A recent Delaware Court of Chancery decision is noteworthy for the clarification it provides regarding several nuances of electronic discovery practice. See Ferguson v. Capital Development Insurance Company, LLC, C.A. No. 2018-0831-KSJM (Del. Ch. Oct. 8, 2019).

Key Points: Among the helpful takeaways from this short letter ruling are the following:

  • Although the Guidelines for Practitioners in the Delaware Court of Chancery suggest that the proponent of discovery should propose protocols for the recipient to use in the collection and production of ESI, the court explained that the protocol does not constitute a formal rule of court, and therefore, cannot be “weaponized” as a basis to refuse to reply to discovery requests.
  • The court observed that sometimes the person receiving discovery requests is best suited to propose ESI protocols for search, collection and production–given their superior knowledge of their data repositories, but this is not a requirement that has the force of a rule.
  • The court instructed, however, that it “encourages the proponent of discovery to propose protocols that the recipient may use when collecting electronically stored information.”

Pro Se Representation of Corporations Prohibited: In a statement of law not related to electronic discovery, the court reiterated the truism that in Delaware, entities may not appear pro se, but rather they must be represented by counsel before the court (even when it is a wholly-owned company). See Harris v. RHH P’rs, LP, 2009 WL 891810, at *2 (Del. Ch. Apr. 3, 2009).