Hundreds of search terms. Dozens of employees, considered key "custodians," producing thousands of emails on a multitude of topics. Requests for electronically stored information (ESI) driving case strategy. E-discovery costs amounting to tens or hundreds of thousands of dollars, in some cases exceeding the amount in controversy. Unfortunately, these factors are all too common in complex litigation.
The costs of e-discovery are often magnified in patent disputes because the broad scope of discovery involves an array of topics and employees from many corporate departments. The Federal Circuit, which has appellate jurisdiction over patent disputes, recently provided guidance on the efficient use of e-discovery through its Model Order Regarding E-Discovery In Patent Cases. Although directed specifically to patent litigation, the Model Order's reasoned approach can help contain e-discovery costs in any complex litigation.
These provisions provide a helpful starting point to develop responsible, targeted use of e-discovery and "promote economic and judicial efficiency by streamlining e-discovery and requiring litigants to focus on the proper purpose of discovery—the gathering of material information—rather than permitting unlimited fishing expeditions."
The Model Order is already influencing e-discovery management. In DCG Systems, Inc. v. Checkpoint Technologies, LLC, Magistrate Judge Grewal of the Northern District of California adopted many of the Model Order's recommendations and noted that “only through experimentation of at least the modest sort urged by the [Federal Circuit] will courts and parties come to better understand what steps might be taken to address what has to date been a largely unchecked problem.”