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E-Discovery in Patent Litigation

By Eric B. Evans and Jennifer T. Lorch

Eric Evans is a partner in Mayer Brown’s Palo Alto office and a West Coast co-chair of the firm’s Electronic Discovery & Information Governance practice. Jennifer Lorch is an associate in the Palo Alto office of Mayer Brown's Intellectual Property practice.


The general counsel of a technology company has received a complaint alleging patent infringement by the company’s highest-grossing product. The potential amount of damages is not yet calculated, and the general counsel wants to minimize the costs of preserving, collecting, reviewing and producing electronically stored information (ESI) as part of the investigation and discovery process.

Factors Impacting eDiscovery Costs in Patent Litigation

The number of patent lawsuits filed nationwide is increasing yearly. The complexity of the substantive issues with regard to the patents and technologies involved, as well as the related damages issues, are ever increasing.

Patent litigation is particularly high cost litigation. This is in part due to extensive costs associated with the discovery process and, in particular, the time and effort involved in searching, reviewing and producing large quantities of electronically stored information. Patent litigation costs are driven by the complexity of the technology at issue, the prevalence of prior art, the number of claims asserted, whether the companies are competitors, the product...

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