The Court of Chancery recently reiterated its expectations of Delaware discovery conduct at a hearing in Medicalgorithmics S.A. v. AMI Monitoring, Inc., C.A. No. 10948-CB (Transcript).  Notable among the Court’s comments at the hearing were:

  • The Court stressed the importance of attorney review of documents before production, saying that, absent a “quick-peek” agreement, attorney involvement should be the default. The sampling and filtering techniques employed in lieu of attorney review were insufficient.  The Court indicated that, in this situation, where an expedited schedule was agreed to by the parties, rather than required by the Court, the parties should have approached the Court and requested that discovery deadlines be modified once they realized that it was not feasible to properly review documents to ensure they were relevant and non-privileged before production.
  • When relying on references to documents as a response to an interrogatory under Court of Chancery Rule 33(d), the answering party must either refer to specific Bates numbers or provide a narrative response. It is not sufficient to state that the documents in which the information is contained have been produced and force the other side to locate them.
  • A new, Delaware-compliant privilege log was ordered to be produced to replace a log that did not contain the appropriate categories of information, although it declined to deem the privilege waived as to those documents that were improperly listed.
  • The Court reiterated the default rule that plaintiffs who file suit in Delaware should be made available for deposition in Delaware, absent agreement to the contrary.

The Court acknowledged this to be one of the occasions on which an award of costs, including attorneys’ fees, associated with bringing the motion was warranted.