The Genger Case And The Delaware Supreme Court

Abstract

The Genger case, a recently decided case by the Delaware Supreme Court, involves the imposition of severe sanctions upon one party who erased unallocated free space on his computer after having made his computer available to a court-appointed digital forensics expert who had the opportunity to obtain a forensic image of any data on the computer thought to be relevant to the case. The expert did not image unallocated space, which was later erased by Genger’s expert. If the results of this case are adopted as binding precedent in jurisdictions outside of Delaware, important implications arise regarding business practices related to electronic discovery. This paper concludes by offering recommendations on how businesses can best deal with the requirements set forth by the Delaware court and best practices for electronic discovery.