Coauthored by Stephen B. Brauerman
The Court of Chancery recently issued guidelines regarding the preservation of electronically stored information (“ESI”) in litigation. Although the Court of Chancery Rules Committee has not yet proposed any specific rules or guidelines regarding electronic discovery, the Court reminded all counsel of their common law duty with respect to preservation of ESI.
The Court encourages counsel to take reasonable steps to ensure preservation of ESI once litigation has commenced, acknowledging that such processes will vary among cases and parties. The Court did suggest several steps that should, however, be taken in most instances, including the development of written instructions for preservation of ESI and documentation of steps taken to prevent destruction of potentially relevant ESI. Parties and their counsel are encouraged to work with opposing parties regarding the preservation of ESI, as well as the scope and timing of discovery of ESI.