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 E-Discovery 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.
Some of the more significant provisions of the Model Order are as follows:
During his remarks, Judge Rader pointed out that for the Model Order to have an impact, district court judges will need to put it into actual practice as part of the court's inherent power to control its docket to further "economy of time and effort for itself, for counsel and for litigants." Landis v. North Am. Co., 299 U.S. 248, 254 (1936).
The Model Order itself, as well as an introduction and discussion of the Model Order by the Federal Circuit Advisory Council E-Discovery Committee, is available online at http://memberconnections.com/olc/filelib/LVFC/cpages/9008/Library/Ediscovery%20Model%20Order.pdf.
The e-discovery committee that drafted the Model Order included, among others, judges from three district courts: Chief Judge James Ware (N.D. Cal.), Judge Virginia Kendall (N.D. Ill.), and Magistrate Judge Chad Everingham (E.D. Tex.). All three of these district courts are part of the Patent Pilot Program begun earlier this year in which 14 federal district courts were selected to participate in a 10-year pilot project designed to enhance expertise in patent cases among U.S. district judges.
It remains to be seen whether district court judges will use the Model Order, or variations of it, in their patent cases. If the Model Order is used, it will significantly alter the way e-discovery is conducted in patent cases, likely resulting in substantial cost savings for patent litigants. One word of caution: the Model Order does not eliminate or otherwise alter the duty of patent litigants and their counsel to identify and preserve potentially relevant ESI.
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. According to Judge Rader, reducing the expenses of e-discovery in patent cases would also help to alleviate the problem of accused infringers feeling pressure to acquiesce to nonmeritorious claims to avoid discovery costs.