• 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 guidelines offer an example of a checklist or outline "to assist counsel in developing a sound document collection process." The outline is meant as a starting point, and will need to be modified to fit the facts of a particular case.
Another recent "hot topic" in the DCC practice is "who" must or should do the actual collection of ESI. In the past, the court has expressed concern when "interested" individuals were solely responsible for identification, preservation, collection, or review of their own information.
"The Discovery Guidelines" clarify that issue by noting that:
[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.
While there is no formal Rule 26 "meet and confer" requirement under the Court of Chancery Rules like there is in the Federal Rules, the Court of Chancery is moving closer to one by encouraging counsel to meet and confer promptly after the start of discovery to develop a discovery plan that includes electronic discovery.
The "Discovery Guidelines" promote transparency regarding the process and parameters used to collect documents (e.g., the custodians, electronic search terms, cutoff dates used, and steps taken) which the Court views as "essential to (i) identify potential areas of disagreement early in the process, and (ii) provide some protection to parties if problems later arise. To the extent that the collection process and parameters are disclosed to the other parties and those parties do not object, that fact may be relevant to the Court when addressing later discovery disputes.
PRIVILEGE AND PRIVILEGE LOGS
The area of privilege and privilege logs garnered a great deal of attention, primarily because it is the most expensive and most confusing part of discovery. How to handle privilege in the age of digital information can be extremely taxing. In addition, there is a significant amount of confusion in the creation of the log in part because the parties are using archaic, paper-based reasoning to address ESI issues.
In the end, the privilege log is an exercise in futility from all points of view — clients, counsel, and the court. The "Discovery Guidelines" clarify some of the confusion about privilege logs by highlighting the priority that privilege logs must now take. Indeed, they spotlight the senior lawyers in the case (and especially senior Delaware lawyers) who must provide guidance about the assertion of privilege, and must also make certain that the guidance provided was actually implemented.
While the guidelines note that senior lawyers are not being required to personally conduct the privilege review or prepare the privilege log, they must take reasonable steps to ensure that privilege only has been asserted in accordance with a good faith reading of Delaware law, and that there has not been systematic over-designation. They specifically note that "the senior Delaware lawyers must personally assure themselves that the privilege assertion process has been conducted with integrity.
What does this mean in practice? It means that when there is a DDC hearing, a senior Delaware lawyer must be able to take the podium, explain the basis for the assertion of a disputed claim of privilege, and be knowledgeable about the privilege assertion process. The guidelines provide suggestions for handling privilege log issues:
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