The Court of Chancery hosted a seminar for practitioners on December 7, 2012 in Wilmington, in order to explain its recently promulgated Practice Guidelines as well as recent amendments to the rules governing confidentiality and electronic discovery. The materials discussed and distributed are “must reading” for both lawyers practicing in the Court and those out-of-state counsel (and their clients) who want to be familiar with the very detailed requirements of the very specific, high standards that the Court expects counsel and parties appearing before it to uphold. The Court also provides sample forms that will be provided below as links in this post, for such things as outlines for collecting electronic documents (ESI) and sample scheduling orders.
The Practice Guidelines published by the Court of Chancery are entitled: “Guidelines to Help Lawyers Practicing in the Court of Chancery“. They are a quite formidable 28 pages (after a 3-page index.) Kevin Brady, a member of the Court’s Rules Committee, provided a helpful overview of the discovery aspects of the Guidelines on these pages here.
The Guidelines address matters from the mundane to the sublime. For example, the proper attire in the Court is addressed, as is the use of conference rooms in the Courthouse to have lunch delivered during a trial. Detailed guidance is given for the special nuances applicable to discovery for expedited cases such as for a preliminary injunction, as well as the confounding but critical aspects of correctly preparing a privilege log. Among the tips provided by the Court are to limit cross-motion briefing to four sets of briefs, and not to file a “retaliatory” motion to compel on the same issue so as to get the last brief filed.
The following samples and outlines are provided from the Court’s website. Especially noteworthy is the Court’s provision of a sample stipulation for a “clawback or quick-peek” order that may be appropriate when large volumes of documents need to be produced in an expedited manner and there is not sufficient time to review each document for privileged or confidential material:
- Sample Scheduling Stipulation for Motion to Dismiss
- Sample Scheduling Stipulation for Cross-Motions on Summary Judgment
- Sample Case Scheduling Stipulation for Summary Proceeding
- Sample Scheduling Stipulation for a Motion for Preliminary Injunction
- Sample Case Scheduling Stipulation for Plenary Action
- Sample Expert Discovery Stipulation
- Sample Confidentiality Stipulation
- Sample Two-Tier Confidentiality Stipulation
- Sample Settlement Scheduling Order
- Sample Document Collection Outline
- Sample Quick-Peek Stipulation
Also necessary for practitioners to know is the new Rule 5.1 (superseding Rule 5(g) as of Jan. 1, 2013), which governs filings with the Court of confidential documents (formerly referred to as filings under seal). Kevin Brady, a member of the Court’s Rules Committee, previously highlighted the new Rule 5.1 here. The actual redlined amendments to Rules 26, 30, 34, and 45 are available here.
Local Counsel Guidelines, with an overview of relevant caselaw, including references for those admitted pro hac vice, have been compiled on these pages here, for those many lawyers from outside Delaware who collaborate on Delaware cases with Delaware counsel.
One “takeaway” from these extensive “rules of the road” for practice in the Delaware Court of Chancery is that “those not familiar with these somewhat Byzantine and intricate procedural expectations” should not file or litigate a case in Chancery unless they are prepared to meet these expectations (and their client can pay for the extra work these guidelines require–which assume that the economics of the case justify the first-class lawyering that these guidelines demand.) Stated another way, if a case does not have a minimum threshold of value, meaning a fairly substantial amount of money is in dispute, the requirements for litigating in this Court make it cost-prohibitive for “smaller” cases.