The program at a Product Liability Advisory Council, Inc. (“PLAC”) meeting are always interesting, and the one just before Columbus Day was no exception. It focused on social media and e-discovery.  Here are some highlights:
“Patent” Model Order on E-Discovery
Everybody knows the expense of e-discovery in modern litigation is out of control.  Well, it’s just as much a problem in patent cases as in mass torts, but at least the patent bench and bar are taking concrete steps to do something about it.  The Advisory Council for the Federal Circuit created a special subcommittee with the sole aim of creating a model court order to govern e-discovery.  Here’s a copy of the model order, which the special committee unanimously endorsed.
The model order was introduced a couple of weeks ago by Chief Judge Rader of Federal Circuit, at a Texas judicial conference.  For those interested in a more complete discussion, here’s a copy of Judge Rader’s talk (it’s nominally about patent litigation, but mostly about e-discovery).  This order has features that we’re certain could be usefully applied to e-discovery in all types of litigation, especially mass torts.  Specifically, the model order provides:

• “Disproportionate” e-discovery requests are grounds for cost shifting.
• Absent “good cause,” metadata (all that stuff lurking in the background of most electronic documents) is not discoverable – period.
• Discoverable background information about a document is limited to when it was sent/received and the distribution list.
• No more “general” demands for production of email.
• Production of email is limited to “specific issues” that must be separately stated in any request.
• Email production is to be “phased,” and may only take place after exchange of “initial disclosures” and “basic documentation.”  A mass tort case would similarly tie email production to specific claimed defects or acts of negligence.
• No blanket email production.  Specific custodians, search terms, and time frames must be stated to limit the scope of production.
• Unless the parties agree, email requests are presumptively limited to five custodians per producing party and five search terms per custodian.
• With leave of court, email production of an additional five custodians per producing party and five more search terms per custodian may be had.  Anything more than that, and the requesting party must pay for the extra e-discovery itself.
• Limits on overbroad search terms are imposed, and enforced by cost-shifting.
• Privileged e-discovery cannot be used by the requesting party.
• There is no waiver of privilege by the inadvertent production of e-discovery
• “Mere production” of e-discovery as part of a “mass production” is not a waiver for “any purpose.”

We think this model order, and particularly its hard caps, an excellent start to taming the e-discovery monster, which Chief Judge Rader said in his talk “endanger[s] the entire system” and had become “such a burden” that “outweigh[s] any benefit.”  The basic foundations of the model order:  (1) hard numerical limits; (2) specificity of requests, and (3) cost-shifting for “disproportionate” e-discovery demands, are universal.  Since the problems with e-discovery extend far beyond patent cases, we recommend the model order, with minor subject-matter-specific modifications, for use in any litigation, and especially mass torts.Continue Reading Interesting E-Discovery Developments

Last August we posted about a notable clerk’s order in the Eastern District of Pennsylvania that taxed, as costs, several hundred thousand dollar’s worth of e-discovery expenses against the losing party in an antitrust case.
We thought that was notable because, in prescription medical product liability litigation, our clients’ e-discovery costs are typically orders of magnitude greater than anything the other side has to spend.  Thus, when it comes to taxing e-discovery as costs that the prevailing party can recover, we’re probably going to have lots more costs to tax than does the other side when they win.
Anyway, we’re now able to report that the clerk’s opinion has been largely affirmed by the District Court, which strengthens the precedential value of the taxation order immeasurably.  See In re Aspartame Antitrust Litigation, No. 2:06-cv-01732-LDD, slip op. (E.D. Pa. Oct. 5, 2011).
The clerk awarded the three prevailing defendants some $565,000 in e-discovery costs, on the basis of a “heavy presumption” in favor of taxation of costs generally against the loser.  The District Court (Davis, J.) affirmed about 90% of the clerk’s award.  The affirmance contains a useful discussion of the current split of authority about the taxability of e-discovery costs, and what particular e-discovery expenses are properly taxable.  Aspartame, slip op. at 3-6 (collecting cases).  Siding with the opinions that support taxation of e-discovery costs, the court emphasized that all parties benefited from various efficiencies and savings arising from the availability of e-discovery, and significantly the court applied the same burden of proof in e-discovery as in other types of cost taxation.  Id. at 2-3.Continue Reading Aspartame Assessment Of E-Discovery Costs Largely Affirmed