Fortis Advisors, LLC v. Dematic Corp., C.A. No. N18C-12-104 AML [CCLD] (Del. Super. Nov. 18, 2020)

As this decision illustrates, Delaware trial courts have a variety of sanction options available when it comes to violations of court orders or discovery rules, such as the failure to adequately prepare a Rule 30(b)(6) deponent. Any sanction must be “just and reasonable” and tailored to the breaching party’s culpability and the complaining party’s prejudice.

This discovery ruling from the Delaware Superior Court CCLD arose out of a breach of contract dispute relating to a merger agreement’s earn-out provisions. The Court had already ordered the defendant to supplement its interrogatory responses and document production. The parties’ discovery disputes multiplied over time and included the defendant’s production of a Rule 30(b)(6) deponent who admittedly was unprepared for several of the noticed deposition topics. 

The plaintiff sought the sanction of rebuttable presumptions on issues in the case, but the Superior Court denied that relief without prejudice, providing plaintiff a possibly remedy if deficiencies continued. Instead, the Court shifted fees and expenses associated with the Rule 30(b)(6) deposition and the resulting discovery motion practice, while ordering the production of additional information and continued depositions. Notably, the Court also denied the defendant’s request for a special discovery master. Under the circumstances involving past motion practice and orders, the late stage of the litigation, and few remaining discovery disputes, the Court found it most efficient to continue its direct oversight of the process.