E-discovery reform in IP cases is beginning to take form

Last year the Federal Circuit adopted a Model Order designed to rein in the costs of e-discovery … especially the disproportionate costs that allow one party to financially bludgeon an opponent with requests for information that is never used (nor even examined) but that costs millions of dollars to produce.With thanks to the Gibbons law firm, The Model Order calls for:

1.    E-mail discovery to be phased in after initial disclosures and production of basic documentation; 2.    E-mail document requests to be specific; 3.    E-mail discovery requests “to be specifically limited as to custodians, search terms and timeframes, with only five custodians and five search terms per custodian per party permitted, absent a showing of distinct need;” 4.    Cost shifting for disproportionate electronic production requests; 5.    Safeguards so that inadvertent production of privileged documents does not constitute waiver.

Federal Circuit Judge Randall Rader, speaking before the ABA Section of IP Law, continued to push reform, citing developments in several jurisdictions, some international.  Now the District Court in East Texas has proposed its own Model, with some modifications to the original (text).

These are important developments in IP value. Costs of litigation, including time spent and opportunity costs, need to be factored in to scenario planning.