District Court Releases New Default Discovery Standards

December 9, 2011

Publication| Intellectual Property

Since 2004, the United States District Court for the District of Delaware has maintained a default standard prescribing rules for the conduct of electronic discovery if the parties are unable to reach an agreement among themselves on how to proceed.  Though not a standing order, this standard was often incorporated by reference into scheduling orders in particular cases by certain judges. 

On December 8, 2011, the District Court released a new Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”), which each of the District Judges is expected to use.  Like its predecessor, the new Default Standard applies only in the absence of agreement among the parties, but covers all discovery, not just electronically stored information.  Highlights of the new Default Standard include:

  • A proportionality standard, by which the parties are expected to use “reasonable, good faith and proportional efforts to preserve, identify and produce relevant information.”
  • An obligation to confer on the nature and scope of privilege logs, including whether certain categories of information may be excluded from privilege logs.  The Default Standard further states that any information generated after the filing of a complaint need not be logged.
  • A requirement that initial disclosures must include a list of the 10 custodians most likely to have discoverable information, arranged from most to least likely. 
  • A section devoted to initial discovery in patent litigation.  Within thirty days of the Rule 16 conference, plaintiffs must specifically identify the accused products and produce the file history for each asserted patent.  Within thirty days of receipt of that information, defendants must produce core technical documents related to the accused products.  Plaintiffs then have thirty days to produce an initial claim chart, and thirty days after receipt of this chart defendants must produce initial invalidity contentions and references. 
  • A schedule of document categories that need not be preserved without a showing of good cause, including voice messages, logs of calls made from mobile devices, instant messages that are not ordinarily printed or maintained in a server dedicated to instant messaging, and on-line access data such as temporary internet files, caches, and cookies.

In addition to the new Default Standard, the District Court also released yesterday a Default Standard for Access to Source Code, which obliges parties, where applicable, to produce for examination a single electronic copy of source code or executable code on a stand-alone computer in the possession of an independent escrow agent.  Further provisions limit access to the computer and subsequent use of the source code after examination.


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