A new model pretrial order was revealed during the Eastern District of Texas Bench Bar Conference late last year by Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit. The new Federal Circuit Model Order Regarding E-Discovery in Patent Cases places dramatic new limits on electronic discovery in patent cases, and has ignited discussion about the limits that courts should place on e-discovery generally. The model order already has had implications beyond patent litigation and may provide — willingly or unwillingly for litigants — a pattern for managing e-discovery in other civil litigation.
Explaining the model order, 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. The model order places tighter and more specific constraints on discovery of electronically stored information (ESI) than those now provided by the Federal Rules of Civil Procedure. These new limitations include cost-shifting for disproportionate ESI production requests and presumptive exclusion of peripheral metadata.
