Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.
Limiting the Cost of Litigation, Ethically

Out-of-control e-discovery costs have expanded the cost of litigation to where it is cost-prohibitive for many companies, small businesses and individuals to file suit, and intolerable for them be named as a defendants.  Late last year, the Advisory Council of the U.S. Court of Appeals for the Federal Circuit offered a solution—an E-Discovery Model Order suggesting cost-effective e-discovery limitations that is rapidly gaining favor in patent infringement lawsuits.  The Model Order could be adapted for use in other types of lawsuits where e-discovery costs are out of proportion to the potential value of the lawsuit or far too burdensome given the potential relevance of the e-discovery sought.

The Model Order recognizes that, despite model e-discovery rules in many jurisdictions, “e-discovery continues to present a broad spectrum of challenges, such as preservation obligations, production format, and the disproportionate cost of e-discovery.”  The Model Order also recognizes that some practitioners now use document requests for electronic documents as “tactical weapons,” leveraging the high cost of e-discovery in lawsuits to where it is an “unhealthy tax on legitimate commerce,” stating:

In recent years, the exponential growth of and reliance on electronic documents and communications has exacerbated such discovery abuses. Excessive e-discovery, including disproportionate, overbroad email production requests, carry staggering time and production costs that have a debilitating effect on litigation.

The Model Order proposes a solution including limitations on the number of custodians whose electronically stored information (such as email) will be searched, and limitations on the number of search terms that will be used to search that information.  In addition, the Model Order states that email production requests should only be propounded for specific issues, rather than for general discovery of a business.  Cost-shifting is recommended where e-discovery requests or costs are disproportionate, or where a party employs nonresponsive or dilatory discovery tactics.

Although the Model Order does not fit every case, and parties seeking to rely upon it are well-advised to reach a stipulation with opposing counsel regarding which of its provisions should apply, its reasoned discussion of e-discovery burdens and appropriate limitations will help courts and parties avoid needlessly expensive litigation in the future.

The full text of the Federal Circuit’s Model Order can be found here:

- Erin P. Gibson is a partner in the Intellectual Property and Technology group of DLA Piper LLP (US) in San Diego, California, and a member of the SDCBA Legal Ethics Committee.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**