A Working Defense Discovery Strategy in the E-Discovery Era

You (your client) are caught stealing software. The copyright owner is demanding the incriminating documents. What do you do? The following is a simple set of steps you can try at home.

These tactics are not novel, but have been successfully applied by Symantec Corporation's Fenwick attorneys and is now being reused in the more recent Chordiant Software Inc case. It is one of those essential tricks you need to win the discovery war.

Suppose you want to produce thousands of pages of public documents, such as SEC filings found on http://www.sev.gov . The naive ones of you may have sent a 200-page SEC filing to the PDF converter comes with Adode Acrobat, and then Bates numbered the PDF (under Document Processing->Bates Numbering in Acrobat).

Don't. You are giving your opponent a nice, single, small, text-searchable
Bates-numbered PDF with scalable fonts.  That's way too easy for the plaintiff and for the Court.

Instead, you do the following 6-step procedure:

1) Convert the text document into images. This can be easily accomplished by choose "Print As Image" when printing a text document (such as a Word document, an email, or a web page) through the PDF printer.
Images consist of little dots of black and white, like the pictures on newspapers. They are not searchable and when they are scaled, they lose quality.

2) Still, the above is not good enough. You are still putting the whole document into a single mutli-page file. Plaintiff may read the first page and quickly skip the whole file. So the next step is essential: instead of keeping the pages of a document in a single computer file, put every page of the document into a separate image file. For instance, with a 200-page SEC filing, you create 001.tif, 002.tif, 003.tif, up to 200.tif. Acrobat has this functionality of splitting the document built-in. Check this out for a good result.

You put up a smile: the Plaintiff will have to look through all of these pictures to find the beginning and the end of each document.

3) Now, that single document is going to cause the Plaintiff's attorney to spend quite a bit of time, but it is insufficient to bog him down. So, you pile up on him with many such documents. He will get thousands of Tiff images, named 000001.tif to 10000.tif. That will really slow him and his computer down.

4) Then, the real killer. You print the documents out and then scan them back in at the lowest resolution and lowest contrast.  The images will appear light and pale and barely readable.
This crucial step will defeat any attempt by your opponent to escape your death trap. For instance, OCR will not work well on such poor images. Try OCR the images here with the newest Adobe software, and you will find that it can't even get the URL at the top of the image right. By the time your opponent finishes reading 200 pages of these, his eyes are so strained, he has to rest two hours before continuing, and his life expectancy will be reduced by two days as a result. Now, you put up a big grin.

5) Of course, you never produce the damning evidence, the ones that show your willfulness and your financial gain from the IP theft.

6) The best part is, you get to bill your clients a lot of money. The painstaking steps spent on making this web document into these pale pictures take considerable time. You laugh all the way to the bank, and you bring home a pile of cash so your family and kids are happier.
That's the truly rewarding moment.

It is quick and dirty, yet surprisingly effective for its simplicity. It worked, it really works, and it will continue to work.

Thanks for reading this free lesson for litigating in America.

Disclaimer & Acknowledgment: The Author does not claim any patent, trade secret and other IP rights of the method and apparatus above. These valued methods have been at least used in three cases already by Harvard graduated attorneys.

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