Forensic Update

Reflections on information management within the legal and regulatory arena

Self-Collection Prohibited in Delaware (?)

Posted by Johnny Lee on September 7, 2010

Walking the Walk...A recent case from the Delaware courts from Vice Chancellor Laster has provided what some consider to be a significant departure from traditional notions of proper behavior related to electronic discovery in civil proceedings.  While some have interpreted this decision to mean that no company can perform its own data collections, the true meaning of the decision might be quite different than this…perhaps we simply need to be reminded that the courts wish us to walk the walk.

The case in question, Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010), should probably be framed more in the light of the recent line of decisions from the Qualcomm case from years back.  Specifically, it might be far more accurate to interpret this ruling not as a proscription from self-collection but as a warning to counsel who choose to “phone it in” during the data preservation and collection aspects of electronic discovery.  Better said, just as with the Qualcomm sanctions, the Delaware court seems to focus far more on a lawyer’s oversight duties than on any particular technique of forensic preservation and/or collection.

As indicated in this blog in prior posts, the principles of good faith, reasonableness, and transparency should guide the lawyer’s oversight in such matters.  Gone are the days when issuing dry memoranda (full of obtuse legalese) are sufficient to meet a lawyer’s eDiscovery burdens of modern civil litigation.  Read carefully, the Delaware decision reminds us that cases are unique things, requiring counsel to be actively engaged in the collection process and for counsel to have more than a passing involvement in the overall process of identifying discoverable repositories and the method by which those repositories are preserved, sourced, analyzed, redacted, and produced.

Let us all hope that this interpretation of the Delaware decision is proper.  Otherwise, we may see a significant increase in time, cost, and overall burden of producing electronic evidence in the state of Delaware.

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