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Court of Chancery Sanctions Electronic Discovery Abuse

Beard Research, Inc. and CB Research & Development, Inc. v. Michael J. Kates, et al., C.A. 1316-VCP (May 29, 2009)

The Court of Chancery has become increasingly unhappy with litigants who fail to preserve electronic "documents" such as email.  In this latest expression of the concern, the Court sets out in detail the duties of client and counsel and explains when sanctions will be imposed for the failure to preserve evidence.

This is a particularly good opinion for its careful analysis of how to determine what sanction should be imposed.  The goal is to make the sanction fit the offense, such as by awarding a presumption that the destroyed emails would have hurt the case of the guilty party.  Exactly how much this will help remains to be seen, but it is a start.

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