The Kili/Bikini/Ejit Local Government Council v. Arden Trust Company, C.A. No. 2024-0866-NAC (Del. Ch. July 15, 2026), full opinion (PDF)
A party resisting the scope of ESI discovery often argues that the collection is not worth running because it is unlikely to turn up anything responsive. That is a factual assertion, and a search term hit report is the ordinary way to test it. On July 15 the Delaware Court of Chancery held that a producing party who backs out of giving a hit report cannot then lean on the very assertion the report would have tested. Vice Chancellor Nathan A. Cook granted the motion to compel and declined to impose the subject matter limits the producing party wanted.
What Happened
The case concerns two trusts Congress established for the benefit of the people of Bikini Atoll. Plaintiffs sued Arden Trust Company, alleging that it breached the terms of the trusts and breached its fiduciary duties as trustee. Arden filed a third-party complaint against Fifth Third Bank, N.A., successor by merger to Comerica Bank & Trust, N.A., as trustee of the Bikini Claims Trust Fund Agreement, seeking indemnification of its costs and expenses in the action.
Arden served interrogatories and requests for production on Fifth Third on April 15, 2026. A month later Fifth Third served responses and objections stating that it would not respond to eleven interrogatories and thirteen requests for production. It objected to the scope of the requests, arguing that they concerned its own actions as trustee, which were not at issue in the underlying action.
The negotiation that followed reached the stage most ESI disputes reach before a judge sees them. Arden circulated a proposed ESI protocol. Fifth Third "did not object to the proposed custodians and indicated that it would collect their emails," and it initially agreed to provide Arden a hit report. It then changed its mind, asserting that a hit report would be premature until the parties determined the scope of discovery. At a later meet and confer Fifth Third also agreed "to drop its burden objections and focus the Court solely on the issue of scope/relevance."
The Court's Analysis
The order also stays an unripe indemnification claim and the discovery aimed at it, but the ruling that matters for ESI practice is the one on scope, where the Court granted Arden's motion to compel.
Fifth Third argued that its production would be largely duplicative of what other parties held and that it was unlikely to possess responsive documents from the period preceding its own tenure as trustee. Neither argument survived, and the reason was what Fifth Third had declined to do. The possibility that Fifth Third lacks responsive documents or that its production would be duplicative does not support limiting discovery, the Court held, and that was especially true given that Fifth Third had waived any burden argument and refused to provide a hit report, which "could have substantiated its assertion that it lacks responsive documents."
The burden waiver compounds the problem. Having dropped its burden objections to focus the dispute on relevance alone, Fifth Third had no cost argument left to explain why the hit report was too much to ask. What remained was a bare prediction about what a search would find, offered by the party best positioned to check.
Why It Matters
Hit reports usually get discussed as a cooperation tool, a way for the parties to negotiate search terms with numbers in front of them. This order treats a hit report as something closer to proof. A party that runs one and shares the results can support an argument that a custodian or a date range is not worth collecting. A party that declines to run one is asking the court to accept the same argument on faith, and Chancery would not.
Two habits follow for anyone negotiating ESI scope. First, treat an offer to provide a hit report as a commitment worth keeping, because withdrawing it is now on the record as a reason a court may discount your position. Second, when the volume of a collection is the real objection, preserve the burden argument rather than trading it away for a cleaner relevance fight. Fifth Third gave up the argument that would have justified its position and kept the one the Court found unconvincing.
The lesson is cheap to act on. Run the terms, share the numbers, and an argument about the scope of a collection becomes an argument a court can weigh.
The full opinion is available as a PDF.
