E-Discovery in Patent Cases: A Look at “Model Orders”

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Last week, we wrote about the proposed Local Patent Rules in the Western District of New York (W.D.N.Y.), which include a “Model Order Regarding E-Discovery in Patent Cases.”  The Western District’s Model E-Discovery Order is intended to help cut down significantly on e-discovery costs in patent litigation.

The basis for the Western District’s Model E-Discovery Order is the Model Order proposed by Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit.  Judge Rader’s Model Order was first presented in September 2011 as a proposal for district courts to implement reasonable e-discovery limitations on patent litigants, and since then it has been adopted in various forms by courts across the country.

For example, the Eastern District of Texas (E.D. Tex.) has largely adopted Judge Rader’s Model Order.  The Eastern District of Texas Model Order can be found here, and a redline comparison with Judge Rader’s Model Order can be found here.  As compared to Judge Rader’s Model Order, the Eastern District of Texas version also includes a provision that “good cause” is required to modify the Model Order, includes a set of basic protocols for the production of ESI, and removes the provision limiting email production to only specific issues rather than general discovery.

As another example, the District of Delaware (D. Del.) has implemented a “Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI) ” that applies many of the principles of Judge Rader’s Model Order.  The Default Standard can be found here.  The District of Delaware version sets forth particular requirements on the timing of e-discovery, data formats, and custodian limitations and includes procedures regarding the proportionality of e-discovery costs.

In addition, the Northern District of California (N.D. Cal.) has released a set of “Guidelines for the Discovery of Electronically Stored Information” that parallel many of the principles of Judge Rader’s Model Order.  A copy of the Guidelines can be found here.  These guidelines encourage a meeting between the parties at the beginning of the case to discuss agreeable terms regarding preservation, search, and production of ESI, as well as prospects to decrease the costs and increase the efficiency of e-discovery.

The efforts by district courts to cut down on e-discovery in patent litigation is widely regarded as a positive development.  Patent litigation can be an expensive proposition, with e-discovery often a significant portion of the overall cost.  By implementing measures such as Judge Rader’s Model Order (or variations thereof), courts are helping to cut down e-discovery costs in patent cases to more reasonable and manageable levels.

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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.

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