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07.09.2010 Blog

Recent Ediscovery Orders in the Rocket Docket

As we have blogged about here, Tecsec and IBM are engaged in a large patent dispute in the Alexandria Division. The parties disagreed as to what kind of order should be entered by the Court governing the search for and production of electronic information. Ultimately, the Court entered IBM's proposed Order. This is one of the most detailed ediscovery orders that I have seen. The Order finds that "the review of emails in this case will be unduly burdensome unless a search protocol is implemented to narrow the universe of email…." The Order then establishes the following procedure for the search and production of email:  The parties will exchange topics for searching; once the Court approves or the parties agree, the producing party will then provide a list of custodians and search terms.  The parties will meet and confer, and then run the search.  Notably, the Order states that the producing party "may at its option, but need not, review the search results for responsiveness" before producing, and if it elects not to, it can simply designate all documents HIGHLY CONFIDENTIAL and produce them, relying on the clawback provision in the protective order if it needs to. The Order then contemplates an additional meet and confer among the parties to refine the results, but after that, and upon production of the data, the Order states: "A Producing Party's obligation to conduct a reasonable search for email and attachments in response to a Requesting Party's discovery requests shall be deemed to be satisfied by producing non-privileged email and attachments identified by utilizing the search protocol described herein, absent a post-search review."