Looking Back on 2015: The 6 Most Important eDiscovery Cases in Delaware - Part 4

This is the fourth in a series of posts summarizing the six most important eDiscovery cases in Delaware in 2015.

Medicalgorithmics S.A. v. AMI Monitoring, Inc., C.A. No. 10948-CB, Oral Argument on Defendants’ Motion Regarding Plaintiff’s Improper Document Production, Plaintiff’s Cross-Motion for Defendants to Supplement Their Deficient Document Production, Discovery Issue Regarding Location of Depositions and Rulings of the Court, July 15, 2015.

This case dealt with cross-motions regarding deficient document productions in which the Plaintiff argued Defendants produced too few documents and Defendants argued Plaintiff produced too many.

The Court sided with the Defendants on this issue, explaining that Defendants had a reasonable process (involving first-level review by contract attorneys and second-level review by counsel) led at all stages by Delaware counsel whereas Plaintiff did the classic document dump without permission from Defendants.  As usual in these cases, the court admonished the parties for not communicating sufficiently throughout the process.  The Court stressed that Plaintiff should have been telling Defendants what its document hit counts were and should have had an open dialogue about the large number of documents it needed to review and the search terms that needed to be modified.  The Court ordered that Plaintiff re-start its document review process, this time using attorney review and a more robust meet and confer process.

The Court dealt with several other issues as well.  Chancellor Bouchard reminded Plaintiff that confidentiality calls also require attorney review and that categorical privilege logs require consent from the other party.  The Chancellor stated: “I favor parties working out and eliminating privilege logs because they are burdensome.  But the default is a normal privilege log.  You didn’t have an agreement to the contrary, you can’t self-impose new rules, so you are going to have to provide a Delaware-compliant privilege log.  I’m not going to make you waive privilege…But you are only going to get one more shot to get it right.”  Finally, the Chancellor discussed his lack of tolerance for “sorting through redaction problems when there are confidentiality orders.”  As he pointed out, “we take our confidentiality orders seriously…[so] the full document should be produced as the presumptive rule unless you have a very good reason otherwise.”

The Court imposed sanctions of costs, including attorneys’ fees, associated with filing and defending the motion.

This case once again demonstrates the Court’s wish that parties be open and transparent throughout the discovery process.  The Court will not step in unilaterally to reduce a party’s discovery burden.  Parties need to communicate and negotiate to reach a “manageable” review universe that is proportional to the needs of the case.