Model Order on E-Discovery Adopted in Case Involving Competitors

In response to the parties' submission of a Joint Case Management Statement in accordance with FRCP 26(f), the court entered an Order Re Parties' Production of Electronic Documents "adopting a version of the Model Order on E-Discovery in Patent Cases ('Model Order') recently promulgated by a subcommittee of the Advisory Council of the Federal Circuit." In doing so, the court rejected plaintiff's argument that the Model Order was not designed for cases involving competitors. "The court is not persuaded by [plaintiff's] argument for at least two reasons. First, although the undersigned will not presume to know whether Chief Judge Rader or any of the esteemed members of the subcommittee were focused exclusively on reducing discovery costs in so-called 'NPE' cases, there is nothing in the language of the Chief Judge's speech or the text of the model order so limiting its application. Second, and more fundamentally, there is no reason to believe that competitor cases present less compelling circumstances in which to impose reasonable restrictions on the timing and scope of email discovery. To the extent [plaintiff] faces unique or particularly undue constraints as a result of the limitations, it remains free, under the Model Order, to seek relief from the court. . . . And if competitor cases such as this lack the asymmetrical production burden often found in NPE cases, so that two parties might benefit from production restrictions, the Model Order would seem more appropriate, not less."

DCG Systems, Inc v. Checkpoint Technologies, LLC, 5-11-cv-03792 (CAND November 2, 2011, Order) (Grewal, M.J.)