AIPLA Report of the 2003 Economic Survey: Median Estimated Total Out-of-Pocket Cost Of Litigation
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Discovery, the process by which a litigant may compel parties to disclose information that the litigant can use to prepare its case,
typically begins early in litigation. Discoverable subject matter includes information that the other side intends to use
to prove its own case, including information regarding how its independent experts plan to testify.
Contrary to depictions in popular culture, litigation in the US is designed to avoid surprises at trial. This can make discovery
particularly intrusive. Parties often are compelled to gather and produce truckloads of internal documents, including voluminous
electronic records and information, and to make their scientists and other personnel available for hours of questioning at
depositions.4 The discoverability of electronic communications can lead to embarrassment, or even the identification of what may appear
to be "smoking gun" evidence, because employees often engage in casual conversation using such technologies.
During or after discovery, litigants typically file motions for summary adjudication of those claims or issues that do not
need to be decided by a jury because they are not genuinely disputed by the parties. The granting of summary judgment motions
narrows the case and often provides settlement leverage to the prevailing party.
As the trial date nears, litigants exchange witness and exhibit lists, argue over what evidence may eventually be shown to
the jury (or to the judge, if no jury has been requested by either side), and haggle over how the jury should be instructed
regarding the applicable law. During jury selection, each side may usually excuse a handful of candidates without having to
articulate any cause. Once the jury is empanelled, the parties are given the opportunity to deliver opening statements, previewing
what they expect the evidence will show. Each side next introduces its evidence and calls its witnesses, which are in turn
cross-examined by the other side, and then the parties argue the evidence to the jury in closing statements. Final judgments
based on jury verdicts are often appealed.
Trade Secret Litigation
Although trade secrets are governed by state law, they are frequently litigated in federal courts when the dispute involves
litigants from different states. Federal courts apply state trade secret laws in such circumstances.
Specific requirements vary from jurisdiction to jurisdiction, but a plaintiff alleging misappropriation typically must prove
that: (a) it has a protectable trade secret, (b) the defendant acquired knowledge of the trade secret in violation of a duty
of confidentiality, (c) there is actual or threatened use, and (d) such use has injured or would injure the plaintiff. Defendants
typically argue that the relevant subject matter is not a trade secret and/or that it violated no duty to the plaintiff. Available
remedies for trade secret misappropriation generally include injunctions against the defendant, and perhaps also against any
third-party recipients of the trade secret information. Damages usually are also available, but they are often difficult to
prove. Under many trade secret laws, the prevailing party can recover attorneys' fees in certain circumstances.
A plaintiff typically must disclose the intimate details of its trade secrets during discovery and at trial to prove misappropriation.
Similarly, defendants often must disclose their own trade secrets in response to discovery by the plaintiff. These disclosures
not only educate opposing parties, which are often vigorous competitors, they also increase the risk that the trade secret
will become public via the participants in, or record of, the litigation itself. Litigants must seek permission to make court
filings containing trade secret information "under seal" to avoid public disclosure, and they should request to have the courtroom
closed to the public at appropriate intervals during trial.
Patent Litigation
Patents are litigated in the biopharmaceutical industry perhaps more often than any other form of IP. Issues of patent validity
and infringement are commonly raised in such suits,5 but disputes relating to who invented patented subject matter (and thus who owns the corresponding patent) also arise — especially
when there has been some sort of collaboration between organizations.6
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