At this year’s Eastern District of Texas Bench Bar Conference, the Federal Circuit’s Chief Judge Rader gave a speech (attached) and introduced what is now known as the “Model Order” (located at the very end of the attached pdf) which deals with e-discovery in patent infringement cases. If you practice patent litigation, you should familiarize yourself with both Chief Judge Rader’s speech and the Model Order. Although the Model Order is not binding in any jurisdiction, it has become very persuasive on e-discovery issues in patent infringement cases across the country.
For example, the Eastern District of Texas recently issued its own Model Order Regarding E-Discovery in Patent Cases, which is based on Chief Judge Rader’s Model Order. The Eastern District’s Model Order is available here (this version is a redline/strikeout version showing the changes that were made to Chief Judge Rader’s Model Order).
It is yet to be seen whether the Judges in Northern District of Texas will adopt similar e-discovery orders in patent infringement cases, although we expect parties in patent infringement cases will (if they are not doing so already) request that e-discovery orders be entered in their cases.