On February 27, 2012, the Eastern District of Texas amended its local rules to include a Model Order that seeks to streamline the preservation and production of ESI in patent cases (the “Model Order”). The full text of the order can be found here. The Model Order imposes presumptive limits on the number of custodians (8) and search terms per custodian (10) and requires that the parties produce documents in the first instance as singlepage TIFFs. Search terms must be “narrowly tailored to the particular issues,” and conjunctive combinations of terms count only as a single search term.
The receiving party can request the production of native files after having reviewed the initial production. Optical character recognition (OCR) files are not required to be produced unless the produced documents can be searched in their native format or the producing party has made the documents text searchable for purposes of the instant litigation.
Importantly, the Model Order limits the need to restore back-up tapes and other media and voicemails and personal mobile devices (e.g., PDAs, mobile phones, etc.) are deemed “not reasonably accessible and need not be collected or preserved absent a showing of good cause by the requesting party. Additionally, the Model Order incorporates the protections provided in Federal Rule of Evidence 502(d), against the inadvertent disclosure of privileged material by holding that inadvertent production does not constitute a waiver of the privilege or protection in the instant case or any other federal or state proceeding.