Delaware Business Litigation Report

Delaware Supreme Court Reminds Counsel of Obligation to Prevent Clients’ Abusive Deposition Misconduct

In re: Shorenstein Hays-Nederlander Theatres LLC Appeals, Consol. C.A. Nos. 596, 2018 and 620, 2018 (Del. Jun. 20, 2019).

 “Depositions are court proceedings, and counsel defending the deposition have an obligation to prevent their deponent from impeding or frustrating a fair examination.”  After reversing and remanding a contractual dispute involving  popular Broadway shows back to the Court of Chancery on unrelated grounds, the Delaware Supreme Court included an Addendum to its opinion reprimanding an out-of-state attorney for permitting his client to engage in abusive deposition misconduct.  During the deposition, Carole Shorenstein Hays, a prominent theater producer, repeatedly provided answers characterized by the Supreme Court as ridiculous, problematic, flagrantly evasive, nonresponsive, and flippant.   Among other things, Hays claimed not to know whether she earned a university degree, claimed not to measure time in hours, refused to answer myriad straightforward questions, and made unprompted speeches in which she likened herself to Judy Garland and the deposition to a “piece of theatre that’s being recorded.”  While no Delaware attorney for Hays attended the deposition, the two attorneys representing her were both admitted pro hac vice and made no attempt to stop her misconduct.  The Court of Chancery had previously awarded attorneys’ fees and costs for this bad faith misconduct, and that ruling was not challenged on appeal.  The Supreme Court felt compelled, however, to address the situation.  The Supreme Court reasoned that, faced with such conduct, the deponent’s counsel “cannot simply be a spectator and do nothing.”  In addition, “Delaware counsel moving the admission of out of state counsel pro hac vice also bear responsibility in such a situation.  They must ensure that the attorney being admitted reviews the Principles of Professionalism for Delaware Lawyers, but they must also ensure that the out-of-state counsel understands what is expected of them in managing deposition proceedings outside the courthouse so that the litigation process is not abused.”  In light of restrictions Delaware court rules and precedent impose on conferring with a client-deponent during the deposition, the Supreme Court advised that these points “should be addressed beforehand in the deposition preparation.”

Court of Chancery Addresses Discovery Abuses

Terramar Retail Centers LLC v. Marion #2-Seaport Trust, C.A. No 12875-VCL (Del. Ch. Dec. 4, 2018)

The Court of Chancery has long demanded that litigants abide by the discovery rules and respect scheduling orders. This is an excellent summary of Delaware discovery obligations and a good list of many ways a litigant can go wrong in responding to discovery. More ›

Court Of Chancery Explains Privilege Limits Involving Corporate Investigations

Akorn Inc. v. Fresemus Kabi A.G., C.A. 2018-0300-JTL (May 22, 2018) and Sandys v. Pincus, C.A. 9512-CB (July 2, 2018)

Corporate investigations present complicated issue surrounding what must later be produced in litigation. Context means everything in those disputes. Discovery into the decision by a SLC is much more limited than in other litigation, for example. But these two transcript rulings are useful for their insights into how the Court of Chancery handles disputes over discovery into the investigation process. More ›

Court of Chancery Addresses Discovery Obligations Regarding Text Messages

In re Appraisal of Kate Spade Company, C.A. No. 2017-0714-AGB (Del. Ch. June 21, 2018)

The duty to collect and produce non-privileged relevant information extends beyond email to text messages and other forms of electronic communications. Standard practice in Delaware involves at least inquiring of custodians the extent to which they used text messages to engage in substantive communications on potentially relevant topics and to collect text message data when they answer affirmatively, absent an agreement to contrary between the parties. This bench ruling addresses that practice and reflects the Chancellor’s view that text messages often may be a critical source of information.

Delaware Superior Court Explains Impact Of European Data Rules On Forum Motion

Ethica Corporate Finance S.r.L. v. Dana Incorporated, C.A. No. N17C-10-145 EMD CCLD (August 16, 2018)

Under the Cryo-Maid decision, a forum non conveniens motion must consider the impact on a defendant forced to litigate in Delaware when discovery is needed in a foreign land.  Here the Court considered the impact of the recent amendments to the Italian Data Protection Code on discovery and found that it did not impose an undue hardship under the facts present in this case. This may become more important as those European laws on privacy protection start to be considered for their effect on litigation outside of the EU.

