This past January, the Delaware Chancery Court issued guidelines, predicated on standards of “reasonableness” and “good-faith,” for the preservation of electronically stored information (“ESI”). The purpose of the guidelines, as stated by the Court, is “to remind all counsel appearing . . . before this Court of their common law duty to their clients and the Court with respect to the preservation of [ESI] in litigation.” Court of Chancery Guidelines for Preservation of Electronically Stored Information, available at http:// courts.delaware.gov/forms/download.aspx?id=50988 (the “Guidelines”). The Guidelines stress counsel’s need to affirmatively address preservation issues, as preservation problems are often difficult to remedy after the fact.
The Guidelines indicate that the Court will evaluate the adequacy of preservation processes on a case-by-case basis. Notwithstanding the individualized nature of the Court’s analysis, parties and their counsel are advised of certain minimum requirements to develop and oversee a preservation process that entails the dissemination of litigation hold notices to custodians of potentially relevant ESI. Failure by parties and counsel to take reasonable steps to preserve ESI may result in serious court sanctions. Counsel are reminded that the duty to preserve is triggered not when litigation commences, but rather when it is “reasonably anticipated.” And, finally, reasonable and good-faith preservation efforts by parties and their counsel, although not dispositive, will be taken into consideration in cases where potentially relevant ESI is lost or destroyed.
Although intended to caution litigants of the potential consequences for the failure to preserve ESI, the Guidelines include a safe-harbor provision for cases where the production of ESI is not warranted, for example, in a litigation where the amount at stake is relatively modest. They provide that parties may agree “to limit or forgo” discovery of ESI. Such a determination is best made at the outset of a litigation, consistent with the Guidelines’ suggestion that parties confer regarding ESI preservation and production timing and methodology at the outset of a matter.
E-Discovery Guidance from the Bench
Even before the Guidelines were published, one Delaware Chancery Judge made a record of his increased expectations in the e-discovery realm. Vice Chancellor Laster of the Delaware Chancery Court garnered attention for his ruling in an April 8, 2010 teleconference concerning a discovery dispute. Transcript of Telephone Conference, Roffe v. Eagle Rock Energy, Gp, L.P., C.A. No. 5258-VCL (Del. Ch. April 8, 2010), ECF No. 67. During the conference, the Vice Chancellor admonished counsel not to rely on a client to search its own email system, ruling that counsel must be physically present during the collection of ESI from his or her client. See Id. at 10. A client-generated search, the Vice Chancellor feared, could result in a collection that is too limited. He cautioned that counsel’s use of “lackadaisical” discovery practices, such as relying on an in-house search of ESI, could lead the Court to reject proposed settlements outright. Id. at 9-10.
As Vice Chancellor Laster’s admonitions and the Guidelines demonstrate, litigants in the Delaware Chancery Court should take reasonable and precautionary measures to ensure the complete preservation and thorough discovery of potentially relevant ESI. Although the Court has yet to propose rules regarding the preservation of ESI, it should not come as a surprise if the Guidelines are codified in the future. Furthermore, given the Court’s activist stance on e-discovery, it certainly is possible that guidance on matters beyond preservation of ESI also may be forthcoming.