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Ian D. McCauley

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Showing 13 posts by Ian D. McCauley.

Chancery Denies Motion to Compel Director’s Privileged Communications Stored on Third-Party’s Email Server


In Re Dell Technologies Inc Class V Stockholders Litigation, Consol. C.A. No. 2018-0816-JTL (Del. Ch. Sept. 17, 2021) (TRANSCRIPT)
A director utilizing an email account associated with a different company for board service communications might unintentionally compromise otherwise privileged communications. Here, a member of Dell’s board of directors served on a special committee and utilized an email account associated with his former employer to communicate with the committee’s lawyers. Plaintiff moved to compel the production of otherwise privileged communications on his account, raising the question of whether the director had a reasonable expectation of privacy in his communications. More ›

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Chancery Finds Adversity Between Directors and Formation of Special Committee Shields Against Production of Company-Privileged Information


In re: Howard Midstream Energy Partners, LLC, C.A. No. 2021-0487-LWW (Del. Ch. Sept. 22, 2021)
Issues of corporate privilege among directors entail a fact-specific analysis when a dispute arises among them. Here, the Court of Chancery considered a motion to compel brought by former directors and officers who claimed they were “ambushed” in a corporate “coup.” Because the directors should have considered themselves adverse to the corporation, and because a special committee was formed to deal with the petitioners’ potential separation from the company, the Court denied the petitioners’ motion to compel communications between the other directors and the company withheld as privileged.  More ›

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Chancery Addresses Records Custodian Discovery Dispute


Fortis Advisors LLC v. Johnson & Johnson, et al., C.A. No. 2021-0881-LWW (Del. Ch. Sept. 21, 2021)
Initial productions may raise new issues, including whether additional custodial collections might be necessary. While the bar for discoverability generally is low, the work and cost involved in collecting, processing, and analyzing data may be significant, and discovery demands may be disproportionate to the needs of the case. Delaware courts balance these important interests when faced with questions regarding the appropriate scope of discovery. More ›

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In Unusual Circumstances, Chancery Declines to Stay Discovery Pending Motion to Dismiss

Posted In Chancery, Discovery


Edward Deane, et al. v. Robert Maginn, Jr., C.A. No. 2017-0346-LWW (Del. Ch. Sept. 8, 2021)
Delaware courts often grant a motion to stay discovery pending the resolution of a potentially case-dispositive motion to dismiss. In “[t]he unique circumstances of this case,” however, the Court of Chancery denied a stay. The court focused on the parties’ responsibility to adhere to the discovery schedule to which they previously agreed. More ›

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Chancery Declines to Order Production of Privileged Document


Drachman v. BioDelivery Sciences International, Inc., C.A. No. 2019-0728-LWW (Del. Ch. Aug. 25, 2021)
Drachman addresses the attorney-client privilege, certain exceptions thereto, including the Garner doctrine, and waiver. Plaintiffs moved to compel the production of a redacted document over which defendants asserted privilege. The document in question was part of an email thread, or group of related communications, that included the advice of counsel and was produced across multiple documents with inconsistent redactions. One version of the communication “slipped through the cracks,” and was produced without redactions before being clawed back by the defendants under the confidentiality order entered in the case. More ›

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Chancery Addresses Common Interest and Privilege Log Issues in Matter Involving Special Discovery Master


Buttonwood Tree Value Partner, L.P. v. R.L. Polk & Co., Inc., et al., C.A. No. 9250-VCG (Del Ch. Jul. 30, 2021)

With increasing frequency, the Court of Chancery is appointing Special Discovery Masters and Discovery Facilitators as discovery issues continue becoming more complex and time-intensive. With those appointments also comes the opportunity for litigants to challenge the findings of those Special Masters and Facilitators and force the Court’s de novo review. This is just such a case. More ›

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Chancery Orders Production of Privileged Emails Transmitted Using Third-Party Accounts

In re WeWork Litigation, Consol. C.A. No. 2020-0258-AGB (Del. Ch. Dec. 22, 2020)

This Court of Chancery discovery ruling illustrates the risks associated with directors and officers using non-company email accounts to communicate about company business, particularly as it relates to confidentiality and the attorney-client privilege. More ›

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Superior Court CCLD Awards Sanctions For Unprepared Rule 30(b)(6) Deponent

Fortis Advisors, LLC v. Dematic Corp., C.A. No. N18C-12-104 AML [CCLD] (Del. Super. Nov. 18, 2020)

