In a prior blog posted on October 03, 2011 with the title “ New Model Order Would Control EDiscovery During Patent Cases, I described a new model order that would place some limits on eDiscovery in patent cases had just been unveiled by Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit. The reasons cited behind the changes focused on the excessive costs of the discovery process, particularly in patent cases, which produce “disproportionately high discovery expenses”. Judge Rader posited that the Model Order serve as a starting point for district courts to create “responsible, targeted use of e-discovery” in patent cases, with the purpose of streamlining and imposing discipline on the process.
In the short time since the Model Order has been issued, it appears that the legal community has decided to adopt the Model Order in a number of current patent litigation in the Eastern District of Texas. There have been three recent patent cases from the Eastern District that either incorporated the model order or issued orders embracing the major terms of the order that were proposed by Judge Rader.
These cases are:
• Stambler v. Atmos Energy (Case No. 2:10-CV-594)
• Effectively Illuminated Pathways v. Aston Martin Lagonda (Case No.:6:11cv34)
• Intravisual v. Fujitsu (Case No. 2:10cv090)
Additionally, courts outside of Texas are also taking notice of this change to attempt to limit e-discovery. DCG Sys., Inc. v. Checkpoint Techs., LLC , in the California District Court adopted a version of Judge Rader’s model order, stating “only through experimentation of at least the modest sort urged by the Chief Judge will courts and parties come to better understand what steps might be taken to address what has to date been a largely unchecked problem.”
This rapid and initial acceptance of Judge Rader’s model order by these courts supports the position that many judges believe prudent measures that limit the scope and costs of e-discovery must be taken before the legal system grinds to a halt. Judge Rader stated that one of the over riding reasons for his model order was to force the EDiscovery process to “focus on the proper purpose of discovery—the gathering of material information.”
The Take Away
The Model Order forces litigants to narrow their focus on gathering only “material” information which according to Judge Rader, is the “proper purpose of e-discovery”. The Model Order would also halt the use of EDiscovery as an unlimited fishing expedition, particularly with respect to the gathering of email documents. Reducing the expenses of EDiscovery would remove some of the pressure that accused infringers felt to settle non-meritorious claims simply to avoid the high costs of EDiscovery. In the words of Judge Rader, the era of “unlimited fishing expeditions” in e-discovery must be brought to an end.
While written specifically for patent litigation in Texas, the Model Order could easily be adopted to other areas of litigation. Litigators should begin to craft their discovery requests more carefully, in a more targeted manner in order to avoid the court imposing more draconian measures on them. The concept of “reasonableness” as it applies to EDiscovery continues to provide the safest path when being forced to defend a request for information. Crafting an EDiscovery request carefully will also help reduce the high cost of processing and review of material, a goal that should be supported by all the involved parties.
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