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IP: Model order limiting e-discovery has implications in more than just patent cases

Model order could lower e-discovery costs and limit inconvenience.

On Sep. 27, 2011, at the Eastern District of Texas Bench Bar Conference, Chief Judge Randall Rader of the Federal Circuit revealed a model order that places dramatic limits on e-discovery in patent cases.  Judge Rader spoke on the status and direction of patent litigation in the United States, contending that “the greatest weakness of the U.S. court system is its expense. And the driving factor for that expense is discovery excesses.”

While aimed at patent cases, this model order is easily adaptable, and can be a powerful tool to limit the cost and inconvenience of electronic discovery. Litigants are already attempting to convince courts to adopt these same restrictions in other types of cases.

This provision can be adapted for application to other areas of litigation. Although the model order was written for patent litigation, it should be persuasive to many courts given that it addresses fundamental problems with e-discovery faced by all litigants. The Federal Circuit Advisory Council E-Discovery Committee that drafted the model order included judges from three district courts: Chief Judge James Ware (N.D. Cal.), Judge Virginia Kendall (N.D. Ill.), and Magistrate Judge Chad Everingham (E.D. Tex.).

Each of these judges handles not only patent cases, but the full array of civil litigation. A close eye is being kept on these courts to see if they will implement the same e-discovery restrictions in their non-patent cases. This could add additional support for convincing other courts to embrace this attempt to limit the staggering cost of e-discovery.

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David Barnard

David Barnard is a partner in Lathrop & Gage LLP's intellectual property division of the firm's Kansas City office. His litigation work has included patent,...

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James Moloney

James Moloney is a partner in Lathrop & Gage LLP's Kansas City office. He concentrates his practice in business litigation, counseling clients in a variety...

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James Moeller

James Moeller is a partner in Lathrop & Gage LLP's Kansas City office. He has more than 30 years of experience trying complex cases, including...

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