The Rise of Reasonableness? Take Advantage of E-Discovery Reform
by Jane Ann R. Neiswender
As email and other forms of electronic communication became widespread, so did the cost and burden of producing these communications. Parties exploited e-discovery, demanding extensive preservation and production of this electronic information. Indeed, many cases settled because the cost of producing this “e-discovery” far exceeded settlement costs. Yet, only a miniscule fraction of the information collected, processed, reviewed and produced (at a very high cost) ever finds its way onto an exhibit list, and still fewer documents are presented as evidence at trial. This is particularly true in patent litigation and other complex, commercial disputes. In an effort to curtail these high discovery costs, and to help ensure parties are not financially precluded from their day in court, courts are beginning to take steps toward a more reasonable approach to e-discovery.
Since the e-discovery amendments to the Federal Rules of Civil Procedure, the Seventh Circuit and many district courts have implemented e-discovery pilot programs or local rules designed to assist parties grappling with preservation and production of e-discovery. The Federal Circuit took aim at reducing the costs associated with e-discovery in the fall of 2011 when it unveiled its Model Order Regarding E-discovery in Patent Cases (Model Order). The Model Order sets forth guidelines designed to reduce the burdens associated with producing electronically stored information so that parties can get to court to resolve the merits of their disputes. Gone are parties’ ability to make unlimited production requests for email. Instead, to the extent a party seeks email discovery, it must present a separate production request, subject to certain limitations. For example, the requested email may be sought from no more than five document custodians. Only five search terms per custodian, per party are permitted. Also eliminated is the need to restore backup data or to preserve or collect voicemail and mobile device data (unless good cause is shown).
After the Federal Circuit released its Model Order, other federal courts incorporated the concepts of the Model Order into their local rules or scheduling orders. Magistrate Judge Grewal of the Northern District of California was one of the first judges to adopt the Model Order. Subsequently, both the Eastern District of Texas and the District of Delaware amended their local rules to implement modified forms of the Model Order. Some of the differences between these local rules and the Model Order relate to the permissible number of email custodians and search terms. The Eastern District of Texas permits discovery of email from eight custodians with ten permitted search terms per custodian after an exchange of a specific listing of likely email custodians and a specific identification of the fifteen most significant listed email custodians. The District of Delaware requires parties to identify ten custodians (ranked from most to least) likely to have discoverable information. If a responding party plans to use search terms to identify the requested electronic information, then the requesting party may ask that up to an additional 10, focused search terms be used in the search. The Court of Federal Claims has also implemented the concepts in its Model Order..
This variety of approaches spawned from the Federal Circuit’s Model Order increases the parties’ ability to craft reasonable e-discovery parameters tailored for the issues involved in particular litigation. Indeed, while the Model Order applies to patent cases, its tenets are easily adaptable to any complex commercial litigation. Federal courts have the inherent power “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Accordingly, parties engaged in complex litigation seeking manageable limitations on e-discovery now have authority to support a pared down discovery approach that limits their need to preserve, collect, and produce electronic data. To capitalize on (or even broaden) this trend, parties should discuss limitations during the initial Rule 26(f) scheduling conference and include proposed limitations in scheduling orders submitted to the court.
Jane Ann R. Neiswender, a partner at Munck Wilson Mandala, LLP, handles intellectual property and complex commercial litigation. Ms. Neiswender may be reached at email@example.com.