Kevin Brady of Eckert Seamans Cherin & Mellott
The Delaware Court of Chancery recently announced that it is updating its Rules 26, 30, 34, and 45, effective Jan. 1, 2013, "to account for modern discovery demands" regarding electronically stored information, and to bring the court's rules "in line with current practice."
Many of the changes mirror the amendments to the Federal Rules of Civil Procedure addressing electronic data discovery and ESI — for example, requesting a certain form of production of ESI under Rule 34. The court also is expanding it "Guidelines for Practitioners," originally released in January 2012. The "Discovery Guidelines" explain the court's expectations regarding parties' responsibility to confer early and often, about EDD procedures, the overall scope of discovery, preferred procedures for collection and review of discoverable material (including ESI), the privilege-assertion process, and the role of Delaware counsel in the discovery process.
The court also developed guidelines for expedited discovery in advance of a preliminary injunction hearing. These are designed to encourage communication among counsel and are intended to assist the bar in developing reliable, transparent EDD procedures. They provide structure for addressing ESI, and at the same time encouraging lawyers to be flexible, cooperative, transparent, and proactive.
HIGHLIGHTS: EXPEDITED AND NON-EXPEDITED MATTERS
• Active Participation by Counsel in Collection Process. Following in the trend set by U.S. District Court Judge Shira Scheindlin, of the Southern District of New York, in the Zubulake cases, the judges on the DCC have been telling practitioners for some time that the court expects Delaware counsel to play an active role in the discovery process.
The "Discovery Guidelines" clarify the role by noting that Delaware counsel should be involved in "the design and implementation of the protocol for the collection, review, and production of documents, and in the assertion of privilege." The level of involvement is highlighted where the guidelines state that:
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.
Transparency is key in terms of the parties exchanging information concerning the scope of their respective document collections (e.g., what documents are being collected, how they are being collected, what computers or other electronic devices are being searched, and any search terms or other restrictions being used to collect documents).
The "Discovery Guidelines" state that "counsel should interview the custodians from whom they have collected to understand, among other things, any potential sources of relevant documents (e.g., centralized document repositories or systems, PDAs, work and home computers), determine the records that are kept in the ordinary course, and identify any relevant jargon, acronyms, or code names."
While the guidelines note that in many expedited matters, the nature of action will dictate what is deemed to be "reasonable" by the court, but even in highly expedited actions, the court expects the parties to discuss limitations on discovery. For example:
• 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 (note that the Discovery Guidelines refer to custodians and not key players — this is an important distinction);
• 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;
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