Discovery and the smoking gun

The New York Times just ran a piece by John Schwartz entitled “Pursuing a Piracy Claim Against Apple.”

I didn’t know anything about this lawsuit. But I read the article partially because I’ve been uneasy about the sudden deification of Steve Jobs who, to me, was a man who became very rich by “inventing” I’m not sure what.

What I am sure of is that Jobs either invented, or preyed upon, the powerful addiction credulous people seem to have for spending lots of money on a hot new gadget even before they evaluate what it does, and whether they need what it does. Besides, I don’t worship any god, especially not insanely rich industrialist-gods. If I did, I’d be a Republican, wouldn’t I?

Since I’ve been using a computer (first an IBM, then and now what they call a “PC”) since the early 1980s, I’ve had to be aware of the changes in technology and software. I’ve had to keep up. But I don’t change technology just because something new is out there. I’m a writer; if I’m using software I like on hardware that works for me, I’m happy. I do assume, you know, that what’s important and potentially valuable are the words I lay out, not the operating system that mucks around with the software I use to do it.

So I read the piece about Yale Professor David Gelernter, whose name was immediately familiar to me because I remembered that in 1993 Ted Kaczynski, a/k/a the “Unibomber,” sent Gelernter a bomb that did him grievous physical damage.

Professor Gelernter had to fight for his life then. Now he is fighting to prove his contention that his innovations were pirated by Apple for its computers, iPhones and iPads. He [sued] once and … won a stunning jury verdict [$625 million], but then an extraordinary judicial ruling took it all away.

What really grabbed my attention was an internal e-mail Jobs wrote — an e-mail that was turned over to Gelernter’s lawyers in discovery. This e-mail exemplifies everything wondrous and powerful about discovery, and why it’s crucial that a plaintiff and her lawyer read through every single line of every single page turned over to them:

Among the documents obtained from Apple was the e-mail Mr. Jobs sent in 2001 to his lieutenants after seeing an article in The New York Times about Scopeware [Gelernter’s program] …

Jeanne C. Fromer, a patent law expert at Fordham Law School in New York, called the e-mail from Mr. Jobs “as close as you get to a smoking gun.” Peter J. Toren, a patent litigator, summed up with a single word: “Wow.”

Gelernter’s case has now reached the appeal stage.

Any of us who has become a plaintiff hopes for a document that makes our lawyer say “Wow.”

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