2015 saw continued interest by the Delaware courts in various aspects of eDiscovery. The courts dealt with broad issues, such as spoliation and general discovery misconduct, while also focusing on narrower issues, such as document review and redactions.
This blog will be summarizing these 6 cases in more depth throughout the rest of 2016. The 6 cases that will be summarized are below:
In Re: ISN Software Corporation Appraisal Litigation, C.A. No-8388-VCG (Del. Ch. April 27, 2015) – This hearing was on the fifth motion to compel. The case involved spoliation, loss of metadata, and document collection issues relating to lost laptops. The Vice Chancellor’s main concern was that the record reflect an “evidentiary universe from which [he] can render a just opinion.” Parties must be transparent and forthcoming throughout the discovery process.
Pfizer, Inc. v. Amgen Fremont, Inc., et al., C.A. No. 10667-VCL, hearing (Del. Ch. June 25, 2015) – The Court reemphasized the importance of privilege logs while also stating that it would “not be complicit” in what the court viewed as the parties’ overly aggressive discovery conduct.
Brant Flax v. Pet360, Inc., et al., C.A. No. 10123-VCL, hearing (Del. Ch. June 29, 2015) – Despite Plaintiff’s claims that there had been repeated discovery abuses throughout the case, the Court ruled there were no sufficiently specific issues to be addressed, especially given that many of Plaintiff’s concerns were already moot. The Vice Chancellor did express concerns regarding the increasingly aggressive tactics being used in eDiscovery, both nationally and in Delaware, and stated that courts must be firm in addressing these problems.
Medicalgorithmics S.A. v. AMI Monitoring, C.A. No. 10948-CB (Del Ch. July 15, 2015) – This case emphasized the idea that senior attorneys need to be involved in document reviews. The Court also noted that the presumptive rule is that redactions for responsiveness are not allowed.
Kan-Di-Ki, LLC v. Robert Suer, C.A. No. 7937-VCP, memo. op. (Del. Ch. July 22, 2015) – Attorneys need to ensure their clients are preserving data, including text messages. The court ruled that plaintiff acted recklessly and imposed $20K in attorneys’ fees and made “narrowly tailored” adverse inferences.
TCV VI, L.P. v. TradingScreen Inc., C.A. No. 10164-VCN (Del. Ch. September 25, 2015) – The Court acknowledged that the standards applicable to drafting redaction logs are less well defined than privilege logs. Despite the fact that ordinarily parties must produce both privilege and redaction logs absent an agreement to the contrary, the Court found that for this specific case, having senior Delaware counsel review each redaction and certify that they are appropriate made sense and would be less burdensome.