The Case Is in the Files: Electronic Discovery, Source Code Review, and the Evidence That Decides IP Cases
By Casey Scott McKay ·
The evidence that decides intellectual property cases is almost never created by lawyers. This article covers the modern discovery landscape — chat platforms, ticketing systems, wikis, recordings, and structured data — and the preservation duty that attaches long before a complaint is filed. It explains the rewritten proportionality standard and the intent-to-deprive threshold that made spoliation sanctions much harder to win. It then works through the ESI protocol term by term and the specialised legal regime governing source code review, including prosecution bars and printing caps. Later sections map each evidence category to the element it proves, cover privilege and clawback practice, and address cross-border collection and data protection constraints. It closes with the economics of discovery asymmetry and the practices that determine outcomes years before a case begins.
IP and Technology > Patent Litigation | Article | Published 17 December 2024 - Updated 29 March 2025 | Casey Scott McKay - marksy.us IP and Technology > Patent Litigation | Article | Published 17 December 2024 - Updated 29 March 2025 | Casey Scott McKay - marksy.us
The document that decides the case was written by an engineer who had no idea
Ask a litigator what won their last patent case and you will rarely hear a claim construction ruling. You will hear about a document.
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