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Making The Most Of Delaware’s New E-Discovery Rules: Tips 5-10


(Part 2 of 3)Tip #5: Document Inaccessible and Not Relevant Systems  The Default Standard (as introduced in Part 1) provides guidance around the timing of e-discovery. Specifically, it states that, upon receipt of a request for production under Fed. R. Civ. P. 34, the parties shall search systems that are reasonably accessible and produce such information in accordance with Fed. R. Civ. P. 26(b).  This means where counsel fails to identify systems that are inaccessible and/or not relevant, counsel should be prepared to search and produce from such systems.

Counsel during the discovery phase should keep at a minimum a living document that details systems that are inaccessible and/or not relevant and ensure that this information has been provided to the courts and opposing counsel.

Tip #6: Make IT Aware of Inaccessible Systems

The new Default Standard when counsel identifies such systems as inaccessible, parties will not be required to search such systems until the search of all reasonably accessible relevant data repositories are completed.

When such systems are identified counsel should make IT aware that production from such systems be required, because acquiring data from such systems might require the use of third-parties or the use of internal IT resources. By providing notice you are enabling IT to plan, which generally makes the production (if necessary) less costly and disruptive.

Tip #7: Be Prepared to Defend Requests for On-Site Inspection

The new Default Standard further holds that any such request for information that is not reasonably accessible must be narrowly tailored and with good cause.  The Default Standard also mandates that any request for on-site inspection pursuant to Fed. R. Civ. P. 34(b) is to be reviewed for (1) good cause and (2) specific need.

Notably, the default standard does not provide any guidance as to what constitutes good cause or specific need, so counsel should be prepared to defend its request for on-site inspection vigorously.  In this regard, both “good cause” and “specific need” can be demonstrated to the court by various techniques, but should generally include a technical affidavit or report that supports the need for an on-site inspection. 

Tip # 8: Identify Restrictions

The new Default Standard also requires the parties to disclose any restrictions specific to the scope and method of the electronic search of such information.

Counsel would be well served by engaging in a dialog around any such restrictions with the technical stakeholders involved in the search, because often what is obvious to a technologist might not be to counsel.

 Tip # 9: Maintain a List of Capabilities and Limitations

Although the Default Standard is not clear as to what constitutes a restriction, counsel would benefit from having a firm grasp on the capabilities and limitations of any search tools being utilized.

In-house counsel should maintain a list of such limitations and provide this to outside counsel at the on-set of the discovery process.

Tip #10: Appoint an E-Discovery Liaison

Each party to a case is required to designate an e-discovery liaison through which all e-discovery requests are to be made. The individual can be a third-party consultant, an employee of the part, or counsel.

Counsel should select someone early that knows e-discovery law and technology and ideally is also adept at searching for information. It is advisable that Counsel engage the Client technology team in selecting such an individual because if the person is not technically competent regarding the Client’s specific systems it could cause problems down the road.  A company that finds itself a frequent party to litigation would save substantial money, time and resources by creating a full-time in-house e-discovery liaison.

(Part 2 of 3. Stay tuned more tips on making the most of Delaware's New E-Discovery Rules)

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