Court Issues Guidelines for Preservation of ESI

On January 18, 2011, the Delaware Court of Chancery issued Guidelines for the Preservation of Electronically Stored Information.  This may be the first state or federal court to set forth a party's preservation obligations as recognized under common law, not court rule.  This guidance serves as a timely reminder to litigants and counsel of the importance of complying with the common law duty to preserve electronically stored information (ESI) as soon as litigation is reasonably anticipated.  While the Guidelines do not provide brightline rules, they do outline steps that a party and its counsel should take to ensure preservation of ESI, including:

• Collaborate on preservation efforts; include information technology personnel in discussion when applicable
• Issue written legal holds to custodians with potentially relevant ESI
• Document steps taken to prevent the destruction of potentially relevant ESI

Compliance with these steps, according to the Guidelines, may not preclude sanctions if relevant ESI is lost or destroyed, but the court will consider the good-faith preservation efforts of a party and its counsel.  The Guidelines can be found by clicking here.