Discovery missteps often lead to costly and time-consuming motion practice, and may result in charges of spoliation, whether unintentional or otherwise. Unfortunately, spoliation of evidence in e-discovery has become a recurring theme in the Court of Chancery. Recently, in In re ISN Software Appraisal Litigation, Civ. A. No. 8388-VCG, spoliation was alleged following discovery missteps that included, among other things: (1) failing to issue a written litigation hold notice; (2) failing to include IT personnel in the preservation process; (3) engaging in self-collection of ESI; and (4) the replacement and re-formatting of obsolete computers during the pendency of litigation.
In the most recent installment, petitioners in this statutory appraisal action filed their fifth motion in a year to compel discovery. In the motion, the petitioners sought sanctions for the respondent’s alleged destruction of laptop computers that were in the possession of the corporation’s president and its chief executive officer when the litigation was initiated. At a hearing before the court in Georgetown on April 27, counsel for petitioner Ad-Venture Capital Partners told Vice Chancellor Sam Glasscock III that the respondent, ISN Software Corp., had repeatedly failed in its discovery obligations.
