On Jun 10, 2008, at 12:08 AM, Kontra wrote:
I assure you if I walked into the lawyer's offices over at Google,
Yahoo,
Adobe, Microsoft, or pretty much any major Silicon Valley company and
informed them that people were discussing and posting patents on
it, this
distribution list would *lose* every single one of those people as a
contributor or subscriber to this list.
That may be the practice in those places, but doesn't make it any
less absurd.
This is information that's publicly available to anyone with a web
browser in multiple different ways that are untraceable unless you're
under surveillance. How on earth can anyone prove that a person did
NOT access such public info? If you recuse yourself from every venue
that can conceivably address patents then I've got a cave for you just
north of Kabul. Just because you played ostrich on a mailing list does
not mean you didn't access it via multiple other ways. Presumption of
guilt doesn't require that you prove a negative.
You think those lawyers are going to bar you from accessing the
Internet at all?
It's clear that you don't understand how legal argument works.
It works like this: The lawyers, in the discovery phase, ask for every
email communication which could have mentioned the patent that landed
on your corporation's servers. They paw (using the latest e-discovery
technology) through each one and find the email that talks about the
patent. They then ask to depose each recipient of the email.
Your organization's represented counsel will then try to motion to not
have you deposed, but the objection will not be heard (because,
basically they have to depose you to find out if your testimony should
be struck). Then you spend hours in preparation, where the lawyers
tell you exactly how you should or should not answer each of the
possible questions they think you'll be asked.
Then you'll enter the deposition room and for somewhere between 4 and
12 hours (maybe as long as 18), you'll get asked dozens of different
questions, all getting to the same point: could you have been
influenced by this patent? Each time, your organization's represented
counsel will object on grounds that this testimony is unreliable or
not to point or outside the scope of interest. Each time, the opposing
counsel will instruct you to answer anyways. A court report (often
videotape these days) will record every ah, um, and but.
You have to be very careful about your words. One slip and you'll have
basically admitted that you did see the patent, you were aware of it,
and it *might* have influenced your subsequent work.
And that's just the first round.
Having just spent weeks pouring through 1000+ pages of similar
testimony from corporate executives, IT managers, and other witnesses
to render an expert opinion in a case I've been working on, I am
completely sympathetic to the what-you-don't-know-can't-be-made-into-
incuplatory-evidence train of thinking.
Again, folks, as crazy as it all sounds, it's a reality for some folks
(not all of us).
Please show some courtesy.
Jared
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