Case Spotlight: Cumming v. Edens, C.A. No. 13007-VCS (Del. Ch. July 12, 2018) (Slights, V.C.) (TRANSCRIPT)

In this transcript ruling deciding the plaintiff’s motion to compel production of documents, the Court of Chancery provided some noteworthy guidance regarding discovery from third party financial advisors.  In response to the plaintiff’s subpoena, the financial advisor here had initially asserted boilerplate general objections and offered to meet and confer with respect to each request, without expressly agreeing to produce any documents.  Months later, the financial advisor had still only produced its deal file and limited other documents and had failed to agree to any proposal for the collection, review, and production of its responsive email data.

First, the Court found the financial advisor’s written responses to the subpoena were inappropriate, notwithstanding its offers to meet and confer.  Given the importance of maintaining trial dates and the schedules derived therefrom, the Court reasoned that there simply isn’t time for anything other than straightforward discovery responses in the first instance. 

Second, the Court rejected the financial advisor’s contention that it should be treated as a typical third party with respect to the scope of discovery related to its email data.  The Vice Chancellor professed his agreement with Vice Chancellor Laster’s view that when financial advisors are involved in complex transactions, they take a very important role and as a result generate a large amount of information and data.  While that necessarily involves some burden when the underlying transaction is later subject to litigation, the Court explained, these advisors are highly compensated for their work and should consider such burdens a cost of doing business.  The Court found these concepts applicable here despite the fact that the financial advisor played a more limited role in the transaction than is typical. 

Ultimately, the Court ordered that the financial advisor execute the plaintiff’s email search proposal and provide hit reports without further delay.  Additionally, while the financial advisor would be permitted to carve out categories of “wholly unresponsive” documents when conducting its review, the Court warned the financial advisor to be “very deliberate” in identifying those categories.  The plaintiff was awarded reasonable attorneys’ fees for filing the motion pursuant to Rule 37.