications device company. The company had only 4 full time employees, but a promising technology that made it the target of an IP suit from a competitor. One of our early challenges, therefore, was to collect documents from work stations and peripheral devices of employees in Taiwan under a budget that would allow the cash poor company to defend itself and eventually realize its forecasted profitability.  Early estimates from vendors were around 9-12k.

We eventually figured out how to do it for 3k.

How?

  • Flesh and blood is expensive: Putting bodies on the ground in Taipei, Taiwan is expensive. To fly from the US, a forensic collector costs about $3k in travel expenses alone (plane ticket, hotel, travel time). Put an attorney on the plane next to him (remember, we bill flat fees so hours in transit do not help our bottom line), and you add another ticket, hotel and take a valuable team asset out of the loop for several days.

The only way CLP was going to meet our client’s financial limitations was to avoid sending teams from overseas. The solution was not immediately clear.  We polled several top e-discovery vendors, and not one of them could locate a collection vendor in Taipei. There were collectors in China, and Japan, but they were no cheaper that working with a US forensic specialist.

  • Work with someone creative: Sometimes all you need to know is where you need to be, and you can leave it to the experts to help you get there. In this case, we were introduced to David Townsend of eFor Computer forensics. He introduced an approach that helped tame the costs.
  • When the old-fashioned way fails, leverage technology: eFor recommended that we Fed Ex hard drives to the client, with a software tool called Titan collector (a top notch tool from MicroForensics) already installed [**authors note- correction from previous incorrect attribution**]. Those drives, when connected to a workstation, froze it, and allowed remote control from the US.  It also automatically made unmodified forensically defensible copies of directories which we specified. When done, the hard drives were shipped back to the US, saving the client thousands

Titan Collector software licenses and drives were certainly not free, but they are thousands cheaper than sending a team and proved just as effective. In the end, we were capable of making MD5 hash verified copies of hard drives, and no one needed to board a plane.