February 09, 2012

Jenner & Block Partner Steven R. Trybus and Associate Sara Tonnies Horton recently authored an article titled “A Model Order Regarding E-Discovery in Patent (and Other?) Cases,” published in the American Bar Association’s Section of Litigation Winter 2012 Pretrial Practice & Discovery newsletter.  Mr. Trybus and Ms. Horton review the “Model Order Regarding E-Discovery in Patent Cases,” which was the work of a special subcommittee of the Advisory Council of the Federal Circuit, led by Chief Judge Radar.  The authors state that the advisory council addressed the issue of e-discovery due to the increasing cost of litigation and the belief that discovery excesses -- especially current e-discovery practices -- are among the prime driving factors for the high cost of litigation.  They note that the model order includes proposals that are dramatically different from the majority of present e-discovery practices and that it is intended to be a starting point to allow parties and district courts to tailor discovery plans as appropriate for particular cases.  The authors also point out that, although the model order was drafted for patent cases, it may have much broader applicability; of its major provisions, only one is drafted to apply very specifically to patent cases.  The authors go on to examine several new and unique provisions of the model order such as timing of email requests, cost shifting, metadata, specific required email requests, and email custodian and search-term limits.  Finally, they encourage using the limits proposed in the model order to gain the experience necessary to determine which limits “walk the line between allowing appropriate discovery and eliminating, or at least reducing, unnecessary discovery.”