Posts in Discovery

Court Of Chancery Refuses Temporal Limit On Waiver Of Privilege

Mennen v. Wilmington Trust Company, C.A. 8432-ML (September 18, 2013)

If it is upheld upon review, this decision by a Master in Chancery needs to be studied by all practitioners.  Briefly, it holds that when a party waives the attorney-client privilege, it does so with respect to the entire subject matter of the communication involved in the waiver.  There is no temporal limit such that later communications on the same subject matter may be protected from discovery.

Court Of Chancery Permits Employee Email Inspection

In re Information Management Services Inc. Derivative Litigation, C.A. 8168-VCL (September 5, 2013)

This decision holds that an employee's email communications with his attorneys are not privileged. The holding is limited to circumstances where the employer has at least told the employees not to expect that their email is private.  Furthermore, the Court notes that this decision may not be followed in the typical derivative case where an outsider is trying to gain access to those emails.  That decision will need to wait for another day.

Court Of Chancery Upholds Privilege To Say I Consulted

In re Quest Software Inc. Shareholders Litigation, C.A. 7357-VCG (July 3, 2013)

Almost every case seems to involve the issue of when asserting that the defendant board had legal advice constitutes a waiver of the attorney-client privilege. This decision explains how far you can go and yet preserve the privilege.  Basically, you can say that you consulted and still keep the privilege, but you cannot say 'he told me it was okay" without a waiver.

Court Of Chancery Holds Privilege Waived

Lake Treasure Holdings Ltd. v. Foundry Hill GP LLC, C.A. 6546-VCL (June 14, 2013)

This transcript decision illustrates the danger in using a computer generated privilege log.  It will leave out document descriptions, addresses, etc.  As a result, the Court here held that any privilege claim was waived by using the "worst" log ever.  Hence, loggers beware!

Court Of Chancery Limits Third Party Discovery

In re: El Paso Partners LP Derivative Litigation, C.A. 7141-CS (Transcript, April 15, 2013)

This decision discusses when discovery from a third party not involved in the transaction under attack in the litigation is justified.  In part, the Court denied the discovery because it was not convinced the information to be obtained would be all that helpful in the litigation.

Court Of Chancery Explains Privilege Waiver Law

In Re Comverge, Inc. Shareholders Litigation, C.A. 7368-VCP (April 10, 2013)

When does the mere assertion that your client had "advice of counsel" waive the attorney-client privilege?  This question comes up more often than you might think.  This decision makes clear that in some instances, merely asserting that you sought an attorney's advice is not a waiver of the privilege.  The 2 keys to retaining the privilege are not injecting the advice of counsel issue into the litigation yourself and not actually saying what the attorney told you.  But, if you follow the guidance in this decision, the privilege will be preserved.

Supreme Court Refines Rule On Failure To Follow Scheduling Order

The Delaware Supreme Court has issued 4 opinions that significantly refine the rules set out only 2 years ago in the Drejka decision on when a case may be dismissed for failing to meet the timetable in a scheduling order.  See Christian v. Counseling Resource Associates Inc., No. 460, 2011 (January 2, 2013);    Hill v. DuShuttle, No. 381, 2011 (January 2, 2013);   Adams v Aidoo, No. 177, 2012 (January 2, 2013) and Keener v. Isken, No. 609, 2011 (January 2, 2013). The Christian decision is perhaps the most significant.  From now on, if a party fails to meet a deadline for discovery, the opposing party will be precluded from objecting unless the opposing counsel alerts the Court to the failure and asks for formal relief.  Note that the Supreme Court's wording is very broad because it says that the first failure to object to a delay means the opposing party has "waived the right to contest any late filings by opposing counsel from that time forward." Literally then, all future delays are waived.  This seems too broad to be taken literally. For example, a failure to object to a 2 day delay on a minor matter should not preclude a failure later to provide an expert report.  Nonetheless, the current, somewhat lax, informal extensions are now a thing of the past.

Court Of Chancery Clarifies Discovery Obligations

Senior Housing Capital LLC v. SHP Senior Housing Fund LLC, C.A. 4586-CS (November 2, 2012)

This decision in a bench ruling has some interesting issues on what should be disclosed in discovery.  First, it is important to not fail to list the witnesses that you will call at trial when answering interrogatories.  Hanging back to the last minute may mean the witness will be barred from testifying.  There was more to this than just delay but that is still a point worth remembering.

Second, the scope of expert discovery may well include notes and work papers of everyone who is on the team assisting the expert witness and will certainly include prior studies the expert has done on the same subject matter for other clients. This points out the need to be careful in setting up the expert's team and in selecting the expert.

Court Of Chancery Declines To Restrict Access To Documents

Czarninski Baier de Adler v. Upper New York Investment Company LLC,  C.A. 6896-VCN (September 28, 2012)

This decision illustrates the Court's reluctance to permit protective orders to limit access to documents. The Court permitted the plaintiff's husband and non-US attorneys access to the documents that would otherwise have been confidential under a protective  order.

Court Of Chancery Upholds Standing To Object To Subpoenas

Feeley v. NHAOCG LLC, C.A. 7304-VCL (August 16, 2012)

It has long been thought that Cede & Co. v Joule Inc., 2005 WL 736689 (Del. Ch. Feb. 7, 2005) denied standing to a party to object to a third party subpoena except on privilege grounds.  Well no more.  In this recent decision, the Court declared that Joule is wrong and that it will protect a party from excessive discovery.

Court Of Chancery Explains Work Product Standard

New Jersey Carpenters Pension Fund v. infoGROUP, Inc.,  C.A. 5334-VCN (August 16, 2012)

This decision clarifies that to have discovery of work product a party needs only show a "substantial need" and that it would be an "undue hardship" to get the information some other way.  Despite some contrary language in the famous Garner case, there is no requirement that you also show the information is sought in "good faith."

Court Of Chancery Limits Subpoena

Huff Fund Inv. Partnership v. CKx Inc.,  C.A. 6844-VCG (August 15, 2012)

This is another in a series of recent discovery decisions limiting the use of subpoenas.  Here the Court balanced the limited relevance of the information sought with the potential prejudice to the party asked to produce its trade secrets and denied some of the discovery.

Court Of Chancery Orders Discovery On Notarization

Bessenyei v. Vermillion Inc., C.A. 7572-VCN (July 19, 2012)

All Court of Chancery complaints must be verified by each plaintiff.  Most of us take it for granted when the client returns a notarized verification.  But should we?  In this case the transcript includes an order granting discovery of a notary to see if the plaintiff actually appeared before that notary to sign his verification.  The Court suggests that if he did not do so then he has committed a fraud on the Court.  That is perhaps not the best way to start litigation.

Court Of Chancery Repeats What Interrogatory Answer Must State

Grunstein v. Silva, C.A. 3932-VCN (January 26, 2012)

When answering an interrogatory asking about the documents a litigant relies upon, it is not enough to just refer to the documents produced.  Instead, the specific documents must be identified, such as by bates numbers.

Delaware Federal District Court Adopts ESI Discovery Guidelines