Darren Schwiebert, Fredrikson & Byron, Shareholder in the firm's Litigation, Intellectual Property Litigation, and Intellectual Property practice groups.

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<<While in law school, Darren Schwiebert became fascinated by the intersection of law and technology. He thought he would go into insurance abrogation because he liked studying case law involving insurance companies who had paid out claims and then found a way to recoup their losses by discovering the cause of a fire, for example, or a car crash.

But when Schwiebert worked on his first patent case, he knew he was hooked. Patent law combined his love of the law with his interest in the latest technologies. And it allowed him to work with some brilliant inventors fighting to protect their inventions. While his practice predominantly focuses on patents and intellectual property litigation, he also handles trade-secret cases and copyright law.



"For me, patent litigation is entirely about the toys, the technology," Schwiebert told LawCrossing. "It amazes me — the opportunity that I get to learn about all of these technologies as it relates to these cases."

As a result, Schwiebert has become somewhat of an expert in a vast array of products, including high-performance snowmobiles, scoreboard displays, and MRI technology. Sometimes - as with MRI technology - Schwiebert defends a lone David inventor up against a corporate Goliath, but generally the parties who choose to sue over patents are companies because of the high cost of litigation.

Schwiebert advises attorneys interested in patent law not to be intimidated by the science and says there's no Harvard Law School.

"Part of what patent cases are about is explaining to a judge or jury the technology in a format that they not only understand, but that they can apply legal doctrines to," he said. "Maybe when you get to the higher end of the technology — for example, the MRI technology — it may take me longer to understand the core science than somebody who has exposure to that particular science before. But all of these cases are about understanding and learning what the technology is."

Schwiebert, who works with Fredrikson & Byron in Minnesota, says the legal profession has been rapidly catching up to new technologies in recent years. As a member of his firm's technology committee, he is the litigation person in charge of technology for the litigation group and helps keep attorneys abreast of ways they can use technology in their cases, whether through Flash presentations or electronic files.

He works closely with the firm's litigation support administrator, Chad Papenfuss (see this week's Legal Staff profile), on studying new technology and how it impacts litigation. The two men are not IT staff, so don't call them if your keyboard is jammed.

"There are kind of two aspects to that. The first is the more glamorous, which is the use of technology in court proceedings and technology for presentations to jurors, presentations to clients, presentations to judges," he said. "And then the other side of it, which is less glamorous and equally important, is the technology that supports the litigation process — from imaging documents and document databases to managing large document-intensive litigation to real-time deposition transcripts that can be manipulated and annotated to assist in depositions."

Electronic Discovery is becoming an increasingly important area of law for the firm, especially as more and more documents are filed and stored electronically. Schwiebert says there are many gray areas concerning electronic data that are gaining prominence in patent and other types of litigation. A traditional paper document, for instance, is different from a printout of an electronic document because certain data, called meta data, may be missing from the printout.

When you print out an email, you will not see who the email went to if the recipient was "BCC'd" or blind copied. Schwiebert thinks we will see an increasing number of cases where computer hard drives are subpoenaed by forensic experts to recover data or emails believed to have been deleted.

"A lot of times, the meta data will contain information about who accessed it and when they accessed it. In patent litigation, that type of information can be valuable," particularly when establishing timelines in a case, Schwiebert said. "I'm always amazed at what people might put in an email that they might not put in a letter. And those are great sources for litigation. It's funny. Maybe it's just human nature, but when you type a letter, it seems that people have a filter coming in that says, 'I may not want to say that or I don't mean that.' But emails are so quick, so instant. And there are some high-profile cases — a lot of them settled shortly after — where people have said things in emails that become just great evidence."

Although Schwiebert, who sits as a volunteer Conciliation Court Judge in Hennepin County about once a month, has never used personal emails in one of his cases, he says he has heard about several recently where "private" Hotmail and other accounts have been mined for data.

So be careful what you write - even in your "private" email.

Please see this article to find out if litigation is right for you: Why Most Attorneys Have No Business Being Litigators: Fifteen Reasons Why You Should Not Be a Litigator

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