On Dec. 8, 2011, the Federal District Court for the District of Delaware posted two new default standards for litigation: the Default Standard for Discovery, Including Discovery of Electronically Stored Information ("ESI") and the Default Standard for Access to Source Code.
These new default standards were developed by the district court's Ad Hoc Committee for Electronic Discovery which included District Court Judge Sue L. Robinson and Magistrate Judge Mary Pat Thynge, practioners from the bar, and in-house counsel. This is the second time that the Delaware default rules have been updated.
The Delaware Federal Court first published default electronic discovery rules in 2004, two years before the 2006 Federal Rules of Civil Procedure ESI amendments. The court updated the default standards in 2007 to address the changes brought on in the 2006 FRCP amendments. These latest revisions address head-on some of the most challenging discovery issues that have arisen since the FRCP amendments went into effect. The discovery standards encourage the parties' cooperation in discovery. However, if the parties fail to agree on the "parameters and/or timing of discovery," then the default standards will apply unless or until the parties reach agreement or the court issues its own orders. (Para. 1.a.) Experience with the prior default standards has, in fact, led parties to cooperate early in the discovery process and tailor their discovery plan to be consistent with the case requirements rather than deal with some of the default provisions.
The central theme that emerges from these new standards is their focus on proportionality and reasonableness related to preservation, identification, and production. (Para.1.b.) While the preservation proportionality debate rages on in the efforts to amend the FRCP and in the Southern District of New York, the Delaware Court has established proportionality as a baseline requirement throughout every discovery phase.
The default discovery rules provide that a party is not required to modify its backup and archive procedures, absent a showing of good cause, provided that parties "preserve the non-duplicative discoverable information currently in their possession, custody or control." [Para.1.c. (i)] These rules delineate 19 types of ESI that need not be preserved, unless a party makes a showing of good cause. The data include: deleted, slack or fragmented data; RAM, temporary or other ephemeral data; voice and instant messages; and various other data, including data from mobile devices. (Para. 1.c.(ii) and Schedule A)
The default discovery standard also instructs the parties to confer on a Federal Rule of Evidence 502 non-waiver order related to privileged information.
The discovery standard supplements the FRCP 26(a)(1)(A) initial disclosures, requiring the parties to identify "non-custodial data sources" that are most likely to contain non-duplicative relevant data. "Non-custodial data sources" are defined as systems or containers "that store ESI, but over which an individual custodian does not organize, manage, or maintain the ESI in the system or container (e.g., enterprise system or database)." (Para. 3.b., fn. 2)
Parties must identify the ten custodians "most likely to have discoverable information in their possession, custody or control." (Para. 3.a.) This provision is similar in some ways to the Federal Circuit Model Protective Order for Patent Litigation provisions that limit the number of individual custodians whose data are subject to discovery. While not clear from the provisions of the default discovery standard, an argument could be made, consistent with the proportionality strictures of the standard, that only ten individual custodians' data must be preserved.
The default discovery standard has provisions that address "Specific E-Discovery Issues." Parties using search terms to locate potentially responsive ESI, for example, must disclose their search terms to the requesting parties. A requesting party may ask for no more than 10 additional search terms, unless they can demonstrate good cause for additional terms. (Para. 5.b.) The default rules specify data production in searchable image files such as PDF or TIFF, with Opticon or Concordance load files which contain specified metadata fields. (Para 5.c.) By default, the only files that must be produced in a native format are those "files not easily converted to image format, such as Excel and Access files."
A very significant addition to the default discovery standards are provisions for "Initial Discovery in Patent Cases" which provide a timeline for disclosures that are similar to local patent rules in other jurisdictions. (Para. 4) Thirty days after the FRCP Rule 16 Conference, the patentee "shall specifically identify the accused products and the asserted patent(s) they allegedly infringe, and produce the file history for each asserted patent." (Para. 4.a.) Thirty days after receipt, the alleged infringer must produce "core technical documents related to the accused product(s), including but not limited to, operation manuals, product literature, schematics, and specifications." (Para. 4.b.). Other provisions address claim chart and invalidity contention production.
The default discovery standard contains a presumptive time limit on patent litigation discovery to six years prior to the complaint filing date, except that prior art and data related to invention conception and reduction to practice are not subject to the six-year limitation. (Para. 4.e.)
The source code default standard codifies provisions typically found in most protective orders which address access to sensitive source code. One notable default provision obligates the parties to use an "independent escrow agent" to secure the source code computer and share the cost of the escrow agent's fees. (Source Code Default Standard, Para. 3)
The Default Standard for Discovery and Default Standard for Access to Source Code provide litigants with guidance on issues that are often challenging for parties to resolve. By styling these standards a "default" the parties are free to fashion provisions that are more consistent with the needs of the case and their preferences. The default discovery standards' strong emphasis on reasonableness and proportionality and extensive attention to specific electronic discovery issues should prove to be a very positive development for litigation in Delaware Federal Court.
Silicon Valley consultant Mark Michels is a former litigation manager and discovery counsel at Cisco Systems. Email: mnpm2190@gmail.com.
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