Document review often is the most expensive component of discovery in large, complex cases. Wouldn’t it be great if you could shift that cost to the party that requested the documents, along with the burden of performing the tedious, time-consuming review? Well, maybe you can. A federal magistrate judge in the N.D. Florida recently did exactly that.

In FDIC v. Brudnicki, No. 5:12-cv-00398, 2013 WL 2948098 (June 14, 2013) , the FDIC, as receiver for a bank, sued eight of the bank’s former directors, including one officer. The defendants moved to compel documents from the FDIC and sought sanctions against the FDIC “for delaying discovery.” Id. at *3. The FDIC had “agreed to produce responsive documents under a proposed protocol.” Id. at *4. The court observed, however: “The parties sharply disagree on the method of production and the ESI protocol.” Id.
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Ever since Magistrate Judge Peck’s decision last year in Da Silva Moore v. Publicis Groupe SA, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012), there has been an increasing stream of orders and opinions weighing in on the use (or proposed use) of predictive coding. With each opinion, a new wrinkle appears, further shaping how parties are conducting technology assisted review during discovery.

Last month, Judge Robert Miller Jr., of the United States District Court for the Northern District of Indiana, joined this group with his order in In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391). There he found reasonable the process that had been undertaken by defendant Biomet in a multi-district litigation, involving the use of keyword searches followed by predictive coding, despite complaints from the plaintiffs’ Steering Committee.
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More than seven months after the International Trade Commission proposed changes to its procedural rules relating to e-discovery “in order to increase the efficiency of its section 337 investigations” and “to address concerns that have arisen about the scope of discovery in Commission proceedings,” on May 21, 2013 the Commission issued final rules adopting the proposed amendments with some revisions. The new rules are applicable to investigations instituted after June 20, 2013. Section 337 investigations are administrative proceedings before the ITC, authorized under 19 U.S.C § 1337, to determine whether there has been unfair competition—typically patent infringement—in the importation of articles into the U.S. The only remedy is injunctive relief, typically an order excluding the articles from entry into the U.S. The amended rules are intended “to reduce expensive, inefficient, unjustified, or unnecessary discovery practices in” Section 337 proceedings.
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2012 was a milestone year for Technology-Assisted Review (TAR), featuring the first judicial opinions expressly supporting its use by producing parties in litigation. Naturally, there has been a lot of excitement among vendors and e-discovery lawyers. But, despite these historic decisions, there remains little case law addressing how a producing party can use TAR and meet its discovery obligations. The technologies are just starting to be better understood by lawyers and courts (as this author has previously written). As a result, there is a dearth of guidance on best practices in this nascent legal arena.

Not surprisingly, the first few cases addressing TAR have cautiously embraced its use. These decisions collectively promote a high level of cooperation and transparency, including the involvement of opposing counsel in training the system and the sharing of the set of documents used to train the system (referred to as the seed set). The concern among some TAR advocates is that these practices exceed what is required under the Federal Rules of Civil Procedure and that, if these levels of transparency come to represent the minimum legal threshold of cooperation for using TAR, producing parties will be dissuaded from using TAR as a result of the added costs and litigation risks.
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So what kind of impact has the Federal Circuit Model Order had on the cost of patent litigation in the year since its adoption?

The hottest topic in patent e-discovery one year ago was Federal Circuit Chief Judge Rader’s remarks to the Eastern District of Texas Judicial Conference on the judiciary’s role in curbing discovery excesses. There, he unveiled the Federal Circuit’s “Model Order Regarding E-Discovery in Patent Cases,” the first formal effort to address e-discovery costs in patent litigation. The most prominent features of the Model Order were:

  • Exclusion of email from general production requests.
  • Phasing email production requests until after the parties have exchanged initial disclosures and basic patent documentation.
  • Propounding email production requests only for specific issues rather than general discovery.
  • Limiting email production requests to five custodians and five search terms per custodian.
  • Cost shifting for disproportionate ESI production requests.
  • Exclusion of metadata other than sent/received dates and distribution list.


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