Effective January 1, 2013, the Delaware Court of Chancery Rules 26 (General provisions concerning discovery), 30 (Depositions upon oral examination), 34 (Production of documents) and 45 (Subpoenas) were amended, consistent with similar amendments to the Federal Rules of Civil Procedure, to refer to discovery of “electronically stored information” (“ESI”) in addition to “documents” and “tangible things” and explain how parties are to respond to requests for ESI.
In addition to amendments to the Rules, the Court has expanded its Guidelines for Practitioners, issued in January 2012, to include guidelines regarding discovery, including electronic discovery procedures, the overall scope of discovery, preferred procedures for the collection and review of discoverable material, including ESI, the privilege assertion process, and the role of Delaware counsel in the discovery process. As explained by the Court, the new guidelines “encourage communication among counsel and are intended to assist the Bar in developing reliable and transparent procedures for electronic discovery.”
Some of the highlights of the new guidelines are as follows:
Collection and Review of ESI
- Similar to the requirements of the Federal Rules of Civil Procedure, counsel are encouraged to meet and confer promptly after the start of discovery to develop a plan for electronic discovery. Transparency to the other parties regarding the process and parameters used to collect documents is essential.
- Experienced outside counsel, rather than the interested parties, should be actively involved in establishing and monitoring the procedures used to preserve, collect and review documents to determine that reasonable, good faith efforts are undertaken to ensure that responsive, non-privileged documents are timely produced. When practicable, outside counsel and professionals acting under their direction should conduct the document collection and review.
- In establishing an approach to electronic discovery, counsel should consider issues of burden and expense, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the relative importance of the various issues at stake in the litigation. Because the Court has not adopted a one size fits all approach, it is essential and not optional that the parties candidly discuss these issues directly to try to reach a case-specific arrangement.
Assertion of Privilege and Preparation of Privilege Logs
- The guidelines caution against the tendency of lawyers to overdesignate documents as privileged. As a general matter, only communications involving an attorney acting as an attorney for the purpose of facilitating the provision of legal advice may properly be designated as attorney-client privileged.
- The guidelines recognize that the privilege analysis and the creation of privilege logs is time-consuming and expensive. Accordingly, parties are generally not expected to log post-litigation communications, they may agree to log certain types of documents by category instead of on a document-by-document basis, and they may dispense with a log for partially redacted communications where the face of the document provides the factual information that otherwise would appear on the log.
- When a document-by-document log is warranted, it must sufficiently describe the document being withheld, without revealing information that is itself privileged or protected, so that the opposing party and the Court can assess the propriety of the asserted basis for withholding the document. This should include document-specific descriptions, the context of the document, and information about the individuals identified on the log, including whether they are attorneys, their titles, and their affiliations.
The Role of Delaware Counsel
- Consistent with one of the overall themes of the Guidelines, the new discovery guidelines emphasize the Court’s expectation that Delaware counsel play an active role in the collection, review and production of documents, including ESI, and in the assertion of privilege.
- With respect to electronic discovery, the guidelines recommend that Delaware counsel and co-counsel collectively maintain a written description of the discovery process, including detailed information regarding efforts to preserve documents, custodians identified, search terms used, and what files were searched. They also include a checklist that is intended to assist counsel in developing a sound document collection process, subject to modification depending on the needs of the case.
- With respect to privilege issues, the guidelines instruct that senior Delaware lawyers must take reasonable steps to ensure that privilege only has been asserted in accordance with a good faith reading of Delaware law, that there has not been systematic overdesignation of privilege, and that the privilege log contains sufficient descriptions of the documents in question.
As the Chairman of the Court of Chancery Rules Committee has noted, the Guidelines, including the new discovery guidelines, “speak directly to what works well in Chancery litigation and what does not work so well” and are a “must read” for anyone who practices in the Delaware Court of Chancery.
Christopher Viceconte is a Director in the Gibbons Business & Commercial Litigation Department.