Delaware Business Litigation Report

Delaware Business Litigation Report

Category Archives: Discovery

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Court Of Chancery Reiterates Privilege Log Rules

Posted in Discovery
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 … Continue Reading

Court Of Chancery Sanctions

Posted in Discovery
James v. National Financial LLC, C.A. 8931-VCL (December 5, 2014) This decision deserves immediate attention by Delaware lawyers for it sets out their responsibilities to see that discovery, particularly discovery of ESI, is done correctly. It also is a good listing of the level of sanction that may be applied for not fulfilling those responsibilities… Continue Reading

Court Of Chancery Affirms Power To Order Discovery Abroad

Posted in Discovery
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 … Continue Reading

Court Of Chancery Gets Tough On Delay

Posted in Discovery
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… Continue Reading

Court Of Chancery Explains “Inadvertent” Disclosures

Posted in Discovery
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 … Continue Reading

Court Of Chancery Explains Privilege Rulings

Posted in Discovery
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 … Continue Reading

Court of Chancery Explains “At Issue” Waiver of Privilege

Posted in Discovery
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 … Continue Reading

Court Of Chancery Refuses Temporal Limit On Waiver Of Privilege

Posted in Discovery
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 … Continue Reading

Court Of Chancery Permits Employee Email Inspection

Posted in Discovery
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 … Continue Reading

Court Of Chancery Upholds Privilege To Say I Consulted

Posted in Discovery
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 … Continue Reading

Court Of Chancery Holds Privilege Waived

Posted in Discovery
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 … Continue Reading

Court Of Chancery Limits Third Party Discovery

Posted in 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 … Continue Reading

Court Of Chancery Explains Privilege Waiver Law

Posted in Discovery
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 … Continue Reading

Court Of Chancery Clarifies Discovery Obligations

Posted in Discovery
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 … Continue Reading

Court Of Chancery Declines To Restrict Access To Documents

Posted in Discovery
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… Continue Reading

Court Of Chancery Explains Work Product Standard

Posted in Discovery
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 … Continue Reading

Court Of Chancery Limits Subpoena

Posted in Discovery
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 … Continue Reading

Court Of Chancery Orders Discovery On Notarization

Posted in Discovery
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 … Continue Reading

Delaware’s Complex Civil Litigation Court: One Year Later

Posted in Case Summaries, Discovery, News
Edward M. McNally This article was originally published in the Delaware Business Court Insider | May 18, 2011 On May 1, 2010, the Delaware Superior Court established a specialized "division" within that court to handle business disputes, known as the "Complex Civil Litigation Division" (or "CCLD"). The CCLD complements the Court of Chancery by offering … Continue Reading