This post was prepared by an associate in the Delaware office of Eckert Seamans.
Why this ruling is notable: The Court of Chancery advised the parties in the context of a Motion to Compel (MTC), after discovery had closed, that the parties should agree on search terms for e-discovery at the beginning of the discovery process. Archer VI, LLLP v. Archer on North, LLC et al. v. Archer Properties, C.A. No. 11237-CB, hearing(Transcript)(Del. Ch. May 2, 2016).
Background: Discovery was complete in this case at the time of the oral argument on the MTC, and dispositive motions were due approximately two weeks later. Search protocols for e-discovery were never exchanged between the parties. In their MTC, the defendants sought communications between the Plaintiff (Archer VI) and the third-party defendant (Archer Properties).
Following the defendants’ filing of the MTC, the plaintiffs made three productions. Those productions satisfied most of the issues briefed in the MTC. However, the defendants were still seeking other communications
The Court Provides Advice on the Timing of and Search Terms for e-discovery: First, the court observed the timing of this motion was later than ideal. It was filed after the close of discovery and after depositions had been taken. The court also reminded the parties of their obligation to meet and confer on discovery disputes before bringing them to the court’s attention. The court ordered all communications between the defendants’ principals be produced with no subject matter limitation on either search.
Search Terms: Then, the parties were ordered to develop search terms for internal communications for the management of the property and it was suggested that this should have been done at the outset of the case. The court also declined to take an in-camera review of the missing pages—which had been redacted because of a claim of privilege. Defendants were advised to file a motion if they felt strongly about such a review, if a “meet and confer” was not fruitful.
The court also declined to impose sanctions on the plaintiffs because it observed both sides were partially at fault for the discovery deficiencies.
Finally, pointing out the small amount in controversy ($35,000) and the fact that much more than that amount was likely spent on this discovery issue alone, the parties were ordered to seek leave of the court if they wish to file a motion for summary judgment.