As Chief Judge Davis' General Order 12-6 explains, based upon a request from the court, a working group of the Local Rules Advisory Committee undertook a review of the Model Order Regarding E-Discovery in Patent Cases (the “Model Order”) presented by Federal Circuit Chief Judge Randall Rader to the Texas Eastern Bench Bar Conference in September 2011 to determine whether the Model Order, or some portion or variation of it, should be recommended for inclusion in Texas Eastern’s local rules.
The working group determined that a variation of the Model Order could be helpful to practice in the district, but rather than including that variation as an actual local rule, the working group recommended including the form order as an appendix to the local rules, much like the current appendix forms for final pretrial or scheduling orders. This approach allows maximum flexibility for both litigants and the court as attempts are made to tailor e-discovery 1planning to differing facts, case to case. This approach also allows the court to decide questions parties may raise regarding the interpretation or application of the recommended requirements within each case without having to generally construe or interpret a local rule. The order references a redline/strikeout version that depicts and explains the specific changes made to Chief Judge Rader’s Model Order that will be posted on the court’s website, located at www.txed.uscourts.gov later today, along with a press release.
Here are some of the areas in which the new Eastern District model order differs from Judge Rader's order:
It goes beyond e-mail discovery to include default standards for e-discovery production, which are:
A. General Document Image Format. Each electronic document shall be produced in single-page Tagged Image File Format (“TIFF”) format. TIFF files shall be single page and shall be named with a unique production number followed by the appropriate file extension. Load files shall be provided to indicate the location and unitization of the TIFF files. If a document is more than one page, the unitization of the document and any attachments and/or affixed notes shall be maintained as they existed in the original document.
B. Text-Searchable Documents. No party has an obligation to make its production text-searchable; however, if a party’s documents already exist in text-searchable format independent of this litigation, or are converted to text-searchable format for use in this litigation, including for use by the producing party’s counsel, then such documents shall be produced in the same text-searchable format at no cost to the receiving party.
C. Footer. Each document image shall contain a footer with a sequentially ascending production number.
D. Native Files. A party that receives a document produced in a format specified above may make a reasonable request to receive the document in its native format, and upon receipt of such a request, the producing party shall produce the document in its native format.
E. No Backup Restoration Required. Absent a showing of good cause, no party need restore any form of media upon which backup data is maintained in a party’s normal or allowed processes, including but not limited to backup tapes, disks, SAN, and other forms of media, to comply with its discovery obligations in the present case.
F. Voicemail and Mobile Devices. Absent a showing of good cause, voicemails, PDAs and mobile phones are deemed not reasonably accessible and need not be collected and preserved.
Discovery is permitted to determine proper e-mail custodians
Each requesting party may also propound up to five written discovery requests and take one deposition per producing party to identify the proper custodians, proper search terms, and proper time frame for e-mail production requests. The court may allow additional discovery upon a showing of good cause.
Default of eight custodians and ten terms for e-mail discovery (up from five and five)
Standard for consideration of additional e-mail discovery requests is not limited, i.e. court can only consider "up to five" language is not present.
Additional e-mail discovery permitted on a showing of good cause
No default that costs for additional e-mail discovery are assessed against the requesting party