Chief Judge Randall Rader presented an electronic discovery model at the Eastern District of Texas Bar Conference for discovery of electronically stored information (“ESI”) in patent cases. This model may be adapted for use in other jurisdictions, and for other types of cases, making it even more critical for parties to discuss discovery of ESI with a professional e-discovery company. The model attempts to bring about “reasonableness and efficiency” in discovery, according to Judge Rader. Judges in the Eastern District plan to discuss a committee report on the model when they meet this February. The model contains certain elements that address common discovery complaints heard from litigants, regardless of the type of litigation, overviewed as follows.
Limit Fishing Expeditions
One consistent struggle in discovery, as seen from the bench, is the use of email requests in discovery as a “fishing expedition.” This often leads to immense and unnecessary amounts of ESI being requested/provided, the majority of which are never later entered as exhibits in the courtroom. Because there have been times when a party’s broad electronic discovery requests have revealed a “smoking gun,” many litigants continue to request and receive extensive numbers of documents using processes like running key word search terms across a company’s entire email archive. The model limits parties requesting email data to only five custodians and five search terms per custodian, although the model does allow litigants to mutually agree on higher numbers (an additional five of each) and with court approval. If a party requests data that exceeds these limitations without such a court order (and the approval of the adverse parties), the requesting party will bear the cost of providing the extraneous discovery requested.
Target the Data being Requested
Another element that the model addresses is what data the parties may request from each other. Discovery requests for ESI under this model must show “good cause” for requesting metadata, in addition to focusing requests only on the specific issues. Although this appears to limit the information the requesting party will receive, more relevant information will be provided as a result and costs for both sides will be reduced.
Timing of Requests for Email
Requests for email in discovery have routinely been costly and time consuming in review. The model states that email may only be requested after both parties have disclosed information about the patent(s), such as the accused uses of the invention, relevant financial information, published information about the subject matter of the claimed invention, basic documentation regarding the patent and other information.
Waiver of Privilege
The model also addresses inadvertent production of privileged ESI, stating that the attorney-client privilege (or other protection) is not waived by disclosure and the receiving party is barred from using it, in the hopes that overly-extensive privilege reviews will become unnecessary.
Although the model order currently addresses only patent cases, some industry insiders believe that iterations of the model will be adopted in other jurisdictions and for other kinds of litigation. This makes retaining an experienced e-discovery company even more important than ever. For more information on electronic discovery, visit www.advanceddiscovery.com.