It is no surprise that courts and litigants have struggled with managing discovery of electronically stored information (ESI) for many years. After the amendments to the Federal Rules of Civil Procedure in 2006 to include specific references to ESI, many courts began to address e- discovery issues through local and individual judge’s rules. These early efforts reflected the lack of collective experience—they tended to be minimalistic and primarily encouraged the litigants to come to an agreement.

Realizing the lack of uniformity in treatment of ESI and the rising cost resulting from unsupervised, pre-trial discovery, many jurisdictions are directly addressing discovery of ESI through specific and detailed local rules and model orders.

The latest entry into this area is the Eastern District of Texas, which issued a Model Order Regarding E-Discovery in Patent Cases. The Texas model order was based on, and modified from, the model order from the Federal Circuit. These model orders demonstrate the continuing evolution of ESI handling by the courts.

Early e-discovery rules mandated that the parties confer and agree on procedures. The problem was that court intervention was required to resolve roadblocks, leading to delays and uncertainty. The District of Delaware solved this dilemma by making the e-discovery rules a “default standard” that applies in the absence of agreement. The Federal Circuit and Texas Model Orders stepped back from this approach, appearing to tacitly acknowledge that there is no one-size-fits-all approach and instead made the rules discretionary by providing a model that may be adopted by the court.

The most prevalent forms of ESI for most businesses roughly come in three categories:

  1. Shared business documents that typically reside on a central network or on individual computers, such as word processing, spreadsheets, presentations and occasionally separately saved emails, usually managed through a document management system
  2. Emails and instant messages managed through a centralized email or IM server
  3. All other types (e.g., accounting records, drawings, engineering documents, source code, graphics and pictures), typically generated and/or managed through a specialized program.

Recognizing the realities of modern business practices and that there are, at times, differences between what is requested by a litigant and what actually leads to useful admissible information, recent model orders treat email discovery separately and subject it to strict limitations. Litigants must now specifically propound email production requests, identify the custodian, search terms and time frame in the request, and are limited as to both the number of custodians and the number of search terms.

Again, likely realizing the limited usefulness of certain information, the model orders do not require production of metadata nor require production of documents that are subject to limited accessibility, such as back-up tapes, legacy software systems and personal electronic device records, albeit in the absence of good cause.

One of the more interesting points of divergence is on the issue of proportionality and cost-shifting. The Federal Circuit model order stresses the shifting of costs for disproportionate ESI production requests and/or dilatory tactics. The Texas model order moved away from this and followed the more historical approach of leaving it within the purview of Fed. R. P. 37. This may be taken as an effort to control the cases involving non-practicing entities, where discovery burdens are typically one-sided, as opposed to competitor cases.

The recent model orders provide needed guidance and limitations on e-discovery procedures, and there should be an expansion of courts adopting similar model orders. As strict time limits for trial tends to force the parties to focus on the critical elements of the case, so too will providing limitations on each party as to the extent and scope of e-discovery.