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Does the Federal Circuit Model ESI Order Have a Different Approach for Email?

Posted on December 31st, 2014

The Federal Circuit has a Model E-Discovery Order for patent infringement cases, which provides for a two-tier approach to electronically stored information (ESI). The first stage is for production of responsive non-email ESI, and the second stage is for email. To streamline the email process, parties are to agree to the number of custodians and the number of search terms. However, this Model Order is “not required, but instructive.” The Model Order also states, “General ESI production requests under FRCP 34 and 35 shall not include email…to obtain email parties must propound specific email requests.” For a case where the parties disagreed on whether the two-tiered approach should apply, see Finisar Corporation v. Nistica, Inc., Case No. 13-cv-03345-BLF (JSC)(N.D.Cal. Dec. 12, 2014).

In that case, the parties’ agreed ESI order abandoned language referencing the Model Order and stated they generally agreed to produce ESI in response to document requests.  Finisar produced all ESI and non-privileged emails in the first production in response to the discovery requests. Nistica only produced a few emails inadvertently in the ESI production, and expressed concern that Finisar’s email production was done without proper search terms and custodians. Finisar filed a motion to compel the email production and for leave to depose a Nistica custodian after the emails are received.

Finisar claimed they agreed to produce all ESI at once and did not use the Model Order two-tiered approach; Nistica contended they still contemplated the two-tier approach for ESI first, email second. The court felt the Model Order approach was appropriate here, as the streamlined email approach was reasonable. It directed the parties to meet and confer regarding custodians and search terms, noting that blanket statements of “unduly burdensome” search terms is not a good faith meeting. A party objecting to a search term must demonstrate the term would capture irrelevant data. Finally, although the court therefore denied the motion to compel and motion for leave to depose the additional custodian, it expected Nistica to agree to a further deposition if it produced relevant emails regarding such custodian.

ILS – Plaintiff eDiscovery Experts

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