Delaware Revises “Default Standard for Discovery”

Delaware Revises “Default Standard for Discovery”

Late last year, the United States District Court for the District of Delaware revised the “Default Standard for Discovery” for the third time to reflect recent changes in technology and to address the concerns of lawyers regarding electronically stored information and the discovery process. The Revised Rules are only to be used if parties cannot reach agreement in the timing and practices of the discovery process under the Federal Rules of Civil Procedure 26-36.

The Revised Default Standard explicitly addresses the preservation of ESI (which was notably absent from the Federal Rules of Civil Procedure governing disclosure and discovery, revealed in September of 2011), firm limits on additional search terms, and a specific patent litigation timeline. We discuss these in greater detail below; further amendments of potential interest may be found in the full text of the Revised Default Standard.

Concerning preservation of discoverable information, the Revised Default Standard states that the normal policies and procedures that the parties have in place for the preservation and backup of information shall not be altered unless the party requesting said information provides good cause. Information current at the time of the request should be preserved by the producing party. Of course, this rule only makes sense under the assumption that most (if not all) businesses have somewhat standardized philosophies on how, why, and when they retain discoverable information. In reality, this is far from true. Additionally, data only discoverable by forensics, voice mails, information stored on mobile devices, RAM, and data from obsolete systems are exempted from the preservation requirement.

Additional search terms used to locate potentially responsive ESI are limited to ten, and these ten may not be “over-broad.” Examples of over-broad search terms include company and product names. The Revised Default Standard specifies only that “focused” search terms be used instead, although they do not expand on what is meant by a focused search term. This could mean any number of things depending on what type of search is being run, what software is used, and the whims of the requesting party. Going forward, it will be interesting to see how this term is interpreted.

In patent litigation proceedings, discovery is limited to 6 years before the complaint unless the information in question relates to the conception of the invention in question. These three amendments (and indeed, the revision as a whole) are aimed primarily at reducing the cost of the discovery process, which can often be crushing to the producing party. This is especially true in patent cases, many of which are brought by so-called patent trolls in order to visit financial destruction on falsely accused patent infringers. Regardless of the type of litigation, the Revised Default Standard provides a solid protocol for the discovery of ESI that practitioners in Delaware will doubtless find useful.

You may also be interested in comparing the amendments in the Delaware Revised Default Standard to the amendments to rules for e-discovery being considered by the Florida Supreme Court.

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