The Federal Circuit Advisory Council recently drafted and adopted a model order governing e-discovery. According to the announcement at the Federal Circuit, the "Model Order is offered to aid trial courts in the exercise of their discretion in crafting orders tailored to the facts and circumstances of each case. The Court of Appeals for the Federal Circuit has not approved the specific language of the posted Model Order." Chief Judge Randall Rader announced the model order during a speech in Texas on September 27 of this year.
The order is noteworthy for its presumption that keyword searches are the touchstone of e-discovery, and for the strict limits it imposes on the quantity of keyword searches, custodians, and metadata. It presumptively limits email requests to five custodians, and five search terms per custodian. Metadata is presumptively off-limits, "However, fields showing the date and time that the document was sent and received, as well as the complete distribution list, shall generally be included in the production."
The custodian and search-term limitations raise the question how a requesting party can know, in advance, the key custodians and search terms. (Compare the approach of the new default rules in the United States District Court for the District for Delaware, requiring each party to identify, in order, the ten likeliest custodians (as well as non-custodial sources) of discoverable information). The presumption in favor of some but not all metadata is curious given that once you have to extract any metadata, the marginal difficulty and cost of extracting additional metadata is usually minimal. (There may be exceptions for some databases, but such exceptions may not form a sound basis for a default rule of much wider applicability). Furthermore, metadata can be useful in applying technology to assist document review.
The custodian and search-term limitations raise the question how a requesting party can know, in advance, the key custodians and search terms. (Compare the approach of the new default rules in the United States District Court for the District for Delaware, requiring each party to identify, in order, the ten likeliest custodians (as well as non-custodial sources) of discoverable information). The presumption in favor of some but not all metadata is curious given that once you have to extract any metadata, the marginal difficulty and cost of extracting additional metadata is usually minimal. (There may be exceptions for some databases, but such exceptions may not form a sound basis for a default rule of much wider applicability). Furthermore, metadata can be useful in applying technology to assist document review.
More fundamentally, the presumption that e-discovery revolves around keyword searches seems misguided given their notoriously poor recall and precision yields, and the availability of machine-learning tools (such as Backstop) which can achieve substantially higher levels of recall and precision through review of a comparatively sparse random sampling.
On November 2, 2011, Magistrate Judge Paul S. Grewal of the Norther District of California applied the order in a patent case, DCG Systems, Inc. v. Checkpoint Technologies, LLC, No. C-11-03792 PS, although the Federal Circuit website states that the order has not yet been approved.
It will be interesting to observe whether the model order catches on. If the order proves useful to "secure the just, speedy, and inexpensive determination of every action," hypothetical misapplications should not stand in its way. As Oliver Wendell Holmes said, "the life of the law has not been logic; it has been experience."
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