The (long breath) Delaware Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI), is well, a default. It's designed to be flexible enough to accomodate the big case and the small.
This leads to seeming anomalies like section 5(b), which sets forth an in-depth procedure for electing search terms, but does not actually require the parties to use them:
If the producing party elects to use search terms to locate potentially responsive ESI, it shall disclose the search terms to the requesting party. Absent a showing of good cause, a requesting party may request no more than 10 additional terms to be used in connection with the electronic search. Focused terms, rather than over-broad terms (e.g ., product and company names), shall be employed . The producing party shall search (i) the non-custodial data sources identified in accordance with paragraph 3(b); and (ii) emails and other ESI maintained by the custodians identified in accordance with paragraph 3(a).
So, do the parties ever have to use search terms? Judge Williams gave us one of the first clear answers to that question I've seen in Biogen Inc. et al v. Sandoz Inc., C.A. No. 22-2290-GBW, D.I. 364 (D. Del. June 17, 2024):
IT IS HEREBY ORDERED that Biogen's request to compel Defendants to conduct additional search terms is GRANTED-IN- PART. Defendants have not run any keyword searches on ESI yet, so contend that the Delaware Default Standard does not apply. While there is no per se obligation to use ESI search terms, a party has a separate obligation to comply with discovery obligations. Defendants' current manual searches for emails have turned up only a few hundred emails. This production is facially unreasonable. it strikes the Court as implausible that two international companies, in the course of manufacturing, commercializing, and seeking approval of a complex biosimilar drug created only a few hundred responsive emails. While not every case requires search terms, in the circumstances of this case, Defendants have not provided a workable alternative. Defendants' suggestion that Biogen must provide all of the terms, and guess-and-check their way into a reasonably proportionate search, is not how the Delaware Default Standard was meant to operate. Thus, IT IS HEREBY ORDERED that Defendants shall propose search terms to respond to Biogen's requests for productions. Biogen will then have the opportunity to, in accordance with the Delaware Default Standard, propose ten search terms of their own across ten total custodians.
Id. (internal citations omitted).
There you go, there is no "per se obligation" to use search terms, you have to offer a workable alternative.
