The Court of Chancery has recently expanded its Guidelines for Practitioners, to incorporate guidelines regarding discovery.  On January 13, 2012, this blog provided a summary review of the original Guidelines, which were originally issued in January 2012.  The new guidelines, issued by the Court on December 4, 2012, include (i) Court of Chancery Guidelines for the Collection and Review of Documents in Discovery; and (ii) Court of Chancery Guidelines for Expedited Discovery in Advance of a Preliminary Injunction Hearing.  These guidelines are a “must read” for any attorney practicing before the Court of Chancery.

According to the Court’s press release issued on December 4, 2012:

These guidelines explain the Court’s expectations regarding parties’ responsibility to confer early and often regarding discovery, including about electronic discovery procedures, the overall scope of discovery, preferred procedures for collection and review of discoverable material, including ESI, the privilege assertion process, and the role of Delaware counsel in the discovery process.  The Court also developed guidelines for expedited discovery in advance of a preliminary injunction hearing.  These new guidelines encourage communication among counsel and are intended to assist the Bar in developing reliable and transparent procedures for electronic discovery.  The Court and its Rules Committee are hopeful that use of these guidelines will help avoid unnecessary and expensive disputes regarding the discovery process.

Several highlights of these newly issued guidelines are as follows:

Court of Chancery Guidelines for the Collection and Review of Documents in Discovery

  • Encouragement of a “meet and confer” after the start of discovery to develop a discovery plan that includes electronic discovery.
  • Experienced outside counsel should be actively involved in establishing and monitoring the procedures used to collect and review documents to determine that reasonable, good faith efforts are undertaken to ensure that responsive, non-privileged documents are timely produced.
  • Counsel should be mindful of the obligation to take reasonable steps to preserve information, including electronically stored information, which is potentially relevant to the litigation. 
  • With respect to privilege logs, parties are not expected to log post-litigation communications, parties should attempt to agree on procedures that both sides will use with respect to email chains, and the parties are free to log documents by category instead of on a document by document basis.

Court of Chancery Guidelines for Expedited Discovery in Advance of a Preliminary Injunction Hearing

  • Written discovery typically is limited to document requests, as well as narrowly-tailored interrogatories intended primarily to identify persons with relevant knowledge.
  • The parties should agree upon a schedule so that initial written discovery and document production is completed before the start of depositions.
  • When responding to written discovery requests, the parties are obligated to conduct a reasonable search for relevant and responsive documents. 
  • After a request for a preliminary injunction is filed, the parties should collect and produce the “core documents” associated with that application promptly.
  • The parties should identify the key custodians and focus their document collection efforts on those custodians. 
  • Documents need not be produced in a particular format.  The parties are expected to cooperate to produce documents in a format that is usable to the parties. 
  • Parties are encouraged to make agreements that reduce the time, expense and burden associated with conducting a document-by-document privilege review and preparing privilege and redaction logs so that the merits of the application may be developed in the limited time available and fairly presented to the Court.

Notably, through these newly issued Guidelines, the Court of Chancery again stresses the importance of the role of Delaware counsel in all cases before the Court, even when non-Delaware counsel has significant involvement in the case.