By coincidence, a pair of recent decisions in unrelated cases from the Federal Court for the Southern District of New York highlight the increasing necessity for lawyers to be conversant with electronic discovery obligations. Because the Delaware Rules of Civil Procedure are based on the federal rules, decision applying the federal rules are persuasive even in state court in Delaware.
Treppel v. Biovail Corp., download file, 2006 WL 278170 (SDNY Feb. 6, 2006). In this defamation action, the defendants were ordered, in response to a Motion to Compel, to preserve both electronic and paper data, to answer questions about their electronic data management practices, and to produce all accessible and responsive data. Before filing the motion, the plaintiff’s counsel sent defense counsel a proposed discovery preservation order including provisions for exchanging document retention policy information, identifying a deposition witness with computer system knowledge and preserving all electronic data. The proposed order also declared accessible data would be produced in its native format and inaccessible data would be identified but not immediately produced. Defense counsel opposed the order but the trial court agreed with counsel for plaintiff. Although the court did not impose the preservation order, it ordered the defendants to answer the electronic data management questions as if they were interrogatories and ordered the defendants to search for relevant data and provide the plaintiff with a detailed explanation of the search protocol. The court also found that native production format was appropriate as the defendant failed to offer a substantive basis for a objection to the native format.
Gilliam v. Addicts Rehab. Ctr. Funds, Inc., download file, 2006 WL 228874 (SDNY, Jan. 26, 2006). In this class action lawsuit, the court ordered the defendants to produce to plaintiffs time keeping payroll records, as well as policies and procedures. Defendants failed to produce data contained on 148 compact disks, claiming that it would reveal private employee data and stated that instead they would produce paper records containing the relevant information. Noting that the paper records would comprise 46 boxes, the court declared that it would be more cost efficient to produce the disks for review more quickly and that plaintiffs could make duplicates of the computer disks more easily and inexpensively and they also could be reviewed in a way that would allow the reviewer to skip sensitive information that could be further protected by a confidentiality order.