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Summaries and analysis of recent Delaware court decisions concerning business-related litigation.
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Showing 16 posts by Joseph C. Leonard.
Chancery Addresses Standards for Privilege Logs
Thermo Fisher Scientific PSG Corp. v. Arranta Bio MA, LLC, C.A. No. 2022-0608-NAC (Del. Ch. Jan. 18, 2022)
To assert privilege in Delaware, the asserting party must provide clear and specific reasons as to how and why privilege applies. Such that opposing counsel can comprehend the privilege asserted and challenge unsupported claims. This task is accomplished with a clear and concise privilege log listing all documents subject to privilege with individual descriptions for each. The mere presence of an attorney on the communication will not render that communication privileged, and documents must be appropriately redacted rather than simply withheld when non-privileged material exists alongside privileged legal advice. Delaware counsel should be involved in privilege log decisions. More ›
Chancery Addresses When Third Parties Are Within the Scope of the Privilege
Police and Fire Ret. Sys. of the City of Detroit v. Musk, C.A. No. 2020-0477-KSJM (Del. Ch. January 31, 2023)
A communication is privileged under Delaware Rule of Evidence 502(b) if it is confidential and "made for the purpose of facilitating the rendition of professional legal services to the client." Rule 502(a)(2) defines a confidential communication as one "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Rule 502(b) makes clear that the presence of a client's "representative" does not waive confidentiality or break privilege, but the rule itself does not define "representative." More ›
Chancery Permits Discovery Under the Hague Evidence Convention
In Re Cote D’Azur Estate, C.A. No. 2017-0290-JTL (Del. Ch. Dec. 12, 2022)
The Hague Evidence Convention provides an alternative method from the Federal Rules of Civil Procedure to compelling production from opposing parties across international lines. In this decision, the Court of Chancery considered a request for production under the Convention from a plaintiff-heir, seeking discovery on her late father’s former legal counsel regarding issues surrounding the family estate, established as a Delaware LLC, to control the family villa in France. Questions arose regarding the propriety of the legal advice provided to the father by counsel, and plaintiff-heir sought to compel production of discovery, while defendant-counsel refused to cooperate. More ›
Chancery Addresses Multiple Discovery Scuffles in Twitter and Musk Litigation
Twitter Inc. v. Elon musk et al., C.A, No. 2022-0613-KSJM (Del Ch. Aug. 23, 2022)
Twitter Inc. v. Elon musk et al., C.A, No. 2022-0613-KSJM (Del Ch. Aug. 25, 2022) Letter Decision Resolving Plantiffs' Second Discovery Motion
Twitter Inc. v. Elon musk et al., C.A, No. 2022-0613-KSJM (Del Ch. Aug. 25, 2022) Letter Decision Resolving Defendants' Second Discovery Motion
Twitter Inc. v. Elon musk et al., C.A, No. 2022-0613-KSJM (Del Ch. Aug. 25, 2022) Letter Decision Resolving Defendants' Third Discovery Motion
Twitter Inc. v. Elon musk et al., C.A, No. 2022-0613-KSJM (Del Ch. Sept. 7, 2022) Letter Decision Denying Defendants' Motion for Reargument
Twitter Inc. v. Elon musk et al., C.A, No. 2022-0613-KSJM (Del Ch. Sept. 7, 2022) Letter Decision Resolving Defendants' Motion For Leave To Amend And Extend Case Schedule
Twitter Inc. v. Elon Musk et al., C.A. No. 2022-0613-KSJM (Del Ch. Sept 7. 2022) Letter Resolving Fourth Discovery Motion
Twitter Inc. v. Elon Musk et al., C.A. No. 2022-0613-KSJM (Del Ch. Sept 7. 2022) Letter Decision Resolving Defendants Fourth Discovery
During its pendency, the suit by Twitter to compel Musk to complete his $44 billion purchase of the company produced several discovery rulings illustrating the Court of Chancery’s rules and practice. More ›
Chancery Addresses eDiscovery Self-Collection in Pro Se Defense of Restrictive Covenant Dispute
Summit Fire & Security LLC v. Kolias, C.A. No. 2022-0460-MTZ (Del. Ch. Aug. 19, 2022)
“Self-collection” in eDiscovery refers to a party selecting its own data for review or production without input from counsel. Delaware courts generally disapprove of self-collection. But the courts will approach the issue differently in pro se matters where it may be necessary and appropriate for a party to self-collect, without turning any data repositories over to a vendor. In this restrictive covenant dispute, the plaintiff entity moved to compel the production of a complete forensic image of an individual pro se defendant’s phone, claiming that the prior production of relevant text messages was inadequate based on the defendant’s self-collection of data. The Court declined to order that relief, noting that self-collection often is necessary for pro se parties and that there was no indication that the defendant had failed to meet any of his preservation obligations. In light of those facts, and the case’s circumstances, requiring full access to a complete forensic image was unreasonable and disproportionate to the needs of the case.
