They must defend themselves against lawsuits and must assert their rights against infringement. Intellectual property represents the crown jewels of an organization. Revealing details of intellectual property is unwise, but rules of legal discovery may compel exposing proprietary material.
Holders of intellectual property and their lawyers require the services of a trusted third party that:
Consider Iron Mountain Escrow for IP Discovery, a solution with over 50 secure locations near all major metropolitan areas in North America, plus international locations. Guarded, climate-controlled vaults store all types of intellectual property, and secure rooms are available.
Iron Mountain has extensive experience with physical security, legal discovery services, and software escrow. With more than 46,000 escrow customers — including 90% of the Fortune 500 — Iron Mountain’s reputation for security and responsibility is trustworthy and unmatched.
This service simplifies the logistics of discovery, reduces costs, and frees lawyers' time and facilities. Top law firms avail themselves of the convenience and confidentiality of Iron Mountain Escrow Services for IP Discovery to examine material.
In our increasingly litigious society, holders of patents and other intellectual property must balance security with discovery during litigation. Owners of intellectual property are at risk in two different ways: they must defend themselves when others bring lawsuits against them; plus, they must assert their rights against others who are infringing on their property. Owners of intellectual property must be prepared to meet these threats at any time.
For many technology enterprises, intellectual property represents the crown jewels of their organization. Revealing details of intellectual property — especially to competitors and litigants — is unwise and injudicious. However, the rules of legal discovery exist precisely to expedite the exchange of relevant — even though possibly proprietary — material.
Such intellectual property may include material in a variety of formats, including:
During the discovery phase of a lawsuit, either party can request evidence from the other parties. Any enterprise can find itself — and its intellectual property — the target of a compulsory request to produce evidence for a lawsuit. Lawyers for the defendants face the challenges of satisfying the discovery requirements of law, while simultaneously defending the confidential intellectual property of their clients. Practically, lawyers attempt to limit the distribution of intellectual property materials to a small number of people for a brief amount of time in a controlled location where the material cannot be duplicated or copied.
When representing plaintiffs, it is essential for lawyers, and possibly other experts, to gain access to necessary information. In this situation, plaintiff lawyers must satisfy the intellectual property owners that the material will remain confidential.
There are laws that dictate that legal discovery must proceed in a timely and expeditious fashion. Arranging the logistics of where and how litigants may obtain access to intellectual property materials — under adequate controls for secrecy — is a difficult and demanding process. Lawyers for all parties generally collaborate on a protective order, a legal document that strictly defines details of discovery, including:
At the same time, it is also desirable for lawyers to minimize disruptions at their own law firms by visits from opposing litigants.
The discovery process may be expensive. According to an article in Managing Intellectual Property (February 2009), “The discovery process may be expensive. According to the American Intellectual Property Law Association, the cost of an average patent lawsuit, where $1 million to $25 million is at risk, is $1.6 million through the end of discovery, and $2.8 million through final disposition.“ Anything that can limit the costs of legal discovery would be welcome to all parties to a lawsuit.
Thus, lawyers in lawsuits involving patents and other intellectual property are placed in the position of having to meet several challenges simultaneously. They must satisfy the laws of legal discovery and any pertinent court orders expeditiously. They must also satisfy their clients by maintaining secrecy (for defendants) and obtaining fair access (for plaintiffs). In addition, they need to satisfy agreed upon logistics, despite insufficient time, personnel, resources, and facilities.
A solution to the difficulties involved with legal discovery of patents and other intellectual property must meet several vital criteria. First, there should be a third-party entity that can take on the role of providing escrow for the intellectual property. Escrow is necessary during discovery to safeguard intellectual property involved in litigation. This entity must be independent of all the litigating parties to the lawsuit.
This entity should possess secure, supervised facilities with controlled access for viewing relevant material. Such facilities should have the capacity to disable networking or other outside communication, to prevent the possibility of copying source code or other electronic material. Since it may be necessary to retain the material safely for an indeterminate period of time, an onsite vault would be essential. The vault should be climate controlled to safeguard material in all types of formats.
In addition, this third-party entity must demonstrate significant experience with physical security, escrow services, and protecting intellectual property. All the litigants must recognize this entity as trustworthy for safeguarding the materials consigned there.
Finally, multiple locations, in North America and internationally, would be necessary for the convenience of all interested parties. That way, lawyers could arrange suitable sites to minimize travel and time for anyone who needs to be present for examining the escrowed material.
NCC Group Software Resilience has acquired Iron Mountain’s Intellectual Property Management (IPM) business. For more information on the acquisition, please visit our dedicated information hub, or contact Iron Mountain IPM.