Court of Chancery Explains Investment Bankers’ Discovery Obligations

Cumming v. Edens, C.A. No. 13007-VCS (Del. Ch. July 12, 2018)

This transcript ruling makes two important points about discovery obligations in the Court of Chancery.  First, blanket form objections to document requests amount to a waiver of otherwise valid objections. Objections to scope and burden and the like need to be spelled out specifically with supporting facts.  Second, investment bankers, even as third parties to a litigation, generally will not get far with objecting to requests on the basis of burden.  Given their role in many transactions, they are front and center, house a lot of critically relevant information, and have been paid well enough to cover the expenses associated with production.  In short, they are not your typical third party who may be given some more leeway when it comes to discovery burdens.

Court Of Chancery Denies Garner Exception Absent A Fiduciary Duty

Morris v. Spectra Energy Partners (DE) GP, LP C.A. 12110-VCG (May 7, 2018)

The famous Garner case permits inspection of otherwise privileged communications when its strict criteria are satisfied. But as this decision decides for the first time in Delaware, Garner does not apply when there is no fiduciary relationship between the party seeking discovery and the party claiming the privilege. Here the LLP agreement waived any fiduciary duties. Thus, Garner did not apply and discovery was denied.

Court Of Chancery Imposes Sanctions For Failing To Comply With A Scheduling Order

In RE Examworks Group Inc. Stockholder Appraisal Litigation, C.A. 12688-VCL (February 21, 2018)

As this decision again points out, a scheduling order is a court order that must be followed or sanctions will be imposed. Late production of documents is just such a sanctionable event.

Court Of Chancery Explains Discovery Objections

In Re Oxbow Carbon LLC Unitholder Litigation, C.A. No. 12447-VCL (March 13, 2017)

For some time now, the Court of Chancery has told litigants that objections to documents requests should be specific, not generic and boilerplate. This decision thoroughly addresses the case law on this issue, with numerous citations to federal court precedent and detailed explanations of what objections are proper, including for claims of privilege. Oxbow should serve as a useful resource when it comes time to object to document requests in the Court of Chancery.

Court Of Chancery Addresses M&A Discovery

Hamilton Partners L.P. v. Highland Capital Management L.P.,  C.A. 6547-VCN (February 2, 2016)

Discovery of financial information in M&A litigation, including appraisal actions, often involves two issues: (1) how far back before the transaction should there be discovery and (2) is post-transaction discovery permitted? This decision provides some guidance on both issues.

Court Of Chancery Applies Wal-Mart Decision

Kops v. The Bank of New York Mellon Corporation, C.A. 10102-VCG (Transcript, July 16, 2015)

This recently released transcript has a good explanation of how to apply the Garner/Wal-Mart principles governing when stockholders may get discovery of documents otherwise subject to the attorney-client privilege. The multiple facts involved, particularly in a Section 220 case, tend to permit such discovery when the issue is whether demand is excused to file a derivative suit. More ›

Court Of Chancery Clarifies Privilege Waiver And Redaction Rules

TCV VI L.P. v. TradingScreen Inc., C.A. 10164-VCN (September 25, 2015)

This an excellent review of the scope of a waiver of the attorney client privilege and it harmonizes conflicting prior decisions. It also is a good outline of what must be in a redaction log.

Court Of Chancery Upholds Privilege For Funding Agreement

Carlyle Investment Management Company L.L.C. v. Moonmouth Company S.A., C.A. No. 7841-VCP (February 24, 2015) Applying the Delaware "because of" test to determine what is covered by the work product privilege, this decision prohibits discovery of the funding agreement between a litigation funding firm and one of the parties to the litigation. This is the first time that issue has been decided by a Delaware court.

Court Of Chancery Requires Individuals To Provide Expert Testimony

In Re Dole Food Co. Inc. Stockholder Litigation, C.A. Nos. 8703-VCL and 9079-VCL (February 27, 2015) In this case of first impression, the Court held that a corporation could not be designated as the "expert" to testify on a party's behalf.

Court Of Chancery Reiterates Privilege Log Rules

Mechel Bluestone Inc. v. James C. Justice Companies Inc., C.A. 9218-VCL (December 12, 2014) When documents are withheld under a claim they are privileged, it is necessary to say why there is a privilege. A "privilege log" does just that, however, there are specific requirements for what must be on that log, or its cousin the redaction log. Failure to meet those requirement may result in a waiver of any privilege. This decision explains all the rules and how to meet them. Of particular interest to Delaware lawyers, the decision twice points out that compliance with these requirements is a responsibility of the "senior Delaware lawyers" involved in the matter. My father said that someone was a "senior" if they were 10 years older than he was. He said that when he was 80. I doubt the Court of Chancery will agree with him.