The Delaware Court of Chancery, in a significant ruling on ESI protocol enforcement, granted Plaintiff’s omnibus motion to compel and granted in part Defendants’ motion to compel, directing both sides to complete additional discovery before trial. The Court ordered Defendants to conduct forensic collections of certain custodians’ phones, re-review redacted communications for improper privilege assertions, and certify compliance through senior Delaware counsel. The court also required Plaintiff to make its witness available for further deposition on specific topics and referred disputed privilege log entries for review by a special discovery magistrate.
In this expedited action, Plaintiff sought to compel production of electronic messages from three individual defendants’ phones, further depositions tied to any newly produced ESI, and the removal of overbroad redactions from communications involving another custodian. Defendants countered that they had complied with the agreed ESI protocol and asserted privilege over certain categories of communications.
The Court held that Plaintiff’s requests were within the proper scope of discovery, emphasizing that forensic review and production of electronic messages was necessary to ensure complete ESI disclosure. It ordered Defendants to complete the collections and to re-review redactions applied to business communications, with senior counsel certifying good-faith compliance. The Court also permitted Defendants to re-depose Plaintiff’s representative on topics for which clawed-back documents had been produced.
On Defendants’ privilege challenges, the Court rejected a broad waiver argument but recognized the need for targeted review. Given the volume of withheld documents (approximately 14,500), the Court directed the parties to jointly select a special discovery magistrate. Defendants could identify 100 privilege log entries for review, with further relief triggered if more than 30 were found to be improperly withheld.
The decision underscores the Court’s strict enforcement of ESI protocols and privilege review obligations in expedited litigation. Both sides were cautioned that incomplete or overly aggressive privilege assertions risk referral to the special magistrate and potential sanctions as trial approached.
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