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October 31, 2011

New Tools to Manage Patent Litigation Ediscovery Cost

The Texas Lawyer recently reported that Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit unveiled a model order that would limit ediscovery in patent cases. Rader, acknowledging the tremendous expense of patent litigation discovery, hopes that federal courts will use the Model Order as a helpful starting point to enforce responsible, targeted use of e-discovery in patent cases. Key elements of the Model Order:

1. Employ cost shifting for disproportionate electronically stored information requests.
2. Prohibit metadata production (absent good cause).
3. Restrict email production.
4. Limit potential privilege waivers.

In LTN’s The Elephant in the Patent Courtroom I review the Model Order’s key components and propose additional approaches patent litigants can employ to reduce discovery expenses. I conclude that the Model Order’s cost-shifting, email and privilege waiver, along with other thoughtfully applied FRCP provisions and cooperation between the parties, should help reduce the costs parties face in patent litigation.

One significant patent litigation challenge that the order does not address is data preservation. Although there is an investigation underway evaluating changes to the Federal Rules to address preservation, any relief would be a long time coming. The Model Order proposes a limit of no more than 10 custodians’ whose emails would be produced, if the requesting party demonstrates a specified need for the email. Arguably, this provision could provide the basis for preserving no more than 10 custodians’ email.

I commend Judge Rader and the committee that developed the Model order for shining the spotlight on exorbitant patent litigation discovery costs and providing a framework to begin to address them.

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