New Model Order Aims to Rein In Expense of E-Discovery

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.

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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1 Response to New Model Order Aims to Rein In Expense of E-Discovery

  1. Steve Badger says:

    I agree that the exceedingly broad standard traditionally permitted for discovery does not fit the information age and needs to be reigned in. The price of justice has long exceeded what ordinary folks can afford and has now escalated to the point where even small- and medium-sized business clients are often unable to afford the expense and uncertainty that goes along with litigating a dispute. The developments you describe in your excellent post bear watching.

    The proportionality limitation in Rule 26 of the Federal Rules of Civil Procedure (recently adopted in Indiana Trial Rule 26(B)(1)) offers lawyers another tool for chiseling away at overly broad and burdensome discovery requests. In my opinion, that limitation is underutilized by courts and counsel alike in addressing runaway discovery expense.

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