Legal insights
Analysis from the front lines of IP & technology law.
Our attorneys write about the developments shaping intellectual property—from the PTAB and the Federal Circuit to the practical realities of protecting fast-moving technology.
Litigation Hold and Evidence Preservation Checklist: A Practical Checklist
The duty to preserve evidence attaches when litigation is reasonably anticipated, which is usually before anyone has filed anything and often before counsel is retained. This checklist covers the whole lifecycle: recognizing the trigger and documenting it, scoping custodians and systems, issuing a hold notice that people can actually act on, executing the technical suspensions that make the notice real, and maintaining and releasing the hold. It gives particular attention to the sources that cause most modern spoliation findings, including collaboration platforms with short default retention, ephemeral messaging, personal devices, departed employees whose laptops are reimaged on a thirty-day cycle, and third-party cloud data. Each phase is paired with the reason it matters and the authority behind it.
Expert Depositions: Taking Apart the Opinion, Protecting Your Own Expert, and Building the Daubert Record
An expert deposition is where a Daubert motion is won or lost, and where the trial cross-examination is either built or thrown away. This article explains the rules that govern expert discovery in federal court: the Rule 26(a)(2) report and summary requirements, the sequencing and rebuttal windows, the 2010 work product protection for drafts and attorney-expert communications and its three exceptions, consulting-expert immunity, who pays the expert's fee, supplementation, and the exclusion remedy of Rule 37(c)(1). It then works through the evidence rules the deposition is built around, including the December 2023 amendment to Rule 702, and the cases that define reliability, from Daubert, Joiner, and Kumho Tire to Sardis, Paoli, and Elcock, with the patent damages line from Uniloc through Exmark as the running example of the ipse dixit problem. The second half is technique: the goals of the taking lawyer, the funnel structure, bias and prior testimony, the learned-treatise setup, hypotheticals, closing the doors, and the mistakes that waste the day; then the defending lawyer's job, from preparation sessions and privilege to objections, instructions, errata, and supplementation. Reliance material subpoenas, fee disputes, remote depositions, dual-hat and formerly consulting experts, foreign experts, and the use of the transcript at trial and on summary judgment round it out, with worked examples from a patent royalty deposition and a copyright software expert defense.
Work Made for Hire Determination Checklist: A Practical Checklist
Whether a work is "made for hire" decides who is the author and owner of a copyright from the very moment of creation, and getting it wrong is one of the most common and damaging mistakes in copyright practice. This checklist walks an author, hiring party, or counsel through the two and only two routes into work-for-hire status, the employee route under the CCNV v. Reid agency test and the commissioned route limited to nine enumerated categories with a signed writing, and explains the belt-and-suspenders assignment that closes the gap when work-for-hire fails. It flags the consequences for registration, ownership, and the non-waivable termination right, and the special context of contributions to a collective work. Confirm the analysis against current authority for your facts.
Entertainment and Media Production Toolkit: Rights, Talent, and Distribution
A production is a copyright, and its value depends entirely on whether the producer can prove ownership of every element inside it. A distributor's counsel reviews the chain of title document by document, and an errors and omissions insurer declines to write a policy on a picture with gaps—which means a film nobody can insure cannot be distributed regardless of its quality. This toolkit follows a production chronologically: acquiring underlying rights and building chain of title, engaging writers and talent, financing and entity structure, the clearances that must be completed before delivery, distribution and sales agreements, delivery itself, and the residual and reporting obligations that survive the production. It runs the production arc from underlying rights and option agreements through talent deals, clearance, delivery, and distribution.
Biometric Data Compliance Checklist: A Practical Checklist
This checklist gives companies a phase-by-phase program for collecting, using, sharing, and destroying biometric data lawfully, built around the Illinois Biometric Information Privacy Act and extended to Texas, Washington, Colorado, California, New York City, Portland, and the Federal Trade Commission. It starts with an applicability screen and a full inventory of biometric systems, including systems that are easy to miss such as identity-verification vendors, voice authentication, virtual try-on tools, and AI training datasets. It then covers the public retention and destruction policy, written notice and release before collection, vendor contract flow-downs, time-clock deployments, facial recognition, voiceprints, AI training data, security, and executing the destruction schedule. Red-flag boxes, a deadlines table, and a list of common failure points drawn from litigated cases help prioritize the work. Each item links the governing authority and notes how courts have treated it.
Purchase Order and Terms of Sale Review Checklist: A Practical Checklist
Most companies have a purchase order form and an order acknowledgment form that were drafted years ago by someone no longer there, that have never been read against each other, and that contradict each other on every term that matters. Under UCC § 2-207 the usual result is that the conflicting terms cancel and the Code's default rules apply—which for a seller means full implied warranties and uncapped consequential damages. This checklist is a form audit: it walks each document's role in formation, the terms that must be present and how each must be drafted to survive, the process controls that decide who wins a form fight, and the master agreement approach that avoids the problem entirely above a defined threshold. This checklist audits both forms against each other, term by term, and identifies the changes that put your document on the winning side of the analysis.
