This post was prepared by an Eckert Seamans associate.

This Order is a must read for all counsel who practice before the Court of Chancery. The Court has once again expressed its intolerance for abusive and less than candid discovery practices.  In In Re Oxbow Carbon LLC Unitholder Litigation, C.A. No. 12447-VCL (consol.) (Del. Ch. June 2, 2017) (Order), Vice Chancellor Laster imposed a strict and detailed discovery protocol to both rectify prior abuses by one of the litigants and to effectuate the prompt correction of any future discovery deficiencies.

This case was the subject of a prior, extensive written discovery Order previously detailed on these pages. In the more recent discovery dispute, after reviewing the parties’ written submissions and oral arguments, the Court entered a seven-page Order addressing discovery minutiae, such as de-duplication of documents, TIFF productions and the document custodian interview process.

Facts: Two of the individual defendants filed a motion against their corporate adversaries for discovery misconduct.  The alleged misconduct included, among other things: (a) the production of numerous nearly or completely duplicative documents with inconsistent redactions; (b) the production of documents without identifying the source of those documents; and (c) misleading representations to the Court about the production efforts.

The Court found that the offending corporate parties made a “plainly wrong” statement with regard to their ability to review documents and other “untimely and unreliable” representations about their discovery efforts.

Result: The Court entered a detailed Order, which imposed upon the offending litigants a number of notable obligations, including:

(a) the requirement to designate a partner-level Delaware attorney to receive and address any noted discovery deficiencies within 96 hours;

(b) the preparation of a table (to be overseen and certified by a senior Delaware lawyer) listing the details of all interviews with the corporate custodians including scripts used to interview custodians, dates of the interviews, specific questions posed to the custodians about personal email accounts and text messages used for business purposes, and the collection efforts of text messages and personal emails;

(c) the consistent production of all TIFF documents in their least redacted format;

(d) the de-duplication of joint trial exhibits; and

(e) the obligation to produce previously deposed witnesses within three days upon request of the individual litigants who filed the motion to compel.

Takeaways:  The Court continues its hands-on approach to discovery disputes and displays its willingness to impose strict requirements on, and close monitoring over ongoing discovery compliance once a pattern of non-compliance has been demonstrated.

The Court has continued a prior practice of requiring a partner-level Delaware attorney to be principally responsible for discovery issues as a means of more closely supervising the discovery process.