On January 18, 2012, the Court of Chancery issued Guidelines for the Preservation of Electronically Stored Information (ESI), a copy of which can be found here. Such guidelines should be considered by all counsel and parties who appear before the Delaware Court of Chancery. Specifically, the guidelines provide that a party and its counsel should:
- Take a collaborative approach to the identification, location and preservation of potentially relevant ESI by specifically including in the discussion regarding the preservation processes an appropriate representative from the party’s information technology function (if applicable);
- Develop written instructions for the preservation of ESI and distribute those instructions (as well as any updated, amended or modified instructions) in the form of a litigation hold notice to the custodians of potentially relevant ESI; and
- Document the steps taken to prevent the destruction of potentially relevant ESI.
These guidelines are not rules, but provide guidance on the obligations of parties and their counsel to preserve ESI in litigation. The Court reminds that “reasonable steps” must be taken to preserve such information, and that the adequacy of steps taken will be evaluated on a “case-by-case” basis. The Court also provides that “the duty to preserve potentially relevant ESI is triggered when litigation is commenced or when litigation is ‘reasonably anticipated,’ which could occur before litigation is filed.”