Apparently I am the only one who seems to be concerned with the Court of Chancery’s unqualified allowance for parties to agree to forgo discovery of ESI. Here are the other blog posts I found that have reported on the new guidelines, not a single one raises any concern:
Last week, the Delaware Court of Chancery—one of the nation’s premier business Courts—unexpectedly issued a one and a half page “Guidelines for Preservation of Electronically Stored Information.” Surprisingly, the Guidelines seem to allow parties to opt-out of document discovery entirely (see the last item below). In summary, the Guidelines are as follows:
- There is a common law duty to preserve potentially relevant electronically stored information (ESI) within a party’s possession, custody, or control once litigation is commenced or when litigation is “reasonably anticipated.”
- Parties must take reasonable steps in good faith to meet their duty to preserve ESI.
- Parties and their counsel should confer early in the litigation regarding the preservation of ESI.
- Parties and their counsel must develop, oversee, and document a preservation process in collaboration with the appropriate client information technology personnel.
- Parties and their counsel should discuss the need to identify how custodians store their information, including document retention policies and procedures as well as the processes used to create, edit, send, receive, store, and destroy information for the custodians.
- Counsel should take reasonable steps to verify information they receive about how ESI is created, modified, stored, or destroyed.
- The preservation process should include a written litigation hold notice to individual custodians instructing them to take reasonable steps, act in good faith, and with a sense of urgency in preserving potentially relevant information.
- Parties and their counsel may face “serious consequences” for failing to take reasonable steps to preserve ESI.
- The reasonableness of a party’s preservation process is judged on a case-by-case basis.
- Counsel for all parties should confer about the scope and timing of discovery of ESI and may agree to limit or forgo the discovery of ESI.
I am very interested to hear comments on this development.