Electronic discovery can be time-consuming, burdensome and expensive. Indeed, at times, e-discovery can be the tail that wags the litigation dog.  

As a consequence, Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit, on behalf of an E-Discovery Committee, recently introduced a Model Order for Patent E-Discovery.

The Committee's discussion underpinning the Model Order notes that federal district courts have inherent power to control their dockets in the interests of time and economy. Accordingly, it is the Committee's view that the Model Order may be a "helpful starting point for district courts to use in requiring the responsible, targeted use of e-discovery in patent cases."

Key features of the Model Order include the following:

  • electronic discovery will not include metadata absent a showing of good cause (however, certain basic fields like the date and time that a document was sent and received will be included);
  • general e-discovery requests are not to include email or other electronic correspondence;
  • email requests shall be propounded for specific issues, shall occur after initial disclosures and basic patent documentation, and shall be limited to five custodians and five search terms absent other agreement or leave of court; and
  • inadvertent production of privileged or work production electronic information shall not constitute a waiver.

Plainly, if district courts adopt the Model Order or enter similar orders, the scope of electronic discovery potentially would be vastly circumscribed. And, of course, this would reduce the burden and cost of patent litigation.

And while that has value, there also is benefit to sufficient discovery to obtain facts important to a particular case. It is possible that some relevant facts may not come to light in litigation with electronic discovery restrictions.

It will be interesting to wait and see if the Model Order gains traction in patent cases. Indeed, if it does, it could spur such limitations in other types of cases.