COURT OF CHANCERY ISSUES GUILDELINES FOR PRESERVATION
OF ELECTRONICALLY STORED INFORMATION
In Guidelines issued on January 19, 2011, the Court of Chancery emphasized the duty of counsel to work with their clients to preserve information, including electronically stored information (ESI), that is potentially relevant to litigation. This duty is triggered when litigation is commenced or when litigation is "reasonably anticipated". While the Guidelines indicate that the development and implementation of a preservation process may not be sufficient by itself to avoid the imposition of sanctions by the Court if relevant ESI is lost or destroyed, they do state that the Court will consider the good-faith preservation efforts of a party and its counsel.
According to the Guidelines, in most cases, reasonable steps to be taken by a party and its counsel should include: 1) a collaborative approach to the identification, location and preservation of potentially relevant ESI by including in the discussion an appropriate representative from the party's information technology function (if applicable); 2) development of written instructions for the preservation of ESI and distribution of those instructions (and any changes) in the form of a litigation hold notice to the custodians of potentially relevant ESI; and 3) documentation of the steps taken to prevent the destruction of potentially relevant ESI. The Guidelines further note that common problem areas include preservation of ESI on business laptop computers, home computers, external portable storage devices such as USB flash drives, and personal email accounts.
The broader topic of discovery of ESI is currently being monitored by the Court of Chancery Rules Committee which has not yet proposed specific rules or guidelines as to electronic discovery in general.