Federal Circuit Unveils Model Order for E-Discovery in Patent Cases

The following is excerpted from a September 28, 2011 eData lawflash from Morgan Lewis:

During his September 27 remarks at the Eastern District of Texas Judicial Conference, Chief Judge Randall R. Rader of the U.S. Court of Appeals for the Federal Circuit unveiled a new Model Order for the governance of e-discovery in patent cases (the Model Order). The Model Order was drafted by the EDiscovery Committee of the Federal Circuit Advisory Council and was unanimously adopted by the Advisory Council.

Citing the excessive costs of the discovery process, particularly in the context of patent cases, which produce disproportionately high discovery expenses, Judge Rader suggested that the Model Order serve as a starting point for district courts to enforce “responsible, targeted use of e-discovery” in patent cases, the goal being to streamline and impose discipline upon the e-discovery process, particularly with respect to the production of email. The Model Order would require litigants to focus on gathering material information—the “proper purpose of discovery” according to Judge Rader—rather than engaging in unlimited fishing expeditions.

For brief summaries of some of the more significant provisions of the Model Order see the full eData lawflash here.

Comments

[Lee Thomason]

The Model Order manages reality, rather than force efficiency. Many excesses in e-discovery result from lousy retention policies, which make it laborious to find and retrieve relevant docs. Poorly conceived and poorly understood retention protocols are the cause of over-production (bad for the requester) and excessive expense for production (bad for the disclosing party, et als).
The Model Order, with its cost-shifting provision, allows lousy retention policies to continue. More effective would be cost-shifting upon a showing that the disclosing parties' files were poorly organized, or unindexed, or full of obsolete data, etc., which caused the cost to increase. This would encourage better crafted and better executed retention and destruction policies. Limiting production and shifting costs arbitrarily denies discovery and does not deter lousy records retention protocols