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.

Privilege Logs and Work Product: The Revised Default Standards seek to ease the burden presented by the creation of privilege logs by requiring the parties to meet and confer as to whether certain categories of information can be excluded from the logs and whether alternatives to document by document logs can be exchanged. In addition, parties need not include information generated after the filing of the complaint in their privilege logs. The Revised Default Standards also make clear that the parties’ information preservation efforts are protected from disclosure by the work product doctrine. The parties are also to confer on an appropriate non-waiver of privilege order and, until such an order is entered, privileged information, if produced, must be returned if it appears on its face to have been inadvertently produced or if notice is provided within 30 days of inadvertent production.

Initial Disclosures: As part of their initial disclosures, parties must disclose their 10 custodians most likely to have discoverable information and a list of the non-custodial data sources that are most likely to contain non-duplicative discoverable information. Parties must also provide notice as to issues relating to any ESI that a party asserts is not reasonably accessible, as well as anticipated third-party discovery and the timing and sequencing of such discovery. Parties are cautioned that their failure to provide such notice could result in their loss of the ability to protect or pursue such information.

Search and Production Protocols: (1) On-site inspections of electronic media are prohibited absent a showing of specific need and good cause. (2) If a party chooses to use search terms to locate potentially responsive ESI, it must disclose the terms to the requesting party. Absent a showing of good cause, the requesting party may request no more than 10 additional focused terms. Search terms are to be used on non-custodial data sources and emails and other ESI maintained by the party’s 10 custodians, as identified in its initial disclosures. (3) As to format, ESI and non-ESI are to be produced as text searchable image files (e.g., PDF or TIFF); however, the producing party must preserve the integrity of the underlying ESI, i.e., the original formatting, certain metadata, and, where applicable, the revision history. Native files may only be produced when they are not easily converted to image format. (4) Only the following categories of metadata must be preserved and produced to the extent such metadata exists: custodian, file path, email subject, conversation index, from, to, cc, bcc, date sent, time sent, date received, time received, filename, author, date created, date modified, MD5 hash, file size, file extension, control number begin, control number end, attachment range, attachment begin, and attachment end (or the equivalent thereof).

Overall, the Revised Default Standards are aimed at encouraging parties to cooperate to reach reasonable agreements concerning the discovery of ESI. The standards also impose some reasonable and common-sense provisions to follow absent an agreement among the parties. Such provisions should assist litigants in resisting unreasonable demands from an adversary and alleviate some uncertainty about a party’s burden to preserve and produce materials. Counsel practicing in the District of Delaware should pay careful attention to these new requirements.

Christopher Viceconte is a Director in the Gibbons Business & Commercial Litigation Department.