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Model Order to Reduce Electronic Discovery Costs in Patent Cases

By Robyn Hagan Cain on November 04, 2011 | Last updated on March 21, 2019

Electronic discovery is not cheap, particularly in patent cases.

In response to rising electronic discovery costs, Federal Circuit Court of Appeals Chief Judge Randall Rader recently announced the Model Order on E-Discovery in Patent Cases (Model Order).

There are five main areas of electronic discovery costs:

  1. Collection. Includes vendor and/or licensing fees, and media-related charges.
  2. Processing. Includes data and text extraction, de-duplication, imaging fees, project management time and potential hosting fees.
  3. Review. Includes continued hosting and licensing fees.
  4. Production. Includes any additional data and image conversion, text extraction and/or appropriate language OCR generation.
  5. Post Production. Includes time for importing productions into production review tool or index, and additional costs for associating native files to records.

Judge Rader says the Model Order will streamline e-discovery, particularly email production, and require litigants to focus on gathering material information rather than embarking on "unlimited fishing expeditions." The Model Order attempts to promote a reasonable discovery process by implementing cost-shifting measures to the requesting party for disproportionate production requests.

Cost-shifting will help ensure that discovery requests are being made with the balance between the value of the discovery and its cost in mind.

The Model Order also aims to reign in electronic discovery costs by limiting the scope of email discovery. Under the Order, email production requests must be for specific issues instead of general discovery, and will only occur after the parties have exchanged initial disclosures and basic documentation about the patents, prior art, accused instrumentalities and relevant finances.

Though the Model Order is merely a suggested means of reducing electronic discovery costs, Judge Rader is hopeful that courts will use the order in patent cases. A copy of the order is available on the Federal Circuit Bar's website.

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