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Summaries and analysis of recent Delaware court decisions concerning business-related litigation.
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Showing 20 posts by Joseph C. Leonard.
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 ›
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 ›