Vice Chancellor Requires Lawyer to Be Physically Present During the Collection of Electronic Information from Client; Self-Collection by Client Not Permitted

For those of you who follow the e-discovery rulings of the Court of Chancery, a transcript of a recent Telephone Conference on Discovery Dispute in Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. April 8, 2010)(read transcript here), is important. (Transcripts of bench rulings are often cited in Delaware briefs.)

Kevin Brady, a Delaware litigator nationally-recognized for his e-discovery expertise, prepared this summary. 

In this bench ruling, Vice Chancellor Laster addressed the issue of self-collection of potentially relevant electronic information by members of a board of directors. In this case, the dispute arose in the context of confirmatory discovery of emails of certain committee members. Vice Chancellor Laster pointed out that lawyers have an affirmative duty to be actively engaged in the collection process to the point that a lawyer should meet in person with the client to physically review his or her electronic information repositories wherever they may be located (including, if necessary, personal computers if that is where relevant information is stored). See transcript at 10 – 13. Vice Chancellor Laster also stated that, considering the “unsatisfying” status of the defendants’ production to date (one of the three committee members’ electronic information had not been searched at all), the defendants may want to consider taking additional steps to make certain that electronic information that should have been preserved on that individual’s computer but was not collected, is not lost. Vice Chancellor Laster suggested (but did not require) that imaging the hard drives (or some type of forensic investigation) of that individual’s computers may be necessary at this point.