Agree or Else: Delaware Adopts Revised Default Standards for Discovery
Effective 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”). This third version of the Revised Default Standards contains some new provisions that apply to the discovery of ESI absent agreement by the parties or court order. The Revised Default Standards also set a detailed schedule for the initial exchange of discovery in patent litigation, and reinforce the Court’s expectation of cooperation among the parties and proportionality in the preservation, identification and production of relevant information. Some of the highlights and practical points of the Revised Default Standards are as follows:
Preservation of Discoverable Information: Although parties are required to preserve non-duplicative, potentially discoverable information, absent a showing of good cause, there is no additional requirement to modify, on a going-forward basis, ordinary back-up and archiving procedures. Schedule A to the Revised Default Standards lists specific categories of ESI that presumptively need not be preserved absent a showing of good cause. Therefore, the burden is on the requesting party, if it wants any of the ESI in those categories preserved, to reach agreement with the other side or be able demonstrate good cause for requiring preservation of such information.
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