Ruling on Confirmatory Discovery: Defendant's Attorney Must Be Present During Collection of ESI

During a recent telephone conference regarding a discovery dispute in Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010), Vice Chancellor Laster ruled from the bench that confirmatory discovery—like formal discovery—requires the defendant's attorney to be physically present during the collection of electronically stored information from his/her client; selfcollection by the client is not permitted.

On February 9, a class action and derivative lawsuit was filed by a public unitholder of Eagle Rock Energy Partners, L.P. (Eagle Rock) in the Court of Chancery of the State of Delaware against the partnership, the partnership's general partner, Eagle Rock Energy GP, L.P. (GP), and certain affiliates of GP. The complaint alleged, among other things, that (1) the previously announced proposed recapitalization transactions are unfair to the partnership's public unitholders, (2) the preliminary proxy statement filed on January 14 in connection