Posts in E-Discovery

Spoliation of Email and Texts Leads to Adverse Inferences and Fee Shifting

Gener8 LLC v. Castanon, 2022-0246-LWW (Del. Ch. Sept. 29, 2023)
This dispute concerned a non-compete agreement that the plaintiffs alleged the defendant breached by establishing a competing business. The defendant denied the existence of relevant texts and email communications, when in fact he intentionally withheld and deleted them. In discovery, he claimed no relevant communications existed on his phone, citing that he was not a “big texter.” The defendant testified to this at trial, and pled ignorance of both the operations of the competing enterprise and any discussions or communications to that effect. However, other parties produced text messages including the defendant, making clear that he had in fact sent many texts concerning these subjects.  More ›

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Chancery Prioritizes Efficiency in Ruling on Discovery Motions

Brown v. Matterport, Inc., 2021-0595-LWW (Del. Ch. Jun. 5, 2023)
The plaintiff sued alleging that the defendants had used lockup restrictions to improperly prevent him from selling shares. The Court of Chancery considered three discovery motions, and the ruling in all three instances focused on the efficiency of the discovery process. More ›

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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 ›

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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 ›

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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 ›

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Chancery Orders Production of Privileged Emails Transmitted Using Third-Party Accounts

In re WeWork Litigation, Consol. C.A. No. 2020-0258-AGB (Del. Ch. Dec. 22, 2020)

This Court of Chancery discovery ruling illustrates the risks associated with directors and officers using non-company email accounts to communicate about company business, particularly as it relates to confidentiality and the attorney-client privilege. More ›

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Chancery Finds Stockholder Representative Did Not Control Former Stockholders’ Discoverable Material

Fortis Advisors LLC v. Allergan W.C. Holding Inc., C.A. No. 2019-0159-MTZ (Del. Ch. May 14, 2020).

Plaintiff, as representative for the former stockholders of Oculeve, Inc., sued Defendant Allergan for alleged material breaches of the Merger Agreement between Oculeve and Allergan by failing to make a necessary milestone payment to the former stockholders and for failing to use commercially reasonable and good faith efforts to achieve the milestone. During discovery, Defendant demanded documents from over fifty non-party selling stockholders without resort to third-party subpoena discovery and moved to compel after Plaintiff objected. More ›

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