eDiscovery Daily Blog
eDiscovery Trends: International Trade Commission Considers Proportionality Proposal
As eDiscovery costs continue to escalate, proposals to bring proportionality to the eDiscovery process have become increasingly popular, such as this model order to limit eDiscovery in patent cases proposed by Federal Circuit Chief Judge Randall Rader last year (which was adopted for use in this case). In January, Chief Judge Rader and three members of the Council (Council Chairman Ed Reines of Weil, Tina Chappell of Intel Corporation, and John Whealan, Associate Dean of Intellectual Property Studies at the George Washington University School of Law) presented a proposal to the U.S. International Trade Commission (USITC) to streamline eDiscovery in section 337 investigations.
Under Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), the USITC conducts investigations into allegations of certain unfair practices in import trade. Section 337 declares the infringement of certain statutory intellectual property rights and other forms of unfair competition in import trade to be unlawful practices. Most Section 337 investigations involve allegations of patent or registered trademark infringement.
The proposal tracks the approach of the district court eDiscovery model order that is being adopted in several district courts and under consideration in others. Chairman Reines described the proposal as flexible, reasonably simple, and easy to administer. Under the proposal, litigants would:
- Indicate whether ESI such as email is being sought or not;
- Presumptively limit the number of custodians whose files will be searched, the locations of those documents, and the search terms that will be used (if litigants exceed the specified limits, they would assume the additional costs);
- Use focused search terms limited to specific contested issues; and
- Allow privileged documents to be exchanged without losing privilege.
For more regarding the regarding the USITC proposal to streamline eDiscovery in section 337 investigations, including reactions from USITC members, click to see the USITC press release here.
So, what do you think? Please share any comments you might have or if you’d like to know more about a particular topic.
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