The Delaware Court of Chancery Rules Committee has recommended, and the 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 take steps to preserve electronic evidence. The guidelines are available at http://courts.delaware.gov/Chancery/.
Historically, the Court of Chancery has had high expectations - but few formal rules - regarding electronic discovery. In that spirit, the 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.
As noted by the court, experience has shown that electronic discovery problem areas tend to include business laptop computers, home computers, external or portable storage devices such as USB flash drives (also known as "thumb drives" or "key drives") and personal e-mail accounts. This list can serve as a point of departure for parties and their counsel in considering the sometimes overlooked ways that clients use and store potentially relevant electronic evidence.
The court has not adopted a comprehensive set of rules regarding electronic discovery, and instead has referred practitioners generally to other resources, such as the Sedona Guidelines and the Conference of Chief Justices: Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored 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, it is hoped that the guidelines, by focusing on minimum standards for preservation of evidence, will provide needed flexibility and will help to avoid lengthy disputes over spoliation and discovery sanctions.