Intellectual Property Disputes With Forensic Analysis Need Lawyers’ Involvement: Cooley’s Michael Berkovits

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Michael Berkovits, special counsel for Cooley’s litigation department, authored the below article for Bloomberg Law.


Cooley’s Michael Berkovits says lawyers working on an intellectual property dispute should consult closely with forensic analysts and treat their findings as an investigative tool.

Computer forensic analysis has become a critical aspect of investigations and litigation involving intellectual property theft.

In-house lawyers and outside counsel often engage forensic analysts who use specialized software to comb electronic devices and accounts for forensic artifacts—digital traces of electronic activity that may be relevant to misappropriation of IP—and analyze their meaning.

Despite the central role of forensic evidence, legal teams may entirely outsource the process of forensic analysis to technical experts. Here are three important tips for maximizing the value of computer forensic analysis in an IP investigation or dispute.

Optimize early discussions with the analyst. Robust discussion at the outset can pay dividends down the road. Many lawyers, to their detriment, view forensic analysts as “cyber geeks” working in a bubble.

They may connect the forensic analyst with a company’s information technology administrator, facilitate access to devices and accounts, and with cursory background ask the analyst to “see what they can find.” This is a mistake. The lawyer should invest sufficient time to ensure the forensic analyst understands the entire context.

That entails communicating the subject’s role at the company, the scope of the subject’s access to company files, and the relevant series of events—such as a former employee suspected of copying company trade secrets on his way out the door, or a new hire potentially infecting the company’s IP by consulting trade secret documents from a prior employer.

The lawyer also should communicate relevant facts discovered to date, early theories, and possible counternarratives to test. They should promptly ascertain which devices and accounts are available for forensic analysis, and learn from the forensic analyst what that means for the investigation’s potential limits. This helps set expectations for the client and clarifies next steps.

Don’t be afraid to dive in. Forensic analysts typically provide a high-level summary of their findings. For many lawyers, this is the end of the process. But for those experienced in the value of forensic analysis, it is just the beginning.

Lawyers leading IP investigations develop a deep understanding of the facts from discussions with their client, emails, interviews, and other evidence, or from explanations proffered by the subject of the investigation, directly or through counsel.

These facts—particularly in the hands of lawyers well-versed in forensic investigations—are invaluable in developing follow-up questions and choosing areas of inquiry to maximize the value of forensic information.

For instance, perhaps evidence has developed since the forensic analysis was commissioned that now suggests activities on a particular date may be critical. In that case, the lawyer can collaborate with the forensic analyst on an hour-by-hour recap of computer activity on that specific date. This can be compared with evidence from emails, messages, and documents and inform new interpretations of forensic results.

The lawyer experienced in partnering with forensic analysts can ask to see the underlying forensic artifacts, often presented on voluminous spreadsheets. Lawyers can learn to work with analysts to filter the data or present it differently to reveal patterns that advance the legal investigation and produce critical evidence that otherwise might sit beneath the surface.

Deploy the findings. The forensic analysis’s results should guide next steps. For example:

  • Does a forensic analysis contain evidence that documents were taken but no evidence they were used? The lawyer should appreciate the distinction and communicate the implications to the client. A victim of IP theft may reconsider pursuing an expensive dispute without such evidence, and the alleged perpetrator may defend the case on the merits, even where evidence of misappropriation is clear.
  • Does the forensic analysis suggest trade secret documents were copied from company systems to a noncompany cloud account? The company should see if it can forensically collect, search, and remediate the contents of that cloud account, if necessary, as a condition to refrain from suing or as part of injunctive relief in a pending lawsuit.
  • Does the analysis suggest names of collaborators or how the information has been used? These are topics that should guide document review, interviews, and other investigative steps—whether in an internal investigation or in litigation.
  • In a defensive investigation, does the evidence suggest a third party’s trade secrets have polluted the company’s systems? The company can consider proactive remediation to limit damages in any future lawsuit or fend off burdensome litigation seeking emergency relief.

The lawyer who understands forensic analysis and treats it as an investigative tool rather than a black box is ahead of the game.

Reproduced with permission. Copyright July 10, 2025 by Bloomberg Industry Group, Inc. (800-372-1033) http://www.bloombergindustry.com

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

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