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Re: MS partner sues Red Hat for patent violation ..

From: Tim Smith
Subject: Re: MS partner sues Red Hat for patent violation ..
Date: Sat, 07 Mar 2009 20:28:00 -0800
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <>,
 Ben Pfaff <> wrote:

> Tim Smith <> writes:
> > A lawsuit is very disruptive for both parties.  Pretty much anyone, not 
> > matter what side they are on, would rather have a suit that takes 2 
> > years in a far away district like EDT than a suit that takes 4 years in 
> > a nearby district.
> Why would I want a suit to be far away?  Won't it be far more
> expensive and inconvenient to litigate in a far-away district
> than a nearby one?

You don't want it to be far away.  But you also don't want it to take a 
long time to reach trial.  If you have to give on one of these, you will 
want to give on the first.

Between the time you file and the time it goes to trial, both sides are 
busy with discovery, and with preparing their cases.  From the point of 
view of an engineer at a software company who is a witness in the case, 
there are four main things that happen during this phase:

1. Depositions.  Depositions are taken were convenient for the witness.  
You can be deposed near your home, no matter where the suit is filed.  
That's what I chose for both of my depositions.

2. Discovery.  You will have to go through all your documents, both 
paper and online, finding relevant documents to answer the other side's 
discovery requests.  This, of course, takes place at your office, and 
your home if you ever take work home, so, like depositions, is not 
affected by where the suit is filed.

3. Phone calls with and/or meetings with lawyers.  This can get kind of 
annoying--they will be writing some document that has to be filed at 
midnight, and call you three hours before it is due, needing to know the 
answer to some highly technical question involving 10 year old code, for 
a product that's been off the market 8 years, and need you to answer, 
quickly.  (And it may not even be code you worked on--you may simply be 
the person still around who worked closest to it).

4. You ordinary day to day activities are disrupted.  You can't throw 
anything out that might remotely have something to do with the case.
You aren't supposed to read any outside commentary on the case.  You 
need to study your old code to be ready for questions (see #3).  Our 
conference room because a document storage area, making meetings 

Depositions and discovery end at some fixed point.  The phone calls from 
the lawyers and the disruptions continue all the way up until the trial.  
The lawyers are going to continue fiddling with the case, right up until 
the time of trial, so if you file in a district where it takes 3 years 
to reach trial, instead of a district where it takes one year, you have 
to put up with this stuff for 3 years instead of one.

When it is time for trial, you will have to go to where the trial is, 
and stay in a hotel until the trial is done.  You will probably have to 
do this even if the trial is local.  In the case I was involved with, 
they told me that even if we filed in Seattle (a short drive and a ferry 
ride away from where I live), I would have to go to a hotel--they would 
not want me going home every night, and maybe trying to sneak in some 
work from the office.  They don't want that--they want people at the 
trial to be fully thinking about the trial.  Also, the lawyers are 
constantly tweaking their case, all through the trial (e.g., at ours, 
the other side managed to bring up something unanticipated, so our side 
had to spend an hour the next day dealing with that--and since we only 
have 14 hours total, they had to rework a fair bit of their remaining 
arguments to stay in the tie limit).  They need everyone nearby in case 
they need their help.

So as far as expenses due to trial location goes, really the only 
difference between local and far away are the travel costs, and that's 
almost insignificant compared to the other costs.  No way are travel 
costs going to be enough to counterbalance the costs of having the suit 
take a year or two longer to reach trial.  So, in almost all cases, you 
are better off filing where you can get the speediest trial, rather than 
filing locally.

--Tim Smith

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