The ITC issued a brief article this week concerning a presentation that was made by Chief Judge Randall R. Rader of the U.S. Court of Appeals for the Federal Circuit and others relating to a proposal to streamline e-discovery in Section 337 investigations.
According to the article, the ITC has been examining issues relating to e-discovery for nearly a year, gathering input from litigants, academics, district court judges, and bar associations. In 2010, Chief Judge Rader asked the Federal Circuit Advisory Council to study e-discovery issues and develop an e-discovery model order for consideration by district courts in patent cases. On January 11, 2012, Chief Judge Rader and three members of the Council came to the ITC to present an analogous proposal for Section 337 investigations.
The article states that the proposal tracks the approach of the district court e-discovery model order. In particular, litigants would:
- indicate whether electronic documents such as e-mail are being sought or not;
- presumptively limit the number of custodians whose files will be searched, the locations of those documents, and the search terms that will be used (if litigants exceed the specified limits, they would assume the additional costs);
- use focused search terms limited to specific contested issues; and
- allow privileged documents to be exchanged without losing privilege.
Chief ALJ Charles E. Bullock and ITC Chairman Deanna Tanner Okun both expressed their appreciation for Chief Judge Rader and the Council’s presentation. After the presentation, ALJ Bullock stated that he is “optimistic that the USITC will come up with a suitable approach to address litigants’ legitimate discovery needs while balancing the costs associated with e-discovery in section 337 investigations.”