The Delaware Court of Chancery has adopted "Guidelines for Preservation of Electronically Stored Information." The guidelines are designed to educate practitioners and parties about the critical need and duty to preserve electronic evidence.

Historically, the Court of Chancery has had few formal rules regarding electronic discovery. The new guidelines focus on providing minimum standards relating to preservation of electronic evidence. Should a problem arise, preservation efforts will be evaluated on a case-by-case basis. However, the baseline requirements are:

  • A written litigation hold notice should be distributed to all custodians of potentially relevant electronically stored information. The litigation hold should be implemented when litigation is reasonably anticipated.
  • The client, outside counsel and the client's information technology function (if applicable) should confer to locate and preserve potentially relevant information.
  • Counsel should document steps taken to prevent the destruction of potentially relevant electronic evidence.

Since courts cannot regulate pre-litigation behavior, it is important to note that the new guidelines are not rules of the Court of Chancery. There are no federal or state rules dealing directly with a party's preservation obligation, which is a common law obligation in which parties must take reasonable steps to preserve potentially relevant information. While the Court of Chancery Rules Committee considers whether to provide further guidance relating to other electronic discovery issues, such as collection, searching and production, the guidelines—by focusing on minimum standards for preservation of evidence—should provide needed flexibility and will help to avoid lengthy disputes over spoliation and discovery sanctions.