Previous columns in this series have touched on a variety of discovery-related topics, most related to the challenges and pitfalls of e-discovery. E-discovery has frustrated not only litigants, but courts as well, dismayed that despite the best intentions of the drafters of the 2006 amendments to the Federal Rules of Civil Procedure, e-discovery costs have spiraled out of control.
The Federal Circuit Advisory Council recently promulgated an E-Discovery Model Order for voluntary use by district courts in patent litigation cases, which historically have had disproportionately higher e-discovery costs. The three-page Model Order is commendable for its clarity and brevity. Although it was drafted specifically for patent cases, it is applicable to many types of federal civil litigation, and a useful exemplar for state litigation as well. Its provisions for streamlining e-discovery include:
- Cost-shifting considerations for electronically stored information (ESI) production. A party’s “disproportionate ESI production requests,” and “nonresponsive or dilatory discovery tactics” will militate for cost-shifting against the party. Conversely, a party’s “meaningful compliance with this Order and efforts to promote efficiency and reduce costs will be considered in cost-shifting determinations.” Cost-shifting discourages overbroad and abusive discovery, which drive up litigation costs unnecessarily.
- Limitations on production of ESI. The Model Order specifies limitations on ESI in two areas:
1. Metadata within ESI, or native information about the ESI itself, need not be produced in response to a general ESI production request, absent a showing of good cause. Metadata is seldom useful or relevant, but greatly drives up production expense.
2. The Model Order greatly limits the scope of email production. Email shall not be produced in response to general ESI production requests, rather upon request for specific email production. Moreover, email production is phased to occur after other fundamental discovery has been completed. Email can only be requested from five custodians per producing party, unless the parties agree otherwise or the court approves additional custodians, with the costs for email production for further custodians borne by the requesting party. In addition, only five email search terms may be submitted for each custodian, with the court considering requests for up to five other terms. The terms must be “narrowly tailored to particular issues.”
- Non-use or waiver of inadvertently produced privileged or work product protected ESI.The Model Order provides that “the receiving party shall not use ESI that the producing party asserts is attorney-client privileged or work product protected to challenge the privilege or protection.” Although the Order is silent as to clawbacks, it seems likely that parties operating under its provisions would agree that privileged or protected ESI would be promptly returned and/or destroyed upon notification.
Furthermore, the Order specifies that pursuant to Federal Rule of Evidence 502(d), the inadvertent production of privileged and/or protected ESI would not be a waiver in that case or any other federal or state proceeding. Finally, the Order states that “the mere production of ESI in a litigation as part of a mass production shall not itself constitute a waiver for any purpose.”
Together these limitations and exclusions on e-discovery should reduce a party’s expense and burden in litigation, and provide clarity when cost-shifting is appropriate ordered by the court. Time will tell whether these restrictions will result in genuine increases in efficiency and accountability, but one thing is certain: Courts will continue to pay close attention to e-discovery to improve our justice system.