Tyler O'Connell on Discovery

Court of Chancery Finds Class Counsel’s Litigation Funding Agreement is Discoverable

Burkhart v. Genworth Fin., Inc., C.A. No. 2018-0691-NAC (Del. Ch. Aug. 21, 2024). The rise in litigation funding brings a predictable follow-on question: Are litigation funding agreements protected as work product, or...more

2/7/2025 / Class Action , Class Members , Consumer Litigation , Contract Terms , Disclosure Requirements , Discovery , Insurance Industry , Litigation Funding

Failure to Maintain Legal Hold Leads to Spoliation, Sanctions, and Fee Shifting in Delaware Superior Court CCLD

Huntsman Int'l, LLC v. Benelux, C.A. No. N17C-11-242 MAA CCLD (Del. Super. Ct. Aug. 13, 2024). In the age of big data, discovery can extend beyond traditional documents and communications to myriad tools and databases....more

2/6/2025 / Complex Litigation , Data Management , Data Preservation , Discovery , Electronically Stored Information , Fee-Shifting , Legal Technology , Litigation Strategies , Sanctions , Spoliation

Chancery Finds Wholly Generic Objections to Discovery Requests Result in Waiver and Fee-Shifting

Bocock v. Innovate Corp., C.A. No. 2021-0224-PAF (Del. Ch. Dec. 6, 2023) - In this recent letter opinion, Vice Chancellor Fioravanti considered whether the plaintiffs’ failure to provide specific objections to discovery...more

2/23/2024 / Attorney's Fees , Attorney-Client Privilege , Discovery , Motion to Compel

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...more

1/24/2024 / Breach of Contract , Breach of Duty , Destruction of Evidence , Discovery , Fiduciary Duty , Spoliation

Chancery Orders Discovery Record Be Made Available to Stockholders in the Settlement Class

In re AMC Entertainment Hldgs., Inc. S’holder Litig., 2023-0215-MTZ (Del. Ch. May 20, 2023) - Under Delaware law, class members are entitled to access to the discovery record to assess the terms of a proposed class action...more

9/20/2023 / Class Action , Class Action Settlement , Class Members , Discovery , Shareholders

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....more

9/20/2023 / Discovery , Lock-Up Agreement , Shareholder Litigation , Shareholders

Delaware Court Enters Default Judgment for Extreme Spoliation

Spoliation of evidence can lead to significant litigation sanctions, including adverse inferences, fee-shifting, and—in egregious cases—the entry of a default judgment. In this recent case involving intentional spoliation of...more

3/28/2023 / Discovery , e-Discovery Professionals , Electronically Stored Information , Evidence , Spoliation

Chancery Curtails Discovery in Appraisal Action Instituted as a Substitute for Books and Records Demand

Wei v. Zoox, Inc, C.A. No. 2020-1036-KSJM (Del. Ch. Jan. 31, 2022) - Often, stockholders who suspect corporate wrongdoing in connection with M&A transactions demand to inspect the company’s books and records under Section...more

4/29/2022 / Board of Directors , Books & Records , Breach of Duty , Discovery , Fiduciary Duty , Section 220 Request

Chancery Finds Former Directors Bringing Wrongful Termination Claims Were Not Entitled to all Privileged Communications During...

SerVaas v. Ford Smart Mobility LLC, C.A. No. 2020-0909-LWW (Del. Ch. Nov. 9, 2021) - With limited exceptions, directors normally have “unfettered” access to corporate information. This decision indicates, however, that the...more

2/22/2022 / Board of Directors , Breach of Contract , Breach of Duty , Discovery , Fiduciary Duty , Privileged Communication

Chancery Finds Adversity Between Directors and Formation of Special Committee Shields Against Production of Company-Privileged...

In re: Howard Midstream Energy Partners, LLC, C.A. No. 2021-0487-LWW (Del. Ch. Sept. 22, 2021) - Issues of corporate privilege among directors entail a fact-specific analysis when a dispute arises among them. Here, the...more

12/17/2021 / Board of Directors , Discovery , Document Productions , Work-Product Doctrine

In Unusual Circumstances, Chancery Declines to Stay Discovery Pending Motion to Dismiss

Edward Deane, et al. v. Robert Maginn, Jr., C.A. No. 2017-0346-LWW (Del. Ch. Sept. 8, 2021) - Delaware courts often grant a motion to stay discovery pending the resolution of a potentially case-dispositive motion to...more

12/6/2021 / Discovery , Document Productions , Motion to Dismiss , Stays

Chancery Holds That Management Does Not Have Unilateral Authority to Preclude a Director From Obtaining the Company’s Privileged...

In Re WeWork Litig., Consol. C.A. No. 2020-0258-AGB (Del. Ch. Aug. 21, 2020) - In October 2019, The We Company’s (the “Company”) board of directors established a special committee (the “Special Committee”) to evaluate a...more

9/28/2020 / Board of Directors , Breach of Contract , Breach of Duty , Controlling Stockholders , Discovery , Fiduciary Duty , Privileged Communication

Chancery Denies Derivative Plaintiff’s Motion to Compel Work Product Prepared by Oracle’s Special Litigation Committee

In re Oracle Corp. Derivative Litig., C.A. No. 2017-0337-SG (Del. Ch. July 9, 2020) - After investigating certain potential derivative claims arising out of Oracle Corporation’s acquisition of NetSuite, Inc., and after...more

8/26/2020 / Acquisitions , Breach of Duty , Discovery , Fiduciary Duty , Work-Product Doctrine

Chancery Finds Party Waived Privilege When Documents Were Produced to FCC

In re Straight Path Communications Inc. Consol. S’holder Litig., C.A. No. 2017-0486-SG (Del. Ch. June 15, 2020) - Plaintiffs brought a Motion to Compel seeking thirty-one documents withheld by Defendant on attorney-client...more

8/3/2020 / Attorney-Client Privilege , Discovery , Document Productions , FCC , Motion to Compel

Delaware Superior Court CCLD Addresses Claim of Common Interest Privilege over Merger Agreement Parties’ Post-Signing, Pre-Closing...

The American Bottling Co. v. Repole, C.A. No. N19C-03-048 AML CCLD (Del. Super. May 12, 2020) - Delaware courts will apply the common interest doctrine when two parties, represented by counsel, exchange privileged...more

6/30/2020 / Attorney-Client Privilege , Common-Interest Privilege , Discovery , Privileged Communication

Court of Chancery Permits Targeted Jurisdictional Discovery to Seek Proof to Support Non-Frivolous Claim of Personal Jurisdiction

HM Life Ins. Co. v. Wilmington Sav. Fund Soc’y, FSB, C.A. No. 2018-0649-SG (Del. Ch. Apr. 9, 2020). If a plaintiff has pled facts in its complaint to support a non-frivolous claim of personal jurisdiction over a defendant,...more

5/18/2020 / Discovery , Insurance Industry , Insurance Litigation , Life Insurance , Personal Jurisdiction

Chancery Holds Plaintiffs’ Emails with Counsel on Defendants’ Server Are Privileged Due to Application of Argentine Law

Lynch v. Gonzalez, C.A. No. 2019-0356-MTZ (Del. Ch. Nov. 18, 2019). The plaintiff brought suit seeking confirmation that it validly acquired from defendants a majority ownership interest and the concomitant right to manage...more

1/2/2020 / Attorney-Client Privilege , Discovery , Document Productions , Email

Tyler O'Connell

Morris James LLP

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