Vice Chancellor J. Travis Laster’s ruling in In re Aruba Networks, Inc. Stockholder Litigation, C.A. No. 10765-VCL has received widespread coverage.  See, e.g., Kevin LaCroix, Game Over?: Del. Chancery Court Rejects Disclosure-Only Settlement in H-P/Aruba Networks Merger Objection Lawsuit.  Time will tell whether the Vice Chancellor’s ruling will prove to be the passing bell of disclosure-only settlements in merger objection lawsuits.

Today’s post focuses more narrowly on the Vice Chancellor’s scrutiny of the plaintiffs’ use of “recurring and formulaic” diction in its papers.  In particular, he attacked the plaintiffs’ counsel statement that they had consulted with “experts” and taken “extensive” depositions, when they only had consulted with one expert firm and deposed two witnesses.  He found the plaintiff’s diction to be particularly troubling given the context of the hearing:

And so what I can’t stress enough for you guys is particularly — and don’t forget, there is a heightened professional conduct obligation of disclosure when you are in an ex parte context.

So, what constitutes “extensive” deposition taking?  The Vice Chancellor doesn’t give a precise threshold but he seems to have in mind a number greater than fourteen:

In this one, it seems to be “extensive.”  “Extensive,” to me, actually means you did a lot.  Two is not a lot. Two is two. Three is three. Three to fourteen is a few.  Two is a couple.  You know?  It’s not extensive.  It’s a couple.  We didn’t take “extensive” depositions.  We took a couple of depositions.

I’m not aware of any reported California decisions establishing the threshold for “extensive”.  The word is derived from the Latin word extensus, which is the past participle form of the verb extendere.  In English, the suffix –ive is uses to form adjectives or nouns from verbs. For example, the verb invent becomes the adjective inventive by the addition of the –ive suffix. The word extendere means to reach or stretch out. Thus, it most closely denotes a spacial relationship, not numerosity.  Nonetheless, it also is now used to describe a large number.