“In the electronic age, discovery procedures designed for the 19th and 20th centuries just do not work for complex patent litigation,” noted Chief Judge Randall R. Rader of the U.S. Court of Appeals for the Federal Circuit in a recent speech entitled “The State of Patent Litigation” at the Eastern District of Texas Judicial Conference. Chief Judge Rader went on to declare that “[c]ourts must control the cost and efficiency of electronic discovery.” In an attempt to provide “a helpful starting point for district courts to enforce responsible, targeted use of e-discovery,” Chief Judge Rader introduced a “Model Order Regarding E-Discovery in Patent Cases.” The model order was the work of a special subcommittee that was created by the Advisory Council of the Federal Circuit.
As noted in Chief Judge Rader’s remarks, the advisory council decided to address the issue of e-discovery because of the ever-increasing cost of litigation and the belief that discovery excesses—especially current e-discovery practices—are among the prime driving factors for the high cost of litigation. The Federal Circuit, which hears appeals from all patent-infringement cases, was especially interested in this area because, as Chief Judge Rader reported, patent cases seem to have significantly higher costs than other cases; one report indicated that patent cases had almost 62 percent higher costs.
Chief Judge Rader is certainly not the only speaker who has suggested that problems exist in litigation today, especially in the area of e-discovery. Indeed, there are any number of articles and speeches on the current state of litigation that include the idea that the discovery process is broken. Many of those articles and speeches propose possible fixes—some very narrowly tailored and some much more dramatic.
The model order from the Federal Circuit Advisory Council regarding e-discovery in patent cases includes proposals that are dramatically different from the majority of present e-discovery practices. The model order is intended to be a starting point to allow parties and district courts to tailor discovery plans as appropriate for particular cases. Chief Judge Rader noted the hope that the concepts of the model order will “require litigants to focus on the proper purpose of discovery—the gathering of material information—rather than on unlimited fishing expeditions.”
Although the model order was drafted for patent cases, it may have much broader applicability. Indeed, of the major provisions in the model order, only one is drafted to apply very specifically to patent cases. Several of the new and unique provisions of the model order are discussed below.