Parties typically seek to narrow the scope of potentially responsive documents by meeting and conferring and reaching agreement on appropriate search terms. The parties next run those search terms against the data collected from the relevant custodians and review the resulting information for responsiveness. This method of identifying responsive electronic data has more or less become the norm in cases involving large data collection efforts. Occasionally, however, search terms miss the mark and fail to capture the information the opposing party is entitled to receive. The Delaware Court of Chancery recently addressed this and other related issues in deciding motions to compel filed by the defendant in BTG International v. Wellstat Therapeutics, No. 12562-VCL (Oct. 4).

The plaintiff, BTG International Inc., sought a declaration that it met the “diligent efforts” requirements of the parties’ agreement with respect to its promotion of a certain cancer treatment product called Vistogard. The defendant, Wellstat Therapeutics Corp., counterclaimed seeking a declaration that BTG breached its obligations in this regard. To prove its counterclaims, Wellstat sought evidence regarding the efforts undertaken by BTG to support “the prelaunch, launch, and ongoing promotion of Vistogard.” Wellstat sought to discover “BTG’s actual investment in personnel and financial resources for the promotion and sale of Vistogard” for purposes of establishing exactly what BTG’s efforts had been. Wellstat also sought similar information regarding three other products referenced in BTG’s complaint.

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