On December 8, 2011, the U.S. District Court for the District of Delaware revised its “Default Standard for Discovery, Including Discovery of Electronically Stored Information (‘ESI’).” In its third revision, the Default Standard is to be applied when the parties are unable to reach agreement “on the parameters and/ or timing of discovery.” It follows the trend of requiring parties to meet and confer early in the case to discuss various discovery issues. The Default Standard specifically addresses the preservation of discoverable information, the exchange of privilege logs, the timing and content of the Rule 26(f) initial discovery conference and initial disclosures, and the production of ESI – its format, its metadata and the application of search terms to identify it. Special provisions highlight the unique discovery issues of patent litigation.
At the initial discovery conference, which must take place prior to the Rule 16 scheduling conference, the parties must discuss: (1) the scope of discovery, as defined by the issues, claims and defenses asserted in the case; (2) the likely sources of potentially relevant information, including witnesses, custodians and other data sources; (3) technical information, such as production formats; (4) the existence and handling of privileged information; and (5) the categories of ESI that should be preserved. Ultimately, the Default Standard promulgates cooperation between litigants and encourages reasonable and proportional discovery efforts.
In Schedule A to its Default Standard, the court also identified specific categories of ESI that need not be preserved, absent a showing of good cause. Among other things, the list includes voice messages, instant messages that are not ordinarily printed or maintained in a dedicated server, mobile device call logs, and server, system or network logs. Therefore, a litigant that seeks the discovery of such materials will bear the burden of demonstrating its necessity. The Default Standard is available on the home page of the District of Delaware at the following link.