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Tuesday, September 27, 2011

Some Proposed Changes to e-Discovery/ Patent Cases

The Federal Circuit Bar Association has posted a link to Judge Randall R. Radar's September 27, 2011 discussion of "The State of Patent Litigation."  Of the six areas of improvement, Judge Radar discussed a "Model Order on e-Discovery for Patent Cases" which includes presumptive limits on the number of custodians and search terms for electronic documents (scroll to the end of the speech transcript). 

The model order presumes a limit of five (5) custodians, for a total of five (5) search terms per custodian.  Certainly, any such proposal can be modified by the district court or the agreement of the parties.  It strikes me that the presumptive limits on depositions and interrogatories provided a welcome change when they were instituted.  Particularly because courts retain discretion to modify these limits in appropriate case, there were several results that occured.  As one, the rules introduced the principle that there should be some limits.  As another, presumptive limits serve as a benchmark.  That is, counsel are operating from the principle that five (5) is a norm, rather than infinity.  Third, it may reduce the number and type of discovery disputes because these limits set up the framework for the parties' obligations. 

Overall, these same results may occur for e-discovery.  Although discovery costs for patent cases may be particularly high, I wonder whether this might serve as a template for other types of cases.

Posted by Amy Landers on September 27, 2011 at 03:16 PM in Civil Procedure, Intellectual Property | Permalink

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