Showing 92 posts in Discovery.
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.
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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.
ShareCourt 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.
ShareCourt 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 ›
ShareCourt 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.
ShareCourt Of Chancery Upholds Privilege For Funding Agreement
Court Of Chancery Requires Individuals To Provide Expert Testimony
Court Of Chancery Reiterates Privilege Log Rules
Court Of Chancery Sanctions
Court Of Chancery Affirms Power To Order Discovery Abroad
In re Activision Blizzard Inc. Stockholder Litigation, C.A. 8885-VCL (February 21, 2014)
Some countries, particularly in Europe, have laws that restrict the ability to get discovery of email and other materials. This careful decision explains when the Court of Chancery will order that discovery anyway. The opinion reviews the United States Supreme Court decisions and the laws of France on this subject.
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Sustainable Biofuels Solutions LLC v. Tekgar LLC, C.A. 8741-VCP (January 28, 2014)
Delays in discovery that affect the trial date will get a litigant in trouble with the Court. The Delaware Supreme Court has made this clear and required that scheduling orders be followed. This transcript makes this clear.
ShareCourt Of Chancery Explains "Inadvertent" Disclosures
Jefferson v Dominion Holdings Inc., C.A. 8663-VCN (December 13, 2013)
The term "inadvertent" is frequently used in confidentiality and quick-peek agreements to permit the claw back of privileged documents that have been "inadvertently" produced. In a rare case, the Court of Chancery concluded that there was inadvertent production, even though the documents were used in questioning a witness.
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MPEG LA L.L.C. v. Dell Global B.V., C.A. 7016-VCP (December 9, 2013)
This is a useful decision because it collects the relevant rules for deciding if there is a privilege for communications that include a mixture of business and legal advice. If the business advice can be segregated from the legal advice, the communication should be produced with the legal advice redacted. If the business advice predominates and segregating it from the legal advice is not possible, the communication should be produced. But if the business advice cannot be said to predominate and segregating the legal advice is not possible, the communication may be withheld.
ShareCourt Of Chancery Holds Privilege Passes With Merger
In what seems to have created a real stir, the Court of Chancery held that control over the assertion of the attorney-client privilege passed to the acquiring corporation in a merger. Hence, that entity could waive that privilege and obtain the legal advice the company received before the merger about certain aspects of its operations that the buyer now is arguing over. Frankly, there is a lot of authority supporting this result and it should not have come as a surprise.
ShareCourt of Chancery Explains "At Issue" Waiver of Privilege
JP Morgan Chase & Co. v. American Century Companies Inc., C.A. 6875-VCN (October 31, 2013)
As is well known, the attorney/client privilege may be waived by interjecting that communication into the matters "at issue" in the litigation. Advice of counsel as a defense is one such instance. This decision illustrates another - when the advice apparently went to the valuation matters.
Also interesting is the Court's caution that just because one side interjects attorney communications into the issues, that does not mean that the opposing side's demand to see those communications also opens up its privileged matters to discovery as well.
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