Let's Be Reasonable: Recent Federal Circuit Actions Follow Trend Toward E-Discovery Reform

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The U.S. Court of Appeals for the Federal Circuit recently held that expenses associated with a third-party electronic database service can constitute taxable costs. In re Ricoh Co., Ltd. Patent Litig., No. 2011-1199, 2011 U.S. App. LEXIS 23495, *6-8 (Fed. Cir. Nov. 23, 2011). This was the first federal appeals court decision to discuss the issue in detail, and it provides support for the growing line of authority allowing prevailing parties to recover electronic discovery expenses. The Federal Circuit also recently issued a Model Order Regarding E-Discovery in Patent Cases, which proposes several limits on electronic discovery and proposes that the cost of discovery beyond such limits would be borne by the requesting party. These actions by the Federal Circuit are consistent with an overall trend toward reforming electronic discovery and should encourage parties to be reasonable in conducting electronic discovery in patent infringement cases.

In In re Ricoh, the parties (Ricoh and Synopsis) agreed to jointly retain and split the cost of a third-party electronic database service called Stratify to enable production of documents in native format. In re Ricoh Co., Ltd. Patent Litig., No. 03-02289, 2010 U.S. Dist. LEXIS 144033, *24-25 (N.D. Cal. Sept. 29, 2010). After several years of litigation, the district court granted summary judgment in favor of Synopsis and awarded costs to Synopsis as the prevailing party.

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