One of the panels at the ABA meeting in Boston this week addressed electronic discovery issues and the related topic of information management policies and "litigation holds". The panel included Vice Chancellor Donald F. Parsons, Jr. of the Delaware Court of Chancery as well as Kevin F. Brady and Denise Seastone Kraft of the Delaware Bar. In-house counsel on the panel included Bethann Jakoboski, Vice President, Compliance, Ricoh Americas Corporation, Malvern, PA.

VC Parsons indicated that he focuses on the need for preservation of electronically stored information (ESI) at the point that the duty is triggered. But as it relates to a data retention policy for a company, prior to the litigation hold trigger, it is similar to other business decisions that the courts typically would not second-guess in general, assuming reasonableness is present.

His Honor discussed that the Delaware Court of Chancery does not take a "one size fits all approach". (Cf. the business judgment rule developed by caselaw as compared to a Procrustean federal statutory approach). He emphasized the need to focus very early at the beginning of the case to address ESI issues. He highlighted a few key aspects of the recently adopted ESI Guidelines adopted by the Delaware Court of Chancery for litigation in his court, available here. For example:

  • Counsel must implement a litigation hold, with written instructions, based on a common law duty to preserve.
  • Counsel must coordinate with the client’s IT expert as a "point person" to identify, segregate and preserve relevant data. This includes need to find out who the key people are who may have the relevant information that needs to be preserved (e.g., administrative assistant of the CEO).
  • Compliance with this policy will not guarantee protection from penalties for spoliation (especially for occurrences prior to litigation but after the duty to preserve was triggered), though it will be evidence of good faith.

Kevin Brady referred to The Sedona Conference, in which he is involved, and their leading scholarship on ESI issues, as well as a "Cooperation Proclamation" which argues that there must be a shift from an adversarial to a cooperative approach to litigation, especially electronic data discovery (EDD). Many judges around the country have signed the proclamation in support of it. See  See generally  Fed. R. Civ. P. 1 (stating the goal of the rules as being the just, speedy and inexpensive resolution of cases.)

Proposed Pennsylvania Rule of Civil Procedure 4009.1  was addressed. It provides that a party requesting ESI may specify the format, otherwise it will be produced in a reasonably useable form or the form in which it is typically kept. The request should be as specific as possible and counsel are encouraged to cooperate such as agreeing to "clawback or non-waiver consents". The rule specifically bars the "importation of federal law on this issue".