Hello and welcome to the Delaware eDiscovery Report! We will be tracking all manner of developments in the realm of eDiscovery, including federal and state case law and rule developments, emerging trends and discussions from groups like The Sedona Conference® and EDRM, vendor technology developments, and project management techniques. Besides tracking eDiscovery developments generally, this blog will pay particular attention to eDiscovery developments under Delaware law.
With an increasing number of states adopting eDiscovery rules (mostly mirroring the Federal Rules), it may surprise many of you to know that Delaware has not adopted any such rules. There is, of course, case law on the subject, and I'd like to kick off the Delaware eDiscovery Report with a chronological development of the significant EDD cases I could find, bringing us all up to speed on the state of eDiscovery in the First State.
Here's the first of multiple installments:
The earliest cases I could find are from way back in the dark ages of eDiscovery—1992 and 1997. The decisions are from the days before ESI volumes were unwieldy, so the courts are dealing with applying long-standing legal principles of privilege to the newly prevalent electronic medium and the electronic documents it creates.
In March 1992, the Delaware Superior Court decided IBM v. Comdisco, Inc., 1992 WL 52143, finding a portion of an email was privileged in a suit over equipment leasing. IBM produced an email then asked for its return, because they asserted it contained information protected by the attorney/client privilege. Comdisco argued the email was not privileged, because it contained business advice, not legal advice. The Court found a small portion of the email “was clearly intended to be disclosed to persons outside the circle of confidentiality” so not privileged, but found the remainder of the communication privileged and confidential legal advice.
Five years later, in Wesley College v. Pitts, 1997 WL 557554 (Aug. 11, 1997), the Delaware District Court found that an email sent to multiple third parties and introduced into the public record is not protected work-product. One of the Defendants sought relief from a protective order restricting use of documents marked Confidential to the instant matter and no other; Defendant sought to use, in a related state case, an email marked Confidential by plaintiff in this case. Plaintiff claimed, inter alia, that the email was protected work-product. The Court noted that one of plaintiff’s employees sent the email to several other employees and his wife, and plaintiff introduced the email into the record in a hearing on a Motion for Summary Judgment in this case, all of which amounted to removing the possibility of work-product protection.
There doesn't seem to be anything significant for another five years when the vaunted Court of Chancery plunges into the eDiscovery morass by tangling with the issue of backup tape restoration. We’ll pick up with that case in Part II
. In the meantime, if you know of significant Delaware eDiscovery cases prior to 2002 that you think I should have included, please post a comment to let everyone know.