As many have learned, the expense of pursuing electronic discovery can drive the outcome of a lawsuit to a greater extent than the merits of a case. So what can be done to get e-discovery costs in check and refocus litigation on the pursuit of justice? The Federal Circuit Advisory Council recently took a stab at proposing a solution.
The Council’s “Model Order on E-Discovery in Patent Cases” addresses concerns about e-discovery in the context of patent litigation, but its principles could apply to other types of cases as well. The Order proposes a number of limits on email discovery in particular, including prohibition of broad requests for “all emails” and a requirement that the requesting party specify no more than five custodians and five search terms for email production. The Order also shifts to the requesting party the cost burden for production beyond the recommended limits and for generally disproportionate ESI requests.
While the Order hasn’t been adopted as law, some district court judges have mirrored its guidelines in recent discovery orders. See, e.g., DCG Systems, Inc. v. Checkpoint Technologies, LLC, No. C-11-03792 PSG, 2011 U.S. Dist. LEXIS 142293 (N.D. Cal. Nov. 2, 2011). The Order, though arguably a step in the right direction, will most certainly require modification as it is tested in the trenches – and of course, for the time being, it is limited in application to patent litigation.
We’ll continue to follow the quickly developing world of e-discovery.