As explained by Ed McNally (one of the most renowned corporate litigators in the known universe), the Delaware Superior Court has created a commercial litigation division. This is exciting for many reasons, not the least of which is the new division has rules regarding eDiscovery. Morris James had the honor of providing input on the formation of those rules, and we are very pleased with the final results. A brief summary of the rules:
The new rules require parties to meet and confer to discuss:
- any issues relating to preservation of ESI;
- the form in which each type of ESI will be produced and any problems relating thereto;
- the scope of production, including the custodians, time period, file types and search protocol to be used to identify which ESI will be produced;
- the method for asserting or preserving claims of privilege or of protection of ESI as trial-preparation materials, including whether such claims may be asserted after production;
- the method for asserting or preserving confidentiality and proprietary status of ESI relating to a party or a person not a party to the proceeding;
- whether allocation among the parties of the expense of preservation and production is appropriate; and,
- any other issue relating to the discovery of ESI.
From those discussions, the parties are required to develop an eDiscovery plan for submission to the Court for entry as a order. The rules then provide a safe harbor for destruction of documents outside the scope of the order. The rules also provide a process for handling not reasonably accessible data, and they explicitly preserve privilege for inadvertently produced documents.
Please take a look at the Administrative Directive establishing the new Complex Commercial Litigation Division (CCLD) for the full details.