Periodically we report on rule changes in the federal courts so that practitioners are away of these changes and how they might affect litigation practice in Delaware courts. On December 8, 2011, the District of Delaware revised its Default Standard for Discovery Including Electronically Stored Information (the "Revised Default Standard"), which applies if the parties are unable to reach agreement on various discovery issues. This is the third version of the default standard. The Revised Default Standard updates the default rules regarding electronically stored information ("ESI"), taking into consideration changes in technology, as well as problems the Court and litigants have experienced in handling ESI issues and problems. The Revised Default Guidelines are available here.
The Revised Default Standard expressly covers preservation of discoverable information, privilege logs, the initial discovery conference, initial disclosures, and electronic discovery procedures. In addition, with the heavy docket that the District of Delaware has in terms of patent cases, there are specific procedures related to initial infringement and invalidity contentions in patent cases. But, more broadly, the Default Standard for Discovery reiterates the Court's expectation that litigants will meet and confer early in the litigation about all aspects of discovery, and that the parties will agree on reasonable limits to discovery that are proportional and tailored to the parties and the issues.
Some of the key features of the Revised Default Standard include:
Search Terms and Production Issues
Custodians and Initial Disclosures
It is important to note that the Revised Default Standard refers to custodians and not key players. While it is important to identify the key players early on in the litigation, it is assumed that the key players related to the litigation will be disclosed in the initial disclosures and discussed at the Rule 26(f) meet and confer.
Discovery in Patent Cases
The Revised Default Standard contains some specific "default" procedures for initial discovery in patent cases as follows:
(1) Within 30 days of the scheduling conference, the patentee shall identify the accused products and the asserted patents, and produce the file history for each patent.
(2) Within 30 days of (1), the accused infringer(s) shall produce core technical documents (operation manuals, product literature, schematics, and specifications) related to the accused products.
(3) Within 30 days of (2), the patentee shall produce an initial infringement claim chart relating each accused product to the asserted claims.
(4) Within 30 days of (3), the accused infringer(s) shall produce initial validity contentions for each asserted claim, with invalidating references.
As emphasized in a footnote, this discovery is "initial" and may be supplemented. Finally, the Standard provides that discovery in patent cases is limited to the period extending 6 years before the filing of the complaint, except as to asserted prior art, conception, and reduction to practice.
There is an over-arching theme of cooperation, proportionality, reasonableness and collaboration that is reflected throughout the Revised Default Standard. The Court wants the parties to work together to come up with reasonable solutions for handling ESI, especially in some of the more important areas such as privilege logs where the Court is looking to the parties to reduce the enormous time and expense that is devoted to creating privilege logs dealing with ESI.
This summary was prepared by Kevin F. Brady of Connolly Bove Lodge & Hutz LLP. Kevin is a member of the District Court's Default Standard committee that worked on these rule changes.
Read more Delaware business litigation case summaries and commentary on Delaware Corporate and Commercial Litigation Blog, a blog hosted by Francis G.X. Pileggi, of Eckert Seamans.
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