Idealistic musings about eDiscovery
Curbing eDiscovery Excesses: Is This The BEST Solution?
From Law.com (free registration required), Sheri Qualters reports that yesterday, Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit unveiled a model order that would limit eDiscovery in patent cases. As discussed in the article, the model order is interesting not for demanding that attorneys become eDiscovery-savvy, but in throttling back the volume of eDiscovery that is, in fact, discoverable.
Three of the more interesting requirements of the model order:
- Metadata will be from e-discovery production requests without “a showing of good cause.” [This alone seems odd, as it flies in the face of emerging case law and, arguably, the “usual course of business” production requirements of the FRCP.]
- E-mail requests will be limited to five so-called custodians per producing party and five search terms per custodian. [Is this a realistic limit?]
- The production of electronic information en masse, or the inadvertent release of privileged or work-product protected electronic data, is not a waiver or permission to use it. [This one, on the other hand, I can comfortably get behind, and hope it gets adopted more globally.]
Keep in mind that this model order is (a) limited to patent cases and (b) limited to the Federal Circuit, at least for now. A member of the advisory committee that drafted the model order noted it’s unlikely that all federal courts will embrace it.
I question the reasonability of the first two bullet points noted above. Yes, they would certainly cut down on eDiscovery expense, difficulty and ambiguity … but are they practical? Do these rules really define the tipping point between ESI cost management and “the swift and fair adjudication of justice”? Or are they arbitrary limitations that may cut down on discovery disputes, but at the expense of full disclosure?
I also question the wisdom of limiting search terms to five per custodian. How will this be calculated – as an aggregate count of search terms across all custodians, or would the same terms applied to each of the five custodians max out the order’s limit? Also left undefined is the term “search term” itself, which could theoretically include individual keywords (stemmed and unstemmed), Boolean queries, concept searches, fuzzy and wildcard searches … the list goes on.
Hey, at least someone’s trying to throttle back eDiscovery excesses. But, based on this article, we still have a very long way to go.