Delaware Chancery Court Vice Chancellor Derides Lax Attitude Toward eDiscovery and Custodian Self-Collection

Patrick Burke A transcript of an April 8, 2010 conference call [transcript] reveals a senior Delaware judge chastising defense counsel for their unsatisfactory approach toward electronic discovery in Roffe v. Eagle Rock Energy GP, L.P., a proposed class action and derivative lawsuit. The conference was called to discuss the failure of defense counsel adequately to produce e-mail sent or received by the chair and two other members of defendant’s conflicts committee.

Defendants’ counsel argued that it should be found sufficient that e-mail was collected only from two of the three Eagle Rock Energy conflict committee members, with those committee members having personally selected the particular e-mails to be were produced. Defense counsel Gerald L. Bracht, a partner in Andrew Kurth LLP’s Houston office, argued in the transcript that he thought it unnecessary to search the e-mail of the Chairman of the conflicts committee, because it would take time, cost money and because that individual used his personal computer for e-mail and the relevant e-mails are “interspersed with his personal e-mails, his other business e-mails, and he estimates that he receives about 150 e-mails a day.” He also posited that the Chair’s e-mails would likely duplicate those of the two other committee members.

“This is not satisfactory,” Vice Chancellor J. Travis Laster is quoted in the transcript as saying. As to defendants’ counsel producing only those e-mails selected for production by the two committee members, the Vice Chancellor said “First of all, you do not rely on a defendant to search their own e-mail system. Okay? There needs to be a lawyer who goes and makes sure the collection is done properly.” “[W]e don’t rely on people who are defendants to decide what documents are responsive,” said Laster, “at least not in this Court.” He went on “[T]he real question in my mind is whether at this point it’s enough to do the production the way it should have been done in the first place, or whether there needs to be some additional steps taken to actually image these drives and do some searching to make sure that things haven’t been lost since what should have been done in the first place hasn’t been done.”

Turning to defendants’ resistance to collecting e-mail from the Chair of the conflicts committee because they were on his personal computer, Vice Chancellor Laster said “somebody should have been on a plane a long time ago to go though his e-mails. And if he chose to use his personal computer, well, that was his bad choice…. That makes it all the more essential that a lawyer get on a plane, and go and sit down with [the Chairman], and go through his e-mail and make sure that … what is responsive is appropriately produced.” He went on: “And whoever it is better check his auto-delete settings, and they had better find out if these things have been auto-deleted every 30 days or 60 days or 90 days, and they better think through, as somebody properly should have done, whether there needs to be some type of, again, image and forensic check, to make sure that something hasn’t been lost in what sounds to me to be a lackadaisical [sic], unsatisfactory process.”

The transcript – while not a published decision – certainly puts all Delaware corporations on notice of the expectations of the Chancery Court that a more defensible, forensic approach be taken toward electronic discovery, without custodian self-collection or assumptions that some key custodians need not be collected from because their ESI might be the same that could be obtained from alternative custodians.