This is the seventh in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
Mechel Bluestone v. James C. Justice Cos., C.A. No. 9218-VCL(Del. Ch. Dec. 12, 2014).
My colleague, Thomas Hanson, previously summarized Mechel Bluestone in an article written on December 23, 2014 which discussed the need for senior Delaware counsel to guide and be closely involved in the preparation of privilege logs and to promptly respond to deficiency letters. The article can be read in its entirety here: http://www.morrisjames.com/newsroom-articles-357.html.
To recap, here are the seven most important eDiscovery cases in Delaware in 2014 (in chronological order) along with their key takeaways:
- Sustainable Biofuels (Vice Chancellor Parsons) – if an attorney is unsure of how to proceed on eDiscovery issues, he or she should reach out to a colleague or vendor for guidance and assistance.
- Factor Fund (Vice Chancellor Laster) – particularly in an expedited case, attorneys should be using an early data assessment tool and should be thinking about approaches other than the “old school attorney-by-attorney review.”
- Chen v. Howard-Anderson (Vice Chancellor Laster) – Delaware Courts will not hesitate to scrutinize a firm’s eDiscovery process if there is evidence of impropriety; transparency and cooperation on the part of all parties are recommended from the outset of every case.
- ISN Software (Vice Chancellor Glasscock) – not only must Litigation Hold letters be disseminated, but counsel should follow up later to make sure the hold is being complied with; in order to effectively do this, counsel needs to become familiar with the client’s processes and systems.
- Kan-Di-Ki (Vice Chancellor Parsons) – Delaware Courts take a party’s duty to preserve evidence very seriously, including on mobile devices; this duty to preserve can, and often does, attach before litigation has formally commenced.
- James v. National Financial (Vice Chancellor Laster) – Delaware counsel cannot serve as a mere mail-drop and cannot simply sign documents prepared by outside counsel; instead, Delaware counsel must play an active role in the discovery process and must, at the very least, ensure outside counsel is aware of what the Court expects in discovery.
- Mechel Bluestone (Vice Chancellor Laster) – senior Delaware counsel must guide and be involved in the preparation of privilege logs; if a log is poorly prepared, a party risks waiver of the privilege with respect to those documents.