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The Delaware Court of Chancery is amending its Rules 26, 30, 34, and 45 in order to update provisions relating to the retention and discovery of electronically stored information. The Court is also expanding its “Guidelines for Practitioners” to include “Discovery Guidelines,” which set out the Court’s expectations with regard to eDiscovery best practices.
Specifically, the Discovery Guidelines clarify the expected role of Delaware Counsel during eDiscovery:
If Delaware counsel does not directly participate in the collection, review and production of information, Delaware counsel should, at a minimum, discuss with co-counsel the Court’s expectations. In addition, Delaware counsel should be involved in making important decisions about collection and review of documents and should receive regular updates, preferably in writing regarding the decisions that are made on key issues, such as the selection of custodians and search terms. The Court expects Delaware counsel to be able to answer questions regarding the manner in which the document collection and review was conducted. It is therefore recommended that Delaware counsel and co-counsel collectively maintain a written description of the discovery process, including detailed information regarding efforts to preserve documents, custodians identified, search terms used, and what files were searched.
Similarly, the Guidelines set out expectations of counsel in the context of discovery limitations:
- Each party should make a good faith, reasonable attempt to identify the custodians who are reasonably likely to possess relevant information and prioritize information collection efforts on those custodians;
- The parties should also collect from any centralized document repository or system that is likely to contain relevant documents even if there is an agreement to limit discovery to a certain number of custodians;
- If search terms are utilized to identify potentially relevant information, the parties should make a good faith, reasonable attempt to negotiate those terms with the opposing parties.
The Court attempts to clarify the often contentious issue of who must or should perform the actual collection and review of electronically stored information:
[E]xperienced outside counsel should be actively involved in establishing and monitoring the procedures used to collect and review documents to determine that reasonable, good faith efforts are undertaken to ensure that responsive, non-privileged documents are timely produced. In addition, as a general matter, the Court prefers that, whenever practicable, outside counsel or professionals acting under their direction will conduct document collection and review.
In addition, the Discovery Guidelines include helpful suggestions in the area of privilege and privilege logs, which, especially in the context of ESI, can be very confusing and very expensive:
1. The parties are not expected to log post-litigation communications;
2. The parties are free to agree to log certain types of documents by category instead of on a document-by-document basis; and
3. With respect to email chains, parties should attempt to agree on the procedures that both sides will use.
Many of these changes reflect the eDiscovery amendments to Federal Rules of Civil Procedure and are intended modernize eDiscovery practices.