Chancery Holds That Requests for Admission Are Subject to Discovery Deadlines
NetApp, Inc. v. Cinelli, Inc., C.A. No. 2020-1000-LWW (Del. Ch. June 3, 2022)
This decision clarifies discovery deadlines under the Court of Chancery rules. Plaintiff served dozens of requests for admission months after the close of discovery, arguing that such requests are not subject to discovery deadlines, but merely “a mechanism to eliminate factual disputes.” Federal courts have rendered conflicting decisions on the issue. Here, the Court of Chancery holds that requests for admission under Rule 36 are subject to discovery scheduling cut-offs because they are part of the discovery process as specified under Rule 26 and 36.
Superior Court Upholds Highly Confidential Designations in Discovery
Surf’s Up Legacy Partners, LLC v. Virgin Fest, LLC, C.A. No. 19C-11-92 (Del. Super. June 6, 2022)
Delaware courts generally do not permit the redaction of non-responsive material that is otherwise not privileged. Two-tiered confidentiality stipulations, allowing for highly confidential attorneys’ eyes-only designations, are available to prevent sensitive information from being widely disseminated amongst an opposing party if such disclosure is substantially likely to cause injury to the producing party and a standard confidential designation would be insufficient to prevent that injury. More ›
Chancery Applies Privilege Rules in Business Negotiations Context
Twin Willows, LLC v. Pritzkur, C.A. No. 2020-0199-PWG (Del. Ch. Feb. 28, 2022)
This decision involved a Master in Chancery applying well-settled rules on the attorney-client privilege, common interest, and work product doctrines. Respondent Pritzkur was appointed to serve as partition trustee for owners and tasked with selling the property. Pritzkur negotiated a sale agreement that was ultimately assigned to Petitioner Twin Willows. The agreement was not fully performed, and Twin Willows moved to compel production of communications between Pritzkur and the owners. Pritzkur asserted both common interest privilege and attorney work product. More ›
Chancery Rules that Multiple Egregious Discovery Abuses Lead to the Ultimate Sanction
DG BF, LLC v. Ray, C.A. No. 2020-0459-MTZ (Del. Ch. Nov. 19, 2021)
Delaware courts may impose sanctions on parties that refuse to comply with court orders or neglect their own discovery obligations. Possible sanctions may include, among other things, monetary penalties, an instruction of adverse inference, or the ultimate sanction of default judgment against the offending party. These sanctions are imposed to remedy the wrongs at-issue and to deter abusive discovery conduct. More ›
Chancery Finds Former Directors Bringing Wrongful Termination Claims Were Not Entitled to all Privileged Communications During Their Board Tenures, and Shifts Some Fees for Inadequate Privilege Logs
SerVaas v. Ford Smart Mobility LLC, C.A. No. 2020-0909-LWW (Del. Ch. Nov. 9, 2021)
With limited exceptions, directors normally have “unfettered” access to corporate information. This decision indicates, however, that the same may not hold true for former directors who do not challenge their removal as directors and who seek documents for reasons unrelated to their prior board service. Here, the Court of Chancery denied a motion to compel by two former directors who challenged the termination of their employment, and who sought in discovery all of the documents the corporation withheld as a privilege from their time as directors. More ›
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 ›
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 ›
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 ›
In Unusual Circumstances, Chancery Declines to Stay Discovery Pending Motion to Dismiss
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 ›
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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