November 22, 2011
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New Model Order Limiting E-Discovery Can Substantially Lower Cost
On September 27, 2011, at the Eastern District of Texas Bench Bar Conference, Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit revealed a model order that places dramatic limits on e-discovery in patent cases. Judge Rader spoke on the status and direction of patent litigation in the United States, contending that “the greatest weakness of the U.S. court system is its expense. And the driving factor for that expense is discovery excesses.” While specifically addressed to patent cases, this model order is easily adaptable to all cases and can be a powerful tool to limit the cost and inconvenience of electronic discovery.
What Limitations Are Included
The model order places much tighter and more specific constraints on discovery of electronically stored information ("ESI") than those currently provided by the Federal Rules of Civil Procedure.
The limitations include:
Additionally, there is one limitation that specifically addresses e-discovery in patent cases:
This provision can be easily adapted for broader application to all other areas of litigation. Although the model order comes from the Federal Circuit (as it was written specifically for patent litigation), it should be persuasive to other courts given that it addresses fundamental problems with e-discovery faced by all litigants.
What This Means for You
By insisting on incorporating these provisions into a court order at the onset of litigation, these limitations will help curb unnecessarily burdensome and costly requests for irrelevant material. By laying out specific stipulations regarding what can and cannot be requested, ESI production will be more focused and less wasteful.
If you are the party requesting production, these provisions place an onus on you to more carefully determine what information you need and how to efficiently search for it. By limiting the number of custodians and search terms, requesting parties must exercise due diligence on the front end of the process to ensure they provide targeted and specific information needed for litigation purposes. The payoff should be a substantial reduction in the volume of irrelevant material. In other words, the discipline the proposed order encourages will produce savings for both the requesting and the producing parties. On the other hand, because the limitations are substantial, parties will want to assess the cost savings versus their strategic needs for broad discovery on a case by case basis in determining whether to advocate or object to imposition of these restrictions.
“Our courts are in danger already of becoming an intolerably expensive way to protect innovation or prove freedom to operate,” Rader said in his remarks at the conference. “We simply can’t afford to allow discovery to endanger the entire system. The current expense is such a burden on the system that it really does outweigh any benefit.” Altogether, the model order has the potential to reduce ESI production costs dramatically and make the e-discover process more streamlined.
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