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


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.[1]

Some of the more significant provisions of the Model Order are as follows:

• Limitations on when email productions can be requested (only after the parties have engaged in "core" discovery concerning the patents at issue, prior art, the accused products, and relevant financials).

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