Auto-Renewal and Negative Option Disclosure Checklist: A Practical Checklist
Subscription compliance is a design problem with a documentary requirement, and both halves are auditable in an afternoon. The design requirement is symmetry: whatever the signup takes in clicks, screens, seconds, and medium, cancellation takes no more. The documentary requirement is versioned screenshots of both flows, so that three years later the company can show what a particular subscriber actually saw. This checklist walks the enrollment flow element by element, then the cancellation flow with a stopwatch, then the records, governance, and metrics that a regulator or a plaintiff will ask for—and closes with the state-specific requirements that do most of the practical work.
Gray Market Goods and the First Sale Doctrine: Parallel Imports, Material Differences, and Exhaustion
Gray market goods are genuine products, made by or for the brand owner, that reach a market through channels the brand owner did not authorize. Because the goods are real, the usual trademark claim fails: the first sale doctrine exhausts the owner's rights once it puts the goods into commerce. The exception that swallows a great deal of the rule is the material differences test, under which genuine goods that differ materially from the authorized domestic version are treated as different products and their sale is infringement. This article explains the three structural varieties of gray market trade identified in K Mart v. Cartier, the material differences and quality control theories developed in the First, Second, Third, Eleventh, and D.C. Circuits, the customs regime under 19 U.S.C. section 1526 including the Lever rule labeling exception, and the very different exhaustion rules that now govern copyright after Kirtsaeng and patents after Impression Products v. Lexmark. It then turns to what actually works commercially: distribution controls, serialization, product differentiation, warranty policy, and authorized dealer programs, with attention to the antitrust limits on resale price maintenance. It closes with a worked example, a program checklist, an FAQ, and related reading.
Rule 45 Subpoenas to Nonparties: Service, Objections, and Motions to Quash
A subpoena is the only discovery device that reaches someone who is not in the lawsuit, and that fact drives every rule that governs it. The person receiving it has no stake in the case, did not choose to be involved, and is entitled to protection from significant expense—which is why Rule 45 contains a compliance geography, a fourteen-day objection window, a mandatory duty on the issuing lawyer to avoid undue burden, and a sanctions provision that gets used. This article covers issuance and service, the place-of-compliance rules that trip up experienced practitioners, how to object and when objecting alone is enough, motions to quash and to compel and where they must be filed, cost-shifting, privilege assertions, and the special regimes for banks, health care providers, and electronic communications providers. It closes with practical guidance for both sides.
Investor Visas: The E-2 Treaty Investor and the EB-5 Immigrant Investor Program
Two very different programs let a foreign national obtain status in the United States through investment, and choosing between them is the first and most consequential decision. The E-2 treaty investor visa is a nonimmigrant status available only to nationals of countries with a qualifying treaty, requiring a substantial investment in a real operating enterprise the investor directs, renewable indefinitely but never leading to permanent residence by itself. EB-5 is an immigrant category leading directly to a green card, requiring a defined capital investment and the creation of ten jobs, with a regional center option that permits passive participation. This guide covers eligibility, the investment and job creation standards, source of funds documentation, the process and timeline for each, and the tax consequences that should be modeled before either is filed.
Applying for an Environmental Permit: A Practical Guide
An environmental permit is the document that makes an operation lawful, and obtaining one is a project management exercise as much as a legal one. Most programs are administered by delegated state agencies whose requirements exceed the federal floor, most applications are found administratively incomplete on first submission, and the timeline is driven by agency review cycles and public participation requirements rather than by the applicant's schedule. The decisions that determine how long it takes and what conditions result are made before the application is filed: whether the facility can be structured to stay below a major source threshold, what control technology the analysis will support, and whether the site presents a jurisdictional or community issue. This guide covers the preparation, the application itself, the review and public participation process, and the appeal and compliance obligations that follow issuance.
John Doe Litigation Toolkit: Early Discovery Motions, Platform Subpoenas, and Motions to Quash
This toolkit collects the papers that John Doe identification litigation runs on, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing authority. The plaintiff's templates cover a triage memo, a capture log and declaration, a preservation request, Doe complaint paragraphs, a motion for leave to serve subpoenas before the Rule 26(f) conference, falsity and harm declarations, a proposed order with notice and Cable Act provisions, and subpoena riders for platforms and internet providers. Further templates supply a court-directed notice to the account holder, a DMCA 512(h) subpoena package, and a verification memo with a motion to substitute a named defendant. The speaker's template is a motion to quash with a motion to proceed anonymously and an anonymous declaration, and the platform's are a user notice and an objection letter. A protective order rider for identity information, a deadline tracker, an FAQ, and practical takeaways close the toolkit.