As this decision illustrates, Delaware trial courts have a variety of sanction options available when it comes to violations of court orders or discovery rules, such as the failure to adequately prepare a Rule 30(b)(6) deponent. Any sanction must be “just and reasonable” and tailored to the breaching party’s culpability and the complaining party’s prejudice. More ›

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Chancery Holds That Management Does Not Have Unilateral Authority to Preclude a Director From Obtaining the Company’s Privileged Information

In Re WeWork Litig., Consol. C.A. No. 2020-0258-AGB (Del. Ch. Aug. 21, 2020)

In October 2019, The We Company’s (the “Company”) board of directors established a special committee (the “Special Committee”) to evaluate a potential transaction wherein SoftBank, the controlling shareholder, would acquire majority economic ownership and voting control of the Company. When SoftBank terminated the transaction, the Special Committee filed this action on behalf of the Company alleging that they had breached their contractual obligations to use reasonable best efforts to purchase $3 billion of the Company’s stock in a tender offer. More ›

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Chancery Denies Derivative Plaintiff’s Motion to Compel Work Product Prepared by Oracle’s Special Litigation Committee

In re Oracle Corp. Derivative Litig., C.A. No. 2017-0337-SG (Del. Ch. July 9, 2020)

After investigating certain potential derivative claims arising out of Oracle Corporation’s acquisition of NetSuite, Inc., and after trying unsuccessfully to settle those claims, Oracle’s Special Litigation Committee (“SLC”) agreed that permitting a derivative plaintiff to pursue those claims was in Oracle’s best interests. This opinion concerns the lead derivative plaintiff’s subsequent motion to compel, which sought the production of forty-two documents the SLC withheld on work product grounds. The documents at issue were the SLC’s counsel’s notes and memoranda of witness interviews, factual summaries prepared by the SLC’s counsel, counsel’s draft report to the SLC, and financial analyses and damages models prepared by or at the direction of the SLC’s counsel. The Court found that all forty-two documents were protected work product because they were created in anticipation of litigation in order to aid the SLC in connection with this action. In addition, the documents were afforded a higher degree of protection as opinion work product because they also reflected attorney thoughts and impressions. More ›

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Chancery Finds Party Waived Privilege When Documents Were Produced to FCC

In re Straight Path Communications Inc. Consol. S’holder Litig., C.A. No. 2017-0486-SG (Del. Ch. June 15, 2020)

Plaintiffs brought a Motion to Compel seeking thirty-one documents withheld by Defendant on attorney-client privilege grounds. The documents had previously been disclosed by Defendant to the Federal Communications Commission (“FCC”) in 2016 during an investigation related to the current litigation. Plaintiffs did not argue that the documents were not privileged at the time of creation, but rather that the privilege was waived when the Defendant provided those documents to the government. More ›

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Chancery Finds Pre-Closing Privilege Did Not Transfer to Buyer Under Asset Purchase Agreement

Posted In Discovery, M&A, Privilege

DLO Enterprises, Inc. v. Innovative Chemical Products Group, LLC, C.A. No. 2019-0276-MTZ (Del. Ch. June 1, 2020).

Defendants/Counterclaim Plaintiffs (“Buyers”) acquired substantially all of the assets of Arizona Polymer Flooring, Inc., later renamed DLO Enterprises, Inc. (“Sellers”). Sellers filed this action disputing who was financially responsible for certain defective products. During discovery, Sellers produced several pre-closing communications with their counsel that were redacted in part to protect the privilege. Buyers filed a motion to compel unredacted copies of the documents. More ›

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Chancery Finds Stockholder Representative Did Not Control Former Stockholders’ Discoverable Material

Fortis Advisors LLC v. Allergan W.C. Holding Inc., C.A. No. 2019-0159-MTZ (Del. Ch. May 14, 2020).

Plaintiff, as representative for the former stockholders of Oculeve, Inc., sued Defendant Allergan for alleged material breaches of the Merger Agreement between Oculeve and Allergan by failing to make a necessary milestone payment to the former stockholders and for failing to use commercially reasonable and good faith efforts to achieve the milestone. During discovery, Defendant demanded documents from over fifty non-party selling stockholders without resort to third-party subpoena discovery and moved to compel after Plaintiff objected. More ›

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imccauley@morrisjames.com
T 302.888.6919
Ian McCauley is a Partner in Business Litigation group and leads the firm’s eDiscovery practice. Ian’s practice is focused on electronic discovery from the anticipation to the …
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