After extensive drafting efforts by a multitude of nationally known judges and lawyers, the Advisory Council for the Federal Circuit unanimously approved a model order concerning e-discovery for use in patent cases around the country. The proposed model was unveiled by Chief Judge Rader in his recent remarks to the Judicial Conference for the Eastern District of Texas. You can find the order here.

Judge Rader expressed concern that IP cases were generating discovery costs some 62% higher than other complex cases, all things being equal. He also referenced an analysis that concluded that a mere .0074% of the documents produced in e-discovery actually made their way onto the final trial exhibit list—less than one document in ten thousand. And he observed that for all the thousands of appeals he had evaluated, e-mail appeared even more rarely as relevant evidence.

Based upon recent public reports, the model order has already made its way into case management orders across the country. Practitioners here in the District of Colorado should be deploying this new addition soon.

Greg is a nationally certified mediator and arbitrator and owns IP Resolution Co., a national ADR consultancy specializing in IP and high-tech disputes. He is a registered patent attorney and a long-time Denver trial lawyer. He is active in the Colorado IP American Inn of Court and is Vice-chair of the Dispute Resolution Section of the Colorado Bar Association. He can be contacted at jgw@ipresolutionco.com.

As indicated in the August 31, 2011 Intellectual Property Newsletter, Judge Mix announced that Judges Krieger, Brimmer, Martinez and Arguello adopted a Form Scheduling Order for Patent Cases. The Form can be found here.

As a reminder, Judge Mix gave admonitions about timing in the Scheduling Order; stating that the trial date should be no more than 2 years from the date of the Scheduling Conference and the deadline for dispositive motions should be no more than 18 months from the date of the Scheduling Conference (at the latest).